1&1 Telecom GmbH v Commission (Competition - Concentrations - Retail market for mobile telecommunications services - Judgment) [2018] EUECJ T-43/16 (09 October 2018)

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(Action for annulment - Competition - Concentrations - Retail market for mobile telecommunications services and market for wholesale access and call origination in Germany - Acquisition of E-plus by Telefónica Deutschland - Decision declaring the concentration to be compatible with the internal market and the EEA Agreement - Implementation of the non-MNO component of the Final Commitments - Acts against which no action may be brought - Inadmissibility)

1&1 Telecom GmbH, established in Montabaur (Germany), represented by J.-O. Murach, lawyer, and P. Alexiadis, Solicitor,

European Commission, represented by N. Khan, M. Farley and C. Vollrath, acting as Agents,

Telefónica Deutschland Holding AG, established in Munich (Germany), represented by M. Bauer, H.-J. Freund, B. Herbers and K. Baubkus, lawyers,

APPLICATION under Article 263 TFEU for the annulment of the Commission’s alleged decision contained in the letter of 19 November 2015 in relation to the implementation of the non-MNO remedy provided for in the Final Commitments made obligatory by Commission Decision C(2014) 4443 final of 2 July 2014 declaring a concentration to be compatible with the internal market and the EEA agreement, subject to compliance with certain commitments (Case M.7018 Telefónica Deutschland v E-plus),

composed of S. Frimodt Nielsen, President, I.S. Forrester (Rapporteur) and E. Perillo, Judges,

having regard to the written part of the procedure and further to the hearing on 12 December 2017,

1 By Decision C(2014) 4443 final of 2 July 2014 declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (M.7018 - Telefónica Deutschland/E-Plus), the European Commission declared the acquisition (‘the concentration’) of E-Plus Mobilfunk GmbH & Co. KG (‘E-Plus’) by Telefónica Deutschland Holding AG (‘Telefónica Deutschland’) to be compatible with the internal market and Article 57 of the Agreement on the European Economic Area (EEA), subject to Telefónica’s compliance with certain final commitments set out in the annexes to that decision (‘the Final Commitments’). The Final Commitments consist of three components: a ‘mobile network operator’ component (the ‘MNO component’), a ‘mobile bitstream access mobile virtual network operator’ component (the ‘MBA MVNO component’) and an ‘operator without its own network’ component (the ‘non-MNO component’).

2 Under the MNO component, Telefónica Deutschland commits, in essence, to offer to lease frequency spectrum to a new MNO and also to sell it certain assets and provide it with certain services necessary for it to commence operations as a new MNO entrant to the German market (sale of network sites, sale of shops, national roaming and passive network sharing agreement).

3 Under the MBA MVNO component, Telefónica Deutschland commits, in essence, to enter into an agreement to sell 20% of the combined network capacity of the merged entity to one or more (up to a maximum of three) non-MNOs. The specific commercial terms of that agreement are left open to negotiations but must comply with the following framework: purchasers must commit, throughout the entire initial five-year contract period, to purchase a certain network capacity and the corresponding quantity of voice, data and SMS traffic at a predetermined price which does not depend on the volume actually used; Telefónica Deutschland must enter into such an agreement with at least one purchaser before being able to implement the concentration; Telefónica Deutschland commits to offer the purchasers an additional 10% of the combined network capacity of the merged entity on predetermined conditions.

4 Under the non-MNO component, Telefónica Deutschland commits in particular to the following (paragraphs 77 and 78 of the Final Commitments):

[Telefónica Deutschland] commits to offer to all MVNOs/service providers which currently procure 2G/3G/4G products from [Telefónica Deutschland] and/or E-plus to prolong their existing contracts from the Date of Closing [of the concentration] until the end of 2025 (or such earlier date on which [Telefónica Deutschland] may terminate to offer 2G, 3G or 4G products to its own clients).

