|PartiesIn Case C-42/01,
Portuguese Republic, represented by MLI Fernandes and Mrs L. Duarte, acting as Agents, assisted by Mr M. Marques Mendes, advogado, having taken up residence in Luxembourg,
Commission of the European Communities, represented by MM. P. Oliver and M. França, acting as Agents, having taken up residence in Luxembourg,
annulment of Commission Decision No C (2000) 3543 final-PT of 22 November 2000 relating to a procedure under Article 21 of Council Regulation (EEC) No 4064/89, of December 21, 1989, relating to the control of concentration operations between companies (Case n ° COMP / M.2054 – Secil / Holderbank / Cimpor),
THE COURT (plenary assembly),
composed of MV Skouris, chairman, MM. P. Jann, CWA Timmermans, A. Rosas, C. Gulmann, J.-P. Puissochet and JN Cunha Rodrigues, Presidents of Chambers, MM. A. La Pergola and R. Schintgen, Ms. N. Colneric and Mr. S. von Bahr (rapporteur), judges,
Advocate General: Mr. A. Tizzano,
Registrar: Ms. M. Múgica Arzamendi, Principal Administrator,
having regard to the Report for the Hearing,
having heard the parties in their pleadings at the hearing of September 9, 2003,
having heard the Advocate General in his conclusions at the hearing of
January 22, 2004,
Grounds for the judgment
1. By application lodged at the Registry of the Court on 1 February 2001, the Portuguese Republic brought an action, pursuant to the first paragraph of Article 230 EC, seeking the annulment of decision no. Commission C (2000) 3543 final-PT of 22 November 2000 relating to a procedure under Article 21 of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentration between undertakings (Case No COMP / M.2054 Secil / Holderbank / Cimpor, hereinafter ‘the contested decision’).
The legal framework
2. Article 4 (1) of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ L 395, p. 1), as amended by Council Regulation (EC) No 1310/97 of 30 June 1997 (OJ L 180, p. 1, hereinafter the “merger regulation”), provides:
“Concentration operations with a Community dimension referred to by this Regulation must be notified to the Commission within one week of the conclusion of the agreement or of the publication of the offer to purchase or exchange or of the acquisition of a holding control. The period begins from the occurrence of the first of these events. ”
3. Under Article 6 (1) of the Merger Regulation, the Commission examines the notification upon receipt.
4. It follows from Article 10 (1) of the Merger Regulation that the Commission has a period of one month to decide whether or not to initiate the formal procedure for examining the compatibility of the transaction. concentration with the common market. In accordance with paragraph 3 of this same article, a decision declaring the notified concentration incompatible with the common market must be taken within a maximum period of four months from the initiation of the formal procedure.
5. Article 21 of the Merger Regulation provides:
“1. Subject to review by the Court of Justice, the Commission has exclusive competence to adopt the decisions provided for in this Regulation.
2. Member States shall not apply their national competition laws to concentrations with a Community dimension.
3. Notwithstanding paragraphs 1 and 2, Member States may take appropriate measures to ensure the protection of legitimate interests other than those taken into account by this Regulation and compatible with general principles and rules. other provisions of Community law.
Public security, plurality of media and prudential rules are considered as legitimate interests within the meaning of the first paragraph.
