enercity AG v European Commission (T-321/20)

Contents

Judgment of the general Court (Fourth Chamber, Extended Composition)17 May 2023^note(Competition — Concentrations — German electricity market — Decision declaring the concentration compatible with the internal market — Action for annulment — Lack of locus standi — Lack of active participation — Inadmissibility)In Case T‑321/20,enercity AG, established in Hanover (Germany), represented by C. Schalast and H. Löschan, lawyers,vEuropean Commission, represented by G. Meessen and I. Zaloguin, acting as Agents, and by F. Haus and F. Schmidt, lawyers,supported byFederal Republic of Germany, represented by J. Möller and S. Costanzo, acting as Agents,byE.ON SE, established in Essen (Germany), represented by C. Grave, C. Barth and D.-J. dos Santos Goncalves, lawyers,and byRWE AG, established in Essen, represented by U. Scholz, J. Siegmund and J. Ziebarth, lawyers,THE GENERAL COURT (Fourth Chamber, Extended Composition),composed, at the time of the deliberations, of S. Gervasoni, President, L. Madise, P. Nihoul, R. Frendo and J. Martín y Pérez de Nanclares (Rapporteur), Judges,Registrar: S. Jund, Administrator,having regard to the written part of the procedure,further to the hearing on 17 June 2022,gives the following

Judgment

1By its action under Article 263 TFEU, the applicant, enercity AG, seeks the annulment of Commission Decision C(2019) 1711 final of 26 February 2019 declaring a concentration compatible with the internal market and the EEA agreement (Case M.8871 – RWE/E.ON Assets) (OJ 2020 C 111, p. 1; ‘the contested decision’).

Background to the dispute

Undertakings in question

2RWE AG is a company incorporated under German law which, when the proposed concentration was notified, was active across the whole supply chain of energy provision, including the generation, wholesale supply, transmission, distribution and retail supply of energy, as well as energy services to customers (such as metering and e-mobility. RWE and its subsidiaries, including innogy SE, operate in several European States, namely Belgium, the Czech Republic, Germany, France, Italy, Luxembourg, Hungary, the Netherlands, Poland, Romania, Slovakia and the United Kingdom.

3E.ON SE is a company incorporated under German law which, when the proposed concentration was notified, operated across the whole supply chain of electricity provision, whether it be electricity generation, wholesale supply, distribution or retail supply. E.ON owns and operates electricity generation assets in several European States, including Germany, France, Italy, Poland and the United Kingdom.

4The applicant is a German municipal authority which produces and supplies energy in Germany.

Context of the concentration

5The concentration at issue in the present case is part of a complex asset swap between RWE and E.ON, which was announced on 11 and 12 March 2018 by the two undertakings concerned. Accordingly, by means of the first operation, that is to say the concentration at issue in the present case, RWE wishes to acquire sole or joint control over certain generation assets of E.ON. The second concentration operation consists in the acquisition by E.ON of the sole control over the distribution and retail business as well as some production assets of innogy, which is controlled by RWE. The third concentration operation concerns, it concerns the acquisition of 16.67% of E.ON’s shares by RWE.

6On 24 July 2018, the applicant sent a letter to the European Commission, by which it notified that institution that it wished to participate in the procedure relating to the first and second concentration operations and, consequently, to receive the related documents.

7On 3 October 2018, a meeting was held between the applicant and the Commission.

8The second concentration operation was notified to the Commission on 31 January 2019. As regards that second operation, the Commission adopted Decision C(2019) 6530 final of 17 September 2019 declaring a concentration compatible with the internal market and the functioning of the EEA agreement (Case M.8870 – E.ON/Innogy) (OJ 2020 C 379, p. 16; ‘concentration M.8870’).

9The third concentration operation was notified to the Bundeskartellamt (Federal Competition Authority, Germany), which authorised it by decision of 26 February 2019 (Case B8-28/19).

