OPINION OF ADVOCATE GENERAL

   MAZÁK

   delivered on 6 March 2012 ( [1]1 )

   Case C-551/10 P

   Éditions Odile Jacob SAS

   v

   European Commission

   'Appeal -- Competition -- Concentrations -- French-language publishing
   -- Council Regulation (EEC) No 4064/89 -- Infringement of Article 3 --
   Misuse of power -- Failure to state reasons -- Principles of legal
   certainty, legitimate expectations and equality -- Assessment of
   dominant position -- Appropriateness of commitments'

   I - Introduction

   1.

   By its appeal, Éditions Odile Jacob SAS (`the appellant') seeks to have
   set aside the judgment of the General Court of 13 September 2010 in
   Case T-279/04 Éditions Odile Jacob v Commission ( [2]2 ) (`the judgment
   under appeal'), by which that court dismissed its action for annulment
   of Commission Decision of 7 January 2004 declaring a concentration
   compatible with the common market and the functioning of the EEA
   Agreement (Case No COMP/M.2978 - Lagardère/Natexis/VUP) ( [3]3 ) (`the
   contested decision').

   II - Facts at the origin of the dispute

   2.

   The factual background to the present appeal case has been laid out in
   great detail in paragraphs 1 to 59 of the judgment under appeal. I
   shall thus merely refer to a number of pertinent facts in order to
   explain briefly the origins of this appeal. On 25 September 2002,
   Vivendi Universal SA (`VU') decided to dispose of the publishing assets
   (`target assets') held in Europe by its subsidiary Vivendi Universal
   Publishing SA (`VUP'). Lagardère SCA (`Lagardère') declared its
   interest in acquiring the assets in question. However, as VU was
   seeking a quick sale and quick payment, it became clear that that wish
   could not be achieved given the need to obtain the prior authorisation
   of the sale by the competent competition authorities. Lagardère thus
   requested Natexis Banques Populaires SA (`NBP') to act in its place
   and, by means of a subsidiary set up for that purpose, to acquire the
   target assets from VUP, to hold them provisionally and to sell them to
   Lagardère once the latter had obtained authorisation for such an
   acquisition.

   3.

   On 3 December 2002, Investima 10 SAS (`Investima 10'), which is 100%
   held by Ecrinvest 4 SA (`Ecrinvest 4'), which is in turn held 100% by
   Segex Sarl (`Segex') which is 100% controlled by NBP gave VUP a formal
   undertaking to purchase the target assets. On the same day, Segex and
   Ecrinvest 4 concluded a sale contract (`the sale contract') with
   Lagardère which would allow the latter through Ecrinvest 4 to acquire
   all the share capital in Investima 10. The sale contract provided that
   the date of transfer to Lagardère of the shares in Ecrinvest 4 must be
   after Lagardère obtained authorisation from the relevant competition
   authorities to acquire Ecrinvest 4. On 3 December 2002, in accordance
   with the sale contract, Lagardère paid Segex, inter alia, the price of
   the shares. Lagardère undertook to indemnify Segex, Ecrinvest 4 and
   Investima 10 for any damage resulting from the operation of the sale
   contract. A draft notification of the purchase of the targeted assets
   was notified by Lagardère to the Commission on 10 December 2002. On
   20 December 2002, VUP took up Investima 10's undertaking to purchase
   and on the same day Investima 10 concluded with VUP the contract to
   purchase the target assets.

   4.

   On 14 April 2003, Lagardère notified to the Commission its proposed
   purchase of the target assets pursuant to Article 4(1) of Council
   Regulation (EEC) No 4064/89 of 21 December 1989 on the control of
   concentrations between undertakings. ( [4]4 ) On 5 June 2003, the
   Commission decided that the notified concentration raised serious
   doubts as to its compatibility with the common market and initiated a
   second phase investigation with regard to the notified concentration
   pursuant to Article 6(1)(c) of Regulation No 4064/89.

   5.

   Investima 10 became Editis SA (`Editis') on 14 October 2003.

   6.

   The Commission adopted the contested decision on 7 January 2004
   authorising the concentration subject to commitments. Pursuant to those
   commitments, Lagardère was required to sell assets representing
   approximately 60% to 70% of its worldwide turnover and 70% to 80% of
   VUP's turnover on the French-language markets affected by the
   concentration. The Commission considered that the commitments offered
   by Lagardère would eliminate almost all the horizontal overlaps between
   the activities of the parties to the concentration in all the relevant
   French-language markets where the transaction created or strengthened a
   dominant position. The Commission considered that if the sale were to a
   single buyer, the commitments offered would eliminate the bulk of the
   vertical and conglomerate effects analysed in the contested decision
   which result from the overall size of the merged entity in the
   French-language book trade, and which contribute to the creation or
   strengthening of dominant positions in the relevant markets. The
   contested decision concludes that in the light of the commitments
   offered by Lagardère the concentration will not create or strengthen a
   dominant position held by the merged entity in the common market. The
   Commission thus decided that, provided the commitments offered by
   Lagardère are met pursuant to Articles 2(2) and 8(2) of Regulation
   No 4064/89, the acquisition by Lagardère of sole control pursuant to
   Article 3(1)(b) of that regulation over the publishing assets of VUP in
   Europe and Latin America, excluding Brazil, was compatible with the
   common market and the Agreement on the European Economic Area (`EEA
   Agreement').

   7.

   On 28 May 2004, Lagardère and Wendel Investissements SA (`Wendel')
   entered into a draft agreement whereby Wendel would acquire the assets
   which Lagardère was required to sell pursuant to the commitments. By
   letter dated 4 June 2004, Lagardère requested the Commission to approve
   the purchase of the assets in question by Wendel.

   8.

   By an action brought on 8 July 2004 against the Commission before the
   Court of First Instance (now the General Court) and registered as Case
   T-279/04, the appellant sought the annulment of the contested decision.
   The General Court in the judgment under appeal rejected the action for
   annulment of the contested decision in its entirety.

   III - The appeal

   9.

   The appellant puts forward four grounds in support of its appeal.

   A - First ground: infringement of Article 3 of Regulation No 4064/89

   1. Proceedings before the General Court

   10.

   The appellant argued in its first plea before the General Court that
   the contested decision is flawed in classifying the acquisition of the
   target assets by NBP as the acquisition of assets with a view to resale
   pursuant to Article 3(5)(a) of Regulation No 4064/89 instead of
   classifying that acquisition as a concentration whereby Lagardère
   acquired sole control of the targeted assets by using NBP as an
   intermediary or Lagardère and NBP acquired joint control of those
   assets. Moreover, the appellant submitted at first instance that the
   acquisition by Investima 10 of the target assets did not comply with
   any of the cumulative conditions found in Article 3(5)(a) of Regulation
   No 4064/89 and that the holding arrangement in respect of the target
   assets therefore allowed Lagardère to exercise a decisive influence
   over those assets from December 2002 until their sale to Wendel on
   30 September 2004.

   11.

   The General Court found that even if the acquisition of the target
   assets by Investima 10 does not fulfil all the conditions required by
   Article 3(5)(a) of Regulation No 4064/89, that does not necessarily
   mean that that acquisition must be classified pursuant to
   Article 3(1)(b) of that regulation as the acquisition of sole control
   of those assets by Lagardère or joint control by Lagardère and NBP. (
   [5]5 ) The General Court then found that the holding arrangement did
   not allow Lagardère to exercise a decisive influence over the target
   assets from December 2002 or Lagardère and NBP to exercise a decisive
   influence over those assets from that date pursuant to Article 3(3) of
   Regulation No 4064/89. ( [6]6 ) The General Court also added, for the
   sake of completeness, that even if the holding arrangement allowed from
   December 2002, as argued by the appellant, Lagardère to exercise on its
   own or with NBP control over the target assets in accordance with
   Article 3(1)(b) of Regulation No 4064/89 and the operation was thus put
   into effect prior to notification, that circumstance would not affect
   the legality of the contested decision. ( [7]7 )

   2. Arguments

   12.

   The first ground of appeal is divided into two parts.

   13.

