41In this context the Commission observes that, in the case of Air France v Commission, cited in paragraph 40 above, the contested decision did not ensure that there would be a decision on the merits of the concentration under national competition law. On the contrary, in that case the contested decision authorised the immediate implementation of the proposed operation and deprived third parties of their procedural rights. In the present case, the contested decision in no way authorised the concentration. The decision merely effected a transfer of competence without prejudicing the procedural safeguards for the third parties concerned. Referring to the judgments of the Court of Justice in Case C-198/91 Cook v Commission [1993] ECR I-2487, Case C-225/91 Matra v Commission [1993] ECR I-3203 and Case C-70/97 P Kruidvat v Commission [1998] ECR I-7183, the Commission adds that the important point with regard to the admissibility of the action is respect for the right to be heard and not observance of specific procedural rules. Unless it is to be presumed that the Member States, and in particular the Kingdom of Spain, do not respect that fundamental safeguard, it must be found that the contested decision is not of direct concern to the applicants. In any case, there is no ‘variable-geometry’ capacity to bring proceedings, depending on the procedural rules of the State to which the competence to examine a concentration is transferred (see, to that effect, Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 43). If the applicants considered that their right to be heard was not adequately safeguarded before the Spanish competition authorities, they could present their arguments in an action against the final decision adopted by those authorities. Regarding the applicants' argument that the third parties concerned had no right to make their views known at a formal hearing before the Spanish authorities, the Commission observes that, under Article 16 of Commission Regulation (EC) No 447/98 of 1 March 1998 on the notifications, time-limits and hearings provided for by Regulation No 4064/89 (OJ 1998 L 61, p. 1), a third party likewise has no such right in the administrative procedure before the Commission. A third party could make his point of view known only if the Commission deemed it appropriate.
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