Administrative procedure

10On 22 January 2019, the Commission received notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), by which RWE sought to acquire, within the meaning of Article 3(1)(b) of that regulation, sole or joint control of certain generation assets of E.ON.

11On 31 January 2019, the Commission published in the Official Journal of the European Union the prior notification of that concentration (Case M.8871 – RWE/E.ON Assets) (OJ 2019 C 38, p. 22; ‘concentration M.8871’), pursuant to Article 4(3) of Regulation No 139/2004.

12In the context of its examination of concentration M.8871, the Commission conducted a market test and therefore sent a questionnaire to certain undertakings.

13By letter of 28 January 2019, the applicant requested that the hearing officer recognise it as being an interested third party for the purpose of being heard in the procedure relating to concentration M.8871. The hearing officer granted that request by letter of 7 February 2019.

Contested decision

14On 26 February 2019, the Commission adopted the contested decision. Concentration M.8871 was declared compatible with the internal market during the examination phase provided for by Article 6(1)(b) of Regulation No 139/2004 and by Article 57 of the European Economic Area (EEA) Agreement.

Forms of order sought

15The applicant claims that the Court should:– annul the contested decision;– order the Commission to pay the costs.

16The Commission, supported by the Federal Republic of Germany, E.ON and RWE, contends that the Court should:– dismiss the action;– order the applicant to pay the costs.

Law

17In support of its action, the applicant puts forward, in essence, six pleas in law, alleging (i) infringement of its right to effective judicial protection, (ii) infringement of its right to be heard, (iii) erroneous division of the analysis of the overall transaction into separate parts, (iv) manifest errors of assessment, (v) infringement of the duty of care, and (vi) misuse of powers.

18Without formally raising a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court, the Commission, supported by RWE, argues that the action is inadmissible on the ground that the applicant has no standing to bring proceedings.

19In the first place, the Commission submits, that the applicant’s participation in that procedure relating to concentration M.8871, amounted to no more than mere participation. In that regard, it argues that the concerns expressed by the applicant related almost solely to concentration M.8870.

20Moreover, the applicant cannot infer from the fact that the Commission met with it at the meeting of 3 October 2018 that its participation was sufficient, since the Commission met with other competitors in a similar context. In any event, the applicant merely expressed a few reservations, which were not subsequently reiterated, and did not respond to the Commission’s market test.

21In the second place, as regards the applicant’s lack of individual concern based on its competitive position, the Commission argues that the applicant is a competitor of RWE and E.ON, but that this is merely an objective status which does not differentiate the applicant from any other competitor that is currently or potentially in an identical position and which cannot, therefore, form the basis of its individual concern. The Commission also points out that there are no circumstances which could individually distinguish the applicant, as a customer of RWE, from other RWE customers.

22The applicant argues that the contested decision is of direct and individual concern to it.

23In the first place, the applicant alleges that it actively participated in the procedure relating to concentration M.8871 and that it influenced the course of the procedure and the Commission’s decision-making. As for the market test conducted by the Commission, the applicant maintains that it did not receive it.

24In the second place, the applicant submits that the contested decision is of direct and individual concern to it in so far as the applicant and its subsidiaries are among the largest regional energy supply and service undertakings in Germany, where the parties to the concentration are their direct competitors and where concentration M.8871 is likely significantly to reduce the applicant’s competitive opportunities.

25In accordance with the fourth paragraph of Article 263 TFEU, a natural or legal person may institute proceedings against a decision addressed to another person only if the decision is of direct and individual concern to him or her.

26Accordingly, in order to establish the applicant’s standing to bring proceedings, it is necessary to examine whether the contested decision is of direct and individual concern to it.

27In the first place, as regards whether the applicant is directly concerned, it must be pointed that the contested decision, by allowing concentration M.8871 to be put into effect immediately, was capable of bringing about an immediate change in the state of the relevant markets. As the intention of the parties to concentration M.8871 to bring about such a change was not in doubt, the undertakings engaged in the relevant market or markets could, on the date of the contested decision, be certain of an immediate or imminent change in the state of the market (see, to that effect, judgment of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 32 and the case-law cited). It follows that the applicant is directly concerned by the contested decision.

