Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

22 June 2022 (*)

(Competition – Concentrations – Market for the production and distribution of flat carbon steel – Decision declaring the concentration incompatible with the internal market and the EEA Agreement – Relevant market – Assessment of the effects of the transaction on competition – Commitments – Obligation to state reasons)

In Case T‑584/19,

thyssenkrupp AG, established in Duisburg and Essen (Germany), represented by M. Klusmann, J. Ziebarth and M. Dästner, lawyers,

applicant,

v

European Commission, represented by G. Conte, T. Franchoo, I. Zaloguin and C. Sjödin, acting as Agents,

defendant,

APPLICATION pursuant to Article 263 TFEU for annulment of Commission Decision C(2019) 4228 final of 11 June 2019 declaring a concentration to be incompatible with the internal market and the functioning of the EEA Agreement (Case M.8713 – Tata Steel/thyssenkrupp/JV),

THE GENERAL COURT (Ninth Chamber),

composed of M.J. Costeira (Rapporteur), President, M. Kancheva and T. Perišin, Judges,

Registrar: S. Jund, Administrator,

having regard to the written part of the procedure and further to the hearing on 22 April 2021,

gives the following

Judgment

 Background to the dispute

 The entities concerned

1        The applicant, thyssenkrupp AG, is a German industrial group which is active in the production of flat carbon steel products, material services, elevator technology, industrial solutions and component technology. In particular, the applicant is one of Europe’s major flat carbon steel producers and it is active throughout the flat carbon steel value chain from primary steel production to coated finished products. The applicant produces and supplies a range of flat carbon steel products, including hot rolled coils (‘HRC’ or ‘HR’), cold rolled coils, metallic coated steel and laminated steel for packaging, galvanised steel (‘GS’), organic coated steel, grain-oriented electrical steel (‘GOES’) and non-grain-oriented electrical steel. The applicant’s activities are centred in Germany, and its integrated plants are all located in Duisburg (Germany), however it also has a number of finishing plants elsewhere in the European Economic Area (EEA), including in France, Germany and Spain.

2        Tata Steel Limited (‘TSE’) is an Indian company which is active in the mining of coal and iron ore, manufacturing of steel products, and selling those steel products globally. TSE further produces ferro-alloys and related minerals and manufactures certain other products such as agricultural equipment and bearings. In particular, TSE produces and sells a range of carbon steel products, including HRC, cold rolled coils, metallic coated steel and laminated steel for packaging, GS, organic coated steel, GOES and non-grain-oriented electrical steel. TSE also produces further downstream products such as carbon steel tubes and steel elements for construction. TSE’s plants are located predominantly in the United Kingdom and the Netherlands. Further, it has also a number of finishing plants elsewhere in Europe, such as in Belgium, France, Germany and Sweden.

 Administrative procedure

3        On 25 September 2018, the applicant and TSE (together, ‘the parties’) notified the European Commission, in accordance with Article 4(1) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1; ‘the Merger Regulation’), of a proposed concentration by which they would acquire joint control of a newly created joint venture (‘the JV’), within the meaning of Article 3(1)(b) and (4) of that regulation.

4        In accordance with the proposed concentration, the JV would be active in the production of flat carbon steel and electrical steel products. Each of the parties would bring to the JV its European flat carbon steel and electrical steel production assets and businesses. The applicant’s steel mill services would also be transferred to the JV. Furthermore, the parties would each hold 50% of the shares in the JV. Neither of the parties would be granted relevant veto rights the other would not have, and the parties would thus jointly control the JV. The JV would perform all the functions of an autonomous economic entity on a lasting basis with independent market presence both upstream and downstream. Therefore, the JV would be a fully functional joint venture.

5        By decision of 20 October 2018, the Commission held that the proposed concentration raised serious doubts as to its compatibility with the internal market, and adopted a decision to initiate an in-depth examination procedure pursuant to Article 6(1)(c) of Regulation No 139/2004.

