

 
Communications Directorate 
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PRESS RELEASE No 82/23 
Luxembourg, 17 May 2023 
Judgment of the General Court in Case T-321/20 | enercity v Commission 
The action brought by the German municipal authority enercity against 
the approval by the Commission of the acquisition of generation assets of 
E.ON by RWE is inadmissible 
The General Court provides clarification in that context of the novel question of the burden of proof so far as 
concerns the sending by the Commission of the questionnaire to conduct its market test 
In March 2018, the companies RWE AG and E.ON, both governed by German law, announced that they wanted to 
engage in a complex asset swap by means of three concentration operations. 
By the first operation, RWE, which is active across the whole supply chain of energy provision in several European 
countries, wished to acquire sole or joint control over certain generation assets of E.ON, an electricity provider 
which operates in several European countries. The second operation consisted in the acquisition by E.ON of the sole 
control over the distribution and retail energy business, as well as some production assets of Innogy SE, a subsidiary 
of RWE. As for the third operation, it concerned the acquisition of 16.67% of E.ON's shares by RWE. 
On 24 July 2018, the German municipal authority enercity AG, which generates and provides energy in Germany 
notified the European Commission of its wish to participate in the procedure relating to the first and second 
concentration operations and, consequently, to receive the documents relating thereto. 
Since the first concentration operation had been notified to the Commission on 22 January 2019, the latter 
conducted, inter alia, a market test by sending a questionnaire to certain undertakings. By decision of 26 February 
2019 
1
 ('the decision at issue'), the Commission declared that operation compatible with the internal market. 
Enercity 
2
 brought an action for annulment of that decision which was dismissed as inadmissible by the Fourth 
Chamber of the General Court (extended composition), since the municipal authority was not individually concerned 
by the decision at issue. To reach that conclusion, the Court examines in particular the novel question of the burden 
of proof so far as concerns the sending of the questionnaire by the Commission in the context of conducting its 
market test. 
Findings of the Court 
As a preliminary point, the Court recalls that, under the fourth paragraph of Article 263 TFEU, a natural or legal 
                                                
1
 Commission Decision C(2019) 1711 final of 26 February 2019, declaring that a concentration is compatible with the internal market and with the EEA 
agreement (case M.8871 – RWE/E.ON Assets). 
2
 Notably, ten other companies also sought the annulment of this decision. All of these actions were dismissed either as inadmissible, or on 
the merits. See related series of cases: judgments of 17 May 2023, EVH v Commission, T-312/20, Stadtwerke Leipzig v Commission, T-313/20, 
Stadtwerke Hameln v Commission, T-314/20, TEAG v Commission, T-315/20, Naturstrom v Commission, T-316/20, EnergieVerbund Dresden v 
Commission, T-317/20, eins energie in sachsen v Commission, T-318/20, GGEW v Commission, T-319/20, Mainova v Commission, T-320/20, and 
Stadtwerke Frankfurt am Main v Commission, T-322/20. 

 
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person may institute proceedings against a decision addressed to another person only if that decision is of direct 
and individual concern to him or her. 
In that regard, the Court confirms that enercity is directly concerned by the decision at issue since, by allowing the 
first concentration operation to be put into effect immediately, that decision was capable of bringing about an 
immediate change in the state of the relevant markets. 
As regards whether enercity is individually concerned by a decision finding that a concentration is compatible with 
the internal market, the General Court notes that the individual concern of a undertaking which is a third party to 
that concentration depends, on the one hand, on the effect on its market position and, on the other, on its 
participation in the administrative procedure. On that latter point, it follows from the case-law that while the active 
participation by the third party in the administrative procedure is a factor regularly taken into account to establish, 
in conjunction with other specific circumstances, the admissibility of its action for annulment, mere participation in 
the procedure is not sufficient to establish that the decision is of individual concern to that third party.  
In the present case, the Court notes from the outset that the participation of enercity in the administrative 
procedure relating to the first concentration is not being challenged. That being said, the Court finds on the basis of 
a detailed examination of the evidence submitted in this respect that that evidence is not sufficient to establish the 
'active' nature of that participation. The Court holds, more specifically, that the observations made by enercity in 
that context, although they bear some relevance and have been dealt with by the Commission, were not conclusive 
in order to assess the effects of the concentration in question on the relevant market. 
That finding is not invalidated by enercity's line of argument alleging, in substance, lack of care and attention of the 
Commission's services in its respect, both in relation to the sending of the questionnaire for the purposes of the 
conduct of a market test and to the action taken in response to its request that it be recognised as an interested 
third party.  
In so far as enercity claims that it had not received that questionnaire, the Court states, first of all, that it is for the 
Commission to submit evidence that it had been sent. In that regard, the Court notes that the Commission, in 
compliance with a measure of organisation of procedure, submitted several items of evidence to demonstrate that 
the document at issue had been sent to enercity.  
Next, in response to enercity's argument that the questionnaire was addressed to the wrong recipient, namely its 
press officer, the Court observes that it can reasonably be expected of such a person, in receipt not only of an email 
but also of a fax from an European institution, that it would let that institution know as soon as possible of the error 
in the recipient. Moreover, it was also possible for that person to contact the legal or commercial department of its 
undertaking to inform them of the receipt of those documents. 
In any event, even if enercity had sent back the completed questionnaire, that mere correspondence was not 
sufficient for its participation in the administrative procedure to be classified as active and to distinguish enercity 
individually for the purposes of the fourth paragraph of Article 263 TFEU. 
Lastly, even if enercity's request to the hearing officer to be recognised as an interested third party is evidence of its 
will to participate in the procedure relating to the concentration at issue, the Court also does not accept that such a 
request may establish the 'active' nature of its participation, since such a classification requires the existence of acts 
of the undertaking concerned which may have influenced the procedure at issue to be established. 
In those circumstances, from which it is apparent that enercity did not actively participate in the first concentration 
operation and, moreover, having regard to the absence of specific circumstances relating to effects on its market 
position, the General Court considers that it is not individually concerned by the decision at issue. Accordingly, the 
Court concludes that energycity has not demonstrated that it has standing to bring proceedings and, consequently, 
dismisses its action as inadmissible. 