28In the second place, as regards whether the applicant is individually concerned, it should be recalled that, according to well-established case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by virtue of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and thus distinguishes them individually just as in the case of the person to whom the decision is addressed (see judgment of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 34 and the case-law cited).

29Whether a third party is individually concerned by a decision finding a concentration to be compatible with the internal market depends, on the one hand, on that third party’s participation in the administrative procedure and, on the other, on the effect on its market position. Whilst mere participation in the procedure is not sufficient to establish that the decision is of individual concern to the applicant, particularly in the field of merger control, the careful examination of which requires regular contact with numerous undertakings, active participation in the administrative procedure is a factor regularly taken into account in the case-law on competition, including in the more specific area of merger control, to establish, in conjunction with other specific circumstances, the admissibility of the action (see judgment of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 35 and the case-law cited).

30In the present case, it should be noted that it is common ground between the parties that the applicant participated in the administrative procedure. They disagree, however, on whether or not that participation was ‘active’. It is therefore appropriate to consider the nature of the applicant’s participation in the procedure relating to concentration M.8871.

31In that regard, first of all, it should be noted that, on 24 July 2018, the applicant sent a request to the Commission to be heard both in the procedure relating to concentration M.8871 and in the procedure relating to concentration M.8870, as is apparent from the German heading of its letter, ‘Aktenzeichen’ (file number), which included the references ‘M8870 & M8871’. In that letter, in order to justify its application, the applicant explained, in general terms, the nature of its interests and the damage it might suffer as a result of the authorisation of those two concentrations.

32Next, on 3 October 2018, the applicant participated in an individual meeting with the Commission relating to concentrations M.8870 and M.8871. However, it must be pointed out that only 1 of the 20 pages of the presentation prepared by the applicant for that meeting related to concentration M.8871 and that, moreover, that page related solely to the competitive advantage obtained by RWE in the allocation of subsidies for the development and construction of new renewable energy generation assets. The remainder of that presentation was concerned with concentration M.8870. The minutes of that meeting also show that the discussions at the meeting focused primarily on concentration M.8870, since only 3 of the 42 paragraphs in those minutes related to RWE.

33Furthermore, following that meeting and after a reminder from the Commission on 4 December 2018, the applicant answered, by email of 14 December 2018, the questions put by the Commission by email of 31 October 2018. Those questions were intended to clarify for the Commission the observation made by the applicant regarding the competitive advantage of E.ON and Innogy in the development of new services, such as ‘smart home’ solutions, owing to their large customer base, which is an issue that relates to concentration M.8870.

34Lastly, by email of 28 January 2019 addressed to the hearing officer, the applicant requested to be heard as an interested third party in the procedure relating to concentration M.8871. On 7 February 2019, the hearing officer replied to the applicant and stated that he considered it to have the status of interested third party in that procedure.

35It follows that, as regards concentration M.8871 itself, the applicant’s observations are limited to one page of a presentation, the content of which was reproduced, exhaustively, in the three paragraphs concerning concentration M.8871 in the minutes of the meeting of 3 October 2018. As regards the observations made by the applicant in its letter of 24 July 2018, they are of a general nature and are intended primarily to demonstrate the applicant’s interest in the procedure, so that it will, subsequently, be permitted to set out, at greater length and in greater detail, its views to the Commission, and are therefore not decisive.

36Such minimal participation cannot be regarded as sufficient to be classified as active. In that regard, it is, admittedly, true that the Commission took into account and analysed the concerns expressed by the applicant as regards the competitive advantage obtained by RWE as a result of concentration M.8871, in terms of responding to calls for tenders in the field of renewable energy, as is apparent from paragraphs 68 and 69 of the contested decision.