Any other public interest must be communicated by the Member State concerned to the Commission and recognized by the latter after examination of its compatibility with the general principles and the other provisions of Community law before the measures referred to above can be taken. The Commission shall notify its decision to the Member State concerned within one month of the date of said communication. ”
6. The legal regime for privatizations in the Portuguese legal order includes, for the purposes of these proceedings, Law No. 11/90, of April 5, 1990, Framework Law on Privatizations (Diário da República I, Series A, No. ° 80, of April 5, 1990, p. 1664), and Legislative Decree No. 380/93, of November 15, 1993 (Diário da República I, Series A, No. 267, of November 15, 1993, p. 6362) , which was adopted in application of the said framework law. Decree-Law No. 380/93 establishes and regulates a special procedure for monitoring by the State of the evolution of the shareholder structures of companies which are in the process of privatization. By virtue of article 1 of this decree-law, the acquisition with voting rights of more than 10% of the share capital of companies
The facts giving rise to the dispute
7. On June 15, 2000, Secilpar SL, a company incorporated under Spanish law (hereinafter “Secilpar”), 100% controlled by Secil-Companhia Geral de Cal e Cimento, SA, a company incorporated under Portuguese law (hereinafter “Secil” ), has published the preliminary announcement of the launch of a takeover bid for Cimpor-Cimentos de Portugal SGPS, SA, a company incorporated under Portuguese law (hereinafter “Cimpor”). Cimpor is a former public company, privatized at the beginning of 1994, in which the Portuguese State, having gradually sold its shares, owned, at the time of the publication of the preliminary announcement, 12.7% of the shares, of which 10% corresponded to special rights. The preliminary announcement indicated that Holderbank Financière Glaris, SA, a company incorporated under Swiss law (hereinafter “Holderbank”),
8. According to the said preliminary announcement, the conditions applicable to the takeover bid were in particular:
– acceptance of the offer by shareholders who held at least 67% of all the shares in Cimpor,
– termination special rights which the Portuguese State enjoyed as a shareholder of Cimpor,
– the elimination of the limitations on the exercise of voting rights provided for in the Cimpor company contract.
9. On June 16, 2000, in accordance with Legislative Decree No. 380/93, Secilpar and Holderbank applied to the Portuguese Minister of Finance for authorization to acquire, by public tender offer, a stake of up to 100% of the capital share capital with voting rights of Cimpor under the specified terms and under the conditions indicated, in particular, in the preliminary announcement.
10. The request specified that the public tender offer was aimed, in a first phase, at the acquisition of up to 100% of the shares of Cimpor through the intermediary of Secilpar specially constituted for this purpose. In a second phase, Secil and Holderbank would share the assets of Cimpor, with the end result that Secil would acquire the activities of Cimpor in Spain and Egypt as well as part of its activities in Brazil and that Holderbank would acquire the activities of Cimpor in Portugal, Morocco, Tunisia and Mozambique as well as the other part of its activities in Brazil.
11. On 4 July 2000, the Commission received notification, in accordance with Article 4 of the Merger Regulation, of the proposed concentration by which Holderbank and Secil would acquire, within the meaning of Article 3 (1) (b) ), of said regulation, the joint control of Cimpor by the takeover bid announced on June 15, 2000 (see notice of prior notification of a concentration operation, OJ C 198, p. 5, hereinafter the ‘ notification of 4 July 2000 ”).
12. By decree of 5 July 2000, the Minister of Finance rejected the request of 16 June 2000 and indicated that the Portuguese State did not intend to waive its special rights which it enjoyed as a shareholder. of Cimpor and that he was opposed to the elimination of the limitations on the exercise of voting rights provided for in Cimpor’s company contract.
13. By letter of 7 July 2000, in response to a letter of the previous day, Secil informed the Comissão do Mercado de Valores Mobiliários (Securities Market Commission, hereinafter the “CMVM”) of its intentions regarding the take-over bid. On the same day, Secilpar and Holderbank sent a new request to the Minister of Finance with a view to acquiring, in accordance with Legislative Decree No. 380/93, more than 10% of the shares of Cimpor, notably on the market. In this request, they notably waived making the public tender offer conditional on the termination of the special rights of the Portuguese State as a shareholder of Cimpor.
14. On July 20, 2000, the Commission, considering that the notification of July 4, 2000 was incomplete, granted the parties a period of time until August 28, 2000 to complete it. This period was extended until September 15, 2000 at the request of the parties. However, since the latter did not provide the Commission with the requested information, the latter suspended the analysis of the concentration.
