Judgment of the General Court (Fifth Chamber, Extended Composition) of 20 December 2023

1. Concentrations between undertakingsExamination by the CommissionSingle concentrationConceptConditionsInterdependent operations conferring on one or more undertakings direct or indirect economic control over the activities of one or more other undertakingsAcquisition by independent undertakings of the control of different targets in an asset swapPrecludedNo functional link between the operations at issue

(Council Regulation No 139/2004, recital 20 and Art. 3(1))

(see paragraphs 82-86, 97-102)

2. Acts of the institutionsStatement of reasonsObligationScopeDecision to apply rules on concentrations between undertakingsDecision authorising a concentration operation

(Art. 296 TFEU; Council Regulation No 139/2004, Arts 2, 6(1)(c) and 8(2))

(see paragraphs 107-125)

3. Concentrations between undertakingsAdministrative procedureObligations of the Commission towards qualified third partiesRight to be heardScope

(Council Regulation No 139/2004, Art. 18(4); Commission Regulation No 802/2004, Arts 11(c) and 16(1))

(see paragraphs 131-148)

4. Concentrations between undertakingsExamination by the CommissionCommission decision declaring a concentration compatible with the internal marketRequirements arising from the principle of effective judicial protectionObligation to publishScopePublication of a résumé of the decision at issue one year after its adoptionNo effect on the validity of that decision

(Arts 15, 296 and 297(2) TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 139/2004, Arts 6(1)(c), 8(2) and 20(1))

(see paragraphs 164-168)

5. Concentrations between undertakingsExamination by the CommissionAdoption of a decision finding a concentration transaction to be compatible with the internal marketCommitments of the undertakings concerned capable of rendering the notified operation compatible with the internal marketMargin of discretionJudicial reviewLimits

(Art. 263 TFEU; Council Regulation No 139/2004, Arts 2, 6(1)(c) and 8(2))

(see paragraphs 171-177)

6. Concentrations between undertakingsExamination by the CommissionAccount taken of data provided by the parties to the transactionWhether permissible

(Council Regulation No 139/2004, Arts 2, 6(1)(c) and 8(2))

(see paragraphs 185-193)

7. Action for annulmentReview of legalityCriteriaAccount taken only of elements of fact and law existing at the date on which the contested measure was adoptedLine of argument of the applicant referring to an analysis drawn up by the Commission after the adoption of that measure but based on data existing on the date of adoption of that same measureAdmissibilityConditions

(Art. 263 TFEU; Council Regulation No 139/2004, Arts 2 and 8(2))

(see paragraphs 194-201)

8. Concentrations between undertakingsAssessment of the compatibility with the internal marketCreation or reinforcement of a dominant position significantly impeding effective competition in the internal marketExamination by the CommissionProspective analysisDefinition of the period of analysisCriteria

(Council Regulation No 139/2004, Art. 2(2) and (3))

(see paragraphs 230-241, 406, 407)

9. Concentrations between undertakingsExamination by the CommissionDefinition of the market in questionCriteriaSubstitutability of productsDemand-side substitutabilityAssessment of the substitutability of the retail supply of electricity and gas under basic supply and special contracts respectively

(Council Regulation No 139/2004, Art. 2)

(see paragraphs 252-274)

10. Concentrations between undertakingsExamination by the CommissionDefinition of the market in questionEffect of Commission’s previous decision-making practiceNone

(Council Regulation No 139/2004, Art. 2)

(see paragraphs 275-277, 308)

11. Concentrations between undertakingsExamination by the CommissionDefinition of the market in questionConcentration between two energy-supplying undertakings providing for an asset swapBurden of proof on the party challenging the definition of the relevant marketsNeed to adduce serious indicia of the genuine existence of a competition concern requiring an examination by the CommissionFailure to produce sufficient evidence by the party challenging the approach adopted

(Council Regulation No 139/2004, Arts 2, 6(1)(c) and 8(2))

(see paragraphs 313, 314)

12. Concentrations between undertakingsExamination by the CommissionDefinition of the market in questionPossibility for the Commission to leave that definition openConditions

(Council Regulation No 139/2004, Arts 2, 6(1)(b) and (c) and 8(2))

(see paragraphs 323, 329, 336)

13. Concentrations between undertakingsAssessment of the compatibility with the internal marketCreation or reinforcement of a dominant position significantly impeding effective competition in the internal marketExamination by the CommissionAssessment of the anticompetitive effects of the transactionEvidenceHigh market share

(Council Regulation No 139/2004, recital 32 and Art. 2; Commission Notice 2004/C 31/03, paragraphs 17 and 18)

(see paragraphs 356-359)

14. Concentrations between undertakingsExamination by the CommissionCommission decision declaring a concentration compatible with the internal marketAssessment of the anticompetitive effects of the transactionBurden of proof on the party challenging the Commission’s analysis in that regard

(Council Regulation No 139/2004, Arts 2, 6(1)(c) and 8(2))

(see paragraphs 391-395, 400, 401, 412, 423, 433-435, 440, 445, 454, 465-467)

15. Concentrations between undertakingsExamination by the CommissionEconomic assessmentsDiscretionDuty of diligenceScope

(Council Regulation No 139/2004)

(see paragraphs 489-493)

Operative part

The Court:

1. Dismisses the action;

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