Brussels, 06/03/2012 (Agence Europe) - Advocate General Jan Mazak recommended on 6 March that the Court of Justice of the EU should uphold the dismissal of the appeal by French publisher Odile Jacob against the European Commission decision of 7 January 2004, which authorised the acquisition, subject to certain conditions, of Vivendi Universal Publishing (VUP), the publishing arm of Vivendi Universal, by the Largardère group.
On 13 September 2010, the General Court rejected an appeal by Editions Odile Jacob which called for the Commission decision that Lagardère could acquire VUP on condition that it sell assets representing approximately 60% to 70% of its worldwide turnover and 70% to 80% of VUP's turnover on the French-language markets affected by the merger (see EUROPE 10214). Odile Jacob lodged an appeal with the Court against that ruling.
The advocate general considered that the judges “should dismiss all the grounds presented by Éditions Odile Jacob in its appeal”, noting that a number of the alleged errors claimed by Odile Jacob “have no practical bearing on the nature of the merger notified or on its effect on competition in the common market”. On the one hand, he said, a merger cannot be declared incompatible with the Common Market solely on the grounds that it was notified late, unless the merger creates or strengthens a dominant position as a result of which competition would be significantly impeded. Furthermore, the General Court was correct in deciding that the Commission cannot declare a merger incompatible on the sole basis that it altered the initial position of the parties in question on the relevant markets. Mazak highlighted, in addition, that the commitments proposed to the Commission by the undertakings do not have to improve the initial competitive situation prior to the merger. Finally, in his view, the General Court did not err in finding that a financial buyer would be a potential competitor if it had a real capacity to maintain or preserve effective competition on the market in question even though it had no experience on that market. Therefore, he considers that this ground of appeal should also be dismissed as unfounded. (FG/transl.rt)