   Firstly, according to the appellant, by examining in isolation the
   holding arrangement without taking into account the entire legal
   arrangement which led to Lagardère's acquisition of control of the
   target assets, the General Court failed to have regard to the objective
   of control of concentrations and competition law in general which is,
   as confirmed by the Cementbouw Handel & Industrie v Commission case, (
   [8]8 ) to ascertain the economic reality underlying transactions.
   Moreover, by failing to respect the aim of control of concentrations
   and its own case-law on complex operations, the General Court
   established a new exception which is wider than those provided by
   Article 3(5) of Regulation No 4064/89. In allowing such holding
   arrangements, irrespective of the nature of the vehicle charged with
   holding the assets to be divested, thereby enabling transactions which
   are normally subject to notification to the Commission to avoid
   control, the General Court also undermined the effectiveness of
   Article 3(5)(a) of that regulation by eliminating the requirement
   concerning credit or financial institutions and indeed the requirement
   concerning the temporary nature of the transaction referred to in that
   provision.

   14.

   Secondly, the appellant considers that the General Court allowed the
   creation by contract of a `warehousing arrangement' which eludes merger
   control. The General Court erred in law by making a truncated
   application of Article 3(3) of Regulation No 4064/89 as it limited its
   analysis to contractual elements thereby failing completely to assess
   the question of de facto control in accordance with the Commission's
   own practise and confirmed by the judgment of the General Court in Aer
   Lingus Group v Commission. ( [9]9 ) In addition, according to the
   appellant, the General Court incorrectly rejected at paragraph 134 of
   the judgment under appeal the arguments raised by the appellant
   concerning the possibility of exercising decisive influence linked to
   the financing and assumption of risks by stating that such financing
   was `inherent to the holding arrangement'. The General Court also
   incorrectly rejected at paragraph 137 of the judgment under appeal the
   appellant's claims regarding the debt owed by Segex/Ecrinvest 4 to
   Lagardère.

   15.

   The Commission and Lagardère consider that the present ground of appeal
   is ineffective as the object of the contested decision was not to
   examine the existence or otherwise of de facto control from December
   2002, but to assess the compatibility with the common market of the
   operation notified on 14 April 2003 in relation to the acquisition by
   Lagardère of control of VUP. Therefore the classification of the
   holding arrangement and the consequences of that classification are
   independent of and do not affect the validity of the contested decision
   which authorised the operation subject to commitments. Lagardère states
   that the Commission may only prohibit a concentration when it creates
   or strengthens a dominant position which significantly impedes
   competition in the common market. Failure to notify or putting into
   effect a concentration without authorisation may only be sanctioned by
   the imposition of a fine pursuant to Article 14 of Regulation
   No 4064/89.

   16.

   The Commission considers that the appellant incorrectly claims on the
   basis of the Cementbouw Handel & Industrie v Commission judgment (
   [10]10 ) that Regulation No 4064/89 requires the Commission to assess
   in a unitary manner interdependent transactions which constitute a
   concentration. Given that the Commission found that the concentration
   following the imposition of commitments did not impede competition, the
   fact that an assessment of an operation whereby control was acquired
   did not extend to the phase on the holding arrangement did not affect
   the general objective of control of concentrations. Moreover, the
   finding of the General Court that the holding arrangement in respect of
   VUP's assets did not give Lagardère from December 2002 the possibility
   to exercise a decisive influence on its own or jointly with NBP over
   the assets can not be challenged at appeal stage in the absence of a
   distortion of the facts which has not been alleged. In the light of the
   Aer Lingus Group v Commission case, ( [11]11 ) given that the
   Commission authorised, subject to commitments, the acquisition on a
   lasting basis of sole control by Lagardère over the target assets of
   VUP, such an authorisation decision is equally coherent with an
   analysis which considered the holding arrangement VUP/Editis by NBP as
   the `first step' in that single concentration leading only at the end
   of the operation (by the sale of NBP to Lagardère, pursuant
   to commitments) to lasting control by Lagardère. The Commission
   considers that the appellant's claim regarding the qualification of the
   holding arrangement and the creation of a new exception for the
   temporary acquisition of assets is ineffective as it is not decisive
   with respect to the legality of the contested decision and even if it
   is considered a first step of a concentration, it is not a
   concentration in itself. The Commission also considers that the
   judgment under appeal does not exclude the possibility of de facto
   control. However, in that context the burden of proof lay on the
   appellant to establish an error on the part of the Commission. It is
   not sufficient to allege that Lagardère exercised control from December
   2002. This is particularly the case as the contractual terms were
   adopted in order to exclude control.

   17.

   Lagardère claims that the present ground of appeal is in any event in
   part inadmissible and in part unfounded. Lagardère considers that the
   appellant's claim that the holding arrangement is merely the first
   stage of a concentration which ultimately resulted in Lagardère's
   control is a new argument raised at appeal stage, is contrary to the
   position developed by the appellant before the General Court and is
   therefore inadmissible. Lagardère considers that the appellant's claim
   that the General Court failed to assess the possibility of de facto
   control of Lagardère over Editis from the time of the holding
   arrangement is unfounded as is evidenced by that court's analysis of
   that question from paragraph 119 et seq. of the judgment under appeal.

   3. Assessment

   18.

   As regards the claim that the present ground of appeal is ineffective,
   in my view a concentration, albeit one notified late in breach of the
   time-limit of one week provided by Article 4(1) of Regulation
   No 4064/89 and put into effect in contravention of the obligation to
   suspend contained in Article 7(1) of that regulation, which does not
   create or strengthen a dominant position as a result of which
   competition would be significantly impeded in the common market, must
   in accordance with Article 8(2) of Regulation No 4064/89 be declared
   compatible with the common market by the Commission. ( [12]12 ) The
   failure to notify to the Commission a concentration with a Community
   dimension in accordance with Article 4 of Regulation No 4064/89 (
   [13]13 ) or the putting into effect that concentration without
   authorisation may, however, be sanctioned by the imposition of a fine
   by the Commission pursuant to Article 14(1)(a) and 14(2)(b) of
   Regulation No 4064/89 respectively. ( [14]14 )

   19.

   In my view, it is important to stress that such an approach is based on
   the premiss that all factual, legal and economic matters which could
   affect the nature of the concentration and in turn the Commission's
   appraisal of its impact on competition in the common market pursuant to
   Regulation No 4064/89 ( [15]15 ) have subsequently been notified to the
   Commission and the operation was accordingly assessed by that
   institution on the basis of all the relevant information. I consider
   that certain errors or omissions in the notification concerning the
   nature of transactions could therefore impinge on the correct
   evaluation of a concentration itself pursuant to Regulation
   No 4064/89. ( [16]16 )

   20.

   In that regard and in the context of the present proceedings, I
   consider that failure by the Commission in its decision approving a
   concentration or by the General Court in its judgment on review of that
   decision to take into account and correctly assess all the relevant
   information and circumstances in relation to the application of
   Article 3 of Regulation No 4064/89, could potentially lead to the
   annulment of that decision or judgment.

   21.

   However, I consider that even if the appellant's claims under the
   present ground of appeal are in fact correct, they cannot lead to the
   annulment of the judgment under appeal. The alleged error in the
   qualification of the holding arrangement, which the appellant itself
   agrees is an integral part of the concentration notified on 14 April
   2003, ( [17]17 ) merely relates in reality to whether Lagardère
   obtained control over the target assets in December 2002 as a result of
   that arrangement or at a later point in time. The alleged error
   therefore has no other practical bearing on the nature of the
   concentration notified or on its effect on competition in the common
   market. This approach is in my view supported by the ruling of the
   General Court in the Cementbouw Handel & Industrie v Commission case. (
   [18]18 ) Thus as indicated by that court, the purpose of ascertaining
   whether a number of transactions are unitary in nature is, inter alia,
   to enable the Commission to carry out an effective control of
   concentrations which are capable of significantly impeding competition
   in the common market. ( [19]19 ) It therefore does not avail the
   appellant in the present appeal case to claim that the General Court
   did not correctly assess the holding arrangement pursuant to Article 3
   of Regulation No 4064/89.

   22.

   I shall, however, examine the arguments of the appellant concerning the
   first ground of appeal for the sake of completeness.

   23.

   In my view, Lagardère's claim that the first part of the present ground
   of appeal is inadmissible should be rejected. While the appellant in
   its pleadings before the General Court did not formulate its arguments
   using the terms found in the Cementbouw Handel & Industrie v Commission
   judgment ( [20]20 ) and the Commission's consolidated jurisdictional
   notice under Council Regulation (EC) No 139/2004 on the control of
   concentrations between undertakings, ( [21]21 ) this is hardly
   surprising as that judgment and the notice in question post-date the
   application for annulment of the contested decision before the General
   Court. However, the nature of the holding arrangement in respect of the
   target assets in the wider context of the operation which was notified
   to the Commission and the need to assess that arrangement in that
   context were matters raised by the appellant in its pleadings before
   the General Court.

