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LEGAL ALIENS B.V. Maximalaan 25

1010BS Amsterdam, The Netherlands

Tel.: +31 (0) 70 000-00-00 Fax: +31 (0) 70 000-00-01

www.legalaliens.com

TO THE ATTENTION OF THE MOOT COURT OF JUSTICE OF

THE EUROPEAN UNION

CASE MT-139/13

Lazenbeer and Honey Ryeder

v

European Commission

Wednesday 14 May 2014 at 11:00

Courtroom III, Case IV, A051A at the KOG in Leiden

WRITTEN OBSERVATIONS

RESPONDENT

European Commission

represented by:

Caroline Cabezas (s1221914) Sofia Pokatilova (s1481371) Maria Cabrera (s1494066) Roxana Stoica (s1486942)

Group Name: Legal Aliens

Word count: 3995

EUROPE ASIA SOUTH AMERICA

Our operations in the various locations comply with the requirements of the relevant local law and local bar rules.

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A. Introduction

1. On 2 January 2013, the Commission received a notification of a proposed

concentration by which the undertakings Lazenbeer and Honey Ryeder presented

their plan to join forces and go together as one undertaking.

B. Concentration

2. The proposed concentration concerns two independent undertakings that decided to

join forces and merge to form a new company (Lazenbeer & Honey). Therefore we

are dealing with a merger as defined in Article 3(a) Merger Regulation (EUMR).

C.1. Community dimension

3. Article 1(1) EUMR provides that this Regulation shall apply to all concentrations

with a Community dimension as defined in this Article. The General Court explained

the essence of this test: The Community legislature intended that, in the context of

its role in respect of concentrations, the Commission would become involved only

where the proposed concentration or the concentration already carried out

attains a certain economic size and geographic scope, that is to say, a Community

dimension1.

4. Whether a Community dimension exists is determined by the turnover thresholds

specified in Articles 1(2) and 1(3) EUMR 2 . The parties must assess their

concentration in light of these thresholds in order to define whether a filing needs to

be made with the Commission under the EUMR or at national level.

5. The EUMR provides that turnover shall comprise the amounts derived by the 1 Case T-282/02 Cementbouw Handel BV v Commission [2006] ECR II-319, Para. 115; 2 Rosenthal, Michael and Thomas, Stefan, European Merger Control. Mnchen : C.H. Beck ; Portland, OR : Hart Publishing, 2010, Para. 122 ;

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undertakings concerned in the previous financial year3. That is, the completed

financial year immediately preceding the year in which the concentration is notified.

Since it was notified in 2013, the fiscal year assessed for the calculation is 2012.

6. Given that the concentration concerns a merger of one or more undertakings

previously independently operating in the market, each of the merging entities shall

be deemed as an undertaking concerned4, i.e. Lazenbeer and Honey Ryeder.

7. Article 1(2) states two cumulative criteria for the concentration to be considered as

having a Community Dimension. Article 1(2)(a) provides the combined aggregate

worldwide turnover of all the undertakings concerned is more than EUR 5000

million.

8. The facts state that in 2012, 90% of all beer consumed in Pussera (domestic market)

was brewed by the Big Four achieving 1.5 billion combined annual domestic

turnover and 4.5 billion abroad.

9. The facts only show the turnover of 90% of the brewery market. However, to define

Lazenbeer and Honey Ryeder turnover, it is necessary to consider the whole relevant

market.

Turnover in the domestic market of all the breweries:

90% ---------- 1.5 billion

100% ------------ X = 1.667 billion

Turnover abroad of all the breweries:

90% ----------- 4.5 billion

100% ----------- X = 5 billion 3 Article 5(1) EUMR; 4 Commission Notice on the notion of undertaking concerned under Council Regulation EEC No. 4064/89 on the control of concentrations between undertakings [1998] O.J. C66/14;

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10. The previous calculation shows that the turnover achieved in the relevant market is

1.667 billion in Pussera and 5 billion abroad.

11. Subsequently, the turnover of each undertaking in Pussera and abroad must be

calculated in regards to their respective market share in 2012.

