Contents
Judgment of the General Court (Second Chamber)5 September 2014note(Competition — Concentrations — Book publishing market — Decision declaring the concentration compatible with the common market subject to sale of assets — Decision approving the purchaser of the assets sold — Decision taken following the annulment by the General Court of the initial decision concerning the same procedure — Legal interest in bringing proceedings — Breach of Article 266 TFEU — Failure to comply with the commitments imposed by the conditional clearance decision — Distinction between conditions and obligations — Principle of non-retroactivity — Assessment of the prospective purchaser — Purchaser’s independence from the seller — Misuse of powers — Obligation to state reasons)In Case T‑471/11,Éditions Odile Jacob SAS, established in Paris (France), represented initially by O. Fréget, M. Struys and L. Eskenazi, then by O. Fréget, L. Eskenazi and D. Béranger and lastly by O. Fréget and L. Eskenazi, lawyers,vEuropean Commission, represented by C. Giolito, O. Beynet and S. Noë, acting as Agents,Lagardère SCA, established in Paris, represented by A. Winckler, F. de Bure, J.‑B. Pinçon and L. Bary, lawyers,Wendel, established in Paris, represented by M. Trabucchi, F. Gordon and A. Gosset-Grainville, lawyers,THE GENERAL COURT (Second Chamber),composed of M.E. Martins Ribeiro, President, S. Gervasoni (Rapporteur) and L. Madise, Judges,Registrar: C. Kristensen, Administrator,having regard to the written procedure and further to the hearing on 6 May 2014,gives the following
Judgment
Background to the dispute
1By Decision 2004/422/EC of 7 January 2004 declaring a concentration compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.2978 — Lagardère/Natexis/VUP) (summarised in OJ 2004 L 125, p. 54, ‘conditional clearance decision of 7 January 2004’), the Commission of the European Communities cleared the proposed purchase by the first intervener, Lagardère SCA, of Vivendi Universal SA’s ‘Publishing’ division for Europe, Vivendi Universal Publishing SA (VUP).
2That clearance was subject to conditions to ensure that Lagardère complied with the commitments, defined by that decision, which it had made to the Commission in order to make the concentration compatible with the common market. Those commitments included the sale of a substantial portion of the assets of VUP (now Editis) to one or more purchasers that were independent of Lagardère.
3In order to comply with its commitments, Lagardère was, among other things, to appoint a trustee who was independent of itself and of Editis who was to be remunerated by Lagardère in a manner that did not compromise the proper performance of its duties or its independence.
4On 5 February 2004, the Commission approved as trustee the firm S., represented by its president, Mr B., and approved the draft definition of its mandate submitted on 30 January 2004.
5On 9 February 2004, Lagardère appointed the firm S. as trustee.
6Lagardère made overtures to a number of undertakings, including the applicant, Éditions Odile Jacob SAS, who might purchase the assets sold. The applicant declared its interest in this transaction. By fax of 28 April 2004, it sent its purchase offer to Lagardère.
7On 28 May 2004, after having declared that it held offers to purchase from five potential buyers, including the applicant, but that it would deal exclusively with one of them, namely the second intervener, Wendel Investissement SA (now Wendel), Lagardère reached a draft agreement with Wendel to purchase Editis’ assets.
8By letter of 4 June 2004 Lagardère asked the Commission to approve Wendel as purchaser of those assets.
9On 5 July 2004, the firm S. submitted to the Commission its summary report with the conclusion that Wendel’s prospective purchase was compatible with the approval criteria for the purchaser of the assets laid down in Lagardère’s commitments, as defined by the conditional clearance decision of 7 January 2004.
10On 8 July 2004, the applicant brought an action for annulment at the General Court against the conditional clearance decision of 7 January 2004 (Case T‑279/04).
11By decision (2004) D/203365 of 30 July 2004 (‘the first approval decision’), notified to the applicant on 27 August 2004, the Commission approved Wendel as purchaser of Editis’ assets to be sold, after making the finding, on the basis of, inter alia, the report from the firm S., that Wendel satisfied the approval criteria for the purchaser defined in Lagardère’s commitments.
12By contract of 30 September 2004, Lagardère transferred to Wendel Editis’ assets to be sold.
13On 8 November 2004, the applicant brought an action for annulment at the General Court against the first approval decision (Case T‑452/04).
14On 30 May 2008, Wendel sold to the Spanish Planeta group Editis’ assets which had been transferred to it by Lagardère.
15By judgment of 13 September 2010 in Éditions Odile Jacob v Commission (T‑279/04, EU:T:2010:384, ‘the judgment in Case T‑279/04’), the General Court (Sixth Chamber) dismissed the applicant’s action for annulment against the conditional clearance decision of 7 January 2004 and, by judgment of the same date in Éditions Odile Jacob v Commission (T‑452/04, ECR, EU:T:2010:385, ‘the judgment in Case T‑452/04’), annulled the first approval decision. According to the General Court, that approval decision had been adopted on the basis of a report produced by a trustee who did not satisfy the condition of independence laid down in Lagardère’s commitments.
16Following the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385), on 22 November 2010 Lagardère submitted to the Commission a new application for approval of Wendel as purchaser of Editis’ assets to be sold and to that end, on 20 December 2010, proposed a new trustee. On 11 January 2011, the Commission approved the new trustee.
17On 24 November 2010, the applicant brought an appeal before the Court of Justice against the judgment in Case T‑279/04, paragraph 15 above (EU:T:2010:384) (Case C‑551/10 P). On the same date, the Commission and Lagardère brought an appeal against the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385) (Joined Cases C‑553/10 P and C‑554/10 P).
18The applicant sent letters to the Commission on 17 December 2010 and 11 March 2011 regarding the consequences of the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385), to which the Commission replied by letters of 24 February and 18 April 2011.
19On 14 February and 16 March 2011, meetings were held between the applicant and the Commission.
20In response to a letter from the applicant dated 25 March 2011, the Commission requested the applicant, on 6 April 2011, to submit its view to the new trustee within two weeks and to send it any additional comments within three weeks. The applicant submitted its observations on the new approval procedure to the new trustee by letter of 20 April 2011 and to the Commission by letter of 27 April 2011.
21In its report, the new trustee concluded that Wendel was a suitable purchaser at the time of the transaction in 2004.
22By decision C(2011) 3503 of 13 May 2011 (‘the contested decision’), notified to the applicant on 27 June 2011, the Commission adopted a new decision, pursuant to the conditional clearance decision of 7 January 2004, approving Wendel, with retroactive effect from 30 July 2004, as purchaser of Editis’ assets to be sold.
23By judgment of 6 November 2012 in Commission and Lagardère v Éditions Odile Jacob (C‑553/10 P and C‑554/10 P, EU:C:2012:682, ‘the judgment in Joined Cases C‑553/10 P and C‑554/10 P’), the Court of Justice dismissed the appeals brought by the Commission and Lagardère against the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385). By judgment of the same date in Éditions Odile Jacob v Commission (C‑551/10 P, EU:C:2012:681, ‘the judgment in Case C‑551/10 P’), it dismissed the appeal brought by the applicant against the judgment in Case T‑279/04, paragraph 15 above (EU:T:2010:384).
Procedure and forms of order sought
24By application lodged at the Registry of the General Court on 5 September 2011, the applicant brought the present action.
25By separate document lodged at the Court Registry on the same date, the applicant made an application for interim measures. By order of 24 November 2011 in Éditions Odile Jacob v Commission (T‑471/11 R, EU:T:2011:695), the President of the General Court dismissed that application for interim measures on the ground of lack of urgency and reserved the costs.
26By separate document lodged at the Court Registry on the same date, the applicant submitted an application for an expedited procedure under Article 76a of the Rules of Procedure of the General Court. By decision of 14 October 2011, the General Court (Eighth Chamber) dismissed that application.
27By documents lodged on 17 and 24 November 2011, Lagardère and Wendel sought leave to intervene in the proceedings in support of the form of order sought by the Commission pursuant to Article 115 of the Rules of Procedure. By orders of the President of the Eighth Chamber of the General Court of 3 December 2012, Lagardère and Wendel were granted leave to intervene in the proceedings in support of the form of order sought by the Commission.
28By order of the President of the Eighth Chamber of the General Court of 22 December 2011, the proceedings in the present case were suspended until final judgment was given in Cases C‑551/10 P, C‑553/10 P and C‑554/10 P. The proceedings were resumed on 6 November 2012.
29Following the partial renewal of the membership of the General Court, the present case was assigned to a new Judge-Rapporteur, sitting in the Second Chamber.
30Acting on a report from the Judge-Rapporteur, the General Court (Second Chamber) decided to open the oral procedure and, in the context of measures of organisation of procedure laid down in Article 64 of the Rules of Procedure, requested the Commission to answer one question. The Commission complied with that request within the prescribed period.
31The parties submitted oral argument and replied to the questions put by the Court at the hearing on 6 May 2014.
32The applicant claims that the Court should:— annul the contested decision;— order the Commission and the interveners to pay the costs.
33The Commission contends that the Court should:— dismiss the action;— order the applicant to pay the costs, including those incurred in the proceedings for interim measures.
34Lagardère and Wendel contend that the Court should:— dismiss the action;— order the applicant to pay all the costs relating to their intervention.
Law
Admissibility
35According to Lagardère and Wendel, the action is inadmissible as the applicant does not have a legal interest in bringing proceedings because, even if the contested decision were annulled, it would not have any way to acquire the assets that were held by Editis and, if an action for damages were brought, it could not apply for compensation for damage greater than that caused by the unlawfulness of the first approval decision.
36As a preliminary point, it should be stated that although at the hearing the Commission expressed doubts regarding the applicant’s legal interest in bringing proceedings, it has not claimed, either in its written submissions or at the hearing, that the action is inadmissible and has merely claimed that the action should be dismissed on the merits. According to the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union, which applies to the procedure before the General Court by virtue of the first paragraph of Article 53 of the Statute, an application to intervene is limited to supporting the form of order sought by one of the parties. In addition, under Article 116(3) of the Rules of Procedure, the intervener must accept the case as he finds it at the time of his intervention.
37It follows that Lagardère and Wendel, as interveners in these proceedings, are not entitled to raise a plea that the action is inadmissible and that the Court is not therefore required to consider the pleas on which they rely (CIRFS and Others v Commission, C‑313/90, ECR, EU:C:1993:111, paragraphs 20 to 22; Kaysersberg v Commission, T‑290/94, ECR, EU:T:1997:186, paragraph 76; and Germany v Commission, T‑576/08, ECR, EU:T:2011:166, paragraphs 38 and 39). The pleas of inadmissibility raised by Lagardère and Wendel must therefore be rejected.
38However, as the lack of a legal interest in bringing proceedings constitutes an absolute bar to proceeding with an action which must be raised by the Court of its own motion (G. d. M. v Council and ESC, 108/86, ECR, EU:C:1987:426, paragraph 10, and Sniace v Commission, T‑141/03, ECR, EU:T:2005:129, paragraph 22), the General Court should examine of its own motion the objection raised by the interveners (CIRFS and Others v Commission, paragraph 37 above, EU:C:1993:111, paragraph 23, and Neotype Techmashexport v Commission and Council, C‑305/86 and C‑160/87, ECR, EU:C:1990:295, paragraph 23).
