On 27 November 2017, the General Court ("GC") dismissed appeals brought by HeidelbergCement and Schwenk Zement against the European Commission's decision of 10 October 2016 to open an in-depth (Phase II) merger investigation into their acquisition – via a joint venture – of Cemex Croatia.

In their appeals, HeidelbergCement and Schwenk Zement argued that the Commission lacked competence to review the Cemex Croatia deal as it incorrectly identified them as the "undertakings concerned", rather than their joint venture, which was the company making the acquisition. The GC dismissed their action as inadmissible, because the decision to open an in-depth investigation only constitutes an intermediate measure which is not capable of forming the subject matter of an action.

In particular, the GC ruled that under Article 263 of the Treaty on the Functioning of the European Union ("TFEU"), a party's right to appeal a Commission decision exists only in respect of a final binding decision that is capable of affecting that party's interests. According to the GC, under the EU Merger Regulation a decision of the Commission to open an in-depth investigation under Article 6(1)(c) is not the culmination of its merger review but rather a "preparatory step" in the procedure which does not prejudge the final outcome.  As a result, the GC confirmed that such a Commission decision is not a challengeable act under Article 263 TFEU and dismissed the appeals of HeidelbergCement and Schwenk Zement.  While the GC did not address whether the Commission had correctly characterised HeidelbergCement and Schwenk Zement as the undertakings concerned, it is apparent from the order that the Commission considered that the parent companies were "the real drivers behind the operation" as they were "involved significantly in the initiation, organisation and financing of the transaction of the operation".  The joint venture was "a mere vehicle for an acquisition by the parent companies".

Separately, the Commission later prohibited the Cemex Croatia deal (see VBB on Competition Law, Volume 2017, No. 4, available at www.vbb.com) and this prohibition decision is itself subject to a separate appeal before the GC.

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