Turnover

Undertakings concerned

TOTAL Lazenbeer Honey Ryeder

Domestic

turnover

28% market share of

1.667 billion=

466,76 million

16% market share of

1.667 billion = 266,72

million

466,76 million +

266,72 million =

733,48 million

Turnover

abroad

28% market share of

5 billion = 1.4

billion

16% market share of 5

billion = 800 million

1.4 billion + 800

million =

2.2 billion

12. The table shows that the turnover of both undertakings is 733,48 million in Pussera

and 2.2 billion abroad. To obtain the combined aggregate turnover is necessary to

consider, the European wide, worldwide and national turnover of the undertakings

involved. Therefore, if both turnovers are added we obtain a combined aggregate

worldwide turnover in 2012 of 2.933,48 million.

13. Since the concentration does not fulfil the first threshold, it must be assessed within

the meaning of Article 1(3).

(a) the combined aggregate worldwide turnover of all the undertakings concerned

is more than EUR 2500 million:

14. As shown above, the combined aggregate worldwide turnover of the undertakings

concerned is 2.933,48 million. Therefore, the first criterion is fulfilled.

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15. Whether or not both undertakings achieve a combined aggregate turnover of more than 100 million in at least three MS and each of them achieves at least 25 million

in these MS, as required in Article 1(3)(b) and (c), depends on the geographical

allocation of the turnover of these undertakings5.

16. Article 5(1) EUMR provides, with regard to geographic allocation of turnover:

"Turnover, in the Community or in a MS, shall comprise products sold and services

provided to undertakings or consumers, in the Community or in that MS as the case

may be.

17. The general rule is that the turnover should be attributed to the place where the

customer is located6. For the following criteria the MSs that will be taken into

account are: Pussera, San Stefano and Galore since from the facts it is only in these

MSs where there are significant sales. Even though it is not possible to determine

precisely the figures in Galore, the Commission assessed that from the facts it can be

ascertained that they are similar to the figures of San Stefano.

(b) in each of at least three MSs, the combined aggregate turnover of all the

undertakings concerned is more than EUR 100 million:

Pussera San Stefano TOTAL

Lazenbeer 466,760 million 800 million 1.26 billion

Honey Ryeder 266,720 million 640 million 906,720 million

18. It can be concluded that the combined aggregate turnover of both undertakings in two

MSs is much higher than 100 million, especially if the Galorean figures are added.

5 Ryanair/AerLingus (Case No COMP/M.4439) Commission decision of 27 June 2007, Para. 15; 6 Commission Notice on the calculation of turnover under Council Regulation EEC No. 4064/89 on the control of concentrations between undertakings [1998] O.J. C66/25;

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(c) in each of at least three MSs included for the purpose of point (b), the

aggregate turnover of each of at least two of the undertakings concerned is

more than EUR 25 million:

19. As it was shown in the table above, the aggregate turnover of each undertaking is

much higher than 25 million. Likewise, it can be presumed that the turnover of the

undertakings in Galore is more than 25 million.

(d) the aggregate Community-wide turnover of each of at least two of the

undertakings concerned is more than EUR 100 million:

20. It is not possible to accurately calculate the aggregate Community-wide turnover

since there are some figures missing. Nevertheless, if only two MSs are considered

(Pussera and San Stefano) it is clear that turnover is more than 100 million.

21. The last paragraph of Article 1(3) provides a possibility for a safe harbour:

- unless each of the undertakings concerned achieves more than two-thirds of its aggregate Community-wide turnover within one and the same MS:

22. Only Lazenbeers turnover in San Stefano will be taken into consideration for the

calculation of the two-thirds aggregate Community-wide turnover since it is

cumulative and San Stefano is the MS where the highest turnover was achieved in

2012.

23. Lazenbeer Community-wide turnover in comparison to the turnover achieved in San Stefano:

1.26 billion ------- 100%

800 million -------- X = 63,49%

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24. For this concentration to escape the scope of the Commission investigation, it would

be necessary for each undertaking to have two-thirds (66.66%) of its turnover in one

MS. We can see that Lazenbeer in San Stefano (where the highest turnover was

achieved) has 63,49% of its aggregate Community-wide turnover, consequently the

two-third threshold is not met.

25. In conclusion, the undertakings concerned have a combined aggregate worldwide turnover of more than 2.5 billion (Lazenbeer: 2.2 billion and

Honey Ryeder: 733,480 million in 2012). The aggregate turnover of both

undertakings in two MSs is more than 100 million in 2012. The aggregate

turnover of each undertaking concern in each of at least three MSs is more than

25 million in 2012. Both parties have a Community-wide turnover in excess of

100 million in 2012. None of the undertakings achieve more than two-thirds of

their aggregate Community-wide turnover within one and the same MS. The

notified operation therefore has a Community dimension.