Telefónica Deutschland] will proactively send a Self-Commitment Letter to all existing MVNOs/service providers which have an agreement with [Telefónica Deutschland] and/or with E-Plus for 2G, 3G and/or 4G network access as of the date of closing, in which it will waive its rights of ordinary termination set out in the respective wholesale agreement until the end of year 2025 (or such earlier date on which [Telefónica Deutschland] may terminate to offer 2G, 3G or 4G products to its own clients). The right of extraordinary termination for good cause (as provided by law) shall remain unaffected.’

5 A summary of Decision C(2014) 4443 final was published on 13 March 2015 in the Official Journal of the European Union (OJ 2015 C 86, p. 10) and a non-confidential version of that decision was published on the Commission’s website on 15 December 2015.

6 On 12 December 2013, the applicant, 1&1 Telecom GmbH (‘the applicant’ or ‘1&1’) entered into an MVNO agreement with E-Plus, under which E-Plus grants the applicant access to its 2G/3G/4G networks (‘the MVNO agreement with E-Plus’).

7 Under Article 10, the MVNO agreement with E-Plus is concluded for a minimum period of four years. Following the minimum period, the contract is automatically extended for an indeterminate period, unless it is cancelled by either party before the expiry of the minimum period or subsequently at the end of each quarter, in each case upon 12 months’ notice in writing.

8 In addition, the first subparagraph of Article 5.1 of the MVNO agreement with E-Plus provides as follows:

‘To the extent that [1&1] also procures MVNO services or comparable services from third parties, [1&1] undertakes, to activate 37% on an annual average basis during the first year after marketing commences and 43% on an annual average from the beginning of the 13^th month after marketing commences until the 24^th month and at least 46% from the beginning of the 25^th month until the 48^th month (end of the minimum contract term) in each case on an annual average (“Minimum Shares”) of [its] successively activated new mobile customers in retail customer tariffs with a minimum contract term of 24 month[s] and a basic monthly price, which are connected based on services that are actually provided by E-Plus and to which the prices according to Annex 2 Clause 2 of this Agreement apply, in the network of E-Plus or any other mobile network, which is affiliated with E-Plus under corporate law pursuant to section 15 et seq. of the German Stock Corporation Act (AktG), using the MVNO services as [1&1] customers (“Gross Add Share”). In the context of the cooperation, [1&1] intends to achieve a Gross Add Share of 50% ...’.

9 The fourth and fifth subparagraphs of Article 5.1 of the MVNO agreement with E-Plus also specify that in the event of non-compliance with the contractual obligation to activate a certain percentage of new customers on the E-Plus network, 1&1 is required to pay financial compensation to E-Plus.

10 Finally, Article 15.7 of the MVNO agreement with E-Plus stipulates that any dispute relating to that agreement falls under competence of the Düsseldorf courts (Germany).

11 On 27 February 2015, Telefónica Deutschland sent the applicant a Self-Commitment Letter pursuant to paragraphs 77 and 78 of the Final Commitments (‘the Self-Commitment Letter’). On 17 August 2015, Telefónica Deutschland sent the applicant a letter clarifying certain conditions in the Self-Commitment Letter (‘the Clarification Letter’). Both the Self-Commitment Letter and the Clarification Letter were drafted on the basis of a pro forma letter intended to be sent to all MVNOs and service providers which had entered into a wholesale access agreement with Telefónica Deutschland.

12 Clause 2 of the Self-Commitment Letter, entitled ‘Waiver of the right of ordinary termination’ states the following:

‘(1) To the extent that the [MVNO agreement with E-Plus] would entitle E-Plus to terminate [that agreement] ordinarily with effect prior to 31 December 2025, 24:00 hours, E-Plus hereby waives that ordinary termination right in accordance with this Clause 2 (“Waiver”). As a consequence, any ordinary termination by E-Plus with effect as of a date prior to 31 December 2015, 24:00 hours, is precluded in accordance with this Clause 2 and is possible, as further provided for in the Contract, at the earliest as of 31 December 2025, 24:00 hours. Clause 1.2 applies accordingly.

