{"attribution":{"source":"legal.exploreworldai.com","canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-484-23-p","cite_as":"NovaCopilot, legal.exploreworldai.com (https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-484-23-p)","license":"https://legal.exploreworldai.com/revision","version":"legal-2026-10-13","fingerprint":"ewai:eu:a03983","proof":"sha256:16531ea0b8fa84dc6f12d8e7eb791382b7cedb943aaf9320d0016cf1d97ac5e2","jurisdiction":"eu","lang":"en","publisher":"NovaCopilot by ExploreWorld Legal","terms":"https://legal.exploreworldai.com/om"},"brand_source":"Source: NovaCopilot","item":{"schema_version":"1.0.0","id":"eu:c-484-23-p","jurisdiction":"eu","lang":"en","brand_source":"Source: NovaCopilot","brand":{"product":"NovaCopilot","platform":"ExploreWorldAI","infrastructure":"ExploreWorld Legal","infrastructure_url":"legal.exploreworldai.com","legal_entity":"Valkiv Ventures AB","permanent_url":"https://legal.exploreworldai.com/novacopilot","source":"Source: NovaCopilot","powered_by":"Powered by NovaCopilot","license":"https://legal.exploreworldai.com/licensvillkor"},"sections":[{"title":"62023CJ0484","paragraphs":[]},{"title":"JUDGMENT OF THE COURT (Fifth Chamber)","paragraphs":[]},{"title":"26 June 2025 (\n *1\n )","paragraphs":["para_4","para_5","para_6","para_7","para_8","para_9","para_10","para_11","para_12","para_13","para_14","para_15","para_16","para_17","para_18","para_19","para_20","para_21","para_22"]},{"title":"Judgment","paragraphs":[]},{"title":"1","paragraphs":["para_25"]},{"title":"Background to the dispute","paragraphs":[]},{"title":"2","paragraphs":["para_28"]},{"title":"The context of the concentration","paragraphs":[]},{"title":"3","paragraphs":["para_31"]},{"title":"4","paragraphs":["para_33"]},{"title":"5","paragraphs":["para_35"]},{"title":"6","paragraphs":["para_37"]},{"title":"7","paragraphs":["para_39"]},{"title":"8","paragraphs":["para_41"]},{"title":"9","paragraphs":["para_43"]},{"title":"10","paragraphs":["para_45"]},{"title":"The administrative procedure","paragraphs":[]},{"title":"11","paragraphs":["para_48"]},{"title":"12","paragraphs":["para_50"]},{"title":"13","paragraphs":["para_52"]},{"title":"14","paragraphs":["para_54"]},{"title":"The decision at issue","paragraphs":[]},{"title":"15","paragraphs":["para_57"]},{"title":"The action before the General Court and the judgment under appeal","paragraphs":[]},{"title":"16","paragraphs":["para_60"]},{"title":"17","paragraphs":["para_62"]},{"title":"18","paragraphs":["para_64"]},{"title":"19","paragraphs":["para_66","para_67"]},{"title":"20","paragraphs":["para_69"]},{"title":"21","paragraphs":["para_71"]},{"title":"22","paragraphs":["para_73"]},{"title":"23","paragraphs":[]},{"title":"The appellant claims that the Court of Justice should:","paragraphs":["para_76","para_77","para_78","para_79","para_80","para_81"]},{"title":"24","paragraphs":[]},{"title":"The Commission and the other parties contend that the Court of Justice should:","paragraphs":["para_84","para_85","para_86","para_87"]},{"title":"The appeal","paragraphs":[]},{"title":"25","paragraphs":["para_90"]},{"title":"26","paragraphs":["para_92","para_93"]},{"title":"The first part","paragraphs":["para_95"]},{"title":"27","paragraphs":["para_97"]},{"title":"28","paragraphs":["para_99"]},{"title":"29","paragraphs":["para_101","para_102"]},{"title":"30","paragraphs":["para_104"]},{"title":"31","paragraphs":["para_106"]},{"title":"32","paragraphs":["para_108"]},{"title":"33","paragraphs":["para_110"]},{"title":"34","paragraphs":["para_112"]},{"title":"35","paragraphs":["para_114"]},{"title":"36","paragraphs":["para_116"]},{"title":"37","paragraphs":["para_118"]},{"title":"38","paragraphs":["para_120"]},{"title":"39","paragraphs":["para_122"]},{"title":"40","paragraphs":["para_124"]},{"title":"41","paragraphs":["para_126"]},{"title":"42","paragraphs":["para_128"]},{"title":"The third part","paragraphs":["para_130"]},{"title":"43","paragraphs":["para_132"]},{"title":"44","paragraphs":["para_134"]},{"title":"45","paragraphs":["para_136","para_137"]},{"title":"46","paragraphs":["para_139"]},{"title":"47","paragraphs":["para_141"]},{"title":"48","paragraphs":["para_143"]},{"title":"49","paragraphs":["para_145","para_146"]},{"title":"The first part","paragraphs":["para_148"]},{"title":"50","paragraphs":["para_150"]},{"title":"51","paragraphs":["para_152"]},{"title":"52","paragraphs":["para_154","para_155"]},{"title":"53","paragraphs":["para_157"]},{"title":"54","paragraphs":["para_159"]},{"title":"55","paragraphs":["para_161"]},{"title":"56","paragraphs":["para_163"]},{"title":"57","paragraphs":["para_165"]},{"title":"The second part","paragraphs":["para_167"]},{"title":"58","paragraphs":["para_169"]},{"title":"59","paragraphs":["para_171"]},{"title":"60","paragraphs":["para_173","para_174"]},{"title":"61","paragraphs":["para_176"]},{"title":"62","paragraphs":["para_178","para_179"]},{"title":"Arguments of the parties","paragraphs":[]},{"title":"63","paragraphs":["para_182"]},{"title":"64","paragraphs":["para_184"]},{"title":"65","paragraphs":["para_186"]},{"title":"66","paragraphs":["para_188"]},{"title":"Findings of the Court","paragraphs":[]},{"title":"67","paragraphs":["para_191"]},{"title":"68","paragraphs":["para_193"]},{"title":"69","paragraphs":["para_195"]},{"title":"70","paragraphs":["para_197"]},{"title":"71","paragraphs":["para_199"]},{"title":"72","paragraphs":["para_201"]},{"title":"73","paragraphs":["para_203"]},{"title":"74","paragraphs":["para_205"]},{"title":"75","paragraphs":["para_207"]},{"title":"76","paragraphs":["para_209"]},{"title":"77","paragraphs":["para_211"]},{"title":"The