On 6 November 2012, the European Court of Justice ("ECJ") rendered the latest in a string of judgments (Case C-551/10, joined cases C-553/10 and C-554/10) related to the Commission’s merger decision of 7 January 2004 (Case COMP/M.2978). The latter decision approved the acquisition by Lagardère of publishing assets of Vivendi Universal Publishing ("VUP", now Editis), albeit subject to structural remedies (divestments).
In a nutshell, the cases find their origin in two actions for annulment lodged by Editions Odile Jacob against the Commission’s conditional clearance on the one hand, and the approval of Wendel Investissement as a suitable purchaser for the divested assets on the other (we have set aside the procedures related to access to documents, culminating in the ECJ judgment of 28 June 2012 in Case C-404/10). On 13 September 2010, the General Court dismissed the first of the two actions (Case T-279/04), while annulling the contested decision in the second case (Case T-452/04). Both judgments were appealed against, the former by Odile Jacob, the latter by the Commission and by Lagardère. Both appeals were dismissed by parallel judgments of 6 November 2012.
With regard to the conditional merger clearance, the ECJ confirms the General Court’s approach vis-à-vis the nominee holding arrangement through which Lagardère had asked one of its subsidiaries to temporarily take its place in order to purchase the target assets from VUP. In particular, the ECJ confirms that even if Lagardère might have infringed the time limits for notification of the concentration and/or the stand-still obligation, such infringements can give rise to penalties, but are of no relevance to the permissibility of the concentration as such. As for the allegation that the Commission had insufficiently motivated the characterisation of the nominee holding arrangement, the ECJ confirms that the Commission does not infringe its duty to state reasons “if, when exercising its power to examine concentrations, it does not include in its decision appraisal of a number of aspects of the concentration which appear to it to be manifestly irrelevant or insignificant or plainly of secondary importance to the appraisal of that concentration.” The ECJ dismisses Odile Jacob’s suggestions that the Commission erred in law in its assessment of the anti-competitive effects of the concentration and the adequacy of the commitments.
The second case relates to the decision approving Wendel as a suitable purchaser for the divested assets. At the outset, the ECJ recalls that the independence of the trustee was a component of the commitments which were undertaken by Lagardère and which had to be fully respected. In casu, however, it was clear that the trustee whose appointment was approved by the Commission was not independent from Editis. In light hereof, and contrary to what the appellants claimed, the General Court was under no obligation to examine whether the trustee had also acted in a way which was evidence of that lack of independence. The ECJ moreover dismisses the argument that the decision approving the sale of the divested assets to Wendel could not have been annulled absent a separate action for annulment against the trustee approval decision by Odile Jacob. According to the Court, it would be pointless and unnecessary formalism to hold that Odile Jacob should have brought a separate action against the trustee approval decision (of which it had received notice only after having instituted proceedings against the decision approving Wendel as a suitable purchaser).