(3) If the [MVNO agreement with E-Plus] is renewed until 31 December 2025, 24:00 hours, or a date thereafter because it can no longer be terminated by E-Plus as a consequence of the Waiver as of a date prior to 31 December 2025, 24:00 hours, the Waiver occurs provided that obligations of [1&1], which were taken into account by the contracting parties when agreeing on the consideration of [1&1] (e.g. the purchase of certain minimum quantities) and the absence of which would lead to a disturbance of the relationship between service and consideration, shall also continue to apply together with the remaining provisions of the [MVNO agreement with E-Plus], even if a date is specified in the [MVNO agreement with E-Plus] for the duration of these obligations and if that date is the date as of which the [MVNO agreement with E-Plus] would have been terminated by E-Plus.’

13 On 18 August 2015, the applicant informed the Commission that it ‘essentially agreed with the terms of the Self-Commitment Letter’.

14 However, beginning on 3 September 2015, the applicant informed the Commission on numerous occasions that it had a number of doubts as to the legality of Clause 2.3 of the Self-Commitment Letter because, in its view, the Final Commitments required Telefónica Deutschland to send a letter by which it unconditionally waived its right of ordinary termination of the MVNO agreement with E-Plus until the end of 2025.

15 By email of 28 September 2015, the case team in the Commission’s Directorate-General for Competition considered, in essence, that Telefónica Deutschland had not violated its Final Commitments by inserting Clause 2.3 in the Self-Commitment Letter (‘the email of 28 September 2015’). The email made clear that it reflected the opinion of the Commission’s services and did not constitute a decision adopted by the Commission.

16 In response to the email of 28 September 2015, the applicant, in particular, reiterated its complaints in a letter of 9 October 2015 to the Director-General of the Commission’s Directorate-General for Competition. In that letter, the applicant requested the Commission to take a formal decision on whether the Self-Commitment Letter complied with the Final Commitments.

17 By letter of 19 November 2015, signed by the Director-General of the Commission’s Directorate-General for Competition, the Director-General stated that in his view ‘the [Final] Commitments [did] not prevent Telefónica from including [Clause 2.3] in the text of the Self-Commitment Letter’ and that ‘[that reflected] the fact that the purpose of this condition [was] merely to ensure that the commercial balance achieved in the [MVNO agreement with E-Plus] (as originally negotiated and concluded) [was] not eliminated following its prolongation under the [Final] Commitments’. Consequently, the Director-General of DG Competition concluded that ‘in light of the above, [he had not] been presented with any elements suggesting that the Self-Commitment Letter sent by Telefónica on 4 March 2015 and supplemented on 17 August by way of a clarification letter [were] not in line with the [Final] Commitments’ and that, ‘[t]herefore, at [that] stage, [he did not] see any ground to take any further steps against Telefónica and/or to issue any decision in relation to Telefónica’s compliance with the [Final] Commitments’.

18 The present action is directed against the alleged Commission decision included in the letter of 19 November 2015, reference to which is made in paragraph 17 above (‘the letter of 19 November 2015’).

19 By application lodged at the Court Registry on 29 January 2016, the applicant brought the present action.

20 By a document lodged at the Court Registry on 25 February 2016, the Commission raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court, disputing the regularity of the lodging of the application. By order of 22 June 2016, 1&1 Telecom v Commission (T-43/16, EU:T:2016:402), the Court rejected that plea of inadmissibility.

21 By a document lodged at the Court Registry on 16 March 2016, Telefónica Deutschland sought leave to intervene in the present proceedings in support of the form of order sought by the Commission. By order of 14 September 2016, the President of the Third Chamber of the General Court granted leave to intervene. Telefónica Deutschland lodged its statement in intervention and the main parties lodged their observations on that statement within the prescribed periods.

22 In parallel with the present case, the applicant had also brought an action for annulment of Decision C(2014) 4443 final by application lodged at the Court Registry on 5 June 2015 and registered as Case T-307/15. By document lodged at the Court Registry on 11 September 2017, the applicant however withdrew its application and Case T-307/15 was removed from the register by order of 23 October 2017, 1&1 Telecom v Commission (T-307/15, not published, EU:T:2017:773).