C.2. Assessment by the National Competition Authorities (NCA)

26. According to One stop-shop principle established under Article 21(2) EUMR, the

Commission will have sole jurisdiction to make decisions provided in the Regulation,

although subject to review by the ECJ. The Commission has the power to cover

concentrations that have a Community interest, meaning those concentrations that

have a significant impact on the competitive structure of the common market, unlike

those concentrations whose impact is limited to national markets7.

27. The Commission is undoubtedly the best-placed institution, with the most appropriate

resources, to achieve the objective of undistorted competition at transnational and

Community level8. 7 Navarro Edurne, Font Andrs, Folguera Jaime and Briones Juan, Merger Control in the EU. Oxford University Press, 2005, Para. 4.06; 8 Navarro Edurne, Font Andrs, Folguera Jaime and Briones Juan, Merger Control in the EU. Oxford University Press, 2005, Para. 4.07;

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28. Therefore, given that the concentration between Lazenbeer and Honey Ryeder is a merger with a Community dimension it should be subject to scrutiny by the

Commission under the Regulation, and not by NCAs under MS merger control

regimes.

D. Incompatibility with the common market

29. As provided under the Horizontal Merger Guidelines (the Guidelines), the

Commissions assessment of mergers normally entails the definition of the relevant

product and geographic markets and the competitive assessment of the mergers,

aspects that we will present in detail below9.

D.1. Competitive assessment

30. To assess the substantive criteria laid forth in the EUMR and the Guidelines it will be

first necessary to define the relevant market in product and geographical terms, and

also to determine whether there is a dominant position, which has been created or

strengthened by the concentration10. Therefore, the analysis under Article 102 TFEU

and the relevant Commission Notice11 apply accordingly.

(a) Relevant product market

31. The proposed transaction concerns the drinks industry and in particular the beer

sector. The Commissions decisional practice and the ECJ jurisprudence suggest that

the relevant product market is that for the production and distribution of beer which is

9 2004 Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings no. 139/2004, Para. 10; 10 P. Craig, G. de Burca, EU Law text, cases, and materials, 5th edition, page 1057; 11 Commission Notice on the definition of the relevant market for the purposes of EU competition law, [1997] O.J. C372;

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to be distinguished from other beverages 12 . Furthermore, the Commission has

generally considered that a distinction between on-trade distribution (i.e., beer sold by

pubs, bars, restaurants, etc.) and off-trade distribution (i.e., retail outlets) is relevant13.

In a number of instances14, the Commission has also considered whether a further

segmentation of the beer market by type (e.g. ale and stout in the UK) or by quality

(e.g. standard vs. premium) might also be relevant in some countries.

32. To this extent, the Respondent considers that it is appropriate to further sub-divide the

beer segment between the one produced exclusively from homegrown ingredients and

other ingredients because of a high level of supply-side substitution. The Respondent

maintains that there are significant switching costs when replacing the production and

that the marketing of beer made of different ingredients will incur higher costs than

the draught beer, given the consumers preference for the latter. In addition, the

product subject to this case is not significantly interchangeable with other beers given

the distinguishable characteristics of the beer in question from other similar products.

33. Therefore, the product market definition refers to the segment of beer in on-trade distribution produced exclusively from homegrown ingredients.

(b) Relevant geographic market

34. The Commission and the ECJ have repeatedly considered the market for the

production and distribution of beer to be national in scope15. Indeed, due to strong

preferences of the consumers for the type of beer in question, the markets for the

production and distribution of such product can be considered as national in scope,

thus limiting it to the national markets of Pussera, Galore and San Stefano. 12 Case M.2044 Interbrew/Bass Commission Decision of 24 August 2004, Case M.4999 Heineken/Scottish & Newcastle Assets Commission Decision of 3 April 2008; 13 Case C-234/89 [1991] ECR I-977Stergios Delimitis v. Heninger Brau, Para. 16; 14 Case M.2569 Interbrew/Becks Commission Decision of 26 October 2001 and Case M.3032 Interbrew/Brauergilde Commission Decision of 19 December 2002 ; 15 Case COMP/M.3195 Heineken/BBAG Commission Decision of 8 August 2003 and Case 234/89 Delimitis v. Henninger Brau above quoted;

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D.2. Competitive restraints

35. The Guidelines assessing horizontal mergers, explain that a merger may give rise to

unilateral effects if it eliminates an important competitive constraint that the parties

previously exerted over each other16. It provides for a number of factors, which may

influence whether significant non-coordinated effects are likely to result from a

merger. In what follows, we will discuss each of these factors, which demonstrate the

presence of such effects.