39According to settled case-law, the interest in bringing proceedings is an essential and fundamental prerequisite for any legal proceedings. The applicant’s legal interest in bringing proceedings presupposes that the annulment of the contested measure must of itself be capable of having legal consequences, that the action must be liable, if successful, to procure an advantage for the party who has brought it and that that person has a vested and present interest in the annulment of that measure (see Socratec v Commission, T‑269/03, EU:T:2009:211, paragraph 36 and cited case-law). Where there are doubts or objections, it is the applicant himself that must prove that he has an interest in making his application (S. v Commission, 206/89 R, ECR, EU:C:1989:333, paragraph 8, and Sniace v Commission, paragraph 38 above, EU:T:2005:129, paragraph 31). The applicant must, in particular, be able to demonstrate a personal interest in the annulment of the contested measure. That interest must be vested and present and is evaluated as at the date on which the action is brought (see Unione provinciale degli agricoltori di Firenze and Others v Commission, T‑78/98, ECR, EU:T:1999:87, paragraph 30 and cited case-law, and Salvat père & fils and Others v Commission, T‑136/05, ECR, EU:T:2007:295, paragraph 34). If the interest upon which an applicant relies concerns a future legal situation, he must demonstrate that the prejudice to that situation is already certain. Therefore, an applicant cannot rely upon future uncertain circumstances to establish his interest in applying for annulment of the contested act (NBV and NVB v Commission, T‑138/89, ECR, EU:T:1992:95, paragraph 33, and Sniace v Commission, paragraph 38 above, EU:T:2005:129, paragraph 26).
40According to case-law, it cannot be contested that those to whom a judgment of a European Union Court annulling an act of an institution is addressed are directly concerned with the way in which the institution executes the judgment and they are therefore entitled to request the European Union judicature to rule on any failure by the institution to perform its obligations under the provisions applicable (see, to this effect, Küster v Parliament, 30/76, ECR, EU:C:1976:165, paragraphs 8 and 9, and Hochbaum v Commission, T‑38/89, EU:T:1990:14, paragraph 9). Consequently, those to whom a judgment of a European Union Court annulling an act of an institution is addressed have a legal interest in bringing proceedings in a dispute relating to compliance with that judgment by the institution in question, even if the contested act has exhausted its effects (van der Stijl and Cullington v Commission, 341/85, 251/86, 258/86, 259/86, 262/86, 266/86, 222/87 and 232/87, ECR, EU:C:1989:93, paragraphs 15 to 18). In the present case, therefore, the fact relied upon by the interveners, that, even if the contested decision were annulled, the applicant would not have any way to acquire the assets that were held by Editis, cannot in itself call that principle into question. Furthermore, it should be noted that although only Lagardère is entitled to propose to the Commission a purchaser of the assets in question, in the event of the annulment of the contested decision for a reason requiring a purchaser other than Wendel to be chosen, the applicant, which in 2004 was included on the list of the five potential purchasers satisfying the selection criteria defined in the commitments, could in principle be proposed as a purchaser by Lagardère and approved by the Commission.
41Because the adoption of the contested decision was the means by which the Commission intended to comply with the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385), the applicant has a legal interest in bringing proceedings against the contested decision by reason alone of its capacity as a party to that case.
42In addition, the contested decision has the same subject-matter as the first approval decision annulled by the General Court in the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385), which it replaces. The applicant is thus affected by the contested decision just as it was by the first approval decision. Neither the General Court in that case nor the Court of Justice ruling on the appeal brought against the General Court’s judgment found that the applicant lacked a legal interest in bringing proceedings against the first approval decision, which the General Court declared unlawful.
43As a secondary point, it should be pointed out that an undertaking has an interest in having annulled a decision which authorises, subject to certain conditions, a concentration between two of its competitors which may affect its commercial situation (easyJet v Commission, T‑177/04, ECR, EU:T:2006:187, paragraph 41). In the same way, an undertaking included on a shortlist of five potential purchasers of the assets to be sold in connection with a concentration shows an interest in having annulled the Commission decision approving another one of those five undertakings because that decision could inevitably affect its commercial situation, irrespective of whether, in the case of the annulment of the contested decision, it might be approved as purchaser of the assets in question.
44In addition, an applicant has an interest in seeking the annulment of an act which directly affects him in order to obtain a finding, by the European Union judicature, that an unlawful act has been committed against him, so that such a finding can then be the basis for any action for damages aimed at properly restoring the damage caused by the contested act (France and Others v Commission, C‑68/94 and C‑30/95, ECR, EU:C:1998:148, paragraph 74, and Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council, T‑299/05, ECR, EU:T:2009:72, paragraphs 53 to 55).
45In the light of the foregoing, the applicant does have a legal interest in bringing proceedings against the contested decision.
Substance
46The applicant relies on six pleas in law in support of the action. First, it claims that the Commission breached Article 266 TFEU and the principle of non-retroactivity. Second, it considers that the contested decision has no legal basis. Third, it alleges that the Commission made errors of law and manifest errors of assessment in taking into account facts subsequent to 30 July 2004 and in using them in a selective manner. Fourth, it takes the view that the Commission made errors of law and manifest errors in its appraisal of Wendel’s bid. Fifth, the applicant raises a plea in law alleging misuse of powers. Sixth, it claims that the contested decision is vitiated by a defective statement of reasons.
The first plea in law, alleging a breach of Article 266 TFEU and of the principle of non-retroactivity
47First, the applicant claims that the Commission infringed the provisions of Article 266 TFEU by adopting the contested decision without neutralising all the effects of the unlawfulness of the first approval decision, when the first approval decision had been annulled by the General Court by reason of a defect of internal legality and not a procedural defect. Second, it considers that the Commission breached the principle of non-retroactivity in adopting the contested decision.
48The Commission and the interveners reject the applicant’s arguments. In addition, according to Lagardère, the first plea in law is inadmissible in so far as it fails to have regard to the principle of estoppel.
–The admissibility of the first plea in law
49Lagardère considers that the first plea in law is inadmissible because in Joined Cases C‑553/10 P and C‑554/10 P, paragraph 23 above (EU:C:2012:682) the applicant had argued that the lack of independence of the first trustee constituted a defect of external and not internal legality, contrary to what it is now claiming before the General Court.
50First, no provision of the Statute of the Court or of the Rules of Procedure prohibits a party from making a legal characterisation of a plea in law that is different from that which it made in another case. According to case-law, a natural or legal person’s right to bring proceedings before the General Court under the fourth paragraph of Article 263 TFEU cannot be limited in the absence of a specific legal basis without infringing the fundamental principles of the rule of law and of respect for the rights of the defence and the rights to an effective remedy and of access to an impartial tribunal guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (Knauf Gips v Commission, C‑407/08 P, ECR, EU:C:2010:389, paragraphs 89 to 91).
51It should also be noted that, although the parties determine the subject-matter of the dispute, which cannot be modified by the Court, the Court must interpret the pleas in law by reference to their substance rather than their characterisation and thus characterise the pleas in law and the arguments in the application (see, to this effect, Fives Lille Cail and Others v High Authority, 19/60, 21/60, 2/61 and 3/61, ECR, EU:C:1961:30; Fachvereinigung Mineralfaserindustrie v Commission, T‑375/03, EU:T:2007:293, paragraphs 65 and 66; and Deutsche Post and DHL International v Commission, T‑388/03, ECR, EU:T:2009:30, paragraph 54).
52Lastly, and in any event, in Union law the principle of estoppel, on which Lagardère relies, merely refers to the fact that it is not possible for a party to contest before the appellate court a factual or procedural element recognised before the court of first instance and included in the record of the hearing before that court (Nijs v Court of Auditors, C‑495/06 P, ECR-SC, EU:C:2007:644, paragraphs 52 to 56, and Kronoply v Commission, C‑117/09 P, EU:C:2010:370, paragraph 44).
53Consequently, without it being necessary to rule on the admissibility of the plea of inadmissibility raised by Lagardère, the first plea in law must be considered to be admissible.
–Breach of the provisions of Article 266 TFEU
54The applicant alleges that Commission infringed the provisions of Article 266 TFEU by adopting the contested decision without neutralising all the effects of the unlawfulness of the first approval decision.
55Under the first paragraph of Article 266 TFEU, the institution whose act has been declared void is required to take the necessary measures to comply with the judgment of the Court of Justice. Those rules provide for the sharing of powers between the judicial authority and the administrative authority, according to which it is for the institution that issued the act annulled to determine what measures are required to comply with a judgment annulling a decision (Erba and Reynier v Commission, 98/63 R and 99/63 R, EU:C:1963:46; Meskens v Parliament, T‑84/91, ECR, EU:T:1992:103, paragraph 73; and C and F v Commission, F‑44/06 and F‑94/06, ECR-SC, EU:F:2007:66, paragraph 33).
56It is settled case-law that annulment judgments given by the European Union Courts have force of res judicata with absolute effect as soon as they become final. This applies not only to the operative part of the judgment annulling a decision, but also to the grounds which are its essential basis and are inseparable from it (Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, ECR, EU:C:1988:199, paragraphs 27 to 30; Industrie des poudres sphériques v Council, C‑458/98 P, ECR, EU:C:2000:531, paragraph 81; and ThyssenKrupp Stainless v Commission, T‑24/07, ECR, EU:T:2009:236, paragraphs 113 and 140). The judgment annulling the act therefore means that the author of the annulled act must adopt a new act having regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, thereby ensuring that the new act is not affected by the same irregularities as those identified in the judgment annulling the original act (see, to this effect, Interporc v Commission, C‑41/00 P, ECR, EU:C:2003:125, paragraphs 29 and 30).
57However, the principle of res judicata in respect of a judgment extends only to the matters of fact and law actually or necessarily settled (Italy v Commission, C‑281/89, ECR, EU:C:1991:59, paragraph 14). Furthermore, an obiter dictum in a judgment annulling an act does not have force of res judicata with absolute effect (see, to this effect, ThyssenKrupp Nirosta v Commission, C‑352/09 P, ECR, EU:C:2011:191, paragraph 132). Thus, Article 266 TFEU requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure (Interporc v Commission, paragraph 56 above, EU:C:2003:125, paragraph 30).
58The procedure for replacing an annulled measure must be resumed at the very point at which the illegality occurred (see, to this effect, Council v Parliament, 34/86, ECR, EU:C:1986:291, paragraph 47), the annulment of an act not necessarily affecting the preparatory acts (Fédesa and Others, C‑331/88, ECR, EU:C:1990:391, paragraph 34). The annulment of an act concluding an administrative proceeding which comprises several stages does not necessarily entail the annulment of the entire procedure prior to the adoption of the contested act, regardless of the grounds, procedural or substantive, of the judgment pronouncing the annulment (see Industrie des poudres sphériques v Council, T‑2/95, ECR, EU:T:1998:242, paragraph 91 and cited case-law). The author of the act must thus have reference to the date on which it had adopted the annulled act with a view to adopting the replacement act (see, to this effect, O2 (Germany) v Commission, T‑328/03, ECR, EU:T:2006:116, paragraphs 47 and 48). It may, however, rely, in its new decision, on grounds other than those on which it based its first decision (see, to this effect, Interporc v Commission, paragraph 56 above, EU:C:2003:125, paragraphs 28 to 32). In addition, it is not required to rule again on aspects of the initial decision which were not called into question by the judgment annulling that decision (see, to this effect, Tremblay and Others v Commission, T‑224/95, ECR, EU:T:1997:187, paragraphs 53 and 72).
