Judgment_paragraph 16 · Stadtwerke Hameln Weserbergland GmbH v European Commission (C-466/23 P)

16In that regard, the General Court found as follows in paragraphs 24 to 31 of the judgment under appeal:24 … 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).25 Whether 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).26 It is in the light of the case-law referred to in paragraph 25 above that the [General] Court adopted a measure of organisation of procedure inviting the parties to submit, at the hearing, their observations on the absolute bar to proceeding which it was considering raising of its own motion.27 It should be noted that the [appellant] has not claimed, either in its written pleadings or at the hearing, that it had sent a letter to the Commission in order to submit observations on [operation] M.8871 or in order to notify it of its intention to participate in the relevant procedure. Moreover, it is apparent from the application that the Commission did not invite the [appellant] to participate in the market test …28 In that regard, it is true that, in its response to the third plea, alleging infringement of the [appellant’s] right to be heard, the Commission submits, in the defence, that the [appellant] was given the opportunity to participate fully in the procedure, in particular by means of the market test to which it responded, and that the [appellant] was heard by the Commission. However, the Commission stated at the hearing that this was a clerical error and that the [appellant] had neither participated in the market test nor been heard by the Commission following a request to that effect made by the [appellant].29 It follows from the foregoing that the [appellant] did not participate in the administrative procedure.30 Moreover, at the hearing, the [appellant] did not put forward any other argument to show that it had approached the Commission in order to participate in the administrative phase.31 Since the [appellant] did not actively participate in the procedure relating to [operation] M.8871, it must be held, having regard, moreover, to the absence of specific circumstances relating to effects on its market position, that the [appellant] is not individually concerned by the [decision at issue], within the meaning of the case-law recalled in paragraph 25 above.’

Stadtwerke Hameln Weserbergland GmbH v European Commission (C-466/23 P)

Key facts

Connections

History · 1 version