OPINION OF ADVOCATE GENERAL

delivered on 25 May 2004 (1)

(Regulation No 4064/89 – Decision ordering the separating of undertakings following a decision declaring a concentration incompatible with the common market)

I – The relevant provisions

II – Facts and procedure

A – The concentration notified and the decisions adopted by the Commission

(6) On 27 March 2001, Tetra Laval SA, a privately held company incorporated under French law and a wholly owned subsidiary of Tetra Laval BV, a holding company belonging to the Tetra Laval group (hereinafter “Tetra” or “the applicant”), announced a public bid for all outstanding shares in Sidel SA (hereinafter “Sidel”), a French publicly quoted company. On the same day, Tetra Laval SA acquired roughly 9.75% of the shares in Sidel from Azeo (5.56%) and Sidel’s directors (4.19%).

(7) Pursuant to the bid, Tetra acquired approximately 81.3% of the outstanding shares in Sidel. After the closing of the bid, the applicant acquired certain additional shares, making its current holdings roughly 95.20% of the shares and 95.93% of the voting rights in Sidel.

(8) On 18 May 2001, the operations by which Tetra acquired its shareholding in Sidel were notified to the Commission. In accordance with Article 7(3) of the Regulation, the applicant undertook not to exercise the voting rights attached to those shares without express authorisation from the Commission.

(9) It is agreed by the parties that those operations constitute an acquisition within the meaning of Article 3(1)(b) of the Regulation and have a Community dimension within the meaning of Article 1(2) thereof.

(10) On 30 October 2001, the Commission adopted a decision pursuant to Article 8(3) of the Regulation (Decision C (2001) 3345 final, Case No COMP/M.2416 – Tetra Laval/Sidel, hereinafter “the prohibition decision”).

(11) Under Article 1 of that decision: “The concentration notified to the Commission by Tetra Laval BV ... on 18 May 2000, whereby Tetra would acquire sole control of the undertaking Sidel SA is declared incompatible with the common market and the functioning of the EEA Agreement.”

…

(15) On 30 January 2002, the Commission adopted a decision setting out measures in order to restore conditions of effective competition pursuant to Article 8(4) of Council Regulation (EEC) No 4064/89 (Case No COMP/M.2416 – Tetra Laval/Sidel), hereinafter the “divestiture decision”). The divestiture decision orders Tetra to divest itself of its shares in Sidel and lays down the principles governing that divestiture.

B – The judgment of the Court of First Instance and the appeals brought before the Court of Justice by the Commission

7. The Court of First Instance adjudicated on those applications by two judgments of 25 October 1992 in which: (i) in Case T-5/02 it annulled the ‘prohibition decision’; (ii) in Case T-80/02 it annulled the ‘divestiture decision’.

III – Legal analysis

10. In support of its appeal in this case the Commission does in substance no more than maintain that, if in Case C-12/03 P the Court of Justice should set aside the Court of First Instance’s judgment concerning the ‘prohibition decision’, it must also set aside the judgment concerning the ‘divestiture decision’ which is based on the former.

11. However, in view of the fact that in Case C-12/03 P I have suggested that the Commission’s appeal should be dismissed, I cannot but consider that this appeal too must be rejected, and that it is not necessary to examine the pleas of inadmissibility raised in this regard by Tetra. (7)

Costs

12. Under Article 69(2) of the Rules of Procedure, and having regard to the conclusions I have reached concerning the dismissal of the appeal, I consider that the Commission must be ordered to bear the costs.

IV – Conclusion

– the appeal is dismissed;

– the Commission shall bear the costs.

1 –

Original language: Italian.

2 –

OJ 1989 L 395, p. 1 (corrigendum published in OJ 1990 L 257, p. 13). Regulation No 4064/89 was amended by Council Regulation (EC) No 1310/97 of 30 June 1997 (OJ 1997 L 180, p. 1).

3 –

What is meant by ‘concentrations’ is explained in Article 3 of the Regulation, while Article 1(2) and (3) makes clear in what circumstances a concentration may have a ‘Community dimension’.

4 –

Paragraph 37.

5 –

Paragraph 41.

6 –

Paragraph 42.

7 –

In this connection, see Case C-23/00 P Council v Boehringer [2002] ECR I-1873, paragraphs 51 and 52, from which it is clear that, for reasons of economy of procedure, the Community judicature may reject an appeal on its merits without having to rule on the objections of inadmissibility raised by the respondent.