59Furthermore, it should be noted that the possibility for the institution not to repeat the entire procedure prior to the adoption of an annulled measure is not subject to that measure having been annulled on the ground of procedural defects (see, to this effect, Industrie des poudres sphériques v Council, paragraph 58 above, EU:T:1998:242, paragraph 91, and Alitalia v Commission, T‑301/01, ECR, EU:T:2008:262, paragraph 103).
60It must be ascertained in the light of the above considerations whether, in the contested decision, the Commission took the necessary measures to comply with the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385) and, in that context, it must be examined in particular whether, as the applicant claims, the grounds of that judgment oblige the Commission to revoke the conditional clearance decision of 7 January 2004 and whether those grounds oblige it to repeat the entire procedure from 9 February 2004, the date on which Lagardère appointed the first trustee.
61It is first necessary to examine the operative part and the grounds of the judgment in Case T‑452/04, point 15 above (EU:T:2010:385), which definitively has force of res judicata with absolute effect because the Court of Justice dismissed the appeals brought against it (Cascades v Commission, T‑308/94, ECR, EU:T:2002:47, paragraph 70). It should be noted that the General Court annulled the first approval decision by upholding the second plea in law raised by the applicant, which claimed that that decision had been adopted on the basis of a report produced by a trustee who was not independent of Editis (judgment in Case T‑452/04, paragraph 15 above, EU:T:2010:385, paragraph 65). On the other hand, the General Court did not rule on the other pleas in law raised by the applicant.
62In its arguments concerning the second plea in law, the applicant had stated inter alia that the mere existence of a doubt as to the independence of the trustee was sufficient to vitiate the procedure relating to the assets sold and, consequently, the first approval decision as the assessment report on a prospective purchaser drawn up by the trustee had been a fundamental and decisive factor in the Commission’s decision to approve, or not, the party concerned (judgment in Case T‑452/04, paragraph 15 above, EU:T:2010:385, paragraphs 71 and 72). The General Court upheld that plea in law, taking the view that the report assessing Wendel as a prospective purchaser had been drawn up by a trustee who did not meet the condition of independence from Editis required by paragraph 15 of Lagardère’s commitments (judgment in Case T‑452/04, paragraph 15 above, EU:T:2010:385, paragraph 107) and that that illegality was such as to vitiate the content of the first approval decision because the report by the trustee had had a decisive influence on that decision (judgment in Case T‑452/04, paragraph 15 above, EU:T:2010:385, paragraphs 110 to 118). The Court thus ruled only on the independence of the first trustee and on the effects of its lack of independence on the report assessing Wendel as a prospective purchaser and the impact of that defect on the first approval decision.
63Whilst it is true, as the applicant argues, that the General Court also stated, in paragraph 100 of the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385), that ‘the performance by B. [the representative of the first trustee] of his duties as a member of the executive board of the company which owned all Editis’ assets was such as to affect the independence which the individual concerned was required to demonstrate when drawing up recommendations for necessary restructuring measures and the report informing the Commission of those recommendations’, that statement does not constitute the essential basis for the operative part of the judgment and does not therefore have force of res judicata with absolute effect (see paragraph 57 above). It must be stated that the lawfulness of the recommendations for necessary restructuring measures made by that trustee was not the subject-matter of that case, nor were all the measures taken by the trustee other than the report assessing Wendel as a prospective purchaser. In view of the arguments put forward by the applicant in that case, the General Court had to confine itself to assessing the independence of the first trustee and the effects of any lack of independence on the part of that trustee on the first approval decision, which was the sole act challenged in the action.
64In addition, although, as the applicant argues, it was held in the judgment in Joined Cases C‑553/10 P and C‑554/10 P, paragraph 23 above (EU:C:2012:682) that the trustee’s independence ‘is a component of the commitments which were undertaken by Lagardère and which must be fully respected’, that ‘that independence was laid down ex ante and extends to every activity of the trustee’ (judgment in Joined Cases C‑553/10 P and C‑554/10 P, paragraph 23 above, EU:C:2012:682, paragraph 42), that the performance by Mr B. of his duties as a member of the executive board of Investima 10 SAS, now Editis, was such as to affect his independence and that ‘that situation did not ensure an entirely independent discharge of his responsibilities as an independent trustee as required by paragraph 15 of Lagardère’s commitments’ (judgment in Joined Cases C‑553/10 P and C‑554/10 P, paragraph 23 above, EU:C:2012:682, paragraph 44), the Court did not, however, at any point rule on the scope of the measures taken by the trustee other than the report assessing Wendel as a prospective purchaser, prior to its approval.
65Consequently, in order to comply with the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385), the Commission was required to approve a new trustee to produce a new report assessing Wendel as a prospective purchaser, having reference to the date on which Lagardère had requested the Commission to approve Wendel as purchaser of the assets, namely 4 June 2004, then to adopt a decision to authorise or to refuse to approve Wendel on the basis, inter alia, of that new report.
66It is apparent from the documents before the Court that in order to comply with the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385), on 11 January 2011 the Commission approved the new trustee proposed by Lagardère, who on 12 May 2011 delivered to it its report assessing Wendel as a prospective purchaser, in which it examined, first, the situation at the time when Lagardère had requested the Commission to approve Wendel as purchaser of the assets (on 4 June 2004) and, second, changes in the assets sold during the subsequent period, distinguishing the period during which they were held by Wendel (July 2004-May 2008) from the period during which they were owned by Planeta (from May 2008). The Commission then adopted the contested decision on 13 May 2011, approving Wendel, with retroactive effect from 30 July 2004, as purchaser of Editis’ assets to be sold. In that decision, the Commission assessed the situation as at 4 June 2004, the date of the first application for approval submitted by Lagardère, and corroborated its findings by analysing the situation after that date.
67By adopting those measures, the Commission complied with the force of res judicata of the General Court’s judgment. None of the arguments put forward by the applicant can affect that finding.
68The applicant alleges, first of all, that the Commission did not neutralise all the effects of the unlawfulness of the first approval decision. In its view, the appointment of an independent trustee was one of Lagardère’s commitments on the basis of which the conditional clearance decision of 7 January 2004 had been taken, a commitment that was inseparable for that decision as a whole. In the view of the applicant, the Commission was therefore required to adopt a decision revoking the clearance of the concentration together with, if necessary, a fine pursuant to Article 8(5) and Article 14(2) of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1990 L 257, p. 13). Furthermore, the applicant alleges that the Commission could not have seriously considered the report by the new trustee, which had been submitted to it only just before the adoption of the contested decision, and forced that new trustee to produce an incomplete and laudatory report.
69As a first point, it should be noted that the annulment of the first approval decision did not, in itself, affect the lawfulness of the conditional clearance decision of 7 January 2004, as that annulment only made the latter decision temporarily inapplicable for as long as the Commission had not taken a view on the consequences of that annulment, in particular on the possible approval of a new purchaser. Contrary to the claim made by the Commission and the interveners, the fact that, by judgments delivered on the same date as those which annulled the first approval decision, the General Court and the Court of Justice dismissed the action brought against the conditional clearance decision of 7 January 2004 had no bearing on the question whether the Commission was required to revoke the latter decision.
70As a second point, the applicant claims that the Commission was required to adopt a decision revoking the clearance of the concentration together with a fine.
71As a preliminary remark, and without there being any need to rule on their admissibility, the interveners’ arguments claiming that the applicant can challenge the failure by the Commission to adopt measures other than the contested decision only in an action for failure to act must be rejected. Article 266 TFEU does not establish a particular means of ensuring compliance with the judgments of the European Union Courts. If a person considers that the act adopted to replace the annulled act is not consistent with the grounds and the operative part of the annulled act, he may bring a new action for annulment under Article 263 TFEU. In contrast, the action for failure to act provided for by Article 265 TFEU is the appropriate means for obtaining a declaration that the failure by an institution to take the necessary measures to comply with a judgment is unlawful (SIC v Commission, T‑297/01 and T‑298/01, ECR, EU:T:2004:48, paragraph 32) or for determining whether, in addition to replacing the measure annulled, the institution was also bound to take other measures relating to other acts which were not challenged in the initial action for annulment (Asteris and Others v Commission, paragraph 56 above, EU:C:1988:199, paragraphs 22 to 24, and Asia Motor France and Others v Commission, T‑387/94, ECR, EU:T:1996:120, paragraph 40). In the present case, the applicant is entitled to bring an action for annulment before the General Court because it is precisely challenging the way in which the Commission executed the General Court’s judgment. Whilst it is true that it complains that the Commission did not adopt other decisions and that that challenge could be made in proceedings on a failure to act, this does not affect the admissibility of the present complaint in so far as, in criticising the lawfulness of the contested decision, the applicant relies on arguments alleging that the Commission should have adopted other measures in the place of that decision.
72It should also be pointed out that, as the parties acknowledged at the hearing, Regulation No 4064/89 was still applicable when the contested decision was adopted, pursuant to Article 26(2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), under which ‘Regulation (EEC) No 4064/89 shall continue to apply to any concentration which was the subject of an agreement or announcement or where control was acquired within the meaning of Article 4(1) of that Regulation before the date of application of this Regulation’.
73It should also be borne in mind that, contrary to the claim made by the applicant, Regulation No 4064/89 and the Commission Notice on remedies acceptable under Regulation No 4064/89 and under Commission Regulation (EC) No 447/98 (OJ 2001 C 68, p. 3, ‘the Notice on remedies’) draw a distinction between conditions and obligations imposed on undertakings in the procedure for conditional clearance of a concentration. Thus, the second subparagraph of Article 8(2) of Regulation No 4064/89 provides that the Commission ‘may attach to its decision conditions and obligations intended to ensure that the undertakings concerned comply with the commitments they have entered into vis-à-vis the Commission with a view to modifying the original concentration plan’. More specifically, under paragraph 12 of the Notice on remedies, ‘[t]he requirement for achievement of each measure that gives rise to the structural change of the market is a condition — for example, that a business is to be divested’, whilst ‘[t]he implementing steps which are necessary to achieve this result are generally obligations on the parties, e.g. such as the appointment of a trustee with an irrevocable mandate to sell the business’.
74Pursuant to those provisions, in the conditional clearance decision of 7 January 2004 the Commission stated that ‘the Decision to declare the transaction compatible with the common market is accordingly subject to the condition that the notifying party comply in full with the commitments to sell assets which are set out in paragraphs 1 to 3 and 10 of Annex II’ and that ‘full compliance with the other commitments set out in Annex II is an obligation imposed on the notifying party’ (paragraph 1010).
75This distinction between conditions and obligations is important in that non-compliance does not entail the same consequences.
