13.2.2017

Official Journal of the European Union

C 46/17

(Case C-633/16)

(2017/C 046/19)

Language of the case: Danish

Referring court

Parties to the main proceedings

Applicant: Ernst & Young P/S

Defendant: Konkurrencerådet

Questions referred

1.What criteria are to be applied in assessing whether the conduct or actions of an undertaking are covered by the prohibition in Article 7(1) of Council Regulation No 139/2004 (the prohibition of advance implementation), and does implementing action within the meaning of Article 7(1) presuppose that the action, wholly or in part, factually or legally, forms part of the actual change of control or merging of the continuing activities of the participating undertakings which — provided the quantitative thresholds are met — gives rise to the obligation of notification?

2.Can the termination of a cooperation agreement, as in the present case, which is announced under circumstances corresponding to those described in the order for reference constitute an implementing action covered by the prohibition in Article 7(1) of Council Regulation No 139/2004, and what criteria are then to be applied in making a decision?

3.Does it make any difference in answering Question 2 whether the termination has actually given rise to market effects relevant to competition law?

4.If the answer to Question 3 is in the affirmative, clarification is requested as to what criteria and what degree of probability should be applied in deciding in the particular case whether the termination has given rise to such market effects, including the significance of the possibility that those effects could be attributed to other causes.

Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1).