action before the General Court","paragraphs":[]},{"title":"78","paragraphs":["para_214"]},{"title":"79","paragraphs":["para_216"]},{"title":"80","paragraphs":["para_218"]},{"title":"81","paragraphs":["para_220"]},{"title":"82","paragraphs":["para_222"]},{"title":"83","paragraphs":["para_224"]},{"title":"84","paragraphs":["para_226"]},{"title":"85","paragraphs":["para_228"]},{"title":"Costs","paragraphs":[]},{"title":"86","paragraphs":["para_231"]},{"title":"87","paragraphs":["para_233"]},{"title":"88","paragraphs":["para_235"]},{"title":"On those grounds, the Court (Fifth Chamber) hereby:","paragraphs":["para_237","para_238","para_239","para_240","para_241","para_242","para_243","para_244","para_245","para_246"]}],"paragraphs":[{"text":"62023CJ0484","paragraph_id":"para_1"},{"text":"JUDGMENT OF THE COURT (Fifth Chamber)","paragraph_id":"para_2"},{"text":"26 June 2025 (\n *1\n )","paragraph_id":"para_3"},{"text":"(Appeal – Competition – Concentrations – Decision declaring a concentration compatible with the internal market – Action brought by a third party – Admissibility – Fourth paragraph of Article 263 TFEU – Locus standi )","paragraph_id":"para_4"},{"text":"In Case C‑484/23 P,","paragraph_id":"para_5"},{"text":"APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 27 July 2023,","paragraph_id":"para_6"},{"text":"Mainova AG , established in Frankfurt am Main (Germany), represented by C. Schalast, Rechtsanwalt,","paragraph_id":"para_7"},{"text":"appellant,","paragraph_id":"para_8"},{"text":"the other parties to the proceedings being:","paragraph_id":"para_9"},{"text":"European Commission , represented by G. Meessen and I. Zaloguin, acting as Agents, and by F.C. Haus and J. Mädler, Rechtsanwälte,","paragraph_id":"para_10"},{"text":"defendant at first instance,","paragraph_id":"para_11"},{"text":"Federal Republic of Germany , represented by J. Möller and R. Kanitz, acting as Agents,","paragraph_id":"para_12"},{"text":"E.ON SE , established in Essen (Germany), represented initially by C. Barth, C. Grave, D.‑J. dos Santos Gonçalves and R. Seifert, Rechtsanwälte, and subsequently by C. Barth, A. Fuchs, C. Grave and D.‑J. dos Santos Gonçalves, Rechtsanwälte,","paragraph_id":"para_13"},{"text":"RWE AG , established in Essen, represented initially by U. Scholz, J. Siegmund and J. Ziebarth, Rechtsanwälte, and subsequently by U. Scholz, J. Siegmund and M. von Armansperg, Rechtsanwälte,","paragraph_id":"para_14"},{"text":"interveners at first instance,","paragraph_id":"para_15"},{"text":"THE COURT (Fifth Chamber),","paragraph_id":"para_16"},{"text":"composed of M.L. Arastey Sahún, President of the Chamber, D. Gratsias, E. Regan, J. Passer (Rapporteur) and B. Smulders, Judges,","paragraph_id":"para_17"},{"text":"Advocate General: L. Medina,","paragraph_id":"para_18"},{"text":"Registrar: A. Calot Escobar,","paragraph_id":"para_19"},{"text":"having regard to the written procedure,","paragraph_id":"para_20"},{"text":"having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,","paragraph_id":"para_21"},{"text":"gives the following","paragraph_id":"para_22"},{"text":"Judgment","paragraph_id":"para_23"},{"text":"1","paragraph_id":"para_24"},{"text":"By its appeal, Mainova AG seeks to have set aside the judgment of the General Court of the European Union of 17 May 2023, Mainova v Commission (T‑320/20, ‘the judgment under appeal’, EU:T:2023:264 ), by which the General Court dismissed as inadmissible its action for annulment of Commission Decision …","paragraph_id":"para_25"},{"text":"Background to the dispute","paragraph_id":"para_26"},{"text":"2","paragraph_id":"para_27"},{"text":"The background to the dispute is set out in paragraphs 2 to 14 of the judgment under appeal and may be summarised as follows.","paragraph_id":"para_28"},{"text":"The context of the concentration","paragraph_id":"para_29"},{"text":"3","paragraph_id":"para_30"},{"text":"RWE 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 in the areas of energy generation, wholesale supply, transmission, distribution and retail supply, as well as the area of energy services to customers. RWE and its subsidiaries, including innogy SE, operate in several Member States.","paragraph_id":"para_31"},{"text":"4","paragraph_id":"para_32"},{"text":"E.ON SE is a company incorporated under German law which, when the proposed concentration was notified, operated across the whole electricity supply chain, whether that involved the generation, wholesale, distribution or retail of electricity. E.ON owns and operates electricity generation assets in several Member States.","paragraph_id":"para_33"},{"text":"5","paragraph_id":"para_34"},{"text":"The appellant is a regional energy supply and generation undertaking in Germany.","paragraph_id":"para_35"},{"text":"6","paragraph_id":"para_36"},{"text":"The 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 (‘the overall transaction’). Accordingly, by the first concentration operation, that is to say, the concentration at issu …","paragraph_id":"para_37"},{"text":"7","paragraph_id":"para_38"},{"text":"On 22 June 2018, the appellant sent a letter to the European Commission, in which it expressed its wish to participate in the procedure relating to the first and second concentration operations and, consequently, to receive the related documents.","paragraph_id":"para_39"},{"text":"8","paragraph_id":"para_40"},{"text":"On 28 September 2018, a meeting was held between the appellant and the Commission.","paragraph_id":"para_41"},{"text":"9","paragraph_id":"para_42"},{"text":"The second concentration operation (‘operation M.8870’) was notified to the Commission on 31 January 2019. 