37Nevertheless, it must be noted that the concerns expressed by the applicant were examined in Section 5.1.7 of the contested decision, entitled ‘Additional concerns raised by third parties’, which follows Section 5.1.6 of the contested decision, entitled ‘Conclusion’, in which the Commission concluded that there were no serious doubts as to the compatibility of concentration M.8871 with the internal market. Accordingly, the analysis made by the Commission in Section 5.1.7 is presented for the sake of completeness. The fact that that examination was carried out purely for the sake of completeness is confirmed by the Commission’s clarification in paragraph 67 of the contested decision that the examination in question was intended to address concerns relating to the potential effects of concentration M.8871 in markets other than the market for the generation and wholesale supply of electricity in Germany, which is the one regarded as relevant for the purposes of analysing the effects of that concentration in the internal market, as is apparent from paragraph 13 of the contested decision.

38It follows that the observations made by the applicant concerning concentration M.8871, although they bear some relevance and have been dealt with by the Commission, were not conclusive with respect to assessing the effects of that concentration on the relevant market.

39Accordingly, the applicant cannot be considered to have actively participated in the administrative phase relating to concentration M.8871.

40That conclusion cannot be called into question by the applicant’s arguments.

41First, the applicant submits that it did not receive the market test sent by the Commission.

42In that regard, by way of the measures of organisation of procedure provided for in Article 89(3)(d) of the Rules of Procedure, the General Court asked the Commission, on 29 March 2022, to produce evidence that it had indeed sent the market test to the applicant, as it maintained in paragraph 10 of the rejoinder. The Commission replied to that request within the period prescribed. Moreover, on 19 April 2022, the applicant spontaneously lodged a letter containing observations on that issue with the Registry of the General Court. The President of the Fourth Chamber (Extended Composition) decided, on 3 May 2022, to place that letter on the file. Lastly, the parties were questioned on this matter by the Court at the hearing.

43The evidence provided by the Commission in response to the Court’s request is of three types: (i) the Commission relies on the list of undertakings to which the market test was sent, on which the name of the applicant appears; (ii) the Commission produces an extract from the computer application that it used to send the test, from which it is clear that the market test was sent to the applicant on 23 January 2019 at 16:35, with a deadline for responding of 30 January 2019. It is also stated that a reminder was sent on 27 January 2019; and (iii) the Commission provides two extracts from its sent email and sent fax databases showing that an email and a fax were sent to the applicant. The dates and times of those communications correspond to those indicated in the extract from the computer application.

44It follows that the Commission did send the market test to the applicant.

45In that regard, the applicant argued, in essence, both in its letter of 19 April 2022 and at the hearing, that the market test was sent to its press officer. However, on the one hand, the press officer asserts that he did not receive it and, on the other hand, the applicant states that he was not the appropriate person to contact. On that latter point, the applicant states, in its letter of 19 April 2022, that the market test relating to concentration M.8870 was sent not to the press officer but to the competent commercial director.

46It should be noted that, since the applicant cannot be required to prove a negative fact, namely the failure to receive the market test, the Court asked the Commission to provide evidence that it had indeed sent that test. As is apparent from paragraph 44 above, the Commission succeeded in doing so. In such circumstances, it was for the applicant to produce to the Court information calling into question the reliability of the evidence provided by the Commission, which it failed to do.

47As to the fact that the market test was sent to the wrong recipient, even if it were to be established, it must be noted that the applicant did not dispute that the person in question was indeed its press officer when that market test was sent.

48It can reasonably be expected of such a person, in receipt not only of an email but also of a fax from an EU institution, that he or she would let that institution know as soon as possible about the error in the recipient. Moreover, it was also possible for that person, being in possession of such documents, to contact the legal or commercial department of his or her undertaking to inform it of the receipt of those documents.

49In any event, even if the applicant had had the opportunity to complete the market test, that fact would not have been sufficient for its participation to be classified as active.