15. By decree of 11 August 2000, the Minister of Finance, on the one hand, indicated that the general assembly of Cimpor had rejected the proposal to eliminate the limitations on the exercise of the right to vote so that the takeover bid seemed to have become ineffective. On the other hand, he again rejected Secilpar and Holderbank’s request, stating that the parties’ objectives were, in general, contrary to the objectives of reprivatization. The decree of 11 August 2000 noted that the reasons for the rejection lay: i) in the fact that the acquisition would have resulted in the withdrawal of Cimpor from the Portuguese capital market; ii) in incompatibility of the industrial project of the plaintiffs with the strategies of the Portuguese government relating to the restructuring of the sector; iii) in the fact that the acquisition would have prevented the sale of the Portuguese State’s stake in Cimpor on good economic and financial terms, as well as iv) in the fact that the acquisition would have resulted in a violation of the principle of equal treatment in the last phase of the Cimpor privatization process.
16. Also on August 11, 2000, Secilpar communicated to CMVM certain modifications to the preliminary announcement of a public offer to purchase Cimpor shares, aimed at responding to concerns expressed by the Portuguese authorities.
17. By letter of the same day, the CMVM, taking into account the decree of 11 August 2000 and considering that the modifications to the preliminary announcement had become irrelevant, informed Secilpar of its decision to order the withdrawal of the takeover bid previously announced by this company.
18. By letter of 16 August 2000, the Chief of Staff of the Minister of Finance provided, in a private capacity, a copy of the
19. By letter of September 21, 2000, the latter informed the Minister of Finance of the notification of July 4, 2000 and indicated that the Commission’s first reaction was that the Portuguese Republic had breached its obligation, under the rules in the field of merger control, to inform the Commission in advance of its intention to refuse a merger operation and of the interests it seeks to protect by this measure.
20. The said letter further specified that it appeared that the Portuguese Republic had failed to fulfill its obligations under Article 21 (3) of the Merger Regulation, by deciding to oppose the proposed acquisition. de Cimpor by Secil and Holderbank, without having informed the Commission of its reasons and without having enabled it to assess the compatibility of the grounds of public interest with Community legislation before the adoption of the measures in question. Should the Commission come to the conclusion that the grounds invoked by the Portuguese Republic did not meet any of the three conditions mentioned in Article 21 (3) of the Merger Regulation, the Commission could take the appropriate measures. imposed under that provision. The Portuguese Republic has been requested to submit its observations on this matter by 5 October 2000 at the latest.
21. Finally, that letter of 21 September 2000 stated that, if it were to conclude that the decrees of the Minister of Finance were not justified in the protection of other legitimate interests within the meaning of Article 21 (3) of the Regulation on mergers, the Commission would take the appropriate measures. The Portuguese Republic was invited to submit its observations on this matter also by 5 October 2000 at the latest.
22. By letter of 3 October 2000, the Minister of Finance replied that he had not applied Portuguese competition law, but Legislative Decree No. 380/93, to the takeover bid for Secilpar and Holderbank. He also indicated that the last phase of the reprivatization would take place shortly, which would have the effect that the special rights which the Portuguese State enjoyed as a shareholder of Cimpor would cease and that the acquisition of stakes in Cimpor would not would no longer fall under Legislative Decree 380/93.
23. On 22 November 2000, the Commission adopted the contested decision.
24. On January 11, 2001, the notification of July 4, 2000 was withdrawn.
25. By judgment of 4 June 2002, Commission / Portugal (C-367/98, ECR I4731), the Court upheld an action for failure to fulfill obligations brought by the Commission on 14 October 1998 in so far as it aimed at an infringement of Article 73b of the EC Treaty (now Article 56 EC). The Court found that, by adopting and maintaining in force, inter alia, Law No. 11/90 and Legislative Decree No. 380/93, the Portuguese Republic had failed to fulfill its obligations under that article.
The contested decision
26. It follows from points 1 and 2 of the grounds for the contested decision that the latter seeks the compatibility of the decrees of 5 July and 11 August 2000 with Article 21 of the Merger Regulation.
27. In point 11 of the grounds for the contested decision, the Commission notes that the notified transaction consists of the acquisition of Cimpor by Secil and Holderbank with the aim of immediately sharing the assets acquired. This acquisition would therefore target two mergers, through which each company would acquire part of Cimpor.