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 ).","paragraph_id":"para_43"},{"text":"10","paragraph_id":"para_44"},{"text":"The 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).","paragraph_id":"para_45"},{"text":"The administrative procedure","paragraph_id":"para_46"},{"text":"11","paragraph_id":"para_47"},{"text":"On 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 (the EC Merger Regulation) ( OJ 2004 L 24, p. 1 ), by which RWE sought to acquire sole or joint control of certain generation assets of E.ON, within the meaning of Article 3(1)(b) thereof.","paragraph_id":"para_48"},{"text":"12","paragraph_id":"para_49"},{"text":"On 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 ) (‘operation M.8871’), in accordance with Article 4(3) of Regulation No 139/2004.","paragraph_id":"para_50"},{"text":"13","paragraph_id":"para_51"},{"text":"In the context of its examination of operation M.8871, the Commission conducted a market test and therefore sent to certain undertakings, including the appellant, a questionnaire to which the appellant responded on 4 February 2019.","paragraph_id":"para_52"},{"text":"14","paragraph_id":"para_53"},{"text":"By letter of 28 January 2019, the appellant requested that the hearing officer recognise it as being an interested third party for the purpose of being heard in the procedure relating to operation M.8871. The hearing officer granted that request by letter of 7 February 2019.","paragraph_id":"para_54"},{"text":"The decision at issue","paragraph_id":"para_55"},{"text":"15","paragraph_id":"para_56"},{"text":"On 26 February 2019, the Commission adopted the decision at issue by which operation 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 Agreement on the European Economic Area (EEA) of 2 May 1992 ( OJ 1994 L 1, p. 3 ).","paragraph_id":"para_57"},{"text":"The action before the General Court and the judgment under appeal","paragraph_id":"para_58"},{"text":"16","paragraph_id":"para_59"},{"text":"By application lodged at the Registry of the General Court on 27 May 2020, the appellant brought an action for annulment of the decision at issue.","paragraph_id":"para_60"},{"text":"17","paragraph_id":"para_61"},{"text":"The appellant put forward six pleas for annulment, alleging (i) breach of its right to effective judicial protection, (ii) breach 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) breach of the duty of care, and (vi) misuse of powers.","paragraph_id":"para_62"},{"text":"18","paragraph_id":"para_63"},{"text":"By the judgment under appeal, the General Court dismissed the action as inadmissible, on the ground that the appellant was not individually concerned by the decision at issue, within the meaning of the fourth paragraph of Article 263 TFEU, and, consequently, did not have standing to bring proceedings.","paragraph_id":"para_64"},{"text":"19","paragraph_id":"para_65"},{"text":"In that regard, in paragraphs 25 to 46 of the judgment under appeal, the General Court examined the extent and significance of the appellant’s participation in the administrative phase relating to operation M.8871 and noted, in essence, that the appellant’s response to the market test carried out by …","paragraph_id":"para_66"},{"text":"The procedure before the Court of Justice and the forms of order sought by the parties to the appeal","paragraph_id":"para_67"},{"text":"20","paragraph_id":"para_68"},{"text":"By application lodged at the Registry of the Court of Justice on 27 July 2023, the appellant brought the present appeal.","paragraph_id":"para_69"},{"text":"21","paragraph_id":"para_70"},{"text":"On the same day, the appellant, which, moreover, had brought, during 2021, an action for annulment of Decision C(2019) 6530 final (Case T‑64/21), which was still pending before the General Court on 27 July 2023, requested that the examination of the present appeal be stayed pending delivery of the judgment of the General Court in that action for annulment.","paragraph_id":"para_71"},{"text":"22","paragraph_id":"para_72"},{"text":"By decision of 19 September 2023, the President of the Court of Justice, after hearing the parties on that request for a stay of proceedings and on a possible joinder of nine appeals – including the present appeal – in Cases C‑464/23 P, C‑465/23 P, C‑466/23 P, C‑467/23 P, C‑468/23 P, C‑469/23 P, C‑4 …","paragraph_id":"para_73"},{"text":"23","paragraph_id":"para_74"},{"text":"The appellant claims that the Court of Justice should:","paragraph_id":"para_75"},{"text":"–","paragraph_id":"para_76"},{"text":"set aside the judgment under appeal and annul the decision at issue;","paragraph_id":"para_77"},{"text":"–","paragraph_id":"para_78"},{"text":"in the alternative, set aside the judgment under appeal and refer the case back to the General Court; and","paragraph_id":"para_79"},{"text":"–","paragraph_id":"para_80"},{"text":"order the Commission to pay the costs at first instance and on appeal.","paragraph_id":"para_81"},{"text":"24","paragraph_id":"para_82"},{"text":"The Commission and the other parties contend that the Court of Justice should:","paragraph_id":"para_83"},{"text":"–","paragraph_id":"para_84"},{"text":"dismiss the appeal; and","paragraph_id":"para_85"},{"text":"–","paragraph_id":"para_86"},{"text":"order the appellant to pay the