(a) Market shares

36. The link between market shares and the scope for unilateral price increases is set out

in the Guidelines. Accordingly, the Commission set out a number of market shares

thresholds that provide general guidance for the assessment of unilateral effects.

37. However, such thresholds do not constitute rigid or binding rules for merger

assessment. In particular, the Guidelines explicitly note that unilateral effects may

rise in the case of mergers resulting in combined market shares of between 40% and

50%17, and in some cases even below 40%18.

38. In this case, given that both Lazenbeer and Honey Ryeder have maintained their

market shares abroad, the combined market share of Lazenbeer & Honey amounts to

44% within the established geographical market.

39. Even more, as previously considered in jurisprudence19, Lazenbeer has a much

greater influence on the competitive process in this market than its market share of

28% would suggest. Not only did it emerge from the financial crisis as the leading

16 The EC Horizontal Merger Guidelines, Para. 24-25; 17 The EC Horizontal Merger Guidelines, Para. 17; 18 Case COMP/M.2337 Nestle/Ralston Purina Commission Decision of 27 July 2001; 19 Case COMP/M.3916 T-Mobile Austria/Tele.ring Commission Decision of 26 April 2006, Para. 126;

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brewery20 but its market share shows a continuously growth following its innovative

developments (from 20% in 2008 to 28% in 2012) and given its technical innovations

is likely to continue the ascendant curve.

40. In conclusion, the high market shares together with other relevant factors as detailed above constitute evidence of a dominant position of the emerging

undertaking.

(b) Customers have limited possibilities of switching suppliers

41. Crucially, showing closeness of competition is just one of a number of necessary

conditions for concluding that a merger will result in unilateral effects that

significantly reduce competition. Equally important is showing that remaining

competitors do not provide an effective competitive constraint (i.e. they are not close

substitutes to the merging parties).

42. Thus, giving the distinctive characteristics of the parties products to be also

incorporated in the new ber-beer produced by Lazenbeer & Honey (i.e. innovative

bottle technology and unique fruity additives), customers of the parties will have

difficulties in switching to other suppliers due to lack of alternatives21, thus making

such customers particularly vulnerable to price increases.

(c) Merger eliminates an important competitive force

43. Some undertakings have more of an influence on the competitive process than their

market shares or similar measures would suggest22. A merger involving such an

20 The facts of the case, Para. 6; 21 Case M.877 Boeing/McDonnell Douglas, Commission Decision of 8 December 1997, Para. 70; 22 Case M.877 Boeing/McDonnell Douglas, Commission Decision of 8 December 1997, Para. 58;

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undertaking may change the competitive dynamics in a significant, anti-competitive

way, in particular where the market is already concentrated23.

44. As aforementioned, Lazenbeer holds a greater influence on the market given its

patented innovations that determined the continuous rise of its market shares.

Accordingly, Honey Ryeder benefits from its equally unique and secret recipe of fruit

additives that turned its products highly popular and competitive.

45. As a result, the merger between the two undertakings shall significantly impede

effective competition.

D.3. Entry into the market

46. Entry analysis constitutes an important element of the overall competitive assessment.

For entry to be considered a sufficient competitive constraint on the merging parties,

it must be shown to be likely, timely and sufficient to deter or defeat any potential

anti-competitive effects of the merger24.

(a) Likelihood of entry

47. Potential entrants may encounter barriers to entry, which determine entry risks and

costs and thus have an impact of the profitability of entry25.

48. In this case, it will prove difficult for any competitors to entry the market given

technical advantages provided by Lazenbeer innovative beer bottling patent making it

thus difficult for a competitor to obtain the essential input materials or the relevant

patent. Furthermore, another barrier to entry is represented by established positions of

23 The EC Horizontal Merger Guidelines, Para. 37; 24 The EC Horizontal Merger Guidelines, Para. 68; 25 Ibid., Para. 71;

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Lazenbeer and Honey Ryeder on the market based on their products unique

characteristics.