28. Under the heading ‘Compatibility of the measures adopted by the Portuguese authorities with Article 21 of the [merger] regulation’, the Commission notes, in point 49 of the grounds for the contested decision, that the Portuguese authorities did not notify it no public interest that they considered necessary to protect by the decrees of July 5 and August 11, 2000.
29. In point 50 of the grounds for the contested decision, the Commission observes that ‘[the] evolution of shareholding structures in companies undergoing privatization with a view to strengthening the entrepreneurial capacity and efficiency of the apparatus production in a manner compatible with the orientations of the economic policy of Portugal was mentioned in the decrees [of July 5 and August 11, 2000] as a notorious objective of Decree-Law n ° 380/93 ”.
30. The Commission notes, in point 55 of the grounds for the contested decision, that this objective does not form part of the interests (public security, plurality of the media and prudential rules) considered to be legitimate as such within the meaning of Article 21 (3), second subparagraph, of the Merger Regulation.
31. In paragraphs 56 and 57 of the grounds for the contested decision, the Commission finds that, by not communicating to it the interest concerned, the Portuguese Republic has failed to fulfill its obligations under Article 21 of the Regulation on concentrations. It notes, however, that the reasons which are at the basis of the decrees of 5 July and 11 August 2000 emerge clearly from the text of the decrees themselves.
32. In that regard, the Commission notes, in point 58 of the grounds for the contested decision, ‘that the arguments on which the two decisions opposing the concentration are based are mentioned in the texts of the second decree according to which it is necessary to protect the evolution of the shareholding structures of companies undergoing privatization with a view to strengthening the entrepreneurial capacity and the efficiency of the national productive apparatus in a manner compatible with the orientations of the economic policy of Portugal. The two decisions constitute restrictions on the freedom of establishment and the free movement of capital enshrined in the Treaty and cannot be considered as justified on grounds of public order recognized by the case law of the Court of Justice; in any event, the Portuguese Republic has not put forward any reasons of this nature. Furthermore, the general principle of equal treatment on the basis of which the Portuguese Republic adopted its first decision does not add any relevant element to the aforementioned arguments ”.
33. The Commission concludes from this, in point 59 of the grounds for the contested decision, that ‘regardless of the fact that the Portuguese Republic failed to communicate to the Commission in good time the grounds for its decisions in accordance with Article 21 (paragraph) 3, of the [merger] regulation, the Commission will have to refuse to recognize their legitimacy ”.
34. In point 60 of the grounds for the contested decision, appearing in the part entitled ‘Conclusion’, the Commission states that, by adopting the decisions refusing to authorize the acquisition of more than 10% of the shares of Cimpor, the Portuguese Republic has, in fact, prohibited the acquisition of control of Cimpor by the notifying parties.
35. In point 61 of the grounds for the contested decision, the Commission observes that, since the order of 5 July 2000, as reformulated on 11 August 2000, refusing to authorize the acquisition of more than 10% of actions of Cimpor, does not seem to be based on public security, the plurality of media and prudential rules, “the Portuguese authorities could not intervene and prohibit a concentration of Community dimension without communicating to the Commission any other public interest than wished to protect, under Article 21 (3) of the [Merger] Regulation, before adopting the measures which are the subject of this Decision ”.
36. The Commission observes, in point 62 of the grounds for the contested decision, that ‘Article 21 (3) [of the Merger Regulation] would have no useful effect if, by reason of the lack of communication, the Commission could not consider whether a measure adopted by a Member State is justified by one of the interests expressly considered to be legitimate in Article 21 (3). Member States could easily avoid the assessment of the Commission by not communicating such measures. The structure of Article 21 is based on the balance between, on the one hand, the obligation incumbent on the Member States to communicate to the Commission in advance the interest which they claim to be legitimate and, on the other hand,
37. According to point 63 of the grounds for the contested decision, the Commission considers that it follows that ‘Article 21 must be interpreted as meaning that, regardless of whether or not a measure has been communicated, the Commission has the right to take a decision determining whether this measure is contrary to the principle of exclusive jurisdiction established in the [Merger] Regulation ”.