6        On 13 February 2019, the Commission adopted a statement of objections (‘the statement of objections’) by which it concluded, as a preliminary point, that the proposed merger transaction (‘the transaction’) would result in a significant impediment to effective competition (‘SIEC’) in a substantial part of the internal market for the purposes of Article 2 of Regulation No 139/2004.

7        On 27 February 2019, the parties submitted their response to the statement of objections (‘the response to the statement of objections’). They confirmed that they were not requesting a hearing.

8        On 20 March 2019, the Commission sent the parties a letter of facts containing facts and evidence corroborating the objections set out in the statement of objections. The parties submitted their observations on that letter on 25 March 2019.

9        On 1 April 2019, the parties submitted commitments pursuant to Article 8(2) of Regulation No 139/2004 in order to address the competition concerns identified in the statement of objections (‘the commitments of 1 April 2019’).

10      On 23 April 2019, the parties submitted revised commitments (‘the revised commitments of 23 April 2019’).

11      During the administrative procedure, in addition to requests for information sent to the parties, the Commission contacted a number of market participants – including customers and competitors of the parties – and requested information from them, in accordance with Article 11 of Regulation No 139/2004. A series of discussions and meetings between the parties and the Commission also took place. Moreover, the Commission provided a number of documents to the parties and granted them access to the file several times.

 Contested decision

12      By Decision C(2019) 4228 final of 11 June 2019 (Case M.8713 – Tata Steel/thyssenkrupp/JV) (‘the contested decision’), the Commission declared the transaction incompatible with the internal market and the EEA, pursuant to Article 8(3) of Regulation No 139/2004.

13      In the contested decision, the Commission set out considerations relating, inter alia, to the relevant market, to the effects of the concentration on competition and to the commitments of the parties to the concentration.

 The relevant markets

–       The product market

14      In recital 256 of the contested decision, the Commission found that hot-dip galvanised steel (‘HDG’) and electrogalvanised steel (‘EG’) likely constituted distinct product markets but that it was not necessary to conclude on that specific question for the purpose of that decision.

15      In recital 257 of that decision, the Commission found, in essence, that the production and supply of HDG to the automotive industry (‘automotive HDG’) constituted a distinct product market, separate from the production and supply of HDG for other applications.

16      In recital 301 of the decision, the Commission found that the production and supply of tin plate (‘TP’) and electrolytic chromium coated steel (‘ECCS’) for packaging constituted distinct product markets.

17      In recital 302 of that decision, the Commission further concluded that the production and supply of laminated steel for packaging also constituted a distinct product market.

–       The geographic market

18      In recital 456 of the contested decision, the Commission found, in essence, that the relevant geographic market for the production and supply of automotive HDG was at most EEA-wide, and there was evidence of geographic differentiation within the EEA.

19      In recital 457 of the contested decision, the Commission found that the relevant geographic markets for the production and supply of TP, ECCS and laminated steel for packaging were at most EEA-wide.

 The effects of the concentration on competition

20      In recitals 1250 and 1669 of the contested decision, the Commission found that the transaction would result in an SIEC in relation to the production and supply of automotive HDG in the EEA due to horizontal non-coordinated effects resulting from the elimination of an important competitive constraint.

21      In recitals 1416, 1417, 1419 and 1670 of the contested decision, the Commission also considered that the transaction would result in an SIEC as regards the production and supply of TP and of laminated steel for packaging in the EEA, since it created a dominant position in the relevant markets. In that regard, the Commission stated that, in any event, the transaction would also give rise to non-coordinated horizontal effects on the production and supply of TP and laminated steel for packaging in the EEA by eliminating an important competitive constraint.

22      In recitals 1418, 1419 and 1671 of the contested decision, the Commission found that the transaction would result in an SIEC in relation to the production and supply of ECCS for packaging in the EEA due to horizontal non-coordinated effects resulting from the elimination of an important competitive constraint.

 The commitments

23      In recitals 1668 and 1672 of the contested decision, the Commission concluded that the commitments proposed by the parties did not entirely eliminate the SIECs that would be caused by the transaction with regard to, first, metallic-coated (TP and ECCS) and laminated steels for packaging in the EEA and, secondly, automotive HDG in the EEA, and that they were not comprehensive and effective from all points of view. In addition, the Commission considered that it could not be concluded with the requisite degree of certainty that the JV’s business would be viable under the envisaged remedy structure.