(b) Timeliness and sufficiency

49. In terms of timeliness, given the aforementioned barriers to entry and in particular

Lazenbeer technology patented for a period of 25 years, it cannot be maintained that

entry of a competitor will be swift and sustained to deter/defeat the exercise of power

market moreover as entry is normally only considered timely if it occurs within two

years. As to sufficiency, given the current concentrated structure of the market, the

only possibility is represented by a niche small-scale entry, which cannot be

considered sufficient26.

D.4. Efficiencies

50. It is possible that efficiencies brought by a merger counteract the effects on

competition. However, the Guidelines note that each one of the following must be

demonstrated in order to sustain an efficiency defence: (i) merger specificity, (ii)

consumer benefit and (iii) verifiability27.

51. In this case, possible claims efficiencies resulting from the R&D that leads to the

creation of a possible improved product are not specified in any detail and are anyway

likely to be savings in fixed costs that are less likely to bring about consumer

benefits28. The same rationale applies to the claimed improved working conditions,

which have not been proven in terms of verifiability and consumer benefit.

52. Moreover, the Applicant cannot confirm that the claimed efficiencies will be

sufficient in magnitude to offset the identified lessening of competition nor that such 26 Ibid., Para. 75; 27 Ibid., Para 78-88; 28 Case COMP/M.4513 Commission Decision of 4 June 2008 Arjowiggins/M-real Zanders Reflex, Para. 445, 447;

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are merger specific, thus rendering the claimed efficiencies unable to counteract the

effects on competition.

53. In conclusion, the Respondent sustains that in consideration of EUMR provisions, the merger be declared as incompatible with the common market as

such gives rise to non-coordinated effects.

E. Procedural timeframe

E.1. Phase I: Decision 2013/27/EU

54. The role of the Commission regarding concentration control is divided into two

phases. The system of prior notification under Article 4(1) and 7(1) EUMR states that

any intended concentration must be notified to the Commission having a postponing

effect i.e. the undertaking will have to wait to implement the intended concentration

until the Commission has given its preliminary verdict.

55. During Phase I, the Commission has 25 working days after notification to issue a

decision under Article 10(1)(1), unless commitments have been offered by the

undertaking pursuant to Article 6(2) with a view to render the concentration

compatible with the common market. If so, the time will be extended to 35 working

days under Article 10(1)(2). The undertakings notified and offered commitments to

the Commission on 2 January 2013. Therefore, the Commission had 35 working days

to issue a preliminary decision i.e. until 20 February 2013. Although Phase I

notifications are effective on the day they are received, time periods will initiate on

the next working day in this case 3 January 201329. Therefore, the Commission was

not too late in reaching its preliminary decision on 15 February 2013; on the contrary

it diligently reached a decision four days prior to the deadline. Consequently, the 29 Commission Decision 19 August 2011 on public holidays for 2013 for the Institutions of the European Union, 2011/C 243/05; Article 5(1), 7 and 24, Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings;

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Applicant was not entitled to proceed as if the merger was cleared under Article 10(6)

EUMR.

56. In conclusion, the Commission duly reached its decision in the prescribed time limits

deciding that the merger raised serious concerns as to its compatibility with the

internal market under Article 6(1)(c) and 8(3) EUMR, resulting in the justified

initiation of proceedings for a more detailed Commission investigation. This did not

entitle the Applicant to proceed as if the merger was cleared.

E.2. Phase II: Decision 2013/99/EU

57. The formal Phase II proceedings involve detailed Commission investigations, which

do not prejudge the outcome of the investigation30. According to Article 10(3)

EUMR, the Commission has 90 working days from the initiation date of the

proceeding to issue a decision under Article 10(3)(1).

58. When the concentration has already been implemented and that concentration has

been declared incompatible with the common market, the Commission may, in a

decision pursuant to Article 8(4), or by a separate decision require the undertakings

concerned to dissolve the concentration or order any other appropriate measure to

ensure that the undertakings concerned dissolve the concentration or take other

restorative measures as required in its decision. In the case of a separate decision, the

Commission is not bound by any time limits31.

59. The companies implemented the mergers before the 90 days were over and therefore

the Commission could not validate the implemented merger thus issuing the separate

decision 2013/99/EU under article 8(4)(a) EUMR.

30 Commission opens in-depth investigation into proposed acquisition of Dutch cable operator Ziggo by Liberty Global, IP/14/540 08/05/2014; 31 Kekelekis, Mihalis, The EC Merger Control Regulation, Kluwer Law International [2006], page 87;

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60. Additionally, Article 7(1) of the Merger Regulation provides that a concentration as

defined in Article 1 shall not be implemented either before its notification or until it

has been declared compatible with the common market pursuant to a decision under

Article 6(1)(b), 8(1) or 8(2) or on the basis of a presumption according to Article

10(6) of the Merger Regulation.