38. The Commission concludes, in paragraph 64 of the grounds for the contested decision, that ‘the measures adopted by the Portuguese authorities in relation to the notified transaction and, in particular, [the orders of 5 July and 11 August 2000] cannot be considered as measures intended to protect legitimate interests compatible with general principles and other provisions of Community law. Consequently, these measures were contrary to Community law, in particular Article 21 of the [merger] regulation ”.
39. Point 65 of the grounds for the contested decision states that, ‘[a] insi, the Portuguese Republic is obliged to adopt the measures necessary to comply with Community law, withdrawing the decrees in question’.
40. Article 1 of the contested decision provides:
‘The interests underlying the decree of the Portuguese Minister for [F] inance of  July 2000, as reformulated on 11 August 2000, which did not notified to the Commission, contrary to the provisions of Article 21 (3) of the [Merger] Regulation, are incompatible with Community law ”.
41. The Portuguese Republic raises as a preliminary point a question relating to the nullity of the contested decision. It then puts forward six pleas in support of its action,
alleging respectively: – infringement of Article 253 EC on account of the lack of precise and sufficient indication of the legal basis of the contested decision;
– infringement of Article 253 EC on account of the failure to state reasons for the alleged incompatibility of national measures with Community law;
– infringement of Articles 7 (1) EC and 21 (1) and (3), third subparagraph, of the Merger Regulation, in that the Commission was not competent to adopt the contested decision in the absence of the notice by the Portuguese Republic of interests protected by national measures;
– infringement of Articles 220 EC and 21 (1) of the Merger Regulation, in that the Commission infringed the reservation of judicial review by adopting the contested decision in the absence of that notice;
– infringement of the third paragraph of Article 5 EC and of the principle of proportionality, on the one hand, in that the Commission did not limit its assessment to the single concentration with a Community dimension, namely Holderbank / Cimpor, and, on the other hand, in that it adopted a definitive and irreversible measure despite the inaction of the notifying parties;
– abuse of procedure, in that, despite the absence of the aforementioned communication by the Portuguese Republic, the Commission adopted the contested decision instead of bringing an action for failure to fulfill obligations under Article 226 EC.
The preliminary question relating to the lapsing of the contested decision
42. The Portuguese Republic submits that the contested decision was taken following, and within the framework of, the procedure which began with the notification of 4 July 2000. However, its withdrawal on 11 January 2001 , after the adoption of the contested decision, terminated the procedure so that the legal basis on which the Commission could claim to found its competence to act under Article 21 of the Merger Regulation has disappeared. The contested decision therefore lapsed.
43. In that regard, it is sufficient to note that, for the reasons stated by the Advocate General in points 32 and 33 of his Opinion, the withdrawal of the notification after the adoption of the contested decision can in no way make this decision null and void. The contested decision therefore continues to exist and to be the subject of the action brought by the Portuguese Republic.
The third, fourth and sixth pleas
44. By its third, fourth and sixth pleas, which must be examined together and in the first place, the Portuguese Government maintains, in essence, that, in the absence of communication by the Portuguese Republic of the interests protected by the decrees of 5 July and 11 August 2000, the Commission no
45. First of all, admitting that the interests underlying the decrees of 5 July and 11 August 2000 do not correspond to any of the categories of legitimate interests expressly provided for in the second subparagraph of Article 21 (3) of the Regulation on mergers, the Portuguese Government observes that the third subparagraph of that paragraph authorizes the national protection of other public interests by imposing on the Member State an obligation to notify the Commission.
46. It is only where a Member State communicates to the Commission its intention to invoke such other public interests that the latter could notify its decision to the Member State concerned. As long as the Member State has not made such a notification, the Commission would not have the power to rule on the interests referred to in the second subparagraph of Article 21 (3) of the Merger Regulation either.
47. The Portuguese Government further maintains that, in the absence of communication, the Commission risks ruling on a public interest which does not correspond to that actually pursued by the author of the national decision.