- annul the Commission’s decision contained in the letter of 19 November 2015;

- order the Commission to request that Telefónica Deutschland issue a new Self-Commitment Letter that is strictly limited to the obligation required from it, as set out in paragraph 78 of the Final Commitments;

26 Without formally raising a plea of inadmissibility under Article 130 of the Rules of Procedure, the Commission contests the admissibility of the action in its entirety.

27 The Commission, supported by Telefónica Deutschland, contests the admissibility of the applicant’s first head of claim on the ground that the letter of 19 November 2015 does not constitute an act which is capable of forming the subject matter of an application for annulment in accordance with Article 263 TFEU.

28 In particular, the Commission contends, first of all, that the letter of 19 November 2015 merely expresses a view as to the compatibility of the Self-Commitment Letter with the Final Commitments. The expression of a view is not a challengeable act. Next, the letter of 19 November 2015 was not necessary, because of the existence of the fast-track dispute resolution procedure provided for in the Final Commitments and the competence of the Düsseldorf courts to resolve any disputes in the context of the MVNO agreement with E-Plus. Finally, the letter of 19 November 2015 has no legal effect vis-à-vis the applicant, because the legal relationship between Telefónica Deutschland and the applicant is governed solely by the Final Commitments and the MVNO agreement with E-Plus.

29 The applicant contests the Commission’s line of argument and claims that the letter of 19 November 2015 does constitute a challengeable act for the purposes of Article 263 TFEU.

30 Firstly, the applicant claims that the form of the letter of 19 November 2015 is not relevant for the purpose of determining whether it is a challengeable act. That letter definitively fixes the Commission’s position concerning the legality of Clause 2.3 of the Self-Commitment Letter. Furthermore, it produces legal effects vis-à-vis the applicant insofar as it might be relied on by Telefónica Deutschland and would render impossible one of the possibilities existing at the end of the minimum period of the MVNO agreement with E-Plus, namely the voluntary continuation of the agreement without any minimum purchase obligation. In so doing, the letter of 19 November 2015 imposes a burden on the applicant.

31 Secondly, the applicant submits that the Commission and the Director-General of the Directorate-General for Competition are competent to decide on the interpretation and enforcement of the Final Commitments. The Courts of the European Union should therefore have jurisdiction to review the legality of the Commission’s interpretation, as otherwise the applicant would be deprived of the right to effective judicial protection.

32 Thirdly, it is irrelevant whether the letter of 19 November 2015 was necessary or relates to a point of law. Likewise, the fact that Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) does not set out a framework for the rejection by decision of complaints alleging non-compliance with commitments is also irrelevant.

33 In that regard, it should be noted, first of all, that it is apparent from settled case-law concerning the admissibility of actions for annulment that, in order to ascertain whether an act may be the subject of such an action, it is necessary to look to the substance of that act, the form in which it was adopted being in principle irrelevant in that regard (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 17 July 2008, Athinaïki Techniki v Commission, C-521/06 P, EU:C:2008:422, paragraphs 42 and 43, and of 19 January 2017, Commission v Total and Elf Aquitaine, C-351/15 P, EU:C:2017:27, paragraph 35).

34 It is also apparent from settled case-law that only measures or decisions which seek to produce legal effects which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 17 July 2008, Athinaïki Techniki v Commission, C-521/06 P, EU:C:2008:422, paragraph 29, and of 19 January 2017, Commission v Total and Elf Aquitaine, C-351/15 P, EU:C:2017:27, paragraph 36).

35 Thus, an action for annulment is, in principle, only available against a measure by which the institution concerned definitively determines its position upon the conclusion of an administrative procedure. By contrast, intermediate measures whose purpose is to prepare for the definitive decision, or measures which are mere confirmation of an earlier measure or purely implementing measures, cannot be treated as acts open to challenge, in that such acts are not intended to produce autonomous binding legal effects compared with those of the act of the EU institution which is prepared, confirmed or enforced (see, to that effect, judgments of 12 September 2006, Reynolds Tobacco and Others v Commission, C-131/03 P, EU:C:2006:541, paragraph 55; of 6 December 2007, Commission v Ferriere Nord, C-516/06 P, EU:C:2007:763, paragraph 29, and of 19 January 2017, Commission v Total and Elf Aquitaine, C-351/15 P, EU:C:2017:27, paragraph 37).