50The mere return of the completed questionnaire cannot be regarded as sufficient to distinguish the relevant operator individually for the purposes of the fourth paragraph of Article 263 TFEU (see, to that effect, order of 18 September 2006, Wirtschaftskammer Kärnten and best connect Ampere Strompool v Commission, T‑350/03, not published, EU:T:2006:257, paragraphs 50 and 51).

51It cannot be otherwise, since, as the Commission rightly argued at the hearing, it may be required to interview many players on the relevant market in order to take a decision on a concentration which has been notified to it. This follows from the power to request information granted to it by Article 11(7) of Regulation No 139/2004, according to which, in order to carry out the duties assigned to it by that regulation, the Commission may interview any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject matter of an investigation.

52Secondly, the applicant submits that it requested that the hearing officer recognise it as being an interested third party. Although the action of making such a request may be evidence of the applicant’s express will to participate in the procedure relating to concentration M.8871, it cannot establish the ‘active’ nature of its participation, which must be reflected solely in the applicant’s acts which may have influenced the procedure at issue.

53Moreover, at the hearing, the applicant stated that, contrary to what had been announced in the hearing officer’s decision of 7 February 2019, the Commission had not set a time limit for the applicant to submit its written observations on concentration M.8871.

54It must be noted that that argument is inconsistent with what the applicant has also maintained in its various pleadings, that is to say that it actively participated in the administrative procedure relating to concentration M.8871. The applicant cannot maintain its line of argument that it actively participated in the procedure and, at the same time, criticise the Commission, for the first time at the hearing, for not having set a time limit for it to submit its observations, in order to establish its standing to bring proceedings. By virtue of the judge-made principle nemo potest venire contra factum proprium, also known as venire contra factum proprium non valet, a person may not dispute what he or she has previously accepted (judgments of 22 April 2016, Ireland and Aughinish Alumina v Commission, T‑50/06 RENV II and T‑69/06 RENV II, EU:T:2016:227, paragraph 192, and of 6 April 2017, Regione autonoma della Sardegna v Commission, T‑219/14, EU:T:2017:266, paragraph 63; see also, to that effect, order of 13 February 2014, Marszałkowski v OHIM, C‑177/13 P, not published, EU:C:2014:183, paragraph 73). That argument must therefore be rejected as manifestly inadmissible.

55Thirdly, the applicant claims, in essence, that concentration M.8871 and concentration M.8870 constitute a single concentration and that the Commission dealt with both concentration operations together. At the hearing, the applicant stated that it did not submit its request for a hearing to the hearing officer in the administrative procedure relating to concentration M.8871 until it had received the market test relating to that concentration.

56Those arguments must be rejected as ineffective. At the stage of considering admissibility, it is of no relevance to consider whether or not concentrations M.8870 and M.8871 constitute a single concentration or to ascertain how the applicant understood the way in which the Commission intended to deal with those two concentration operations, since, in any event, the applicant did not submit any observations on concentration M.8871, except for on one page of its presentation of 3 October 2018.

57Since the applicant did not actively participate in the procedure relating to concentration M.8871, it must be held, having regard, moreover, to the absence of specific circumstances relating to effects on its market position, that the applicant is not individually concerned by the contested decision, within the meaning of the case-law recalled in paragraph 29 above.

58As the applicant is not individually concerned by the contested decision, it has not demonstrated that it has standing to bring proceedings and, therefore, its action must be dismissed as inadmissible.

Costs

59Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, E.ON and RWE, in accordance with the forms of order sought by them.

60Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. The Federal Republic of Germany is therefore to bear its own costs.

Operative part

On those grounds,THE GENERAL COURT (Fourth Chamber, Extended Composition)hereby:

1.Dismisses the action as inadmissible;

2.Orders enercity AG to bear its own costs and to pay those incurred by the European Commission, E.ON SE and RWE AG;

3.Orders the Federal Republic of Germany to bear its own costs.

Delivered in open court in Luxembourg on 17 May 2023.