48. Next, the Portuguese Government argues that, given that, in the absence of communication from the Member State concerned, the Commission cannot adopt a decision under Article 21 (3), third paragraph, of the Merger Regulation, the function of monitoring and guaranteeing legality is incumbent on the Court or national courts in the context of domestic proceedings. By adopting the contested decision, the Commission therefore infringed on the competence of the latter in breach of Article 21 (1) of that regulation and of Article 220 EC.
49. Finally, the Portuguese Government maintains that, subject to the competence of the Commission to adopt a decision under the conditions provided for in the third subparagraph of Article 21 (3) of the Merger Regulation, as interpreted by that government, any situation of potential violation by the Member States of the obligation to communicate or of the material limits of the conformity of public interests must, where appropriate, be the subject of an action for failure to act under Article 226 THIS. Consequently, by adopting the contested decision, the Commission directly infringed that article and committed an abuse of procedure.
50. It should, on the one hand, be recalled that the merger regulation is based on the principle of a precise distribution of powers between the national and Community supervisory authorities. The twenty-ninth recital in its preamble provides that “concentration operations which are not covered by this Regulation fall in principle within the competence of the Member States”. Conversely, the Commission alone is competent to take all decisions relating to concentrations with a Community dimension (judgment of 25 September 2003, Schlüsselverlag JS Moser and others / Commission, C170 / 02 P, not yet published in the Reports, paragraph 32).
51. On the other hand, the Merger Regulation also contains provisions the objective of which is to limit, for reasons of legal certainty and in the interest of the undertakings concerned, the duration of the procedures for verifying transactions which are incumbent on the company. the Commission. Thus, under Article 4 of that regulation, notification to the Commission of an operation with a Community dimension must be made within one week. Articles 6 and 10 (1) of that regulation provide that the Commission shall immediately carry out its examination and that it has a period equal, as a general rule, to one month to decide whether or not to initiate the formal procedure. examination of the operation’s compatibility with the common market. According to Article 10 (3) of the same text, the Commission must rule on the case after a period of four months in principle, which runs from the decision to initiate the procedure. The same article provides, in paragraph 6, that ‘[if the Commission has not taken a decision … within the time limits […], the concentration shall be deemed to be compatible with the common market ‘(Schlüsselverlag JS Moser and Others v Commission, cited above, paragraph 33).
52. This is also how, under the third subparagraph of Article 21 (3) of the Merger Regulation, any public interest other than the three interests listed in the second subparagraph of the same paragraph must be communicated by the Member State concerned to the Commission and the latter must notify its decision within one month of the date of the said communication.
53. It must be concluded from this that the Community legislature intended to define a clear distribution of the interventions of the national and Community authorities and that it wished to ensure control of the concentration operations within time limits compatible both with the requirements good administration and those of business life (see, to that effect, Schlüsselverlag JS Moser and Others v Commission, cited above, paragraph 34).
54. Consequently, the interpretation of the third subparagraph of Article 21 (3) of the Merger Regulation supported by the Portuguese Government, according to which, in the absence of communication of the interests protected by the decrees of 5 July and August 11, 2000, the Commission could not rule by decision on the compatibility of those interests with Community law, can not be accepted.
55. As the Advocate General rightly observed in point 51 of his Opinion, if, in the absence of a communication from the Member State concerned, the Commission were reduced to being able to introduce a infringement proceedings within the meaning of Article 226 EC, it would be impossible to obtain a Community decision within the short timeframe referred to in the merger regulation with, as a consequence, an increased risk that such a decision would only be taken. ‘after national measures have already definitively compromised the operation of concentration with a Community dimension.
56. In addition, the Portuguese Government’s interpretation deprives the third subparagraph of Article 21 (3) of the merger regulation of its useful effect by offering the Member States the possibility of easily avoiding the checks provided for by that provision.