   24.

   As regards the substance of the first part of the present ground of
   appeal, I consider that the General Court did not fail to comprehend
   the economic reality of the concentration examined by the Commission in
   the contested decision nor indeed the various transactions that formed
   the basis of that concentration. Indeed, aside from the in-depth
   analysis of the holding arrangement itself in paragraphs 119 to 153 of
   the judgment under appeal, the General Court outlined in great detail
   in paragraphs 10 to 36 of that judgment the transactional steps that
   preceded the notification of the concentration on 14 April 2003.
   Furthermore, the appellant specifically agreed with the presentation of
   those facts by the General Court in the present appeal.

   25.

   Moreover, it is clear from the judgment under appeal that the General
   Court examined the holding arrangement pursuant to Article 3(3) of
   Regulation No 4064/89 in response to the specific claims raised by the
   appellant in its first ground of annulment before that court. The
   appellant claimed that the acquisition by NBP of the target assets did
   not comply with Article 3(5)(a) of Regulation No 4064/89 ( [22]22 ) and
   that through the holding arrangement, Lagardère was able to exercise a
   decisive influence over the target assets from December 2002 until they
   were sold to Wendel in September 2004. ( [23]23 ) The General Court
   thus, in direct response to the appellant's claims before it, examined
   in detail whether Lagardère had acquired single or joint control over
   the target assets from December 2002. Having found that Lagardère did
   not acquire control over the target assets from December 2002 pursuant
   to Article 3(3) of Regulation No 4064/89, the General Court did not
   proceed to examine in any detail the application of Article 3(5)(a) of
   that regulation. ( [24]24 ) It would appear therefore that an
   examination of the application of Article 3(5)(a) of Regulation
   No 4064/89, pursuant to which control is deemed not to arise, was
   considered by the General Court superfluous in the light of its finding
   of absence of control pursuant to Article 3(3) of Regulation
   No 4064/89. In so doing, I consider that the General Court did not
   deprive Article 3(5)(a) of that regulation ( [25]25 ) of its
   effectiveness (effet utile) nor indeed create a new exception with
   respect to the acquisition of control.

   26.

   Moreover, I consider that the Commission has correctly pointed out in
   its pleadings that the assessment of the holding arrangement by the
   General Court is consistent with both the Cementbouw Handel & Industrie
   v Commission judgment, ( [26]26 ) and indeed the Commission
   Jurisdictional Notice ( [27]27 ) as that arrangement can be considered
   as a first, but in itself insufficient, ( [28]28 ) step in a number of
   linked transactions which ultimately led to Lagardère obtaining control
   over the target assets and thus to a concentration pursuant to
   Regulation No 4064/89.

   27.

   I therefore consider that the first part of the present ground of
   appeal should be rejected as unfounded.

   28.

   As regards the second part of the present ground of appeal, the
   appellant claims that the General Court incorrectly applied the
   criteria for assessing control in Article 3(3) of Regulation No 4064/89
   and merely examined formal contractual elements without examining the
   existence of de facto control. The appellant states that it claimed
   before the General Court that Lagardère's ability to exercise decisive
   influence over the target assets derived from three factual elements,
   namely, the loan to NBP of the entire acquisition price (EUR 1.116
   billion), the guarantee to pay leases and the provision of sums to
   cover VUP's cash requirements (EUR 118 million). In addition, the
   appellant indicated before the General Court that Lagardère's and
   Segex's decisive influence derived from three cumulative mechanisms:
   the veto right of Segex provided by Annex 7 of the contract over any
   change in the target assets, the economic dependence of Investima 10 on
   Lagardère, in the light of the EUR 1.2 billion loan and the transfer to
   Lagardère of the entirety of the risks over the business and the
   control of the premises.

   29.

   I consider that the appellant's claim that the General Court merely
   examined contractual stipulations and failed to assess the question of
   de facto control by Lagardère over the target assets is unfounded. It
   is clear from the judgment under appeal that the General Court,
   contrary to the claims of the appellant, examined all the pleas raised
   by the appellant concerning de facto control and assessed the proof
   proffered by the appellant in that regard. The General Court examined
   firstly, at paragraphs 133 and 134 of the judgment under appeal,
   whether the fact that Lagardère had financed the holding arrangement
   and assumed all the risks in that regard resulted in it being able to
   exercise a decisive influence over the target assets. Secondly, the
   General Court examined, at paragraphs 136 and 138 to 142 of the
   judgment under appeal, the nature of the veto right granted to
   Segex/Ecrinvest 4 pursuant to Annex 7 of the sales contract in relation
   to any decision likely to affect the target assets. ( [29]29 ) Thirdly,
   the question whether the debt owed by Segex/Ecrinvest 4 to Lagardère
   could have deprived Segex of real power to exercise the rights attached
   to the target assets and resulted in Segex acting on behalf of
   Lagardère was examined at paragraph 137 of the judgment under appeal.
   Fourthly, the question of the independence of the members of the board
   responsible for the management of Investima 10 was examined at
   paragraph 143 of the judgment under appeal. ( [30]30 ) It is evident
   from the judgment under appeal that the General Court examined the
   above questions of de facto control and a considerable number of
   contractual stipulations in the sales contract and found that those
   stipulations were sufficient to exclude the possibility of de facto
   control by Lagardère over the target assets. ( [31]31 )

   30.

   In my view, in the absence of any demonstration that the General
   Court's weighing of the evidence of de facto control and the
   contractual stipulations in the sales contract was erroneous, I
   consider that the appellant's claim on de facto control should be
   rejected as unfounded.

   31.

   The appellant also claims that the General Court's reasoning at
   paragraph 133 of the judgment under appeal is purely circular. The
   General Court found that the financing of the holding arrangement and
   the assumption of all the risks by Lagardère did not give the latter
   the possibility of exercising a decisive influence over the target
   assets as the financing and assumption of risks resulted from or were
   inherent to the holding arrangement itself. The appellant makes the
   same claim in respect of the General Court's treatment of its argument
   concerning the debt incurred by Segex/Ecrinvest 4 to Lagardère which
   was dismissed at paragraph 137 of the judgment under appeal.

   32.

   In my view, the above claim should be construed as a claim of lack of
   adequate reasoning by the General Court which is a matter of law which
   must be examined by the Court of Justice on appeal. ( [32]32 ) I
   consider that it is necessary to examine the adequacy of the statement
   of reasons of the General Court on the questions of financing and
   assumption of risk in the context of the previous finding by the
   General Court, outlined in considerable detail in the judgment under
   appeal, that the possibility of Lagardère exercising a decisive
   influence over the target assets pursuant to the holding arrangement
   was excluded by the explicit terms of the sales contract. ( [33]33 )

   33.

   The General Court added at paragraph 134 of the judgment under appeal
   that the financing of the holding arrangement resulted from the
   arrangement itself as NBP would not have agreed to the arrangement
   unless Lagardère agreed to bear all the risks and indemnify NBP for all
   damage. The General Court therefore found at paragraph 135 of the
   judgment under appeal that the financing of the operation was not
   sufficient, in itself, to demonstrate Segex's absence of power over the
   target assets. At paragraph 136 of the judgment under appeal the
   General Court also noted that Segex/Ecrinvest 4 had a veto right over
   all decisions which would affect the target assets which was more
   extensive than that provided by Article 3(5)(a) of Regulation
   No 4064/89. For the same reasons the General Court rejected at
   paragraph 137 of the judgment under appeal the appellant's claim that
   as a result of the considerable debt owed by Segex/Ecrinvest 4 to
   Lagardère, Segex would be deprived of any real power over the target
   assets and would in fact act as an agent for Lagardère in respect of
   the assets. In my view, the reasoning of the General Court on the
   questions of financing and the debt incurred is clear, comprehensible
   and sufficient in the light of that court's assessment of the
   contractual stipulations.

   34.

   I therefore consider that the first ground of appeal is ineffective and
   in any event unfounded.

   B - Second ground: error of law as the General Court failed to draw the
   legal consequences of procedural infringements committed by the
   Commission

   1. Arguments

   35.