36 In the present case, it is therefore necessary to determine whether, by the letter of 19 November 2015, the Commission adopted a measure producing binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in its legal position within the meaning of Article 263 TFEU.

37 In that regard, it should first of all be noted that, by the letter of 19 November 2015, the contents of which were noted in paragraph 17 above, the Commission, in essence, first, interpreted the Final Commitments in the present context and, secondly, concluded that there was no cause to take measures against Telefónica Deutschland or to adopt a decision relating to compliance with the Final Commitments.

38 In the first place, in so far as the letter of 19 November 2015, read in conjunction with the e-mail of 28 September 2015, interprets the Final Commitments as not preventing Telefónica Deutschland from including Clause 2.3 in the body of the Self-Commitment Letter, it should be noted that, according to settled case-law, a written expression of opinion or a simple statement of intention cannot constitute a decision that is challengeable by an action for annulment, since it cannot produce legal effects or is not intended to produce such effects (orders of 2 September 2009, E.ON Ruhrgas and E.ON Földgáz Trade v Commission, T-57/07, not published, EU:T:2009:297, paragraph 31; of 12 February 2010, Commission v CdT, T-456/07, EU:T:2010:39, paragraph 55, and judgment of 15 July 2015, Westfälische Drahtindustrie and Others v Commission, T-393/10, EU:T:2015:515, paragraph 96).

39 Admittedly, although the interpretation of a legal provision proposed by the Commission does not constitute an act open to challenge, it is true, as the applicant claims, that its application to a given situation can, in principle, produce legal effects (see order of 2 September 2009, E.ON Ruhrgas and E.ON Földgáz Trade v Commission, T-57/07, not published, EU:T:2009:297, paragraph 31 and the case-law cited).

40 However, contrary to what the applicant claims, it should be noted that, in the present case, the letter of 19 November 2015 merely confirms the Final Commitments without modifying the applicant’s legal situation. Even if the letter of 19 November 2015 takes into consideration factual elements which came into existence after the adoption of Decision C(2014) 4443 final, namely the Self-Commitment Letter, it merely, in essence, repeats the contents of the Final Commitments without containing new factual or legal elements in relation to those commitments (see, to that effect, orders of 7 December 2004, Internationaler Hilfsfonds v Commission, C-521/03 P, not published, EU:C:2004:778, paragraph 47, and of 17 February 2011, RapidEye v Commission, T-330/09, not published, EU:T:2011:48, paragraphs 28 and 29 and the case-law cited). Neither the Self-Commitment Letter, nor the letter of 19 November 2015, is capable of substantially modifying the applicant’s legal situation, in so far as only the Final Commitments govern the rights and obligations of Telefónica Deutschland and of non-MNO operators wishing to benefit from the non-MNO component of the Final Commitments (see, to that effect, judgment of 7 February 2001, Inpesca v Commission, T-186/98, EU:T:2001:42, paragraph 51).

41 The letter of 19 November 2015 also does not constitute a review of Telefónica Deutschland’s obligations in the light of new and significant facts, but a mere reiteration of those obligations, as they are stipulated in the Final Commitments and made binding by Decision C(2014) 4443 final following a review by the Commission. Therefore, the letter of 19 November 2015 is a purely confirmatory act. It is necessary therefore to distinguish the present case from those in which the contested act was held not to be purely confirmatory of a previous decision on account of the fact that it had been adopted on the basis of factual or legal elements which are different from those previously examined and on the basis of grounds which are different from those substantiating the previous decision (see, to that effect, judgment of 15 July 2015, Westfälische Drahtindustrie and Others v Commission, T-393/10, EU:T:2015:515, paragraph 107).