76Thus, Article 8(5)(b) of Regulation No 4064/89 expressly states that where the undertakings concerned commit a breach of an obligation attached to the Commission decision, the Commission may revoke the decision. Furthermore, under Article 14(2)(b) of Regulation No 4064/89, the Commission may impose a fine on undertakings which fail to comply with an obligation imposed by decision. Similarly, the Notice on remedies (paragraph 12) provides that ‘[w]here the undertakings concerned commit a breach of an obligation, the Commission may revoke clearance decisions issued either under Article 6(2) or Article 8(2) of the Merger Regulation, acting pursuant to Article 6(3) or Article 8(5)(b), respectively’ and that ‘[t]he parties may also be subject to fines and periodic penalty payments as provided in Article 14(2)(a) and 15(2)(a) respectively [of Regulation No 4064/89]’.
77On the other hand, Regulation No 4064/89 does not expressly provide for specific consequences for failure to comply with a condition.
78According to settled case-law, in interpreting a provision of Union law, it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it forms part (see VEMW and Others, C‑17/03, ECR, EU:C:2005:362, paragraph 41 and cited case-law, and Germany v Commission, T‑236/07, ECR, EU:T:2010:451, paragraph 44).
79It is common ground, first, that a condition which may be attached to a clearance decision adopted pursuant to Article 8(2) of Regulation No 4064/89 constitutes a structural measure without which the concentration could not have been declared compatible with the common market. Consequently, if that condition is not complied with, the concentration cannot be considered to be compatible with the common market. Second, under Article 8(4) and Article 14(2)(c) of that regulation, the Commission can require any action that may be appropriate in order to restore conditions of effective competition and impose a fine on undertakings which do not take the measures ordered. It would run counter to the very purpose of those provisions if the Commission were unable to have recourse to them solely on the ground that they do not expressly mention the case where a party fails to comply with a condition to which the concentration was subject.
80It is clear from the provisions mentioned in the preceding paragraph that if a party fails to comply with a condition, a structural measure without which the concentration could not be authorised, the decision declaring the concentration compatible with the common market no longer stands. This interpretation is confirmed, moreover, by the Notice on remedies, which states in paragraph 12 that where a condition is not fulfilled, ‘the situation rendering the concentration compatible with the common market does not materialise’ and that ‘the compatibility decision no longer stands’. That Notice stipulates that ‘[i]n such circumstances, the Commission may, pursuant to Article 8(4) of the Merger Regulation, order any appropriate action necessary to restore conditions of effective competition’ and that ‘[i]n addition, the parties may also be subject to fines as provided in Article 14(2)(c)’.
81Similarly, in its Green Paper on the Review of Regulation No 4064/89 (COM/2001/0745 final), the Commission stated, in paragraph 223, that it applied the provisions of Article 8(4) of Regulation No 4064/89 in situations where the parties committed a serious breach of conditions or obligations that had enabled it to approve the concentration and that, in the case of breach of a condition, that breach entailed automatic illegality of the concentration, while in the case of breach of an obligation it had the possibility to revoke the clearance decision.
82Lastly, Regulation No 139/2004, which repealed and replaced Regulation No 4064/89, likewise states in recital 31 in its preamble, relating to the instruments at the Commission’s disposal to ensure the enforcement of commitments, that ‘[i]n cases of failure to fulfil a condition attached to the decision declaring a concentration compatible with the common market, the situation rendering the concentration compatible with the common market does not materialise and the concentration, as implemented, is therefore not authorised by the Commission’, that ‘[a]s a consequence, if the concentration is implemented, it should be treated in the same way as a non-notified concentration implemented without authorisation’ and that ‘[f]urthermore, where the Commission has already found that, in the absence of the condition, the concentration would be incompatible with the common market, it should have the power to directly order the dissolution of the concentration, so as to restore the situation prevailing prior to the implementation of the concentration’. On the other hand, ‘[w]here an obligation attached to a decision declaring the concentration compatible with the common market is not fulfilled, the Commission should be able to revoke its decision’ and ‘[m]oreover, the Commission should be able to impose appropriate financial sanctions where conditions or obligations are not fulfilled’.
83In the light of the foregoing, in particular the considerations set out in paragraph 76 above, under Article 8(5)(b) and Article 14(2) of Regulation No 4064/89, in the case of non-compliance with an obligation attached to a decision declaring a concentration compatible with the common market, the Commission may revoke that decision and impose a fine on the undertaking which failed to comply with that obligation, but it is not required to adopt such measures.
84In the present case, according to the conditional clearance decision of 7 January 2004, ‘[t]he Decision to declare the transaction compatible with the common market is accordingly subject to the condition that the notifying party comply in full with the commitments to sell assets which are set out in paragraphs 1 to 3 and 10 of Annex II’ and ‘[f]ull compliance with the other commitments set out in Annex II is an obligation imposed on the notifying party’ (paragraph 1010). In the operative part of that decision, the Commission makes the same distinction, Article 2 stating that Article 1, which declares the transaction compatible with the common market, ’shall apply on condition that Lagardère complies in full with the commitments referred to in paragraphs 1 to 3 and 10 of Annex II’, whilst Article 3 provides that ‘this Decision is subject to an obligation on Lagardère to comply in full with the other commitments set out in Annex II’. Provision was made in point 15 of Annex II for the appointment of an independent trustee, which therefore constituted an obligation and not a condition, contrary to the claim made by the applicant. Consequently, the Commission was not required either to revoke the conditional clearance decision of 7 January 2004 or to impose a fine on Lagardère.
85The applicant claims, in the alternative, that the Commission could not have reference to the date of 30 July 2004 in adopting the contested decision, as the lack of independence of the trustee had invalidated all the acts performed by it or under its supervision.
86It is evident from paragraph 58 above that, according to case-law, the Commission was required to repeat the procedure only at the very point at which the illegality established occurred, the annulment of an act not necessarily affecting the lawfulness of the preparatory acts. It is not disputed that the unlawfulness established by the General Court in the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385) related only to the report by the first trustee and the first approval decision.
87It is also evident from paragraphs 62 to 64 above that in Case T‑452/04, paragraph 15 above (EU:T:2010:385) the General Court was required only to rule on the independence of the first trustee and on the effects of its possible lack of independence on its report assessing Wendel as a prospective purchaser and on the first approval decision, as the applicant had not challenged all the acts previously adopted by the first trustee.
88Furthermore, the interveners point out that the Commission could not, in practice, rehabilitate Editis’ assets more than eight years after the fact and that it had to respect the principles of legitimate expectations and legal certainty, vis-à-vis themselves and Planeta.
89Because it is clear from all the above statements that the Commission was not required to rehabilitate Editis’ assets in order to comply with the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385), it is only for the sake of completeness that it will be examined whether the principles of legitimate expectations and legal certainty preclude the Commission from revoking the conditional clearance decision of 7 January 2004.
90It should be pointed out, first of all, that the principle of the protection of legitimate expectations, which is a fundamental principle of Union law (Dürbeck, 112/80, ECR, EU:C:1981:94, paragraph 48), is the corollary of the principle of legal certainty, which requires that legal rules be clear and precise, and aims to ensure that situations and legal relationships governed by Union law remain foreseeable (Duff and Others, C‑63/93, ECR, EU:C:1996:51, paragraph 20).
91It is settled case-law that the right to rely on the principle of the protection of legitimate expectations extends to any person with regard to whom an institution of the European Union has given rise to justified hopes (see Van den Bergh en Jurgens and Van Dijk Food Products (Lopik) v EEC, 265/85, ECR, EU:C:1987:121, paragraph 44 and cited case-law). Three conditions must be satisfied in order for a claim to entitlement to the protection of legitimate expectations to be well founded. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the Union authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see Branco v Commission, T‑347/03, ECR, EU:T:2005:265, paragraph 102 and cited case-law; Cementbouw Handel & Industrie v Commission, T‑282/02, ECR, EU:T:2006:64, paragraph 77; and CPEM v Commission, T‑444/07, ECR, EU:T:2009:227, paragraph 126).
92The interveners seek to qualify this third condition, claiming that only an undertaking which has committed a manifest infringement of the rules in force may not rely upon the principle of the protection of legitimate expectations. However, the case-law which they invoke (Sideradria v Commission, 67/84, ECR, EU:C:1985:506, paragraph 21; Industrias Pesqueras Campos and Others v Commission, T‑551/93 and T‑231/94 to T‑234/94, ECR, EU:T:1996:54, paragraph 76; and Oliveira v Commission, T‑73/95, ECR, EU:T:1997:39, paragraph 28) is not relevant in the present case because, in assessing whether the third condition laid down by the case-law mentioned in the preceding paragraph is fulfilled, it is not necessary to determine whether the interveners have manifestly infringed the rules in force, but whether, by approving Wendel as purchaser when its bid had been evaluated by a non-independent trustee, the Commission infringed the applicable rules, namely the commitments made in the conditional clearance decision of 7 January 2004. According to case-law, it does not matter whether or not the administration has manifestly infringed the relevant rules. Moreover, the Commission itself acknowledged, in paragraph 62 of the defence, that in principle case-law excluded the protection of legitimate expectations in a case like the present one.
93In any event, according to case-law, while it is important to ensure compliance with requirements of legal certainty which protect private interests, those requirements must be balanced against requirements of the principle of legality which protect public interests, and precedence must be accorded to the latter when the maintenance of irregularities would be likely to infringe the principle of equal treatment (see, to this effect, Snupat v High Authority, 42/59 and 49/59, ECR, EU:C:1961:5; Koninklijke Nederlandsche Hoogovens en Staalfabrieken v High Authority, 14/61, ECR, EU:C:1962:28; and José Martí Peix v Commission, T‑125/01, ECR, EU:T:2003:7213, paragraph 111).
94Accordingly, it would not have been contrary to the principles of legitimate expectations and legal certainty if the Commission, if it had considered it appropriate, had revoked the conditional clearance decision of 7 January 2004.
95Lastly, the applicant claims that the Commission infringed Article 266 TFEU in that, first, it could not have seriously considered the report by the new trustee, which had been submitted to it only just before the adoption of the contested decision, and, second, that new trustee produced an incomplete and laudatory report.
96With regard to the fact that the report by the new trustee was submitted to the Commission only just before the adoption of the contested decision, the Commission stated at the hearing that the new trustee had delivered the English version of its report three months before the adoption of the contested decision, thus allowing it to be apprised of its content. In any event, it is clear from the very wording of the contested decision that the Commission took the report by the new trustee duly into consideration.