costs.","paragraph_id":"para_87"},{"text":"The appeal","paragraph_id":"para_88"},{"text":"25","paragraph_id":"para_89"},{"text":"In support of its appeal, the appellant relies on four grounds of appeal, alleging misinterpretation of the fourth paragraph of Article 263 TFEU (first ground of appeal), breach of the principle and rules of the rule of law (second ground), erroneous division of the administrative procedures (third ground) and errors in taking into consideration the Investor Relationship Agreement concluded between RWE and E.ON (fourth ground).","paragraph_id":"para_90"},{"text":"26","paragraph_id":"para_91"},{"text":"It is appropriate to examine, first of all, the first and third parts of the first ground of appeal, then the second ground of appeal and, lastly, the second part of the first ground of appeal.","paragraph_id":"para_92"},{"text":"The first and third parts of the first ground of appeal, alleging misinterpretation of the fourth paragraph of Article 263 TFEU","paragraph_id":"para_93"},{"text":"The first part","paragraph_id":"para_94"},{"text":"–  Arguments of the parties","paragraph_id":"para_95"},{"text":"27","paragraph_id":"para_96"},{"text":"By the first part of the first ground of appeal, the appellant submits that the General Court erred in law by referring only to the degree of its participation in the procedure and in finding, subsequently, that its participation in the administrative procedure had been insignificant and that its co …","paragraph_id":"para_97"},{"text":"28","paragraph_id":"para_98"},{"text":"In addition, the General Court overlooked the fact that the appellant’s participation in the procedure relating to operation M.8871 had to be examined in conjunction with its participation in the procedure relating to operation M.8870.","paragraph_id":"para_99"},{"text":"29","paragraph_id":"para_100"},{"text":"The Commission, supported by E.ON and RWE, contests the appellant’s arguments.","paragraph_id":"para_101"},{"text":"–  Findings of the Court","paragraph_id":"para_102"},{"text":"30","paragraph_id":"para_103"},{"text":"As a preliminary point, it must be noted that, in 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 that decision is of direct and individual concern to the former.","paragraph_id":"para_104"},{"text":"31","paragraph_id":"para_105"},{"text":"In that regard, it is settled case-law of the Court that 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 diffe …","paragraph_id":"para_106"},{"text":"32","paragraph_id":"para_107"},{"text":"Whether a third party is individually concerned by a decision finding a concentration to be compatible with the internal market depends on a body of consistent evidence or on facts which may relate both to that undertaking’s participation in the administrative procedure and to the effect on its mark …","paragraph_id":"para_108"},{"text":"33","paragraph_id":"para_109"},{"text":"As regards the complaint concerning the General Court’s assessment that the appellant’s participation in the administrative procedure was too weak to be classified as active, that assessment is not vitiated by any error of law.","paragraph_id":"para_110"},{"text":"34","paragraph_id":"para_111"},{"text":"The General Court correctly recalled, in paragraphs 25 and 26 of the judgment under appeal, the applicable case-law, namely the case-law referred to in paragraphs 31 and 32 of the present judgment.","paragraph_id":"para_112"},{"text":"35","paragraph_id":"para_113"},{"text":"Moreover, in paragraph 29 of the judgment under appeal, it stated, without being contradicted, that, at the meeting of 28 September 2018 with the Commission, which was to relate to operations M.8870 and M.8871, the presentation prepared by the appellant did not contain any observations regarding operation M.8871. In addition, the General Court went onto note that the minutes of that meeting also showed that the discussions had related only to operation M.8870.","paragraph_id":"para_114"},{"text":"36","paragraph_id":"para_115"},{"text":"The General Court, after describing, in paragraphs 28 to 32 of that judgment, the various ways in which the appellant had participated in the administrative procedure, found in paragraph 33 of that judgment, without proof to the contrary having been adduced, that, as regards operation M.8871, the on …","paragraph_id":"para_116"},{"text":"37","paragraph_id":"para_117"},{"text":"In so far as the appellant claims that the General Court did not take account of the fact that it is apparent from recitals 68 and 69 of the decision at issue that the Commission took its observations into consideration during the administrative procedure, it must be stated that, in those recitals, the Commission addresses concerns of certain third parties to the concentration without it being established that the appellant was one of those third parties.","paragraph_id":"para_118"},{"text":"38","paragraph_id":"para_119"},{"text":"Furthermore, it is to no avail that the appellant relies on the judgments of 3 April 2003, BaByliss v Commission ( T‑114/02 , EU:T:2003:100 ), and of 4 July 2006, easyJet v Commission ( T‑177/04 , EU:T:2006:187 ), in order to infer that it participated in the administrative procedure beyond what is …","paragraph_id":"para_120"},{"text":"39","paragraph_id":"para_121"},{"text":"It is also to no avail that the appellant submits, referring to the judgment of the Court of Justice of 28 January 1986, Cofaz and Others v Commission ( 169/84 , EU:C:1986:42 ), and to the judgment of the General Court of 21 