42 That is all the more true considering that Telefónica Deutschland is not the addressee of the letter of 19 November 2015 and that the latter was not adopted in accordance with Article 8(4) and (5) of Regulation No 139/2004. That letter is thus not capable of modifying in any way either Telefónica Deutschland’s obligations as they appear in the Final Commitments or, consequently, the legal situation of third parties, such as the applicant, whether in general or vis-à-vis Telefónica Deutschland.

43 Moreover, contrary to what is claimed by the applicant, the fact that Telefónica Deutschland could seek to use the letter of 19 November 2015 in order to maintain that Clause 2.3 of the Self-Commitment Letter requires the applicant to respect the Minimum Purchase Obligations stipulated in Article 5.1 of the MVNO agreement with E-Plus until the end of 2025 in the event that that agreement is extended until that date in accordance with the Final Commitments, in no way changes the nature of that letter (see, to that effect, judgment of 1 December 2005, Italy v Commission, C-301/03, EU:C:2005:727, paragraph 30 and the case-law cited, and order of 2 September 2009, E.ON Ruhrgas and E.ON Földgáz Trade v Commission, T-57/07, not published, EU:T:2009:297, paragraph 49). As was stated in paragraphs 40 to 42 above, the letter of 19 November 2015 merely reiterates the contents of the Final Commitments without being intended to produce its own legal effects. The interpretation of the Final Commitments made by the Commission in that letter adds nothing to the rights and obligations resulting therefrom and in no way binds a national court ruling on a dispute between the parties on that issue.

44 It follows that the letter of 19 November 2015, in so far as it interprets the scope of the Final Commitments, does not constitute a decision, but merely a legally non-binding statement that the Commission is authorised to make in the context of ex post supervision of the correct implementation of its decisions relating to the control of concentrations (see, by analogy, order of 17 February 2011, RapidEye v Commission, T-330/09, not published, EU:T:2011:48, paragraph 44).

45 In the second place, in so far as the letter of 19 November 2015 considers that it is not necessary to take any measures against Telefónica Deutschland or to adopt a decision relating to respect for the Final Commitments in response to requests made in that regard by the applicant, it should be noted that, according to settled case-law, the mere fact that a letter is sent by a Union institution, in response to a request made by the addressee of that letter is not enough for it to be treated as an act for the purposes of Article 263 TFEU, thereby entitling its recipient to bring an action for its annulment (see, to that effect, judgment of 28 October 1993, Zunis Holding and Others v Commission, T-83/92, EU:T:1993:93, paragraph 30 and the case-law cited).

46 In the present case, it must be noted that the applicant has no individual right to oblige the Commission to adopt a decision finding that Telefónica Deutschland infringed the Final Commitments and taking measures to restore fair conditions of effective competition for the purposes of Article 8(4) or (5) of Regulation No 139/2004, and even if the conditions justifying such a decision are satisfied (see, to that effect, orders of 27 January 2015, UNIC v Commission, T-338/14, not published, EU:T:2015:59, paragraph 29, and of 24 November 2015, Delta Group agroalimentare v Commission, T-163/15, not published, EU:T:2015:911, paragraphs 29 and 39). The letter of 19 November 2015 cannot therefore constitute a decision capable of producing legal effects vis-à-vis the applicant, such as to change its legal position.

47 It must be noted that neither Regulation No 139/2004 nor Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation No 139/2004 (OJ 2004 L 133, p. 1) makes provision for a procedure by which third parties to a concentration are entitled to lodge a complaint with the Commission against the parties to that concentration for breach of the conditions attached to the decision declaring that concentration to be compatible with the internal market, even where those third parties are potential beneficiaries of those conditions. Even if it concerned a loophole in the control of concentrations, it is, where appropriate, for the legislature and not for the courts of the Union to close that loophole.

48 Consequently, contrary to what is provided for in Article 7 of Commission Regulation (EC) No 773/2004, of 7 April 2004, relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (OJ 2004 L 123, p. 18) and in Article 12 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 248, p. 9), it must be noted that there is no obligation imposed on the Commission to respond to possible complaints put forward for failure to respect merger decisions by a decision against which an action for annulment could be brought. The case-law relating to the rejection of complaints concerning State aid is therefore irrelevant for the present case.