   By its second ground of appeal, the appellant alleges an error of law
   insofar as the General Court failed to draw the legal consequences of
   the procedural infringements committed by the Commission. By shielding
   from any review those infringements of Regulation No 4064/89, relating,
   inter alia, to the infringement of the obligation to suspend the
   concentration, to the absence of notification of such a kind as to form
   the basis of the Commission's competence and to fraud by the apparent
   substitution of the purchaser, the General Court validated an
   infringement of the law equivalent to a misuse of powers by the
   Commission.

   36.

   According to the appellant, the General Court erred in finding that if
   the concentration had been put in place since December 2002 and thus
   before it was notified, the only sanction available was the imposition
   of a fine pursuant to Article 7(1) of Regulation No 4064/89 rather than
   the annulment of the contested decision. The General Court also erred
   in finding that failure to notify the concentration within the
   time-periods laid down by Article 4(1) of Regulation No 4064/89 was
   merely subject to a fine but did not affect the validity of the
   contested decision. According to the appellant, while an infringement
   of Article 7(1) and Article 4(1) of Regulation No 4064/89 by
   undertakings only leads to the imposition of fines, those sanctions
   cannot by definition apply to the Commission itself. The Commission
   misused its powers by allowing Lagardère to incorrectly rely on
   Article 3(5)(a) of Regulation No 4064/89 and avoid notifying the
   concentration from December 2002. The failure to examine the
   transaction within the time periods conferred a competitive advantage
   with respect to other potential buyers on Lagardère by allowing it to
   pay the purchase price immediately to VUP.

   37.

   In its reply, the appellant stresses that the present ground of appeal
   is not principally directed at the sanctions which the Commission could
   impose on an undertaking for failure to comply with certain obligations
   but at the sanctions which must be imposed for infringements by the
   Commission and consequently the fate of a decision adopted in
   disrespect of the rules provided by a Community regulation.

   38.

   The Commission considers that the present ground of appeal is
   ineffective and unfounded. Lagardère considers that the present ground
   of appeal is inadmissible as the appellant merely refers to factual
   elements which were examined by the General Court without claiming that
   there was a distortion of facts.

   2. Assessment

   39.

   I consider, in the light of my findings on the first ground of appeal,
   that the General Court's finding at paragraphs 116 to 164 of the
   judgment under appeal that the holding arrangement did not constitute a
   concentration from December 2002 as Lagardère was unable to exercise a
   decisive influence either on its own or jointly with NBP over the
   target assets pursuant to that arrangement is correct. It follows
   therefore that the obligation to suspend a concentration pursuant to
   Article 7(1) of Regulation No 4064/89 was not infringed by VUP and
   Lagardère as a result of the holding arrangement. ( [34]34 ) Thus in
   the absence of any procedural infringement concerning the obligation to
   suspend a concentration, the claim that the General Court erred in law
   by failing to draw the legal consequences of such a procedural
   infringement should, in my view, be rejected.

   40.

   On the question of late notification of the concentration by
   Lagardère, ( [35]35 ) it is undisputed that the concentration was
   notified late in breach of the time-limit of one week provided by
   Article 4(1) of Regulation No 4064/89. ( [36]36 ) However, I consider
   that that procedural irregularity alone, even if it were induced by the
   Commission itself as alleged by the appellant, could have had no impact
   on the assessment of the concentration ( [37]37 ) in the case at hand,
   particularly in the absence of a breach of the obligation to suspend
   the concentration. ( [38]38 ) Thus as the outcome of the contested
   decision would not have been different if the concentration had been
   notified on time, it would, in my view, be wholly disproportionate to
   annul the Commission's decision on the concentration on that basis
   alone. ( [39]39 ) The General Court therefore correctly found at
   paragraphs 201 and 202 of the judgment under appeal that unless a
   concentration creates or strengthens a dominant position as a result of
   which effective competition would be significantly impeded, the
   Commission cannot declare that concentration incompatible with the
   common market pursuant to Article 8(3) of Regulation No 4064/89 merely
   on the basis that the concentration was notified out of time.

   41.

   I would also note pursuant to paragraph 10 et seq. of the judgment
   under appeal that VUP and Lagardère entered into negotiations from late
   September 2002 concerning the acquisition by the latter of the target
   assets. Moreover, the Commission was aware of and approved the main
   conditions of the acquisition of the target assets by NBP on or after
   8 October 2002 ( [40]40 ) and the Commission received on 10 December
   2002 a draft notification of the purchase by Lagardère of the target
   assets, ( [41]41 ) the actual notification only taking place on
   14 April 2003 approximately four months late. It is thus clear from the
   file before the Court that the Commission had informal
   pre-notifications contacts with the notifying parties to the envisaged
   concentration. In my view, such contacts whereby the Commission and the
   notifying parties discuss a future concentration and the Commission
   clarifies its preliminary view on certain legal or other matters or
   indicates its potential position on that concentration do not
   constitute a misuse of power by the Commission. ( [42]42 )

   42.

   On the contrary, such contacts comply with the principle of good
   administration as they promote `a spirit of cooperation and better
   understanding between DG Competition and the legal and business
   community' ( [43]43 ) to the benefit of the control of concentrations.
   Such pre-notification contacts therefore are not aimed at and do not
   serve to favour a particular buyer over another. ( [44]44 )

   43.

   Given the clearly informal, non-binding and preliminary nature of such
   pre-notification contacts between the Commission and notifying parties,
   they are not aimed at substituting the notification process but rather
   seek to enhance it. Furthermore, such informal contacts are clearly not
   of such a nature as to relieve the parties which are subject to the
   notification requirement contained in Article 4(1) of Regulation
   No 4064/89 of that legal obligation which falls on them alone.

   44.

   I therefore consider that the second ground of appeal should be
   rejected as unfounded.

   C - Third ground: error of law in that the General Court failed to draw
   the legal consequences of a violation of essential procedural
   requirements due to a failure to provide a statement of reasons,
   infringement of the principles of legal certainty, legitimate
   expectations and equality

   1. Arguments

   45.

   By its third ground of appeal, the appellant alleges that the General
   Court erred in law by failing to sanction by annulment essential
   procedural requirements vitiating the contested decision. The present
   ground of appeal relates in particular to the failure to provide a
   statement of reasons in relation to the qualification by the Commission
   of the holding arrangement at issue and to the applicability of
   Article 3(5)(a) of Regulation No 4064/89 to a part of the operation.
   The appellant considers that the General Court upheld the position
   (implicit as unreasoned) of the Commission that the holding arrangement
   was not a concentration subject to notification pursuant to Regulation
   No 4064/89. While that position has legal effects in particular for
   potential buyers such as the appellant, paragraph 6 of the contested
   decision merely makes an evasive reference to the matter. Contrary to
   the situation which arose in Bertelsmann and Sony Corporation of
   America v Impala, ( [45]45 ) the absence of reasoning in the present
   proceedings related to the competence of the Commission and thus
   concerns matters which are not irrelevant or secondary in nature. The
   Commission should have determined the date on which the operation
   should have been notified in order to ensure compliance with the
   obligation to notify and suspend the operation, and if necessary impose
   sanctions for infringement of those obligations.

   46.

   The finding of the General Court at paragraphs 231 to 233 of the
   judgment under appeal that the Commission had no competence with
   respect to the holding arrangement as it was not notified because it
   was not a concentration is circular in nature and cannot justify the
   total absence of reasoning on why that operation did not constitute a
   concentration or did not form part of the notified concentration. By
   validating the failure of the Commission to provide a statement of
   reasons in respect of the application of an exception pursuant to
   Regulation No 4064/89, the General Court at paragraph 233 of the
   judgment under appeal permitted an infringement of the principles of
   equality and legal certainty. The possibility afforded to Lagardère to
   invoke that exception placed it in a more favourable position in
   respect of the sale of VUP and thus infringed the principle of
   equality. Moreover, the position of the Commission was at odds with its
   own practise and guidelines from which the Commission could not depart
   without providing reasons in order not to breach the principle of legal
   certainty and the protection of legitimate expectations.

   47.

   The Commission considers that the present ground of appeal is
   ineffective. The Commission and Lagardère consider that the present
   ground of appeal is unfounded.

   2. Assessment

   48.

   It is clear from settled case-law that the Commission does not infringe
   its duty to state reasons if, when exercising its power to examine
   concentrations, it does not include precise reasoning in its decision
   as to the 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 the concentration. Such a
   requirement would be difficult to reconcile with the need for speed and
   the short timescales which the Commission is bound to observe when
   exercising its power to examine concentrations and which form part of
   the particular circumstances of proceedings for control of those
   concentrations. ( [46]46 )

   49.

