The Court of First Instance (CFI) has confirmed the Commission's decision to suspend an investigation into the Omya/Huber merger case until it received the information necessary to complete its analysis. The Commission has welcomed the CFI’s Judgment (Case T-145/06), as it confirms that the Commission is fully entitled to insist on obtaining all information necessary to perform an effective and complete assessment of mergers and takeovers.
In the course of its investigation, the Commission experienced difficulty in obtaining from the parties the data necessary to complete the database for purposes of market definition and evaluation of the proposed acquisition. In order to obtain such information it had to adopt decisions based on Article 11(3) of the EU Merger Regulation requiring the parties to provide the requested data, which had the effect of suspending the investigation until the information was submitted. The Commission’s Decision of 8 March 2006 stated that the information provided by Omya was partly incorrect. Omya subsequently supplied corrected data on 21 March 2006 and the acquisition was then approved by the Commission on 19 July 2006, subject to conditions.
In its appeal to the CFI, Omya claimed that the Commission had failed to comply with the conditions for adopting an Article 11(3) decision, that the decision was disproportionate, that the Commission had misused its powers and Omya's legitimate expectations had been infringed. The CFI dismissed all claims made by Omya and held that the Commission was justified in adopting the suspension decision. The CFI rejected the plea with regard to the Commission’s failure to comply with the conditions for Article 11(3) and also found that Omya had failed to prove that the data it had supplied was materially correct. Furthermore, the CFI underlined that the Commission needed the data to perform its econometric analysis. Finally, the CFI noted inter alia that the period between finding the errors and the date of the adoption of the decision did not appear to be exceptionally long.