 
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NOTE: An action for annulment seeks the annulment of acts of the institutions of the European Union that are 
contrary to European Union law. The Member States, the European institutions and individuals may, under certain 
conditions, bring an action for annulment before the Court of Justice or the General Court. If the action is well 
founded, the act is annulled. The institution concerned must fill any legal vacuum created by the annulment of the 
act. 
NOTE: An appeal, on a point or points of law only, may be brought before the Court of Justice against a judgment or 
order of the General Court. In principle, the appeal does not have suspensive effect. If the appeal is admissible and 
well founded, the Court of Justice sets aside the judgment of the General Court. Where the state of the proceedings 
so permits, the Court of Justice may itself give final judgment in the case. Otherwise, it refers the case back to the 
General Court, which is bound by the decision given by the Court of Justice on the appeal. 
Unofficial document for media use, not binding on the General Court. 
The full text of the judgment is published on the CURIA website on the day of delivery.  
Press contact: Jacques René Zammit ✆ (+352) 4303 3355 
 
 

General Court Dismisses Enercity's Challenge Against RWE-E.ON Asset Swap

The General Court of the European Union has dismissed the action brought by the German municipal authority Enercity against the European Commission's approval of the acquisition of generation assets from E.ON by RWE. The court ruled that Enercity was not individually concerned by the decision, which was a key factor in determining the admissibility of its action.

 The case stems from a complex asset swap announced in March 2018 between RWE AG and E.ON, involving three concentration operations. The first operation allowed RWE to acquire control over certain generation assets of E.ON, while the second operation involved E.ON acquiring control over Innogy SE's distribution and retail energy business. The third operation was RWE acquiring a stake in E.ON.

 Enercity sought to participate in the procedure related to these operations and requested access to relevant documents. However, the General Court found that Enercity's participation did not meet the threshold of being 'actively' involved in the administrative procedure, which is necessary to establish individual concern under EU law.

 The court emphasized that mere participation in the procedure is insufficient for establishing individual concern. It noted that Enercity's observations, while relevant, did not significantly influence the Commission's assessment of the concentration's effects on the market. Furthermore, the court ruled that Enercity failed to demonstrate that it had standing to bring proceedings, leading to the dismissal of its action as inadmissible.



Judgment of the General Court in case T-321/20



 
Communications Directorate 
Press and Information Unit curia.europa.eu 
 
 
 
PRESS RELEASE No 8/23 
Luxembourg, 12 January 2023 
Judgment of the Court in Case C-883/19 P | HSBC Holdings and Others v Commission 
Competition in the Euro Interest Rate Derivatives sector: the Court of 
Justice upholds the annulment of the € 33.6 million fine imposed on the 
HSBC Group 
 
