Judgment_paragraph 217 · Cableuropa SA and Others v Commission of the European Communities (T-346/02, T-347/02)

217Finally, it must be observed that, when examining the conditions for referral under Article 9(2)(a) of Regulation No 4064/89, the Commission cannot, without depriving point (b) of the first subparagraph of Article 9(3) of its substance, conduct an examination of the compatibility of the concentration in such a way as to bind the national authorities in regard to their substantive findings but must merely establish whether, prima facie, on the basis of the evidence available to it at the time when it assesses the merits of the request for referral, the concentration whose referral is requested threatens to create or strengthen a dominant position on the relevant markets [Royal Philips Electronics v Commission, cited in paragraph 53 above, paragraph 377). Provided the national competition authorities comply with the obligations arising from Article 9(6) and (8) of Regulation No 4064/89 and from Article 10 EC, they are free to rule on the substance of the concentration referred to them on the basis of a proper examination conducted in accordance with national competition law (see, to that effect, Royal Philips Electronics v Commission, cited in paragraph 53 above, paragraphs 369 to 371). Consequently the competent Spanish authorities cannot be deemed to be bound by the provisional assessments of the competition situation in the markets concerned, carried out by the Commission, on a prima facie basis, in its referral decision and for that purpose alone.

Cableuropa SA and Others v Commission of the European Communities (T-346/02, T-347/02)

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