   It follows that where the Commission declares a concentration to be
   compatible with the common market on the basis of Article 8(2) of
   Regulation No 4064/89 the requirement to state reasons is satisfied
   when that decision clearly sets out the reasons for which the
   Commission considers that the concentration in question, where
   appropriate following modification by the undertakings concerned, does
   not create or strengthen a dominant position as a result of which
   effective competition would be significantly impeded in the common
   market or in a substantial part of it. ( [47]47 )

   50.

   In that regard, while it is true that the Commission is not obliged, in
   the statement of reasons for decisions adopted under Regulation
   No 4064/89, to take a position on all the information and arguments
   relied on before it, including those which are plainly of secondary
   importance to the appraisal it is required to undertake, it nonetheless
   remains the case that it is required to set out the facts and the legal
   considerations having decisive importance in the context of the
   decision. The reasoning must in addition be logical and must not
   disclose any internal contradictions. ( [48]48 )

   51.

   It is in the light of these principles that the objections raised by
   the appellant under the third ground of appeal should be examined.

   52.

   In the judgment under appeal, the General Court considered at
   paragraphs 231 to 233 that as the holding arrangement itself was not a
   concentration, there was no obligation to notify that arrangement
   pursuant to Article 4(1) of Regulation No 4064/89. ( [49]49 )
   Accordingly, as the holding arrangement was not the concentration
   examined in the contested decision, the General Court considered that
   the Commission was not obliged in the contested decision to state
   reasons for its qualification of that arrangement pursuant to
   Article 3(5)(a) of Regulation No 4064/89. ( [50]50 )

   53.

   It is clear from the foregoing that the General Court considered that
   as the holding arrangement did not constitute in itself a concentration
   its qualification was a matter of secondary importance in the context
   of the notified concentration and thus that the Commission was not
   obliged to provide a statement of reasons in the contested decision on
   its qualification of that arrangement pursuant to Article 3(5)(a) of
   Regulation No 4064/89. I consider that this approach is correct.
   Moreover, I consider that contrary to the assertions of the appellant,
   that reasoning is not circular in nature. Rather that reasoning
   complies with both the letter and spirit of Regulation No 4064/89 as
   the Commission only has competence to assess transactions pursuant to
   Regulation No 4064/89 which are required to be notified to the
   Commission and thus where they are deemed to constitute a concentration
   with a Community dimension.

   54.

   In addition, as the question of whether the holding arrangement falls
   within the scope of Article 3(5)(a) of Regulation No 4064/89 is not, in
   the present case, a matter which could affect the assessment of the
   nature of the notified concentration nor indeed the appraisal of its
   impact on competition pursuant to that regulation ( [51]51 ) and is
   thus, in particular, of no relevance to the question of whether the
   notified concentration created or strengthened a dominant position
   which was likely to have a significant impact on competition in the
   common market, I consider that the General Court did not err in law by
   considering that the Commission in its contested decision had provided
   an adequate statement of reasons on the matter.

   55.

   As regards the appellant's claim that the judgment under appeal uses
   contradictory reasoning as the General Court at paragraph 142 of the
   judgment under appeal bases its arguments on the terms of
   Article 3(5)(a) of Regulation No 4064/89 while nonetheless dismissing
   the application of that provision, I consider that a statement by the
   General Court that a transaction would comply with certain of the
   conditions contained in Article 3(5)(a) of Regulation No 4064/89 does
   not preclude a finding that control over the target assets was not
   acquired pursuant to Article 3(3) of that regulation. In my view, the
   reasoning of the General Court is not contradictory as compliance with
   some of the conditions contained in Article 3(5)(a) of Regulation
   No 4064/89 is perfectly consistent with and indeed may support a
   finding that control has not been acquired pursuant to Article 3(3) of
   Regulation No 4064/89.

   56.

   In light of the above, I consider that the appellant's claims of
   infringement of the principles of equality, legal certainty and
   legitimate expectation should be dismissed as they are clearly
   dependent on a finding of failure to provide an adequate statement of
   reasons.

   57.

   I therefore consider that the third ground of appeal should be rejected
   as unfounded.

   D - Fourth ground: error of assessment of strengthening of a dominant
   position and the appropriateness of commitments

   1. Arguments

   58.

   By its fourth and final ground of appeal which is divided into two
   parts, the appellant claims that the General Court erred in law and
   committed manifest errors of assessment firstly, in that it disregarded
   the relevant legal criteria for assessing the creation or strengthening
   of a dominant position and secondly, as regards whether the commitments
   were appropriate in the light of the criteria of restoring and
   developing effective competition and the statements made by the
   Commission concerning portfolio and conglomerate effects.

   59.

   Firstly, the appellant claims that it is uncontestable that the
   question of whether an undertaking holds a dominant position depends on
   the degree of competitive pressure exercised on it. ( [52]52 ) The
   General Court thus erred in finding at paragraph 286 of the judgment
   under appeal that its argument concerning the break-up of Editis was
   ineffective as it did not concern the question of the creation or
   strengthening of a dominant position. The error is particularly evident
   given that the Commission found in the contested decision that the
   competitive balance in the different relevant markets was based on a
   non-dominant duopoly. It such circumstances, it is the rivalry between
   two competitors of equal size and strength that constitutes the engine
   of competition. The General Court could not therefore exclude as a
   matter of principle that the weakening of one of the two competitors by
   its break-up would not also lead to the creation of a dominant
   position. Moreover, the General Court, by stating at paragraphs 293
   and 294 of the judgment under appeal that the identity of the buyer
   substantially influenced the effectiveness of the sale of assets agreed
   to by Lagardère, admitted that the remedy proposed by Lagardère did not
   eliminate ab initio any doubt as to the effectiveness of that remedy as
   required by the Commission Notice on remedies acceptable under Council
   Regulation (EEC) No 4064/89 and under Commission Regulation (EC)
   No 447/98. ( [53]53 )

   60.

   Secondly, the appellant claims that in accordance with recital 13 in
   the preamble to Regulation No 4064/89, the degree of effective
   competition in the common market should not only be maintained but
   should, as a result of the use of the term `develop' in that recital,
   be increased following the concentration. The General Court erred in
   paragraph 342 of the judgment under appeal in finding that it was
   sufficient if the level of competition was `maintained or developed'.

   61.

   The General Court also manifestly erred in its assessment as, contrary
   to its claim at paragraphs 342 and 343 of the judgment under appeal,
   nothing guarantees that an operator having the economic incentives (
   [54]54 ) to develop or maintain effective competition is an actual or
   potential competitor. The appellant considers that the contrast between
   the judgment under appeal and Petrolessence and SG2R v Commission (
   [55]55 ) is striking as in the latter case the Commission refused to
   approve a potential buyer of assets as it was not active in the sector
   in question. In the present proceedings, not only does the text of the
   commitments in the contested decision not require that the buyer of the
   target assets to be an actual or potential competitor, but also the
   General Court adopted a minimalist interpretation of the capacity of
   the buyer to preserve competition by accepting at paragraph 345 of the
   judgment under appeal that it could be an operator with no experience
   of the market in question.

   62.

   In accordance with the judgment in Petrolessence and SG2R v
   Commission, ( [56]56 ) an assessment of the capacity of a buyer to
   guarantee effective and durable competition would require the rejection
   of candidates with no experience of the markets in question. Moreover,
   contrary to the statements at paragraph 345 of the judgment under
   appeal, nothing in the commitments requires the buyer to maintain the
   existing managers of the target assets. A buyer which is already
   present in the industry is of much greater interest than a financial
   buyer, as the former has by definition an experienced team capable of
   maintaining and developing the competitive capacity of the divested
   activity. Furthermore, the appellant considers that the General Court
   incorrectly at paragraph 347 of the judgment under appeal rejected its
   claims concerning an upfront buyer. According to the appellant the
   dismantling of Editis resulted in a loss to the distribution centre of
   the latter of the volume corresponding to the four publishing houses
   maintained by Lagardère. Thus the identity of the buyer was essential
   for the efficacy of the commitments in order to ensure that it could
   supply the distribution centre with equivalent volumes. The appellant
   therefore considers that the commitments are ineffective in the absence
   of an upfront buyer and that by accepting a financial buyer, Editis was
   structurally weakened.

   63.