57. It follows that, for the control of public interests other than those provided for in the second subparagraph of Article 21 (3) of the Merger Regulation, entrusted to the Commission by the third subparagraph of that paragraph, to be effective, this institution must be recognized as having the power to rule, by means of a decision, on the compatibility of these interests with the general principles and the other provisions of Community law, whether those interests have been communicated to it or not.
58. While it is true that failure to communicate by the Member State concerned may make the task of the Commission more uncertain and complex, in that the latter could have difficulties in establishing the interests protected by national measures, it is no less true that, as the Advocate General observed in point 55 of his Opinion, the Commission always has the possibility of requesting information from the Member State concerned. If, notwithstanding this request, the latter does not provide the requested information, the Commission may take a decision on the basis of the information at its disposal (see, by analogy, as regards State aid, judgment of 14 February 1990, France / Commission, known as “Boussac Saint Frères”, C-301/87, Rec. P. I307, point 22).
59. Moreover, in a situation such as that in the present case, where the Member State has not communicated the interests protected by the national measures concerned, it is inevitable that the Commission first examines whether those measures are justified. by one of the interests provided for in the second subparagraph of Article 21 (3) of the Merger Regulation. If, in doing so, it finds that the Member State has adopted the measures in question to ensure the protection of one of the legitimate interests listed in that paragraph, it will not have to pursue its examination any further and verify whether the said measures are justified having regard to any other public interest referred to in the third paragraph.
60. Therefore, given that, as is clear from paragraph 57 of this judgment, the Commission is competent, under the third subparagraph of Article 21 (3) of the Merger Regulation, to adopt a decision on the compatibility with the general principles and the other provisions of Community law of the public interests protected by a Member State other than those listed in the second subparagraph of that paragraph, even in the absence of the communication of the Member State concerned of these interests , it must be concluded that, by adopting the contested decision, the Commission did not encroach on the powers of the Court or of the national courts and therefore did not infringe Article 21 (1) of the Merger Regulation nor Article 220 EC.Nor did she violate Article 226 EC or commit abuse of process.
61. It follows that the third, fourth and sixth pleas must be rejected as unfounded.
The first plea
62. By its first plea, the Portuguese Government claims that the Commission breached the obligation to state reasons provided for in Article 253 EC by not indicating in sufficient detail the legal basis of the contested decision.
63. Suffice it to note that it is clear from the letter of the contested decision, in particular from points 60 to 64 of its reasons, that it is based on the third subparagraph of Article 21 (3) of the regulation on concentrations.
64. The first plea put forward by the Portuguese Government must therefore also be rejected as unfounded.
65. By its second plea, the Portuguese Government criticizes the Commission for having insufficiently substantiated the alleged incompatibility of the national measures with Community law. In particular, the contested decision does not contain any specific substantive assessment of the interests underlying the measures adopted by the Portuguese authorities, based on reasons of fact and of law, duly explained in the light of the relevant Community framework.
66. It should be borne in mind that, according to settled case-law, the statement of reasons required by Article 253 EC must be adapted to the nature of the act in question and must clearly and unequivocally reveal the reasoning of the institution. , author of the act, so as to allow the interested parties to know the justifications for the measure taken and for the competent court to exercise its control. The requirement to state reasons must be assessed on the basis of the circumstances of the case, in particular the content of the act, the nature of the grounds invoked and the interest that the addressees or other persons directly and individually concerned by the act. ‘act may have to be explained. It does The Netherlands and Leeuwarder Papierwarenfabriek / Commission, 296/82 and 318/82, Rec. p. 809, point 19; of April 2, 1998, Commission / Sytraval and Brink’s France, C-367/95 P, Rec. p. I-1719, point 63, and of 30 September 2003, Germany / Commission, C-301/96, not yet published in the Reports, point 87). The Netherlands and Leeuwarder Papierwarenfabriek / Commission, 296/82 and 318/82, Rec. p. 809, point 19; of April 2, 1998, Commission / Sytraval and Brink’s France, C-367/95 P, Rec. p. I-1719, point 63, and of 30 September 2003, Germany / Commission, C-301/96, not yet published in the Reports, point 87).