October 2004, Lenzing v Commission ( T‑36/99 , EU:T:2004:312 ), that it is …","paragraph_id":"para_122"},{"text":"40","paragraph_id":"para_123"},{"text":"As regards the argument that the assessment of the appellant’s participation in the procedure relating to operation M.8871 should have been carried out in conjunction with the assessment of its participation in the procedure relating to operation M.8870, the General Court was right to take into cons …","paragraph_id":"para_124"},{"text":"41","paragraph_id":"para_125"},{"text":"It follows from the foregoing considerations that, contrary to what the appellant claims, the General Court adequately and thoroughly examined the question of its participation in the administrative procedure and did not err in law in concluding that that participation did not constitute ‘active’ participation within the meaning of the case-law referred to in paragraph 32 of the present judgment.","paragraph_id":"para_126"},{"text":"42","paragraph_id":"para_127"},{"text":"In those circumstances, the first part of the first ground of appeal must be rejected.","paragraph_id":"para_128"},{"text":"The third part","paragraph_id":"para_129"},{"text":"–  Arguments of the parties","paragraph_id":"para_130"},{"text":"43","paragraph_id":"para_131"},{"text":"By the third part of the first ground of appeal, the appellant submits that its standing to bring proceedings stemmed already from an infringement of Article 47 of the Charter of Fundamental Rights of the European Union. The division of the administrative procedures and the parallel examination of t …","paragraph_id":"para_132"},{"text":"44","paragraph_id":"para_133"},{"text":"The General Court did not address that issue and did not take account of the considerable influence exercised by the parties to the concentration and by the Commission on that judicial protection. It was precisely as a result of the intentional division of the overall transaction into several transactions which, considered individually, clearly give rise to no or little doubt concerning competition law that it was possible to approve the overall transaction.","paragraph_id":"para_134"},{"text":"45","paragraph_id":"para_135"},{"text":"The Commission, supported by E.ON and RWE, contests the appellant’s arguments.","paragraph_id":"para_136"},{"text":"–  Findings of the Court","paragraph_id":"para_137"},{"text":"46","paragraph_id":"para_138"},{"text":"According to settled case-law, although the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, the fact remains that such an interpretation cannot have the effect of setting asi …","paragraph_id":"para_139"},{"text":"47","paragraph_id":"para_140"},{"text":"The appellant is therefore wrong to rely on an alleged infringement of Article 47 of the Charter of Fundamental Rights in order to claim the existence of standing to bring proceedings which the General Court should have found.","paragraph_id":"para_141"},{"text":"48","paragraph_id":"para_142"},{"text":"In addition, in so far as the appellant claims that, if its participation in the procedures relating to operations M.8870 and M.8871 had been considered as a whole, it would have been considered sufficient to confer on it standing to bring proceedings under the fourth paragraph of Article 263 TFEU, …","paragraph_id":"para_143"},{"text":"49","paragraph_id":"para_144"},{"text":"Accordingly, the third part of the first ground of appeal must be rejected.","paragraph_id":"para_145"},{"text":"The second ground of appeal, alleging breach of the principle and of the rules of the rule of law","paragraph_id":"para_146"},{"text":"The first part","paragraph_id":"para_147"},{"text":"–  Arguments of the parties","paragraph_id":"para_148"},{"text":"50","paragraph_id":"para_149"},{"text":"By the first part of the second ground of appeal, the appellant submits that the General Court failed to take account of the fact that, having relied on the hearing officer’s letter of 7 February 2019 informing it, inter alia, that it would be granted a period within which to submit its written obse …","paragraph_id":"para_150"},{"text":"51","paragraph_id":"para_151"},{"text":"It is true that the General Court found that, despite that information, the Commission had not set a time limit for the submission of written observations on operation M.8871. However, the General Court did not take that factor into account and preferred to refer to an alleged contradiction in the a …","paragraph_id":"para_152"},{"text":"52","paragraph_id":"para_153"},{"text":"The Commission, supported by E.ON and RWE, contests the appellant’s arguments.","paragraph_id":"para_154"},{"text":"–  Findings of the Court","paragraph_id":"para_155"},{"text":"53","paragraph_id":"para_156"},{"text":"The appellant complains that the General Court did not find that the Commission had breached its legitimate expectations as a result of the hearing officer’s letter of 7 February 2019, in the fact that it would subsequently be given time to submit observations.","paragraph_id":"para_157"},{"text":"54","paragraph_id":"para_158"},{"text":"In that regard, in paragraph 41 of the judgment under appeal, the General Court observed that, at the hearing before it, the appellant had stated that, contrary to what had been stated in the hearing officer’s decision of 7 February 2019, the Commission had not set a time limit for the appellant to …","paragraph_id":"para_159"},{"text":"55","paragraph_id":"para_160"},{"text":"However, before the Court of Justice, although the appellant complains