   The appellant claims that the General Court found in the judgment under
   appeal that the contested decision correctly analysed the effects
   linked to portfolio and conglomerate effects, but that court failed to
   verify whether the commitments offered by Lagardère were legally
   sufficient. The General Court thus validated a fragmented approach
   which merely assessed overlap on a market by market basis without
   taking into consideration in a more global manner the effects of the
   operation on all the relevant markets as the Court did in the
   Bertelsmann and Sony Corporation of America v Impala case. ( [57]57 )

   64.

   The Commission and Lagardère consider that the present ground of appeal
   is unfounded.

   2. Assessment

   65.

   The present ground of appeal relates to the General Court's review of
   the commitments accepted by the Commission in the contested decision.

   66.

   As regards the first part of the present ground of appeal, ( [58]58 )
   in my view the General Court correctly stated at paragraph 284 of the
   judgment under appeal that a concentration may only be declared
   incompatible with the common market pursuant to Article 8(3) of
   Regulation No 4064/89 where it creates or strengthens a dominant
   position as a result of which effective competition would be
   significantly impeded in the common market. ( [59]59 ) The commitments
   proposed to the Commission by the undertakings concerned pursuant to
   Article 8(2) of Regulation No 4064/89, if accepted by the Commission,
   form the basis for a decision pursuant to that article. ( [60]60 ) I
   consider that when commitments have been proposed to the Commission,
   the overall assessment of whether the concentration creates or
   strengthens a dominant position cannot be separated from the analysis
   of the commitments. ( [61]61 ) Thus where commitments are accepted by
   the Commission, they form an integral part of the concentration and
   thus the Commission's global and final assessment of that
   concentration. In addition, the question of dominance and thus the
   proposed commitments must always be assessed with regard to defined
   relevant markets. In my view, to find otherwise would deprive the
   assessment of concentrations of the necessary rigour. Thus while the
   question of whether an undertaking holds a dominant position, be it
   pursuant to Article 102 TFEU or Regulation No 4064/89, undoubtedly
   depends on the degree of competitive pressure exercised on that
   undertaking, that assessment must always be carried out within the
   framework of defined relevant markets.

   67.

   I therefore consider that the General Court correctly found that the
   Commission cannot declare a concentration incompatible on the sole
   basis that it altered the initial position of the parties in question
   on the relevant markets. ( [62]62 ) In addition, it is clear from a
   careful reading of both paragraphs 285 and 286 of the judgment under
   appeal, and contrary to the appellant's claims, that the General Court
   did not consider that the divestiture of the target assets constituting
   60% of the global turnover of VUP and the retention of the remainder by
   Lagardère was irrelevant in assessing whether there was a creation or
   strengthening of a dominant position as a result of which effective
   competition would be significantly impeded in the common market. The
   General Court merely indicated that the dismantling of Editis was not a
   sufficient criterion in itself to permit a finding of the necessary
   anti-competitive effect. The General Court also correctly added at
   paragraph 288 of the judgment under appeal that the global turnover
   figures of two entities cannot provide relevant indications as the
   assessment of dominance must be done in the context of defined markets.
   The General Court therefore, contrary to the claims of the appellant,
   did not exclude as a matter of principle that the weakening of one of
   the two competitors by its break-up could not lead to the creation of a
   dominant position. I would also add, as pointed out by Lagardère in its
   pleadings, that the General Court found at paragraph 290 of the
   judgment under appeal that it had not been demonstrated that Editis had
   been dismantled as the commitments required the divestiture of almost
   all the target assets.

   68.

   As regards the appellant's criticism of the statement by the General
   Court at paragraphs 293 and 294 of the judgment under appeal, in my
   view, the use of the words `in any event' ( [63]63 ) at the beginning
   of paragraph 293 of the judgment under appeal together with the actual
   contents of paragraphs 293 and 294, in which the General Court states
   that it was not presented within the framework of the case before it
   with the necessary evidence to assess in concreto the effects on
   competition of the dismantling of Editis, show that they were included
   merely for the sake of completeness.

   69.

   In effect, the General Court stated that the appellant could not
   contest the failure of the Commission to assess the consequences of the
   break-up of Editis on its capacity to exercise competitive pressure
   similar to that which existed before the concentration, as that
   depended on the capacity of the buyer of the assets being sold to
   maintain or develop effective competition as required by the
   commitments. That court stated that it did not assess that issue as it
   had not been sent, within the framework of the case at hand, the
   information necessary to assess which resources would be required in
   order to compete effectively with Lagardère. I would note that within
   the scope of these proceedings, the appellant has not contested the
   statement by the General Court that it was not sent sufficient
   evidence.

   70.

   It is settled case-law that complaints directed against the grounds of
   a judgment of the General Court included merely for the sake of
   completeness must be rejected outright since such grounds cannot
   provide any basis for setting that judgment aside. ( [64]64 )

   71.

   I would add, for the sake of completeness, that the fact that the
   General Court stated at paragraph 294 of the judgment under appeal that
   the identity of the buyer would substantially influence the
   effectiveness of the sale of the assets to be divested, does not
   constitute an admission by that court that the remedy proposed by
   Lagardère did not eliminate ab initio any doubt as to the effectiveness
   of that remedy as required by point 7 of the Commission Remedies
   Notice. ( [65]65 ) While point 7 of that notice requires the parties to
   a concentration from the outset to remove any uncertainties as to any
   factors which might cause the Commission to reject the remedy proposed,
   in my view, commitments do not necessarily have to be implemented in
   advance of a clearance decision. Indeed it is clear from point 5 of
   that notice that while such commitments `may be offered and implemented
   in advance of a clearance decision', `it is more common that the
   parties submit commitments with a view to rendering the concentration
   compatible with the common market within a specific period following
   clearance'.

   72.

   In accordance with point 19 of the same notice which concerns
   divestiture, the condition for a clearance decision for the Commission
   is that a viable business will be transferred to a suitable purchaser
   within a specific deadline. In the case of divestiture therefore, the
   suitability and thus the identity of the purchaser is always relevant.
   In my view, it is however sufficient in such cases of divestiture that
   the decision approving the concentration is subject to commitments
   which specify, inter alia, appropriate criteria for the selection of a
   suitable purchaser of the assets in question within a reasonable
   timeframe. However, an upfront buyer ( [66]66 ) is required by the
   Commission when only a part ( [67]67 ) of a business is being sold. (
   [68]68 ) Given that in the case at hand the General Court found at
   paragraph 290 of the judgment under appeal that Lagardère had accepted
   to divest almost all of the target assets and thus 80% of the French
   language assets, it is apparent that such assets would constitute in
   themselves a viable business. ( [69]69 ) I therefore consider that a
   requirement of an upfront buyer for those assets would be
   disproportionate.

   73.

   Consequently, the first part of the fourth ground of appeal should in
   my view be dismissed as unfounded.

   74.

   As regards the claim that the General Court failed to take into account
   the need to maintain and develop effective competition, I wish to
   restate that it is sufficient for the purposes of Article 8(2) of
   Regulation No 4064/89 that the notified concentration as modified by
   the commitments proposed by the undertakings concerned does not create
   or strengthen a dominant position. The Commission and Lagardère have
   correctly pointed out in their pleadings that the commitments proposed
   to the Commission by the undertakings concerned pursuant to
   Article 8(2) of Regulation No 4064/89 thus do not have to improve the
   initial competitive situation prior to the concentration. To find
   otherwise would, in my view, breach the principle of proportionality. (
   [70]70 ) Moreover, as the Commission rightly pointed out in its
   pleadings, the procedure for the control of concentrations and in
   particular the assessment of commitments proposed by the undertakings
   cannot be instrumentalised by the Commission as a means or opportunity
   for `engineering markets or economic planning'.

   75.

   I would also note that the `need to maintain and develop effective
   competition' is not only referred to in recital 13 in the preamble to
   Regulation No 4064/89 as indicated by the appellant, but is also
   referred to in Article 2(1)(a) of that regulation. In my view, the use
   of those terms in Article 2(1)(a) of Regulation No 4064/89 emphasises
   the need for the Commission to analyse markets in a dynamic, forward
   looking manner. This is particularly evident from the reference to
   potential competition in that same provision. Those provisions may not,
   however, be invoked out of context and in a manner which would clearly
   deform both their spirit and the clear letter of other provisions of
   Regulation No 4064/89 such as Article 8(2) and 8(3).

   76.