97Moreover, according to paragraph 28 of the Commission’s Best Practice Guidelines of 2 May 2003 on Model Texts for Divestiture Commitments and the Trustee Mandate, the assessment report produced by the trustee constitutes no more than one element for the Commission’s assessment, it is not legally bound by the trustee’s opinion and it is still required to undertake the necessary investigation in order to ascertain that the purchaser does indeed satisfy the approval criteria (Opinion of Advocate General Mazák in Commission and Lagardère v Éditions Odile Jacob, C‑553/10 P and C‑554/10 P, paragraph 23 above, EU:C:2012:173, paragraphs 55 to 57). The General Court has already pointed out, with regard to Article 82 EC, that the Commission was not entitled to delegate to a third party the powers of investigation and enforcement conferred on it by Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-62, p. 87) (Microsoft v Commission, T‑201/04, ECR, EU:T:2007:289, paragraph 1264). In the present case, it is clear from paragraphs 24 and 25 of the contested decision that the Commission based its findings not only on the report by the new trustee, but also on many other sources of information, namely the application for approval by Lagardère, the written replies from Lagardère and from Wendel of 21 June 2004 to its request for information, information provided by Wendel at a meeting between the Commission and Wendel, an exchange of views between the Commission and organisations representing Editis’ staff, the replies by Wendel and Lagardère to the requests for information made in 2011 and the meetings held with Wendel and Lagardère in 2011. Consequently, assuming that it was established, the fact alone that the report by the new trustee was received by the Commission only just before the adoption of the contested decision cannot vitiate that decision.
98As regards the claim that the new trustee produced an incomplete and laudatory report, intended only to rectify the error made by the Commission, the applicant does not offer any evidence in support of that claim, apart from quoting a passage of the report concerning the examination of the scope of the assets included in the transaction concluded in 2004 between Lagardère and Wendel compared with the scope of the assets in the commitments. However, in that passage of the report, although the trustee stated that its examination had not allowed it to ascertain whether the sale of businesses of certain legal entities had complied with those commitments, it also pointed out that, ‘in any event, all transactions between undertakings were subject to the obligations to preserve the business sold, as set out in the commitments, under the supervision of the trustee at the time’ (p. 29) and concluded that there was nothing to show that the scope of the transactions was substantially different from the scope of the assets to be sold in accordance with the commitments (p. 30).
99In the light of the above considerations, the first part of the first plea in law must be rejected as unfounded.
–Breach of the principle of non-retroactivity
100The applicant claims that the Commission breached the principle of non-retroactivity by adopting the contested decision with effect from 30 July 2004, as Union acts can apply retroactively only in exceptional cases linked to an aim of general interest.
101The Commission and the interveners reject the applicant’s arguments.
102A judgment by which a measure is annulled necessarily has retroactive effect, as the finding of illegality takes effect from the date on which the annulled measure entered into force (Asteris and Others v Commission, paragraph 56 above, EU:C:1988:199, paragraph 30; see also, to this effect, CELF and Ministre de la Culture et de la Communication, C‑199/06, ECR, EU:C:2008:79, paragraph 61). However, this should be distinguished from the retroactive character of a new decision taken by the administration to replace the annulled act. According to case-law, the principle of legal certainty, which constitutes a general principle of Union law (Portelange, 10/69, ECR, EU:C:1969:36), precludes, as a general rule, a measure from taking effect from a point in time before its publication. According to settled case-law, however, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected (Racke, 98/78, ECR, EU:C:1979:14, paragraph 20; Amylum v Council, 108/81, ECR, EU:C:1982:322, paragraph 4; and Fédesa and Others, paragraph 58 above, EU:C:1990:391, paragraph 45).
103Contrary to the claim made by Lagardère, the case-law is not based on a distinction between individual decisions and regulatory acts. It is true that the judgments in which the Court highlighted the principle of non-retroactivity concerned directives or regulations. Nevertheless, in those judgments the Court made reference to Union acts as a whole, and not only to regulatory acts. Furthermore, it has stated, precisely with regard to the possibility of retroactively adopting a measure following a judgment annulling an act, that it must be decided whether the principle of legal certainty protecting those concerned precluded the provisions at issue, whether they be regulations or individual measures (Roquette Frères v Council, 110/81, ECR, EU:C:1982:323, paragraph 21). The three judgments of the General Court cited by Lagardère in its statement in intervention (O2 (Germany) v Commission, paragraph 58 above, EU:T:2006:116, paragraph 48; GlaxoSmithKline Services v Commission, T‑168/01, ECR, EU:T:2006:265, paragraph 320; and Bayer CropScience and Others v Commission, T‑75/06, ECR, EU:T:2008:317, paragraphs 63 and 64) do not concern the lawfulness of a retroactive individual decision following a contested annulment, but the date to which the author of the annulled act should have reference in adopting the replacement act with a view to determining the relevant facts and the applicable rules. As regards C and F v Commission (paragraph 55 above, EU:F:2007:66), also relied upon by Lagardère, it should be noted that in that judgment the Civil Service Tribunal held that in that situation the institution concerned could adopt a retroactive individual measure compulsorily retiring the applicant and granting him an invalidity allowance because the preceding decision had been annulled by the European Union Court on the ground of an error in the legal basis. However, the Civil Service Tribunal did not give a general ruling on the possibility of adopting a retroactive individual decision. Furthermore, in that case, no third-party legitimate expectations could be affected a priori by the retroactive measure adopted, which concerned only the applicant.
104It must therefore be ascertained whether the two criteria set by the case-law for the lawful adoption of a retroactive administrative act were respected in the present case.
105As regards the first criterion relating to the purpose to be achieved, according to the case-law mentioned in paragraph 102 above, it must be examined whether the contested decision had an aim of general interest. However, contrary to the claim made by the applicant, the case-law does not mention the need for there to be an overriding general interest.
106In the present case, the adoption of a new retroactive approval decision was intended to fulfil several general interest objectives. The purpose of the new decision was to remedy the unlawfulness found in the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385). The respect by the administration of legality and the force of res judicata clearly constitutes an aim of general interest. Furthermore, the new decision sought to fill the legal vacuum created by the annulment of the first approval decision by the European Union Court and thus to protect the legal certainty of the undertakings subject to the application of Regulation No 4064/89 which participated in the 2004 concentrations and in the transaction that took place in 2008. It is clear from recitals 7 and 17 in the preamble to that regulation that its primary purpose is to ensure the effectiveness of the control of concentrations and legal certainty of the undertakings involved (see Lagardère and Canal+ v Commission, T‑251/00, ECR, EU:T:2002:278, paragraph 97 and cited case-law).
107The second criterion permitting the administration to adopt a retroactive act, in relation to the legitimate expectations, tests whether the individual administrative act with retroactive application is without prejudice to the legitimate expectations of the persons to whom it is directly addressed or to those of third parties.
108First, it is common ground between the parties that the contested decision is without prejudice to the legitimate expectations of the interveners or of Planeta. There is therefore no need to examine the applicant’s arguments claiming that those three companies cannot in any case rely upon the principle of the protection of legitimate expectations. Second, with regard to the applicant, the view must be taken, contrary to its claims, that the principle of ‘legitimate expectations in due compliance with judicial decisions’ does not preclude the adoption of a new retroactive approval decision because the implementation of the commitments laid down in the conditional clearance decision of 7 January 2004, which were still binding on Lagardère, meant that Lagardère proposed a purchaser of the assets to be sold to the Commission for approval and that the Commission decided on the proposal for the purchaser made by Lagardère. It has previously been ruled that, on the contrary, it was the refusal by an institution to comply with a judgment of a European Union Court that adversely affected the confidence that litigants must have in the Union judicial system, which is based, in particular, on respect for the decisions made by the European Union Courts (Hautem v EIB, T‑11/00, ECR, EU:T:2000:295, paragraph 51). In the present case, the failure by the Commission to adopt a new approval decision could have infringed the principle of respect for judicial decisions. Furthermore, the applicant cannot claim that the Commission had created justified hopes on its part that it would be selected as purchaser of Editis’ assets itself, since Lagardère alone was entitled to propose a purchaser to the Commission (see paragraph 40 above).
109In conclusion, the two criteria set by case-law for the lawful adoption of an administrative act with retroactive effect were met in this case.
110Lastly, the applicant states that neither the Court of Justice nor the General Court deemed it necessary to adjust the temporal effects of the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385), which meant that those Courts did not consider it necessary to confirm the first approval decision retroactively.
111The provisions of the second paragraph of Article 264 TFEU permit a European Union Court to limit the retroactive effect of annulments it pronounces by authorising it, if it considers it necessary, to state which of the effects of an annulled act are to be considered as definitive for the past. The Court may thus decide, of its own motion, to maintain the effects of an annulled act (Parliament and Denmark v Commission, C‑14/06 and C‑295/06, ECR, EU:C:2008:176, paragraphs 84 to 86) or to reach that decision at the request of the parties. The fact that neither the General Court nor the Court of Justice considered it necessary to limit the retroactive effect of the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385) does not mean, however, that the Courts considered that the Commission was not able to adopt a new retroactive approval decision. First, the adjustment of the temporal effects of a judgment is merely an option for the Court and not an obligation. Second, it should be borne in mind that the Commission did not confine itself to confirming the first approval decision retroactively, but it appointed a new independent trustee then considered, on the basis of the report produced by that trustee and further to its own analysis, whether Wendel satisfied the conditions applicable to the purchaser of Editis’ assets laid down in the conditional clearance decision of 7 January 2004.
112In the light of the above considerations, the second part of the first plea in law must be regarded as unfounded. The first plea in law must therefore be rejected in its entirety.
The second plea in law, alleging that the contested decision has no legal basis
113The applicant claims that the General Court’s finding that Lagardère had failed to comply with some of its commitments had the effect of making the clearance of the concentration inapplicable and that the contested decision therefore has no legal basis. As Lagardère infringed paragraphs 1 and 10 of its commitments, the Commission could no longer apply the conditional clearance decision of 7 January 2004.
114The Commission and the interveners reject the applicant’s arguments. In addition, Lagardère takes the view that the second plea in law is inadmissible because the applicant cannot claim that the conditional clearance decision of 7 January 2004 is unlawful.
–The admissibility of the second plea in law
115Lagardère considers that the second plea in law is inadmissible, as the conditional clearance decision of 7 January 2004 became definitive following the delivery of the judgment in Case C‑551/10 P, paragraph 23 above (EU:C:2012:681) and the applicant cannot now claim that it is unlawful.
116Without there being any need to rule on its admissibility, this argument must be rejected because the applicant does not submit that the conditional clearance decision of 7 January 2004 is unlawful, claiming its illegality, but that it became inapplicable because Lagardère had breached one of its commitments.
–The lack of legal basis of the contested decision
117It should be borne in mind that the action brought by the applicant against the conditional clearance decision of 7 January 2004 was dismissed by the General Court, that the Court of Justice dismissed the appeal brought against the General Court’s judgment and that those judgments are therefore binding on the parties to the dispute. The judgments dismissing the action and the appeal have such binding force, the only consequence of which is to render inadmissible any new action with the same subject-matter, involving the same parties and based on the same cause of action (Hoogovens Groep v Commission, 172/83 and 226/83, ECR, EU:C:1985:355, paragraph 9). A judgment dismissing an action or an appeal does not therefore mean that the contested act is valid, but only that none of the pleas in law raised by the applicant was well-founded and that the same was true of the pleas concerning a matter of public policy which the Court must raise of its own motion. Consequently, the contested act continues to benefit from a presumption of legality, which also imposes upon all persons subject to Union law the obligation to acknowledge that that act is fully effective so long as it has not been declared to be unlawful (Granaria, 101/78, ECR, EU:C:1979:38, paragraph 5). As the conditional clearance decision of 7 January 2004 was the subject of an action dismissed by a judgment of the General Court which was confirmed by the Court of Justice, that act must be considered to benefit from a presumption of legality.
