On 12 October 2011, the General Court held that an appeal by Belgian consumer organization Test-Aankoop/Test-Achats ("TA") against the European Commission’s EDF/Segebel decision was inadmissible. The European Commission had approved the merger between energy companies EDF and Segebel subject to conditions, after refusing to grant a request for referral of the case to the Belgian authorities for review (See, This Newsletter, Volume 2009, Nos. 10 and 11).
The General Court held that TA did not have standing to challenge the substance of the Commission’s decision as the consumer group was not individually concerned by the decision. TA also claimed that the Commission had breached its procedural rights. The Court recognised that a consumer organization has a right to be heard in the review of a merger that relates to goods or services used by final consumers, provided that an application to be heard has been made in writing. However, while TA had written a letter to the Commission expressing an interest in the EDF/Segebel deal prior to its notification, TA had not asked to be heard during the actual review by the Commission. On this basis, the Court held that TA's right to be heard had not been infringed.
The General Court also ruled that TA's action to challenge the Commission’s decision not to refer the merger to the Belgian authorities was inadmissible. The Court noted that, although third parties may challenge a Commission decision to grant a request for referral to a Member State, third parties are not entitled to challenge a non-referral decision. According to the Court, the procedural rights and judicial protection provided by EU law are not in any way jeopardized by a decision not to refer a case to a Member State.
