Brussels, 12/10/2011 (Agence Europe) - Ruling on Wednesday 12 October (T-224/10), the General Court of the EU judged that the application made by the Belgian consumers' association, Test-Achats (ABCTA), to quash two European Commission decisions approving sole control by Electricité de France (EDF) of Segebel SA (and subsequent control of SPE SA, the second biggest electricity operator in Belgium), was inadmissible, rejecting the demand by the Belgian authorities for a partial re-examination of this merger.
With regard to the decision authorising the merger, the Court confirmed that as a consumer association, ABCTA had the right to have a hearing, not as a directly and individually concerned third party affected by decision, which would be likely to reject the substance of the decision (interested third parties of a “first category”) but as a third-party with procedural rights to be heard within the context of a merger examination (interested “second category” third party), a right that is recognised under European law on consumer associations. The Court explains that this is, however, subject to two conditions: - the merger must relate to goods or services used by final consumers; and an application to be heard by the Commission during the investigation procedure must actually have been made in writing by the association.
In the case of ABCTA, the Court points out that the association fulfilled the first condition but not the second. The association did send in its concerns in writing to the Commission regarding the merger in question before the opening of the procedure and did not respond to the invitation from third parties to submit their observations until the launch of this procedure on 30 September 2009.
With regard to the request to annul the decision refusing re-examination, the Court indicates that the interested parties can legitimately contest a decision by the Commission using their right to request re-examination from an authority responsible for competition at a national level but not a decision for refusing re-examination. Such a decision would not in any way endanger their procedural rights but, on the contrary, would ensure that the merger will be assessed by the Commission in the light of EU law, and that the General Court will be the judicial body having jurisdiction to deal with any action against the Commission's decision bringing the procedure to an end. (FG/trans/fl)