118Furthermore, it is clear from paragraphs 73 to 84 above that the Commission was not required to revoke the conditional clearance decision of 7 January 2004 because Lagardère had failed to fulfil an obligation and not a condition. In addition, there is nothing in the papers before the Court to indicate that the Commission revoked that decision. Under paragraph 14 of the commitments defined by the conditional clearance decision of 7 January 2004, the choice of the buyer had to be subject to the approval of the Commission, which had to establish that it satisfied the conditions set out in paragraph 10 of the commitments, and the Commission had to inform Lagardère of its approval or rejection of the buyer within a certain time. These provisions of the conditional clearance decision of 7 January 2004 formed the legal basis for the contested decision. On 22 November 2010 Lagardère thus submitted to the Commission a new application for approval of Wendel as purchaser of Editis’ assets to be sold in order to implement the commitments imposed on Lagardère by the conditional clearance decision of 7 January 2004.
119In the light of the above considerations, the second plea in law must be rejected as unfounded.
The third plea in law, alleging errors of law and manifest errors of assessment in so far as the Commission took into account facts subsequent to 30 July 2004 and used them in a selective manner
120The applicant claims that the Commission made errors of law and manifest errors of assessment in taking into account, in the contested decision, facts subsequent to 30 July 2004. Assuming that facts subsequent to 30 July 2004 could be taken into account by the Commission, the applicant also considers that this should have been done impartially.
121The Commission and the interveners reject the applicant’s arguments.
122Principally, the applicant alleges that the Commission and the trustee relied upon facts subsequent to 30 July 2004 in assessing Wendel as a prospective purchaser.
123In this regard, according to paragraph 22 of the contested decision, the Commission stated that it had examined all the relevant matters of fact and of law in order to satisfy itself that Wendel did fulfil the conditions for approval laid down in paragraph 10 of the commitments on 4 June 2004, the date of the first application for approval submitted by Lagardère. It also pointed out that, in view of the sale of Editis to Planeta on 30 May 2008 and the prospective nature of the analysis that it was required to conduct in principle, its assessment of Wendel as a prospective purchaser would be corroborated by information on the development of Editis and of the markets in question subsequent to 4 June 2004. It thus evaluated the situation as at 4 June 2004 (paragraphs 27 to 37), then examined whether that evaluation was corroborated by developments since that date (paragraphs 38 to 49). In conclusion, it decided to approve Wendel retroactively on the basis of the situation as at 4 June 2004, corroborated by developments subsequent to that date (paragraph 50).
124Similarly, the new trustee explained in its report which was sent to the Commission that it had been asked to conduct a retrospective examination of Wendel as a prospective purchaser as at 30 July 2004 and to supplement that analysis by giving an overview of developments at Editis after it was acquired by Wendel in July 2004 then after it was acquired by Planeta in May 2008.
125According to case-law, following the annulment of an administrative act, its author must adopt a new replacement act by reference to the date on which it had been adopted, on the basis of the provisions in force and the relevant facts at that time (O2 (Germany) v Commission, paragraph 58 above, EU:T:2006:116, paragraphs 47 and 48; see also, to this effect, Bayer CropScience and Others v Commission, paragraph 102 above, EU:T:2008:317, paragraph 63). It may, however, rely, in its new decision, on grounds other than those on which it based its first decision (Interporc v Commission, paragraph 56 above, EU:C:2003:125, paragraphs 28 to 32).
126In accordance with that case-law, in the contested decision the Commission was fully entitled to determine whether Wendel fulfilled the conditions for approval laid down in paragraph 10 of the commitments, taking into account the facts of which it was aware on 30 July 2004, the date on which the first approval decision was adopted.
127It should nevertheless be borne in mind that the review of concentrations calls for a prospective analysis of the state of competition to which the concentration under examination is likely to give rise in the future (Schneider Electric v Commission, T‑310/01, ECR, EU:T:2002:254, paragraph 443, and Qualcomm v Commission, T‑48/04, ECR, EU:T:2009:212, paragraph 89). The same holds for the assessment of the viability of the buyer and its capability of maintaining and developing effective competition on the markets in question, as provided for by paragraph 10(b) of the commitments.
128In the present case, the Commission was necessarily forced to carry out an a posteriori analysis of the state of competition to which the concentration gave rise. It was therefore fully entitled to examine whether its analysis based on the facts of which it was aware on 30 July 2004 was corroborated by information relating to the period subsequent to that date. If the examination of the subsequent situation had shown that Wendel had not acted as a competitor on the market, the Commission would have had to assess the consequences of that conduct in examining the new application for approval submitted by Lagardère.
129In the alternative, the applicant alleges that the Commission used facts subsequent to 30 July 2004 in a selective and partial manner. However, it is clear from the contested decision that the Commission did take into account the fact that Wendel resold Editis in May 2008 (paragraphs 47 to 49) and that Editis remained the second largest publisher in France (paragraphs 38, 42, 43 and 45), noting that this finding was not incompatible with Lagardère’s commitments, in particular paragraph 10(b) thereof, under which the buyer had to be capable of maintaining or developing effective competition.
130In the light of the above considerations, the third plea in law must be rejected as unfounded.
The fourth plea in law, alleging errors of law and manifest errors in the appraisal of Wendel’s bid
131According to the applicant, the Commission had to re-examine all the information available on the date of the application for approval in order to assess Wendel’s bid, in particular Wendel’s capability of developing effective competition on the market. It claims that, in any event, the Commission could not rely on information subsequent to 30 July 2004. The applicant nevertheless takes the view that the facts subsequent to 30 July 2004 have proved it right, as Wendel resold Editis after just four years and Editis has not become the leading French undertaking on the French-speaking publishing market.
132In addition, the applicant alleges that the Commission made a manifest error of assessment by failing to compare the internal rate of return expected by Wendel with that of the other consortiums shortlisted by Lagardère and by failing to take account of the fact that Wendel had no experience in the publishing sector. Furthermore, the Commission made a manifest error of assessment by failing to take into consideration the presence of a director common to Lagardère and Wendel, despite the condition of independence under paragraph 10 of the commitments, and, in addition, gave an insufficient statement of reasons in the contested decision in this regard. Furthermore, the Commission ignored the impact that the transitional arrangements between the two undertakings could have on Wendel’s independence.
133The Commission and the interveners reject the applicant’s arguments.
134As a preliminary point, it should be stated, with regard to the applicant’s arguments on whether it is possible for the Commission to rely on facts subsequent to 30 July 2004 and, as the case may be, the failure to take into account those facts, that it is clear from paragraphs 125 to 128 above that in the contested decision the Commission was fully entitled to determine whether Wendel did fulfil the conditions for approval laid down in paragraph 10 of the commitments, taking into account the facts of which it was aware on 30 July 2004, the date on which the first approval decision was adopted, whilst corroborating its analysis by facts relating to the period subsequent to that date.
135It should also be noted, in examining this plea in law, that it is settled case-law that the basic provisions of Regulation No 4064/89, in particular Article 2 thereof, relating to the assessment of concentrations, confer on the Commission a certain discretion, especially with respect to assessments of an economic nature. Consequently, review by the judicature of the exercise of that discretion, which is essential for applying the rules on concentrations, must take account of the discretionary margin implicit in the provisions of an economic nature which form part of the rules on concentrations (France and Others v Commission, paragraph 44 above, EU:C:1998:148, paragraphs 223 and 224, and Airtours v Commission, T‑342/99, ECR, EU:T:2002:146, paragraph 64).
136Whilst the Courts recognise that the Commission has a margin of discretion with regard to economic matters, that does not mean, however, that they must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must the judicature, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. Such a review is all the more necessary where a prospective analysis is required (Commission v Tetra Laval, C‑12/03 P, ECR, EU:C:2005:87, paragraph 39, and Qualcomm v Commission, paragraph 127 above, EU:T:2009:212, paragraph 92).
137Review by the Courts of complex economic assessments made by the Commission in exercising the discretion conferred on it by Regulation No 4064/89 must be limited to ensuring compliance with the rules of procedure and the statement of reasons, as well as the substantive accuracy of the facts, the absence of manifest errors of assessment and of any misuse of power. In particular, it is not for the General Court to substitute its own economic assessment for that of the Commission (Petrolessence and SG2R v Commission, T‑342/00, ECR, EU:T:2003:97, paragraph 101). Similarly, in assessing the need for commitments to be given in order to dispel the serious doubts raised by a concentration, it is not for the Court to substitute its own assessment for that of the Commission: the Court’s review must be limited to ascertaining that the Commission has not committed a manifest error of assessment (easyJet v Commission, paragraph 43 above, EU:T:2006:187, paragraph 128). With regard to assessment of the implementation of the commitments, the judicial review is the same as that on the compatibility of a concentration with the common market or on the need to obtain commitments in order to authorise a concentration (Petrolessence and SG2R v Commission, EU:T:2003:97, paragraphs 101 to 103).
138Accordingly, in the present case, the General Court must conduct a limited review with regard to the complex economic assessments that should have been made by the Commission in adopting the contested decision, whilst not substituting its own economic assessment for that of the Commission. On the other hand, with regard to the other assessments that should have been made by the Commission in assessing Wendel as a prospective purchaser, that review is full.
139In the light of these principles it is necessary to assess the six arguments put forward by the applicant in this plea in law.
140First, under paragraph 10 of Lagardère’s commitments, Lagardère undertook, in order to preserve effective competition on the relevant markets, to sell Editis’ assets to one or more independent buyers satisfying the following tests:‘Lagardère may have no significant interest, direct or indirect, in the buyer.The buyer or buyers must be viable operators capable of maintaining or developing effective competition, and having the economic incentive to do so; this wording is not to be interpreted as excluding any category of industrial or financial buyers in advance.The acquisition of one or more of the assets sold by a potential buyer must not be such as to create fresh competition difficulties or to threaten to delay the fulfilment of these commitments. The notifying party must be able to show the Commission that the buyer satisfies the tests laid down in these commitments and that the asset or assets sold are being transferred in accordance with these commitments.The buyer or buyers must have obtained or be reasonably supposed to be able to obtain all the approvals necessary for the acquisition and operation of the assets sold.’
141As a first point, the applicant claims that the facts subsequent to 30 July 2004 have proved it right, as Wendel resold Editis after just four years and Editis has not become the leading French undertaking on the French-speaking publishing market. However, it is clear from the documents before the Court that Wendel proved itself to be a viable, capable operator which developed effective competition on the market in accordance with the conditions laid down in paragraph 10(b) of Lagardère’s commitments. It is common ground that Editis experienced significant business and growth after its purchase by Wendel, allowing Wendel, in May 2008, to resell it to Planeta, which the applicant could not claim effectively weakened competition on the market.