   The appellant claims that the General Court manifestly erred in its
   assessment of the capacity of a financial buyer to constitute an actual
   or potential competitor. ( [71]71 ) The appellant considers in effect
   that in the light of the Petrolessence and SG2R v Commission case, (
   [72]72 ) candidates with no experience in the market in question should
   be rejected.

   77.

   I consider that the General Court did not err in finding that a
   financial buyer would be a potential competitor if it had a real
   capacity to maintain or preserve effective competition on the market in
   question even though it had no experience on that market. The General
   Court rightly added that a financial buyer could rely on its experience
   in other markets ( [73]73 ) or indeed a financial buyer could in any
   event, if it wished, maintain the existing and thus experienced
   management of the divested entity. ( [74]74 )

   78.

   In my view, each concentration and the viability of eventual
   commitments attached thereto must be assessed on its merits on an
   individual basis. The fact that a particular buyer of given divested
   assets was not acceptable in the Petrolessence and SG2R v Commission
   case can by no means prejudge the outcome of the present concentration.
   Moreover, I can only underscore the enormous factual differences
   between the present case and the Pertrolessence and SG2R v Commission
   case and in particular the fact that the buyer in that latter case
   wished to acquire a very small percentage of the assets to be divested.

   79.

   As regards the appellant's claims concerning the finding of the General
   Court at paragraph 347 of the judgment under appeal on the question of
   an upfront buyer, I refer to my reasoning at point 72 above concerning
   the application of, inter alia, points 19 and 20 of the Commission
   Remedies Notice. ( [75]75 ) Furthermore, I consider that the
   appellant's claim concerning the structural weakening of Editis, which
   the General Court found at paragraph 290 of the judgment under appeal
   had not been established, constitutes a challenge to the factual
   assessment of the General Court and should be rejected as inadmissible
   in the absence of any claim of distortion of the facts.

   80.

   On the question of portfolio and conglomerate effects, I also consider
   that the appellant is in fact challenging the factual assessment of the
   General Court on the matter and thus the appellant's claim should be
   rejected as inadmissible in the absence of any claim of distortion of
   the facts. In any event, I consider that the General Court did not
   adopt a fragmented approach to the matter based purely on market
   overlaps. ( [76]76 ) The General Court found at paragraph 314 of the
   judgment under appeal that the Commission had not manifestly erred in
   its appreciation in considering that the conglomerate effects of the
   concentration identified would not arise given the limited amount of
   assets retained and which would be added to Lagardère's conglomerate
   resources. The General Court assessed at paragraph 315 of the judgment
   under appeal the findings of the Commission at paragraph 996 et seq. of
   the contested decision on vertical and conglomerate effects of the
   concentration and confirmed the global finding of the Commission at
   paragraph 996 that the sale of 60% to 70% of VUP's turnover in the
   French-speaking markets would eliminate, inter alia, most of the
   vertical and conglomerate effects resulting from the overall size of
   the merged entity in the French-language book trade. At paragraph 316
   of the judgment under appeal, the General Court found that the
   elimination of nearly all horizontal overlaps between Lagardère's and
   Editis' activities on the French-speaking markets affected would also
   have the corollary result of eliminating the effects of scale and the
   accumulation of trademarks by the entity resulting from the authorised
   concentration.

   81.

   Consequently, the second part of the fourth ground of appeal should in
   my view be dismissed as unfounded.

   IV - Costs

   82.

   Under Article 69(2) of the Rules of Procedure, which applies to appeal
   proceedings by virtue of Article 118 thereof, the unsuccessful party is
   to be ordered to pay the costs if they have been applied for in the
   successful party's pleadings. Since the Commission and Lagardère
   applied for costs and the appellant has been unsuccessful, the latter
   must be ordered to pay the costs.

   V - Conclusion

   83.

   For the foregoing reasons, I suggest to the Court that it should decide
   as follows:

   (1)

   dismiss the appeal;

   (2)

   order Éditions Odile Jacob SAS to bear its own costs and those of the
   Commission and Lagardère SCA.
     __________________________________________________________________

   ( [77]1 ) Original language: English.

   ( [78]2 ) Not published in the ECR.

   ( [79]3 ) [80]OJ 2004 L 125, p. 54, notified under document
   number C(2003) 5277.

   ( [81]4 ) [82]OJ 1989 L 395, p. 1.

   ( [83]5 ) See paragraph 117 of the judgment under appeal.

   ( [84]6 ) See paragraphs 144 and 153 of the judgment under appeal. The
   General Court did not assess whether the terms of Article 3(5)(a) of
   that regulation were fulfilled.

   ( [85]7 ) See paragraphs 154 to 164 of the judgment under appeal.

   ( [86]8 ) Case [87]T-282/02 [2006] ECR II-319. See, in particular,
   paragraphs 104 to 109.

   ( [88]9 ) Case [89]T-411/07 [2010] ECR II-3691, paragraph 61.

   ( [90]10 ) Cited in footnote 8.

   ( [91]11 ) Cited in footnote 9, paragraph 61.

   ( [92]12 ) See also Article 2(2) of Regulation No 4064/89. In contrast,
   in accordance with Article 8(4) of Regulation No 4064/89, the
   Commission may require any action that may be appropriate to restore
   competition where a concentration which creates or strengthens a
   dominant position as a result of which competition would be
   significantly impeded has been implemented. See also Article 2(3) of
   Regulation No 4064/89. Such action may extend to the dissolution of an
   implemented concentration. See Aer Lingus Group v Commission, cited in
   footnote 9, paragraphs 58 to 61.

   ( [93]13 ) And thus no more than one week after the conclusion of the
   agreement, or the announcement of the public bid, or the acquisition of
   a controlling interest.

   ( [94]14 ) It is possible pursuant to Article 7(4) of Regulation
   No 4064/89 in certain circumstances to request a derogation from the
   Commission in respect of the obligation to suspend a concentration in
   accordance with Article 7(1) of that regulation.

   ( [95]15 ) In that regard, the focus is on whether there is a
   concentration with a Community dimension which creates or strengthens a
   dominant position as a result of which effective competition would be
   significantly impeded in the common market. See, Articles 1, 2 and 3 of
   Regulation No 4064/89.

   ( [96]16 ) See, by analogy, Cementbouw Handel & Industrie v Commission,
   cited in footnote 8, paragraphs 108 and 109. The Commission must be
   afforded the opportunity of carrying out an effective control of a
   concentration.

   ( [97]17 ) See for example, points 23, 24, 27 etc. of the application.

   ( [98]18 ) Cited in footnote 8.

   ( [99]19 ) See paragraph 108.

   ( [100]20 ) Case cited in footnote 8.

   ( [101]21 ) [102]OJ 2008 C 95, p. 1 (`the Commission Jurisdictional
   Notice').

   ( [103]22 ) See paragraphs 94 to 102 of the judgment under appeal.

   ( [104]23 ) See paragraph 103 of the judgment under appeal.

   ( [105]24 ) See, however, in that regard, paragraphs 138 and 142 of the
   judgment under appeal where the General Court found that certain
   aspects of the holding arrangement would in any event comply with the
   conditions contained in Article 3(5)(a) of Regulation No 4064/89.

   ( [106]25 ) I would also note that Article 3(5)(a) of Regulation
   No 4064/89 refers to the acquisition of securities rather than the
   acquisition of assets. I consider therefore that the holding
   arrangement in relation to the target assets could not in any event
   benefit from the terms of that provision.

   ( [107]26 ) Case cited in footnote 8. `[A] concentration within the
   meaning of Article 3(1) of Regulation No 4064/89 may be deemed to arise
   even in the case of a number of formally distinct legal transactions,
   provided that those transactions are interdependent in such a way that
   none of them would be carried out without the others and that the
   result consists in conferring on one or more undertakings direct or
   indirect economic control over the activities of one or more other
   undertakings.' See paragraph 109 of the judgment.

   ( [108]27 ) Cited in footnote 21. See in particular Part 1.5. on
   Interrelated transactions. That notice is not binding on the Court nor
   indeed temporally applicable and accordingly is also not binding on the
   Commission.

   ( [109]28 ) See, by analogy, Aer Lingus Group v Commission, cited in
   footnote 9, paragraph 65. In that case the acquisition of a minority
   shareholding did not result in the acquisition of control. Further
   acquisitions of shares could however have that result.

   ( [110]29 ) The General Court found that the veto right complied with
   the terms of Article 3(5)(a) of Regulation No 4064/89 and that
   Article 4(2) of the sales contract concerning the powers of the
   responsible bodies of Ecrinvest 4 and Investima 10 excluded any
   intervention by Lagardère, save that inherent to the holding
   arrangement itself.