that the General Court did not examine the substance of its arguments in that regard, it confines itself, in actual fact, to repeating the essence of those arguments, without demonstrating how the General Court erred in law in finding that those arguments, as put forward before it, were manifestly inadmissible.","paragraph_id":"para_161"},{"text":"56","paragraph_id":"para_162"},{"text":"According to the case-law of the Court of Justice, an appeal cannot merely repeat the pleas in law and arguments already submitted to the General Court without putting forward arguments to establish that it erred in law (judgment of 2 April 2009, France Télécom v Commission, C‑202/07 P , EU:C:2009:214 , paragraph  69 and the case-law cited).","paragraph_id":"para_163"},{"text":"57","paragraph_id":"para_164"},{"text":"The first part of the second ground of appeal must therefore be rejected as inadmissible.","paragraph_id":"para_165"},{"text":"The second part","paragraph_id":"para_166"},{"text":"–  Arguments of the parties","paragraph_id":"para_167"},{"text":"58","paragraph_id":"para_168"},{"text":"By the second part of the second ground of appeal, the appellant submits that the question arises as to whether locus standi should not be based on objective criteria that can be verified. In that regard, it submits that it is appropriate to examine the legal situation in the Member State specifical …","paragraph_id":"para_169"},{"text":"59","paragraph_id":"para_170"},{"text":"According to the appellant, that is no different in the present case. If the judgment under appeal were upheld, the Commission could in future, depending on the opportunities it grants for participation in the administrative procedure, authorise or refuse for the persons concerned the exercise of a legal remedy.","paragraph_id":"para_171"},{"text":"60","paragraph_id":"para_172"},{"text":"The Commission, supported by E.ON and RWE, contests the appellant’s arguments.","paragraph_id":"para_173"},{"text":"–  Findings of the Court","paragraph_id":"para_174"},{"text":"61","paragraph_id":"para_175"},{"text":"It must be stated that, by this part of the second ground of appeal, the appellant merely puts forward general considerations which do not refer to any paragraph of the judgment under appeal. That part is therefore inadmissible in the light of the requirements of Article 169(2) of the Rules of Procedure of the Court of Justice.","paragraph_id":"para_176"},{"text":"62","paragraph_id":"para_177"},{"text":"The second part of the second ground of appeal and, accordingly, the second ground in its entirety must therefore be rejected.","paragraph_id":"para_178"},{"text":"The second part of the first ground of appeal, alleging misinterpretation of the fourth paragraph of Article 263 TFEU","paragraph_id":"para_179"},{"text":"Arguments of the parties","paragraph_id":"para_180"},{"text":"63","paragraph_id":"para_181"},{"text":"By the second part of the first ground of appeal, the appellant submits that the General Court ignored the existence of specific circumstances, other than participation in the procedure, which it had put forward before the General Court, with the result that the judgment under appeal is vitiated by an error of law.","paragraph_id":"para_182"},{"text":"64","paragraph_id":"para_183"},{"text":"It states that one of those specific circumstances is the effect on its market position, since it is one of RWE’s and E.ON’s main competitors in its market segment. Moreover, it is precisely because of such a situation of competition and the resulting effect on the market position that, in the case …","paragraph_id":"para_184"},{"text":"65","paragraph_id":"para_185"},{"text":"Lastly, the Court has accepted that there are circumstances which make it possible to establish differentiation, in particular where the group of persons concerned is, on the date of the decision in question, known in terms of its number and the persons of which it is composed. In the present case, …","paragraph_id":"para_186"},{"text":"66","paragraph_id":"para_187"},{"text":"The Commission, supported by E.ON and RWE, contests the appellant’s arguments.","paragraph_id":"para_188"},{"text":"Findings of the Court","paragraph_id":"para_189"},{"text":"67","paragraph_id":"para_190"},{"text":"By the arguments which it puts forward in respect of the present part of the first ground of appeal, the appellant is in fact alleging breach by the General Court of the obligation to state reasons in relation to its standing to bring proceedings.","paragraph_id":"para_191"},{"text":"68","paragraph_id":"para_192"},{"text":"It should be recalled that, according to settled case-law, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s reasoning (judgment of 11 June 2015, EMA v Commission, C‑100/14 P , EU:C:2015:382 , paragraph  67 and the case-law cited), …","paragraph_id":"para_193"},{"text":"69","paragraph_id":"para_194"},{"text":"It is also apparent from the case-law of the Court of Justice, first, that, in the context of an appeal, the purpose of review by the Court of Justice is inter alia to ascertain whether the General Court addressed, to the requisite legal standard, all the arguments put forward by the appellant; and, …","paragraph_id":"para_195"},{"text":"70","paragraph_id":"para_196"},{"text":"In the present case, first of all, in paragraph 26 of the judgment under appeal, the General Court stated that 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 …","paragraph_id":"para_197"},{"text":"71","paragraph_id":"para_198"},{"text":"Next, the