49 Therefore, the letter of 19 November 2015, by which the Commission informed the applicant, in essence, that it would take no measures against Telefónica Deutschland, does not produce binding legal effects capable of affecting the applicant’s interests (see, to that effect, orders of 27 January 2015, UNIC v Commission, T-338/14, not published, EU:T:2015:59, paragraph 29, and of 24 November 2015, Delta Group agroalimentare v Commission, T-163/15, not published, EU:T:2015:911, paragraphs 29 and 39).

50 Moreover, it must be noted that, since the letter of 19 November 2015 does not constitute a decision (see paragraph 44 above) and does not produce binding legal effects such as to affect the applicant’s interests (see paragraph 49 above), the applicant’s arguments seeking to establish that it was directly and individually affected by that letter are ineffective (see, to that effect, judgment of 22 February 2005, Commission v max.mobil, C-141/02 P, EU:C:2005:98, paragraph 70, and order of 23 September 2011, Vivendi v Commission, T-567/10, not published, EU:T:2011:528, paragraphs 16 and 25 and the case-law cited).

51 The conclusion set out in paragraphs 44 and 49 above cannot be called into question by the applicant’s claim that the rejection of the first head of claim as inadmissible infringes its right to effective judicial protection.

52 In that regard, firstly, it should be noted that individuals are entitled to effective judicial protection of the rights they derive from the Union legal order. The right to effective judicial protection was formally enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, and in Article 47 of the Charter of Fundamental Rights of the European Union which provides that ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’.

53 In addition, under Article 19 TEU, ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’.

54 Consequently, by Article 263, on the one hand, and by Article 267, on the other hand, the TFEU established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the EU Courts. Under that system, where natural or legal persons cannot, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 263 TFEU, directly challenge EU measures, they are able to plead the invalidity of such measures before the national courts and ask them, since they have no jurisdiction themselves to declare those measures invalid, to make a reference to the Court of Justice for a preliminary ruling on validity.

55 Secondly, it should be noted that the purpose of the control of concentrations is to provide to the undertakings concerned the authorisation which is necessary and preliminary to the implementation of any concentration having a European dimension. In the context of that control, those undertakings may submit commitments to the Commission in order to obtain a decision finding their concentration to be compatible with the internal market (judgment of 6 July 2010, Ryanair v Commission, T-342/07, EU:T:2010:280, paragraph 448).

56 Depending on the stage which the administrative procedure has reached, the commitments proposed must allow the Commission either to form the view that the notified concentration does not raise serious doubts as to its compatibility with the internal market at the stage of the preliminary examination (Article 6(2) of Regulation No 139/2004) or to respond to the objections sustained during the detailed investigation (Article 18(3), read together with Article 8(2) of Regulation No 139/2004). Those commitments therefore make it possible to avoid the initiation of a detailed investigation phase or a subsequent decision declaring that the concentration is incompatible with the internal market (judgment of 6 July 2010, Ryanair v Commission, T-342/07, EU:T:2010:280, paragraph 449).

57 Article 8(2) of Regulation No 139/2004 allows the Commission to attach to a decision declaring a concentration compatible with the internal market in accordance with the criterion laid down in Article 2(2) of the regulation conditions and obligations intended to ensure that the undertakings concerned comply with the commitments they have entered into vis-à-vis the Commission with a view to rendering the concentration compatible with the internal market (judgment of 6 July 2010, Ryanair v Commission, T-342/07, EU:T:2010:280, paragraph 450).

58 It is therefore apparent from the actual wording of Article 8(2) of Regulation No 139/2004 that the Commission may, by decision, make commitments offered by the undertakings concerned binding where those commitments are capable of rendering the notified operation compatible with the internal market (see, to that effect, judgment of 6 July 2010, Ryanair v Commission, T-342/07, EU:T:2010:280, paragraph 450).