61. Therefore, the Commission was not too late in reaching its final decision on 16 July

2013 and consequently, the Applicant was not justified to assume that the merger had

been cleared by the Commission on 14 June 201332.

62. The presumption of compatibility under Article 10(6) EUMR will only become

effective when the time limits established under Article 10(3) expire i.e. at the end of

90 working days. Although the Applicant submitted the additional commitments

within the relevant time limits, it was not entitled to assume that they were cleared to

merge based on 14 June, only 79 working days after initiation of the proceedings.

Phase II procedures characteristically can take a further 67 months33. Consequently,

it would be unreasonable for the Applicant to assume the merger was cleared before

90 days. Therefore, the Applicant had to wait until 1 July 2013 to reasonably assume

the merger was cleared.

63. In conclusion, the Commission was not too late in reaching its final decision

declaring the concentration incompatible with the internal market and therefore

ordering the dissolution of the concentration and imposing a fine. The Applicant was

therefore not entitled to assume that the merger was cleared.

64. The defendant asks the Court to take into consideration that allowing the claim that the decision was too late and therefore to allow undertakings to assume they

are cleared to merge would be against the purpose of both anti-competition law 32 Schneider/Legrand, Case M.2283, Commission decision of 30.1.2002. 33 The EU Merger Regulation, An overview of the European merger control rules, Slaughter and May, March 2012, Para 5.1 page 2 and 39-40: https://www.slaughterandmay.com/media/64572/the-eu-merger-regulation.pdf ;

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and the protection of the internal market.

F. Commitments assessment

65. Where a concentration raises competition concerns in that it could significantly

impede effective competition, the parties may seek to modify it and thereby gain

clearance of the concentration.

66. The Commission has to assess whether the proposed remedies, once implemented,

would eliminate the competition concerns identified. To this end, the notifying parties

have to provide detailed information on the content of the commitments offered, the

conditions for their implementation and showing their suitability to remove any

significant impediment of effective competition. Also, a non-confidential version of

the commitments must be submitted as to allow third parties to fully assess the

workability and the effectiveness of the proposed remedies34.

67. Under EUMR, the Commission only has power to accept commitments that are

deemed capable of rendering the concentration compatible with the common market

so that they will prevent a significant impediment of effective competition. The

commitments have to eliminate the competition concerns entirely35, they have to be

comprehensive and effective from all points of view 36 and capable of being

implemented effectively within a short period of time.

68. The Commission stresses that the question of whether a remedy and, more

specifically, which type of remedy is suitable to eliminate the competition concerns

identified, has to be examined on a case-by-case basis37. Nevertheless, a general 34 2008 Commission notice on remedies acceptable under Council Regulation no. 139/2004 and under Commission Regulation no. 802/2004, Para. 79; 35 Recital 30 of the Merger Regulation and judgment of the CFI in Case T-282/02 Cementbouw v Commission, Para. 307; 36 CFI, Case T-210/01 General Electrics v Commission [2005] ECR II-5575, Para. 52; Case T-87/05 EDP v Commission [2005] ECR II-3745, Para. 105; 37 Ibid. Para. 16.

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distinction can be made between divestitures, other structural remedies, such as

granting access to key infrastructure or inputs on non-discriminatory terms, and

commitments relating to the future behaviour of the merged entity.

69. In this case, the merging parties have announced several commitments both in the

first (divesture of some smaller brands) and second (non-engagement in additional

mergers) procedural phase. Nonetheless, such remedies have not been submitted in

accordance with the requirements aforementioned as to be assessed in substance. The

Commission also considered the remedies insufficient to eliminate the serious

competition concerns regarding the merger.

70. In conclusion, the Applicant has not demonstrated that such commitments render the concentration, as modified by the commitments, compatible with the

common market.

G. CLAIM

On these grounds, the Respondent requests the Court to dismiss the action, based on the

following:

1. Commission found the envisaged merger to have a Community dimension

incompatible with the common market;

2. Following assessment, commitments offered did not eliminate expressed concerns;

and

3. Decisions 2013/27/EU and 2013/99/EU observed the relevant procedural timeframe.