142As a second point, the applicant claims that the Commission should have evaluated Wendel’s capability and incentives to maintain and develop effective competition. However, according to paragraphs 28 to 35 of the contested decision, the Commission’s examination concerned the conditions laid down in paragraph 10(b) of Lagardère’s commitments, assessing whether Wendel was a viable operator (paragraphs 28 and 29) and whether Wendel was capable of maintaining and developing Editis as an effective competitor on the relevant markets (paragraphs 30 to 34). Thus, the Commission did not simply examine the financial gain that Wendel could derive from the transaction, but also analysed Editis’ resources, stressing Wendel’s intention to retain management teams, and the existence of a business plan produced by Wendel formulating an internal and external growth strategy. The applicant’s argument that the Commission did not examine Wendel’s capability of developing effective competition therefore has no factual basis because the Commission did examine Wendel’s capability of maintaining and developing Editis in order to make it an effective competitor.
143As a third point, the applicant alleges that the Commission made a manifest error of assessment by failing to compare the internal rate of return expected by Wendel with that of the other consortiums shortlisted by Lagardère, whereas the Commission did compare Wendel’s bid with the other bids as far as the retention of Editis’ managerial resources was concerned.
144Under paragraph 13(b) and paragraph 14 of the commitments, Lagardère had to submit to the Commission the list of the potential buyers that it intended to contact, and the choice of the buyer or buyers by Lagardère was subject the Commission’s approval on the basis of the information necessary to enable the Commission to establish that they satisfied the approval criteria set out in the commitments. Under paragraph 20 of those commitments, that procedure for the selection of the buyer or buyers by the notifying party had to take place under the supervision of a trustee approved by the Commission who was responsible for ensuring that Lagardère’s commitments were fulfilled satisfactorily for the purposes of paragraph 21(g) or even conducting take-over negotiations with interested outside parties in the case, envisaged in paragraph 25, that the notifying party failed to fulfil its commitments within the prescribed period. Lastly, paragraph 11 of the commitments stated that Lagardère had to use its best efforts to sell all the assets sold to a single buyer, while nevertheless maintaining the objective of securing the best possible return on the sale. That selection procedure, under which Lagardère alone was entitled to propose to the Commission a buyer of Editis’ assets and the Commission had only to establish that the buyer selected by Lagardère fulfilled the criteria laid down in the commitments in order to preserve effective competition on the relevant markets, was thus clearly defined not by the contested decision, but by the conditional clearance decision of 7 January 2004, whose lawfulness can no longer be challenged by the applicant, as the judgment in Case T‑452/04 (EU:T:2010:385) is binding on the parties to the dispute (Hoogovens Groep v Commission, paragraph 117 above, EU:C:1985:355, paragraph 9).
145Furthermore, the applicable rules on concentrations did not require the Commission itself to organise a procedure to select potential purchasers of the assets sold or to compare the respective merits of those potential purchasers. Paragraph 21 of the Notice on remedies states in this regard that ‘once a divestiture of a business is made a condition of the clearance decision, it is a matter for the parties to find a suitable purchaser for this business’. That paragraph does not seem to be inconsistent with the provisions of Regulation No 4064/89, Article 8(2) of which simply provides for possible ‘modification by the undertakings concerned’ to the notified concentration in order to make it compatible with the common market, without defining the procedure to be followed to achieve that result. The Court has also held, in the judgment in Case C‑551/10 P, paragraph 23 above (EU:C:2012:681), that Article 2(2) and (3) of Regulation No 4064/89 conferred on the Commission the task of ensuring that the concentrations referred to it for appraisal did not create or strengthen a dominant position as a result of which effective competition would be significantly impeded in the common market or in a substantial part of it and that it was therefore not the duty of the Commission to establish a perfect competition system and to decide, in place of the economic actors, who should operate on the market (paragraphs 66 and 67). The Court thus stated that it was open to the Commission merely to approve or not approve a purchaser who was submitted to it (paragraph 76).
146With regard to the assessment by the Commission of the need for commitments to be given in order to dispel the serious doubts raised by a concentration, the European Union judicature considers that it is not for it to substitute its own assessment for that of the Commission and that, consequently, the alleged failure to take into consideration the commitments suggested by third parties does not by itself prove that the contested decision is vitiated by a manifest error of assessment. Thus, the fact that other commitments might also have been accepted, or might even have been more favourable to competition, cannot justify annulment of that decision in so far as the Commission was reasonably entitled to conclude that the commitments set out in the decision served to dispel the serious doubts (ARD v Commission, T‑158/00, ECR, EU:T:2003:246, paragraphs 328 and 329, and easyJet v Commission, paragraph 43 above, EU:T:2006:187, paragraphs 128 and 129). Similarly, it is not therefore for the General Court in the present case to conduct a comparative analysis of the different bids submitted to Lagardère in 2004 and the Commission was not required to make a comparison of the internal rates of return expected by the different purchasers, because the bid by Wendel, the only purchaser proposed by Lagardère, seemed to it to satisfy Lagardère’s commitments.
147Lastly, the applicant’s argument that the Commission made a comparison of the bids by several purchasers on a specific point has no factual basis. According to paragraph 30 of the contested decision, in order to assess whether Wendel was a potential purchaser capable of maintaining and developing Editis as an effective competitor on the relevant market, the Commission found that Wendel undertook to retain its managerial and editorial resources and that Wendel had stressed that this approach would allow it to guarantee more effectively the development of Editis than its acquisition by a competitor from the sector, which would inevitably have reorganised managerial control.
148As a fourth point, the applicant alleges that the Commission failed to take into account Wendel’s lack of experience in the publishing sector. However, it is expressly clear from paragraph 10(b) of the commitments that the purchaser of assets sold could be chosen from the financial buyers, as was confirmed by the General Court (judgment in Case T‑279/04, paragraph 15 above, EU:T:2010:384, paragraphs 344 and 345) and the Court of Justice (judgment in Case C‑551/10 P, paragraph 23 above, EU:C:2012:681, paragraph 78) in examining the lawfulness of the conditional clearance decision of 7 January 2004. Furthermore, the applicant’s argument has no factual basis because, in paragraph 30 of the contested decision, the Commission expressly examined whether Wendel was an operator capable of maintaining and developing effective competition despite its lack of experience in the publishing sector. It thus pointed out that Editis still had all the necessary managerial, editorial and support resources such that it could ensure its own viability and that Wendel had undertaken to retain those resources. It should be noted in this regard that Lagardère undertook, in paragraph 12(b) of its commitments, not to recruit any of the members of the executive board of Editis or the main senior publishing staff of the assets sold for a certain period.
149As a fifth point, the applicant alleges that the Commission considered that Wendel satisfied the condition of independence prescribed by the commitments even though one of that company’s directors was at the same time a member of Lagardère’s supervisory board and audit committee.
150Under paragraph 10 of Lagardère’s commitments, Lagardère undertook, in order to preserve effective competition on the relevant markets, to sell Editis’ assets to one or more independent buyers. In addition, paragraph 10(a) provided that Lagardère could ‘have no significant interest, direct or indirect, in the buyer’. In paragraph 346 of the judgment in Case T‑279/04 (EU:T:2010:384), the General Court rejected an argument raised by the applicant in support of its ninth plea in law claiming that Lagardère’s commitments were not consistent with paragraph 49 of the Notice on remedies. The General Court held that ‘[t]he simple absence of significant direct or indirect interest in the buyer or buyers, as mentioned in paragraph 10 of Lagardère’s commitments, seems compatible with the condition relating to the absence of a connection between the purchaser and the parties, laid down in paragraph 49 of the Notice on remedies, as, according to paragraph 10 of Lagardère’s commitments, the sale could be made only “to one or more buyers independent of the notifying party” and “the acquisition of one or more of the assets sold by a potential buyer must not be such as to create fresh competition difficulties”’.
151The General Court thus assessed the two conditions under paragraph 10 and paragraph 10(a) of the commitments in their entirety and held that ‘the absence of Lagardère’s significant direct or indirect interest in the purchaser’, provided for by paragraph 10(a), had to be examined in the light of the general condition of the independence of the purchaser vis-à-vis Lagardère laid down in paragraph 10.
152In the present case, it must be examined whether, in evaluating Wendel’s bid, the Commission had due regard to the condition of Wendel’s independence vis-à-vis Lagardère laid down in paragraph 10 and paragraph 10(a) of the commitments, read in the light of paragraph 49 of the Notice on remedies. The condition of the independence of the purchaser seeks, inter alia, to ensure the capability of the purchaser to act on the market as an effective, autonomous competitor, without its strategy and policies being open to influence from the seller. That independence can be assessed by examining the capital, financial, commercial, personnel and material links between the two companies.
153In paragraph 27 of the contested decision, the Commission stated, with regard to the independence of the parties, that, ‘at the time of the initial application for approval in 2004, Wendel was independent of the Lagardère group’ and that ‘there was no capital link and no economic link between those two companies’. This finding is not called into question by the applicant, which has not claimed, moreover, that there were material and financial links between the two companies.
154It is true that the applicant rightly claims that the same person was sitting in certain management or supervisory bodies of Lagardère and Wendel. It is common ground that Mr P. was, from 1998, one of 15 members of Lagardère’s supervisory board and was a member of that company’s audit committee. Furthermore, Mr P. was, from 2002 to 31 May 2005, one of 12 members of the board of directors, one of 3 members of the appointments and remuneration committee and one of 5 members of the audit committee of Wendel.
155However, Mr P.’s presence in the bodies of the two companies cannot, in the circumstances of the case, show that Wendel was a buyer dependant on Lagardère.
156On 30 July 2004 Lagardère was a limited partnership with a share capital incorporated under French law, with two-tier board structure, whose operation was governed by the provisions of Articles L 226-1 to L 226-14 of the French Code de commerce (Commercial Code). It thus had managers under the control of a supervisory board. As a member of the supervisory board, and not a manager, the only duties performed by Mr P., as Wendel claims, were supervisory and management policy duties. Furthermore, as a member of the audit committee, he was responsible for mainly financial and accounting matters.
157On 30 July 2004 Wendel was a public limited liability company governed by French law, with one-tier board structure, whose operation was governed by the provisions of Articles L 225-17 to L 225-56 of the French Code de commerce. It was thus administered by a board of directors who were responsible for determining the broad lines of its business. It is true that, under Article L 225-37 of the French Code de commerce, the members of its board of directors were subject to an obligation of secrecy, as Wendel points out, but they also had a duty of loyalty to the company under, inter alia, Article L 242-6 of the Code. In addition, Mr P. was also a member of Wendel’s appointments and remuneration committee and audit committee, which were responsible for preparing the deliberations of the board of directors, who met at least four times each year. The audit committee was specifically responsible for accounting matters, whilst the function of the appointments and remuneration committee was in particular to make proposals for appointments of directors, for the remuneration of the chair of the board of directors and the deputy managing director, and for the management profit-sharing policy. It is thus apparent from the annual report for 2004 that, at its meetings on 9 July, 6 and 23 September and 22 October 2004, the agenda of the appointments and remuneration committee concerned the bonus for the acquisition of Editis, investment in Editis, and participation by Wendel’s management in the share capital of Editis.