   ( [111]30 ) The General Court stated that the appellant had not
   produced any factual elements which would undermine its assessment of
   the independence of Investima 10 pursuant to contractual stipulations.

   ( [112]31 ) See paragraphs 120 to 144 of the judgment under appeal.

   ( [113]32 ) See judgment of 11 January 2007 in Case C-404/04 P
   Technische Glaswerke Ilmenau v Commission, paragraph 90.

   ( [114]33 ) Paragraphs 120 to 144 of the judgment under appeal.

   ( [115]34 ) Moreover, it is clear from the contractual stipulations
   contained in the sales contract that the transfer to Lagardère of the
   shares in Ecrinvest 4 could only take place after the authorisation of
   the relevant competition authorities had been obtained. See
   paragraphs 24 and 25 of the judgment under appeal.

   ( [116]35 ) The obligation to notify the concentration in question fell
   on Lagardère pursuant to Article 4(2) of Regulation No 4064/89.

   ( [117]36 ) See paragraph 200 of the judgment under appeal.

   ( [118]37 ) And whether it creates or strengthens a dominant position.

   ( [119]38 ) Pursuant to recital 17 in the preamble to Regulation
   No 4064/89, the requirements of prior notification and indeed
   suspension of concentrations are imposed in order to ensure effective
   control of undertakings by the Commission. Both obligations thus pursue
   the same overriding objective pursuant to Regulation No 4064/89. In
   addition, the obligation to suspend a concentration pursuant to
   Article 7(1) of Regulation No 4064/89 seeks to avoid the necessity of
   retrospectively unravelling uncompetitive concentrations pursuant to
   Article 8(4) of that regulation. In addition, and as claimed by the
   Commission, I consider that the obligation to notify a concentration
   within a week of the conclusion of the agreement pursuant to
   Article 4(1) of Regulation No 4064/89 also seeks to ensure that
   concentrations which could be detrimental to competition in the common
   market are not put into effect prior to examination by the Commission.
   The obligations of notification and suspension of concentrations with a
   Community dimension pursuant to Regulation No 4064/89 thus seek to
   pre-empt in a timely manner certain structural alterations in
   undertakings which could be detrimental to competition in the common
   market.

   ( [120]39 ) See, by analogy, Case [121]259/85 France v Commission
   [1987] ECR 4393, paragraph 13.

   ( [122]40 ) See paragraph 15 of the judgment under appeal.

   ( [123]41 ) See paragraph 35 of the judgment under appeal.

   ( [124]42 ) It is settled case-law that an act is vitiated by misuse of
   powers only if it appears, on the basis of objective, relevant and
   consistent evidence, to have been taken with the exclusive or main
   purpose of achieving an end other than that stated or evading a
   procedure specifically prescribed by the Treaty for dealing with the
   circumstances of the case. See, to that effect, inter alia, Case
   [125]C-342/03 Spain v Council [2005] ECR I-1975, paragraph 64 and the
   case-law cited.

   ( [126]43 ) DG Competition - Best practices on the conduct of EC merger
   control proceedings.

   ( [127]44 ) Outside the realm of commitments imposed pursuant to
   Article 8(2) of Regulation No 4064/89, the Commission has no power
   whatsoever in the approval of buyers.

   ( [128]45 ) Case [129]C-413/06 P [2008] ECR I-4951, paragraph 167.

   ( [130]46 ) Bertelsmann and Sony Corporation of America v Impala, cited
   in footnote 45, paragraph 167.

   ( [131]47 ) Bertelsmann and Sony Corporation of America v Impala, cited
   in footnote 45, paragraph 168.

   ( [132]48 ) Bertelsmann and Sony Corporation of America v Impala, cited
   in footnote 45, paragraph 169.

   ( [133]49 ) As I have indicated in my answer to the first ground of
   appeal, I consider that the General Court was correct in finding that
   the holding arrangement did not in itself constitute a concentration
   and was thus not subject to notification pursuant to Regulation
   No 4064/89.

   ( [134]50 ) At paragraphs 5 to 8 of the contested decision, the
   Commission described the notified concentration as the acquisition by
   Lagardère of VUP's publishing assets in Europe and Latin America
   (except Brazil) of total control within the meaning of Article 3(1)(b)
   of Regulation No 4064/89.

   ( [135]51 ) See point 21 above.

   ( [136]52 ) See, in particular, Case [137]27/76 United Brands and
   United Brands Continentaal v Commission [1978] ECR 207, paragraph 65,
   and Case [138]85/76 Hoffmann-La Roche v Commission [1979] ECR 461,
   paragraph 38.

   ( [139]53 ) [140]OJ 2001 C 68, p. 3 (`the Commission Remedies Notice'),
   point 7.

   ( [141]54 ) Sometimes referred to as a financial buyer.

   ( [142]55 ) Case [143]T-342/00 [2003] ECR II-1161.

   ( [144]56 ) Cited in footnote 55.

   ( [145]57 ) Cited in footnote 45, paragraph 125.

   ( [146]58 ) The appellant claimed before the General Court that the
   Commission failed to analyse the consequences of the break-up of VUP
   into two unequal entities, given that the purchase of the target assets
   was subject to an obligation to divest 60% of those assets. See
   paragraph 276 of the judgment under appeal.

   ( [147]59 ) See also Article 2(3) of Regulation No 4064/89.

   ( [148]60 ) See Article 18(2) of Commission Regulation (EC) No 447/98
   of 1 March 1998 on the notifications, time-limits and hearings provided
   for in Council Regulation (EEC) No 4064/89 on the control of
   undertakings between undertakings ([149]OJ 1998 L 61, p. 1).

   ( [150]61 ) See point 6 of the Commission Remedies Notice (cited in
   footnote 53). `It is the responsibility of the Commission to show that
   a concentration creates or strengthens market structures which are
   liable to impede significantly effective competition in the common
   market. It is the responsibility of the parties to show that the
   proposed remedies, once implemented, eliminate the creation or
   strengthening of such a dominant position identified by the Commission.
   To this end, the parties are required to show clearly, to the
   Commission's satisfaction in accordance with its obligations under the
   Merger Regulation, that the remedy restores conditions of effective
   competition in the common market on a permanent basis.'

   ( [151]62 ) See paragraph 285 of the judgment under appeal.

   ( [152]63 ) `En tout état de cause' in French.

   ( [153]64 ) See Case [154]C-82/01 P Aéroports de Paris v Commission
   [2002] ECR I-9297, paragraph 41, and Case [155]C-431/07 P Bouygues and
   Bouygues Télécom v Commission [2009] ECR I-2665, paragraph 148 and the
   case-law cited.

   ( [156]65 ) Cited in footnote 53.

   ( [157]66 ) Thus a buyer who has, inter alia, been approved by the
   Commission prior to the completion of the notified operation.

   ( [158]67 ) The sale of such a part may only be viable from a
   competition perspective in the light of the identity of a specific
   identified purchaser rather than one defined in the abstract.

   ( [159]68 ) See point 20 of the Commission Remedies Notice (cited in
   footnote 53). `There are cases where the viability of the divestiture
   package depends, in view of the assets being part of the business, to a
   large extent on the identity of the purchaser. In such circumstances,
   the Commission will not clear the merger unless the parties undertake
   not to complete the notified operation before having entered into a
   binding agreement with a purchaser for the divested business (known as
   the "upfront buyer"), approved by the Commission' (emphasis added).

   ( [160]69 ) See also paragraph 291 of the judgment under appeal.

   ( [161]70 ) In Cementbouw Handel & Industrie v Commission (cited in
   footnote 8), the General Court in my view correctly found that `in
   order to be accepted by the Commission with a view to the adoption of a
   decision under Article 8(2) of Regulation No 4064/89, the parties'
   commitments must not only be proportionate to the competition problem
   identified by the Commission in its decision but must eliminate it'
   (see paragraph 307).

   ( [162]71 ) See point 49 of the Commission Remedies Notice (cited in
   footnote 53).

   ( [163]72 ) See paragraph 65 (cited in footnote 55).

   ( [164]73 ) See paragraph 344 of the judgment under appeal.

   ( [165]74 ) See paragraph 345 of the judgment under appeal.

   ( [166]75 ) Cited in footnote 53.

   ( [167]76 ) See, inter alia, paragraph 310 of the judgment under appeal
   on the question of market overlaps.

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