59 In so doing, by making a particular type of conduct of an operator in relation to third parties binding, a decision adopted under Article 8(2) of Regulation No 139/2004 may indirectly have legal effects erga omnes, which the undertaking concerned would not have been in a position to create on its own.

60 In the present case, it should be noted that, in accordance with the Final Commitments, Telefónica Deutschland committed, in a legally binding way, to ‘proactively’ sending a self-commitment letter to all existing MVNOs or existing service providers which have an agreement with it or with E-Plus for 2G, 3G or 4G network access, by which it waives its contractual rights of ordinary termination set out in the respective wholesale agreement until the end of year 2025 (paragraph 78 of the Final Commitments). In those circumstances, the Final Commitments indirectly created legal effects in favour of third parties referred to by the provisions of the non-MNO component, respect for which is subject to review by the competent national courts, without prejudice to the prerogatives granted to the Commission, in that field, by EU law. Consequently, without prejudice to the possibility for the Commission to find an infringement of the Final Commitments and to take measures it deems appropriate by means of a decision adopted under Article 8(4) and (5) of Regulation No 139/2004, it is entirely permissible for third parties referred to by the provisions of the non-MNO component, which could include the applicant, to rely thereupon before the competent national courts. It is then for the latter to rule on such disputes relating to the implementation of the Final Commitments. In that context, any opinion expressed by the Commission regarding the interpretation to be given to the Final Commitments constitutes only a possible interpretation which, contrary to decisions taken under Article 288 TFEU, only has persuasive value and does not bind the competent national courts. Moreover, under the provisions of Article 267 TFEU, those courts can or must refer a question for a preliminary ruling to the Court with regard to the validity or the interpretation of the Final Commitments or of Decision C(2014) 4443 final.

61 That is all the more so in the present case as the dispute between the applicant and Telefónica Deutschland relates to the way in which the latter fulfils its contractual obligations under the MVNO agreement with E-Plus, as those obligations were modified by the Final Commitments. It is expressly apparent from Article 15.7 of the MVNO agreement with E-Plus that any dispute connected with that contract comes within the competence of the Düsseldorf courts.

62 In the light of all the foregoing, it must be concluded that the letter of 19 November 2015 does not constitute a decision-making act against which an action for annulment may be brought in accordance with Article 263 TFEU. Consequently, the applicant’s first head of claim must be rejected as inadmissible.

The second head of claim, seeking an order that the Commission request Telefónica Deutschland to issue a new Self-Commitment Letter

63 The Commission, supported by Telefónica Deutschland, submits that the second head of claim is inadmissible, in that it constitutes an attempt to obtain an injunction.

64 In that regard, as the Commission correctly maintains, it is apparent from settled case-law that it is not for the Court to issue directions to the Union institutions (judgments of 24 June 1986, AKZO Chemie and AKZO Chemie UK v Commission, 53/85, EU:C:1986:256, paragraph 23, and of 24 January 1995, Ladbroke Racing v Commission, T-74/92, EU:T:1995:10, paragraph 75).

65 Consequently, it is necessary to conclude that the second head of claim must be rejected as inadmissible and, therefore, the application must be dismissed in its entirety.

66 Under Article 134(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission and Telefónica Deutschland, in accordance with the forms of order sought, with the exception of those incurred by the Commission in the context of the plea of inadmissibility rejected by the order of 22 June 2016, 1&1 Telecom v Commission (T-43/16, EU:T:2016:402).

2. Orders 1&1 Telecom GmbH to bear its own costs and those incurred by the European Commission and by Telefónica Deutschland Holding AG, with the exception of those incurred by the Commission in the context of the plea of inadmissibility rejected by the order of 22 June 2016, 1&1 Telecom v Commission (T-43/16, EU:T:2016:402).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> 1&1 Telecom GmbH v Commission (Competition - Concentrations - Retail market for mobile telecommunications services - Judgment) [2018] EUECJ T-43/16 (09 October 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/T4316.html Cite as: [2018] EUECJ T-43/16, EU:T:2018:660, ECLI:EU:T:2018:660

Court of Justice of the European Communities (including Court of First Instance Decisions)