158In addition, in footnote 10, referred to in paragraph 27 of the contested decision, which was produced by the Commission in response to a measure of organisation of procedure adopted by the General Court, it is stated that ‘[w]ith regard to the personnel link between Lagardère and Wendel, the Commission takes note of the fact that Wendel’s representatives gave an undertaking prior to the first approval decision that [Mr P.] would no longer sit on Wendel’s board of directors’. It is thus clear from the contested decision and from the answers to the questions asked by the General Court at the hearing that, at the Commission’s request, Wendel gave a formal undertaking, on 27 July 2004, first, that Mr P. would leave his positions within that company within a year of the approval of Wendel’s bid and, second, that in the intervening period he would not participate in the deliberations of the board of directors and of the other internal committees when they dealt with group publishing business, and that he would not be given any confidential information relating to the publishing sector by Wendel’s senior staff or operational managers.
159All these factors suggest that the Commission ensured that Mr P.’s presence within Wendel could not impair that company’s independence and therefore the preservation and development of effective competition on the relevant market. Consequently, Mr P.’s presence in the bodies of the two companies alone could not, in the absence of any other factor, indicate that Wendel’s behaviour on the market would be influenced by Lagardère and that the condition of the independence of the purchaser had been breached.
160With regard to the applicant’s arguments that Mr P.’s presence in the managerial and supervisory bodies of the two companies was particularly problematic at the time of the divestment and the selection of the purchaser by Lagardère, it should be pointed out, first, that the divestment process was monitored closely by the Commission and, second, that it was not the duty of the Commission to establish a perfect competition system and to decide, in place of the economic actors, who should operate on the market, as it was a matter for Lagardère alone to find a suitable purchaser, before then being approved by the Commission (see paragraphs 144 and 145 above).
161Lastly, as regards the applicant’s argument relating to the insufficient statement of reasons in the contested decision on this specific point, it should be examined in the context of the sixth plea in law.
162As a sixth point, the applicant alleges that the Commission ignored the impact that the transitional arrangements between the two undertakings could have had on Wendel’s independence, as Editis continued to be remunerated by Hachette, which was wholly owned by Lagardère, for distributing certain titles. Because those transitional arrangements were part of Lagardère’s commitments and were therefore defined by the conditional clearance decision of 7 January 2004 (see paragraphs 13 and 14 of Annex 1 to that decision), this argument must be rejected, as the applicant can no longer challenge the lawfulness of that decision (see paragraph 144 above).
163Subject to paragraph 161 above, in the light of the above considerations, the fourth plea in law must be rejected as unfounded.
The fifth plea in law, alleging misuse of powers
164The applicant claims that the contested decision is vitiated by misuse of powers in so far as the Commission relied upon Article 266 TFEU to validate the first approval decision a posteriori, rather than having reference to the time before the illegality found by the General Court and by the Court of Justice occurred.
165The Commission and the interveners reject the applicant’s arguments.
166According to case-law (Fédesa and Others, paragraph 58 above, EU:C:1990:391, paragraph 24), the misuse of powers constitutes the adoption, by a Union institution, of an act with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. The Court of Justice thus considers that a measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated (see Ramondín and Others v Commission, C‑186/02 P and C‑188/02 P, ECR, EU:C:2004:702, paragraph 44 and cited case-law). Where more than one aim is pursued, even if the grounds of a decision include, in addition to proper grounds, an improper one, that would not make the decision invalid for misuse of powers, provided that the decision does not cease to pursue the main aim (Italy v High Authority, 2/54, ECR, EU:C:1954:8; see also, to this effect, Vlaamse Televisie Maatschappij v Commission, T‑266/97, ECR, EU:T:1999:144, paragraph 131).
167In the present case, the applicant claims that the Commission validated the first approval decision a posteriori in order to serve a private interest rather than favouring the general interest.
168In support of this plea in law it claims, first, that the Commission unlawfully conferred retroactive character on the contested decision, when it was required to penalise the infringement by Lagardère of one of its commitments. However, it is clear from the examination of the first plea in law that the Commission could lawfully adopt a decision with retroactive character and that the Commission was not obliged to revoke the conditional clearance decision of 7 January 2004 and to penalise Lagardère. Furthermore, the adoption of a new retroactive approval decision was intended to fulfil several general interest objectives highlighted in the examination of the first plea in law.
169Second, the applicant claims that the contested decision was intended to frustrate the legal action it brought against Lagardère and Wendel before the Tribunal de commerce (Commercial Court), Paris (France) on 4 November 2010, in contravention of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the Convention’). At the hearing, the applicant stated that, by that action, it was seeking a declaration from the national court that the contract of sale concluded between Lagardère and Wendel was null and void on the ground that it was contrary to public policy in the economic sphere by reason of the annulment by the General Court of the first approval decision for Wendel.
170It is true that the European Court of Human Rights considers that execution of a judgment given by any court must be regarded as an integral part of the ‘trial’ for the purposes of Article 6(1) of the Convention, particularly in the context of administrative proceedings concerning a dispute (ECHR, Hornsby v. Greece, 19 March 1997, Reports of Judgments and Decisions 1997-II, § 40 and 41) and that it has developed case-law precluding any interference by the legislature designed to influence the judicial determination of a dispute (ECHR, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 49, Series A No 301-B; Zielinski and Pradal and Gonzales and others v. France, Nos 24846/94 and 34165/96 to 34173/96, § 57, ECHR 1999-VII). Nevertheless, in the present case, the applicant has not put forward any arguments in support of the claim that the adoption of the contested decision was intended to frustrate ongoing national judicial proceedings. In addition, it is clear from the examination of the first plea in law that the adoption of a new retroactive approval decision was intended precisely to ensure that the administration respected legality and the force of res judicata of the General Court’s judgment.
171Accordingly, the applicant has not shown, on the basis of objective, relevant and consistent evidence, that the aim of the contested decision was to validate the first approval decision retroactively and thus to serve a private interest rather than to favour the general interest.
172The fifth plea in law must therefore be rejected as unfounded.
The sixth plea in law, alleging a defective statement of reasons
173The applicant claims that the contested decision does not contain a sufficient statement of reasons. In particular, the Commission did not provide sufficient indications of the reasons justifying the adoption of a decision with retroactive effect. Similarly, it did not state the reasons allowing it to take into account facts subsequent to 30 July 2004 and did not indicate why the resale of Editis’ assets to Planeta in 2008 did not constitute an infringement of the commitments. Lastly, the Commission did not make sufficient statements explaining how the presence of a director common to Lagardère and Wendel was compatible with the condition of independence under paragraph 10 of the commitments.
174The Commission, supported by Lagardère and by Wendel, contends that it gave a sufficient statement of reasons in the contested decision.
175It is settled case-law that the scope of the obligation to state reasons depends on the nature of the act in question and on the context in which it was adopted. The statement of reasons 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 European Union judicature to exercise its power of review and to enable the persons concerned to ascertain the reasons for it so that they can defend their rights and ascertain whether or not the measure is well founded. 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 296 TFEU 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 (Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154, paragraph 63, and Sniace v Commission, T‑238/09, EU:T:2011:705, paragraph 37).
176In particular, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned. It is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, ECR, EU:C:2008:375, paragraph 96, and Freistaat Sachsen v Commission, T‑102/07 and T‑120/07, ECR, EU:T:2010:62, paragraph 180).
177In addition, the degree of precision of the statement of the reasons for a decision must be weighed against practical realities and the time and technical facilities available for making the decision. Thus, when exercising its power to examine concentrations, the Commission does not act in breach of its duty to state reasons if it does not include precise reasoning in its decision as to the appraisal of a number of aspects of the concentration which appear to it to be manifestly irrelevant or insignificant or plainly of secondary importance to the appraisal of the concentration (NVV and Others v Commission, T‑151/05, ECR, EU:T:2009:144, paragraph 192). Such a requirement would be difficult to reconcile with the need for speed and the short timescales which the Commission is bound to observe when exercising its power to examine concentrations and which form part of the particular circumstances of proceedings for control of those concentrations (Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, ECR, EU:C:2008:392, paragraph 167). The Commission is none the less required to set out the facts and the legal considerations which are of decisive importance in the conceptual framework of the decision (NVV v Commission, EU:T:2009:144, paragraph 194).
178Having regard to these principles, the statement of reasons in the contested decision seems sufficient.
179It should be borne in mind, first of all, that the contested decision was adopted in the context, which is known by the applicant, of the conditional clearance decision of 7 January 2004, which was implemented by the approval decision, the dismissal of the action brought by the applicant against that decision, the annulment of the first approval decision by the General Court and the dismissal by the Court of Justice of the appeal brought against the judgment of the General Court. In addition, it is clear from the documents before the Court that on 24 February and 18 April 2011 the Commission replied to the letters from the applicant regarding the consequences of the judgment in Case T‑452/04, paragraph 15 above (EU:T:2010:385), that meetings were held between the applicant and the Commission on this subject on 14 February and 16 March 2011, and that the applicant resubmitted its observations on the new approval procedure to the new trustee by letter of 20 April 2011 and to the Commission by letter of 27 April 2011.
180Furthermore, paragraphs 15 to 22 of the contested decision explain in a clear and unequivocal fashion the Commission’s choice to adopt a retroactive decision and, additionally, the consideration of facts subsequent to 30 July 2004. In particular, the Commission took great care, in those paragraphs, to respond to the arguments expounded by the applicant in its many exchanges with the Commission between 30 September 2010 and 13 May 2011. With regard to the resale of Editis to Planeta in 2008, the Commission also explained in a sufficiently clear and unequivocal fashion in paragraphs 47 and 48 of the contested decision the reasons for which it considered that resale to be compatible with Lagardère’s commitments.
181Lastly, with regard to the statement of reasons for the assessment of the condition of independence laid down in the commitments, it is clear from paragraph 27 of the contested decision that the Commission considered that, at the time of the initial application for approval in 2004, Wendel was independent of Lagardère because there was no capital link and no economic link between those two companies. This reasoning, which is sufficient in itself, is supplemented by the clarification given in footnote 10, referred to in paragraph 27 of the contested decision, which states that Wendel had given an undertaking that Mr P., who was a member of Lagardère’s supervisory board, would no longer sit on its board of directors (see paragraph 158 above).
182The fact that the content of that footnote was communicated to the applicant only during the proceedings before the Court is not such as to call into question the finding made in paragraph 181 above. Where the author of a contested decision provides explanations to supplement a statement of reasons which is already adequate in itself, that does not go to the question whether the duty to state reasons has been complied with, though it may serve a useful purpose in relation to review by the court of the adequacy of the grounds of the decision, since it enables the institution to explain the reasons underlying its decision (Finnboard v Commission, C‑298/98 P, ECR, EU:C:2000:634, paragraph 46).
183In the light of the above considerations, the statement of reasons in the contested decision enables the applicant effectively to challenge its proper foundation and the Court to exercise its power of review, as is evident, moreover, from the examination of the other pleas in law. The sixth plea in law can therefore be rejected as unfounded and, consequently, the action must be dismissed in its entirety.
Costs
184Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they were applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the Commission’s costs, including those incurred in the proceedings for interim measures, and the costs incurred by Lagardère and Wendel, as applied for by them.
Operative part
On those grounds,THE GENERAL COURT (Second Chamber)hereby:
1.Dismisses the action;
2.Orders Éditions Odile Jacob SAS to pay the costs, including those incurred in the proceedings for interim measures.
Delivered in open court in Luxembourg on 5 September 2014.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.