The HSBC Group is a banking group, and one of its activities is global banking and markets. HSBC Holdings is the 
parent company of HSBC France, and the latter is the parent company of HSBC Bank. HSBC France and HSBC Bank 
are responsible for the negotiation of Euro Interest Rate Derivatives (EIRDs). HSBC France is responsible for 
submitting rates to the Euro Interbank Offered Rate (Euribor) panel. 
Following inspections at the premises of a number of financial institutions, including at HSBC’s premises, the 
Commission initiated infringement proceedings against those financial institutions, including HSBC. By decision of 
7 December 2016, the Commission found that Crédit agricole, HSBC and JPMorgan Chase had participated in a 
single and continuous infringement consisting of restricting or distorting competition in the EIRD sector. For that 
infringement, the Commission imposed a fine of € 33 606 000 on HSBC. 
By its judgment of 24 September 2019, 
1
 the General Court of the European Union largely upheld the Commission’s 
finding that HSBC had participated in an infringement of competition law. However, it annulled the fine imposed on 
the basis that the statement of reasons was insufficient. 
By the present appeal, companies from the HSBC Group seek the annulment in part of the judgment of the General 
Court, to the extent that the latter dismissed its action. They also ask the Court of Justice to annul the Commission’s 
decision on the HSBC companies’ participation in the single and continuous infringement.  
In today’s judgment, the Court of Justice sets aside the General Court’s judgment in so far as it dismisses the 
action brought by HSBC Holdings plc. However, the judgment under appeal stands in so far as it annuls the 
fine imposed on the HSBC Group. 
In that regard, the Court of Justice finds that the General Court’s reasoning as regards the presumption of innocence 
was vitiated by two errors in law. The Court of Justice also finds that the General Court applied an incorrect test 
when it held that it was for the HSBC companies either to show that the discussions on mids were directly related 
and necessary to the functioning of the EIRD market or that they met the conditions in Article 101(3) TFEU. Such an 
error led it not to examine the HSBC companies’ arguments that the exchanges on mids had pro-competitive effects, 
whereas those exchanges had been raised by those companies in order to call into question the characterisation of 
those exchanges as a restriction by object. 
Having deemed that the state of the proceedings in Case T-105/17 is such as to allow it to give final judgment on the 
                                                
1
 Judgment of 24 September 2019, HSBC Holdings and Others v Commission, T-105/17 (see also Press Release 116/19). 

 
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pleas in that case, the Court of Justice goes on to examine the pleas put forward before the General Court as 
regards the Commission’s findings of an infringement by object and of a single and continuous infringement, and 
breach of the presumption of innocence, of the right to good administration and of the rights of the defence. The 
Court of Justice dismisses the HSBC companies’ action challenging the finding that it participated in the 
cartel at issue. 
NOTE: An appeal, on a point or points of law only, may be brought before the Court of Justice against a judgment or 
order of the General Court. In principle, the appeal does not have suspensive effect. If the appeal is admissible and 
well founded, the Court of Justice sets aside the judgment of the General Court. Where the state of the proceedings 
so permits, the Court of Justice may itself give final judgment in the case. Otherwise, it refers the case back to the 
General Court, which is bound by the decision given by the Court of Justice on the appeal. 
Unofficial document for media use, not binding on the Court of Justice. 
The full text of the judgment is published on the CURIA website on the day of delivery.  
Press contact: Jacques René Zammit ✆ (+352) 4303 3355 
Pictures of the delivery of the judgment are available from "Europe by Satellite" ✆ (+32) 2 2964106 
 
 

CJEU Overturns Fine Against HSBC in Euro Interest Rate Derivatives Case

The Court of Justice of the European Union (CJEU) has delivered a significant ruling in Case C-883/19 P, concerning HSBC Holdings and its subsidiaries. The case revolves around a fine of €33.6 million that was initially imposed by the European Commission for alleged anti-competitive practices in the Euro Interest Rate Derivatives (EIRD) market.

In December 2016, the European Commission found that HSBC, along with Crédit Agricole and JPMorgan Chase, had engaged in a single and continuous infringement that restricted competition in the EIRD sector. Following this, HSBC appealed the decision, leading to a judgment by the General Court in September 2019, which upheld the Commission's findings but annulled the fine due to insufficient reasoning.

HSBC sought further annulment of the General Court's judgment, particularly the parts that dismissed its action. The CJEU's recent ruling sets aside the General Court's dismissal of HSBC's appeal but maintains the annulment of the fine. The CJEU identified errors in the General Court's reasoning regarding the presumption of innocence and the test applied to assess HSBC's arguments about the pro-competitive effects of their discussions.

While the CJEU dismissed HSBC's challenge against the finding of participation in the cartel, the ruling emphasizes the importance of proper legal reasoning in competition law cases. The case highlights ongoing scrutiny in the financial sector regarding compliance with competition regulations.