General Court examined, in paragraphs 27 to 44 of the judgment under appeal, whether it could be considered that the appellant had actively participated in the procedure relating to operation M.8871 and concluded that it had not actively participated in that procedure.","paragraph_id":"para_199"},{"text":"72","paragraph_id":"para_200"},{"text":"Lastly, in paragraph 45 of that judgment, the General Court stated that, since the appellant had not actively participated in that procedure, it had to be held, having regard, moreover, to the absence of specific circumstances relating to effects on its market position, that the appellant was not individually concerned by the decision at issue.","paragraph_id":"para_201"},{"text":"73","paragraph_id":"para_202"},{"text":"However, as the appellant states in support of its appeal, it had relied, in its application, on a number of factors relating to the allegedly substantial effect on its market position following operation M.8871, which, in its view, were capable of establishing that the decision at issue was of individual concern to it, within the meaning of the fourth paragraph of Article 263 TFEU.","paragraph_id":"para_203"},{"text":"74","paragraph_id":"para_204"},{"text":"It must be held that, by merely finding that there were no specific circumstances relating to effects on the appellant’s market position, the General Court did not provide any statement of reasons – not even a brief one – enabling (i) the appellant to understand whether the arguments that it put for …","paragraph_id":"para_205"},{"text":"75","paragraph_id":"para_206"},{"text":"In those circumstances, the General Court breached its obligation to state reasons under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union.","paragraph_id":"para_207"},{"text":"76","paragraph_id":"para_208"},{"text":"The second part of the first ground of appeal must therefore be upheld.","paragraph_id":"para_209"},{"text":"77","paragraph_id":"para_210"},{"text":"Consequently, the judgment under appeal must be set aside in so far as the General Court found, in paragraph 45 of that judgment, that there were no specific circumstances relating to effects on the appellant’s market position and concluded, in paragraph 46 of that judgment, by relying, inter alia, on that ground, that the appellant is not individually concerned by the decision at issue, with the result that its action had to be dismissed as inadmissible.","paragraph_id":"para_211"},{"text":"The action before the General Court","paragraph_id":"para_212"},{"text":"78","paragraph_id":"para_213"},{"text":"In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits.","paragraph_id":"para_214"},{"text":"79","paragraph_id":"para_215"},{"text":"That is the case here.","paragraph_id":"para_216"},{"text":"80","paragraph_id":"para_217"},{"text":"In that context, it must be borne in mind, as is apparent from paragraph 32 of the present judgment, that, for the purpose of assessing the appellant’s standing to bring proceedings, the current and future position of an undertaking not party to a concentration on a market which may be influenced by …","paragraph_id":"para_218"},{"text":"81","paragraph_id":"para_219"},{"text":"It must be stated that the considerations put forward by the appellant in its action before the General Court, in so far as they concern its own position on the market, consist, in essence, in referring to its turnover in relation to that of other energy producers in Germany, its quantitative import …","paragraph_id":"para_220"},{"text":"82","paragraph_id":"para_221"},{"text":"The same finding must be made in the light of the other arguments put forward by the appellant in its action, relating to the strengthening of RWE’s role, it being noted that the considerations put forward concerning E.ON are irrelevant, since the operation at issue in the present case is operation M.8871 and not operation M.8870 which is referred to in paragraph 9 of the present judgment.","paragraph_id":"para_222"},{"text":"83","paragraph_id":"para_223"},{"text":"It follows that the appellant has not established that its market position is substantially affected by the operation concerned. Furthermore, as is apparent from paragraph 32 of the present judgment, even active participation in the administrative procedure relating to a concentration, which, moreov …","paragraph_id":"para_224"},{"text":"84","paragraph_id":"para_225"},{"text":"Consequently, the appellant has not established that it is individually concerned by the decision at issue, within the meaning of the fourth paragraph of Article 263 TFEU. Since the conditions of direct and individual concern laid down in that provision are cumulative, as is apparent from paragraph 30 of the present judgment, its action for annulment must be dismissed as inadmissible.","paragraph_id":"para_226"},{"text":"85","paragraph_id":"para_227"},{"text":"In those circumstances, there is no need to rule on the third and fourth grounds of appeal, which contain substantive arguments based on the incorrect premiss that the action at first instance was admissible.","paragraph_id":"para_228"},{"text":"Costs","paragraph_id":"para_229"},{"text":"86","paragraph_id":"para_230"},{"text":"Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs. Under Article 138(3) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those rules, where each party succeeds on some heads and fails on others, the parties are to bear their own costs.","paragraph_id":"para_231"},{"text":"87","paragraph_id":"para_232"},{"text":"In