67. It is true that the contested decision contains a summary statement of the reasons for which the Commission considered the interests underlying the decrees of 5 July and 11 August 2000 to be incompatible with general principles and other provisions of Community law.
68. However, as the Advocate General observed in points 66 and 67 of his Opinion, after having identified the interests protected by the national measures and found that they were not among those considered to be legitimate as such within the meaning of the second subparagraph of Article 21 (3) of the Merger Regulation, the Commission provided in point 58 of the grounds for the contested decision a statement of reasons which, although extremely succinct, makes it possible to understand the findings on which it bases its reasoning.
69. In addition, as the Advocate General pointed out in point 68 of his Opinion, the contested decision was adopted in a context well known to the Portuguese Government, namely in the context of the infringement proceedings which led to to the Commission / Portugal judgment, cited above, and the Portuguese government has not provided the Commission with the slightest indication as to the compatibility with Community law of the public interests protected by the measures concerned, not even in response to the letter from the Commission of September 21, 2000.
70. Having regard to that context, it should be noted that the contested decision could be reasoned briefly (see, in that regard, judgments of 26 November 1975, Groupement des manufacturers de papier wallpapers de Belgique and others v Commission, 73 / 74, ECR 1491, paragraph 31, and of 19 September 2000, Germany / Commission, C-156/98, ECR I-6857, paragraph 105) and that it was therefore sufficiently reasoned (see judgment of 30 September 2003, Germany / Commission, cited above, paragraphs 92 and 93).
71. It follows that the third plea put forward by the Portuguese Government is unfounded.
On the fifth plea
72. By its fifth plea, which alleges infringement of the principle of proportionality, the Portuguese Government claims, in the first part, that the Commission went beyond what was necessary to ensure compliance with Community law by declaring in the contested decision that the Portuguese Republic must withdraw the decrees of 5 July and 11 August 2000 in their entirety and by generally asserting in the operative part of that decision that the interests underlying those decrees are not compatible with Community law despite the fact that it follows from the contested decision that the notified transaction gave rise to two concentrations, namely Secil / Cimpor and Holderbank / Cimpor, and that only the second would have had a Community dimension.
73. In a second part of this plea, the Portuguese Government maintains that, given that, because of the absence of the information requested from the notifying parties, the procedure for assessing the notified concentration was suspended when the contested decision was adopted and that it was therefore adopted during a period which is characterized by uncertainty as to whether or not to continue the procedure, the Commission should have been cautious in choosing injunctions which were not final. The obligation to withdraw the decrees of 5 July and 11 August 2000 is neither suited to the pursuit of the objectives pursued nor compatible with them and therefore constitutes a breach of the principle of proportionality.
74. As regards the first part of this plea, it should be noted that, as the Commission observed, the two concentration operations were inextricably linked, the public offer to purchase the share capital of Cimpor, through Secilpar, having been launched with the aim of sharing Cimpor’s assets between Secil and Holderbank. It was therefore not possible to limit the effects of the contested decision to the Holderbank / Cimpor concentration. Accordingly, the Commission was right, in the contested decision, to observe that the Portuguese Republic was obliged to withdraw the decrees of 5 July and 11 August 2000 in their entirety and generally declared that the interests under relating to those decrees were incompatible with Community law.
75. As regards the second part of the same plea, it is sufficient to note, as the Advocate General observed in point 74 of his Opinion, that the Commission was able to consider that the inertia of the notifying parties was, at least in part, due to the adoption of the decrees of 5 July and 11 August 2000 and that, consequently, it was particularly important and urgent that it intervene definitively.
76. It follows from the foregoing considerations that the fifth plea in the action is also unfounded.
77. Since the action is therefore not well founded in any of its pleas, it must be dismissed.
Decision on costs
78. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for. Since the Commission has applied for order against the Portuguese Republic and the latter has been unsuccessful, it must be ordered to pay the costs.
For these reasons,
THE COURT (plenary assembly)
declares and decides:
1) The appeal is dismissed.
2. Orders the Portuguese Republic to pay the costs.