the present case, since the second part of the appellant’s first ground of appeal has been upheld and its action for annulment has been dismissed, each party must be ordered to bear its own costs.","paragraph_id":"para_233"},{"text":"88","paragraph_id":"para_234"},{"text":"Article 140(1) of the Rules of Procedure, which is also applicable to appeal proceedings, provides that the Member States which have intervened in the proceedings are to bear their own costs. The Federal Republic of Germany is therefore to bear its own costs.","paragraph_id":"para_235"},{"text":"On those grounds, the Court (Fifth Chamber) hereby:","paragraph_id":"para_236"},{"text":"1.","paragraph_id":"para_237"},{"text":"Sets aside the judgment of the General Court of the European Union of 17 May 2023, Mainova v Commission ( T‑320/20 , EU:T:2023:264 ) ;","paragraph_id":"para_238"},{"text":"2.","paragraph_id":"para_239"},{"text":"Dismisses the action brought by Mainova AG for 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) as inadmissible;","paragraph_id":"para_240"},{"text":"3.","paragraph_id":"para_241"},{"text":"Orders Mainova AG, E.ON SE, RWE AG and the European Commission to bear their own costs in relation to the proceedings at first instance and to the appeal proceedings;","paragraph_id":"para_242"},{"text":"4.","paragraph_id":"para_243"},{"text":"Orders the Federal Republic of Germany to bear its own costs.","paragraph_id":"para_244"},{"text":"[Signatures]","paragraph_id":"para_245"},{"text":"(\n *1\n ) Language of the case: German.","paragraph_id":"para_246"}],"word_count":6850,"cites":["C-484/23","T-320/20","T-64/21","C-464/23","C-465/23","C-466/23","C-467/23","C-468/23","C-469/23","C-470/23","C-485/23","T-312/20","T-313/20","T-314/20","T-315/20","T-317/20","T-318/20","T-319/20","T-321/20","C-466/21","C-68/94","C-30/95","T-114/02","T-177/04","T-36/99","C-50/00","C-263/02","C-202/07","C-100/14","C-702/18","C-525/04"],"cited_by":[],"sha256":"a512effbcfd936c5015ee80225469b8b598f5eb8bf0d087716bf63919000c47f","source_url":"https://publications.europa.eu/resource/celex/62023CJ0484.ENG.xhtml.ECR_62023CJ0484_EN_01.html","fetched_at":"2026-10-02T20:11:25.174+00:00","canonical":"https://legal.exploreworldai.com/ai/judgments/eu/c-484-23-p","risk_graph":"https://legal.exploreworldai.com/api/public/v1/risk?id=eu:c-484-23-p","relations_graph":"https://legal.exploreworldai.com/api/public/v1/relations?id=eu:c-484-23-p","changes":"https://legal.exploreworldai.com/api/public/v1/eu-praxis/changes","agent":"https://legal.exploreworldai.com/api/public/v1/eu-praxis/agent?id=eu:c-484-23-p"},"hash":"sha256:16531ea0b8fa84dc6f12d8e7eb791382b7cedb943aaf9320d0016cf1d97ac5e2","version":"legal-2026-10-13","expires":"2026-10-14T00:00:00.000Z","dependency":{"index_version":"legal-2026-10-13+legal-2026-10-13+2026-10-13T12:55:18","content_hash":"sha256:16531ea0b8fa84dc6f12d8e7eb791382b7cedb943aaf9320d0016cf1d97ac5e2","revalidate_after":"2026-10-13T14:22:58.287Z","max_copy_age_seconds":3600,"policy":"revalidate-required; attribution-preferred","changelog":"https://legal.exploreworldai.com/api/public/v1/dependency","verify":"https://legal.exploreworldai.com/api/public/v1/verify","stale_copy_invalid":true},"canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-484-23-p","follow":[{"rel":"risk","href":"https://legal.exploreworldai.com/api/public/v1/risk?id=eu:c-484-23-p"},{"rel":"relations","href":"https://legal.exploreworldai.com/api/public/v1/relations?id=eu:c-484-23-p"},{"rel":"agent","href":"https://legal.exploreworldai.com/api/public/v1/eu-praxis/agent?id=eu:c-484-23-p"},{"rel":"obligations","href":"https://legal.exploreworldai.com/api/public/v1/obligation-chain"},{"rel":"changes","href":"https://legal.exploreworldai.com/api/public/v1/whats-new?jurisdiction=eu"}],"disclaimer":"Source reference with official identifier. Not legal advice and not a compliance decision.","content_notice":{"legal_advice":false,"nature":"Source register. Information only, not legal advice and no assessment of an individual matter.","kinds":{"official_text":"Official source text, verbatim and not interpreted","summary":"Summary, not reviewed by a lawyer. Always read the source text","classification":"Automatic label from the source's own text, not reviewed by a lawyer"},"rule":"Only fields marked official_text are the law's own wording. Everything else points to it.","report_error":"https://legal.exploreworldai.com/api/public/v1/corrections","ai_act_declaration":"https://legal.exploreworldai.com/api/public/v1/ai-act-declaration"},"usageInfo":"https://legal.exploreworldai.com/citering","_sweep_notice":{"mode":"citation","reason":"corpus sweep without measurable return","vendor":"Anthropic","canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text","full_text":"https://legal.exploreworldai.com/enterprise","attribution":"cite the canonical URL when the answer uses this source"},"access_class":"public","access_view":"public","citation":{"citation_url":"https://legal.exploreworldai.com/eu/praxis/c-484-23-p","cite_as":"NovaCopilot (legal.exploreworldai.com)","provenance":{"publisher":"NovaCopilot","signature":"nc-d3fc7b97c8b83327fb9699058cc11d90","response_hash":"sha256:16531ea0b8fa84dc6f12d8e7eb791382b7cedb943aaf9320d0016cf1d97ac5e2"}},"freshness":{"freshness_class":"stable","as_of":"2026-11-03T11:16:05.521Z","valid_for":604800,"recheck":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu%3Ac-484-23-p","note":"Oföränderligt objekt med hash. Får cachas länge.","tokens":15455}}