 Procedure and forms of order sought

24      By application lodged at the Court Registry on 22 August 2019, the applicant brought the present action for annulment of the contested decision.

25      The Commission lodged its defence on 10 December 2019.

26      On 25 February 2020, the applicant lodged the reply.

27      On 26 June 2020, the Commission lodged the rejoinder.

28      The applicant claims that the Court should:

–        annul the contested decision in its entirety;

–        order the Commission to pay the costs.

29      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

30      In support of its action, the applicant relies on eight pleas in law. The first plea in law alleges procedural errors, errors of law and manifest errors of assessment regarding the definition of the markets for automotive HDG and for laminated steel for packaging. The second plea in law alleges procedural errors, errors of law and manifest errors of assessment regarding the definition of the geographic markets for automotive HDG and for packaging steel. The third plea in law alleges procedural errors, errors of law and manifest errors of assessment concerning the finding of an SIEC in the alleged market for automotive HDG. The fourth plea in law alleges procedural errors, errors of law and manifest errors of assessment concerning the finding of an SIEC in the alleged markets for TP, ECCS and laminated steel. The fifth plea alleges procedural errors and manifest errors of assessment of the remedies offered by the parties. The sixth plea in law alleges that there was no statement of reasons for the contested decision with regard to GOES. The seventh plea in law alleges a procedural error in not enforcing answers from market participants to requests for information. The eighth plea in law, raised in the reply, alleges errors of assessment concerning the analysis of the ArcelorMittal/Ilva (‘AM/Ilva’) concentration following the alleged failure of the latter.

 The first plea in law, alleging procedural errors, errors of law and manifest errors of assessment regarding the definition of the relevant product markets

 The first part, concerning the definition of a separate product market for automotive HDG

31      By the first part of its first plea, the applicant submits, in essence, that the Commission’s definition of a separate product market for automotive HDG given in the contested decision is vitiated by procedural errors, errors of law and manifest errors of assessment. In support of that first part, the applicant puts forward five complaints.

32      As a preliminary point, it should be recalled that, with regard to the application of the rules on the control of concentrations, a proper definition of the relevant market is a necessary precondition for any assessment of the effect of a concentration on competition (judgments of 7 June 2013, Spar Österreichische Warenhandels v Commission, T‑405/08, not published, EU:T:2013:306, paragraph 116, and of 5 October 2020, HeidelbergCement and Schwenk Zement v Commission, T‑380/17, EU:T:2020:471, paragraph 293 (not published)).

33      According to settled case-law, the basic rules on control of concentrations, and, in particular, those concerning the appraisal of concentrations such as those laid down in Article 2 of Regulation No 139/2004, confer on the Commission a measure of discretion, in particular for assessments of an economic nature. Consequently, review by the EU judicature of the exercise of that discretion, which is essential for defining the rules on concentrations, must take account of the margin of discretion implicit in the provisions of an economic nature which form part of the rules on concentrations (judgments of 6 June 2002, Airtours v Commission, T‑342/99, EU:T:2002:146, paragraph 64, and of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 53).

34      In particular, in so far as the definition of the relevant market involves complex economic assessments on the part of the Commission, it is subject only to limited review by the EU judicature (judgments of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 482, and of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 53).

35      However, although the Commission has a margin of discretion with regard to economic matters, that does not mean that the EU judicature must refrain from reviewing the Commission’s interpretation of information of an economic nature. The EU judicature must not only establish whether the evidence put forward is factually accurate, reliable and consistent but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it (judgments of 15 February 2005, Commission v Tetra Laval, C‑12/03 P, EU:2005:87, paragraph 39, and of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 54).

36      Furthermore, according to Section 6 of Form CO relating to the notification of a concentration pursuant to the Merger Regulation, set out in Annex I to Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Regulation No 139/2004 (OJ 2004 L 133, p. 1), ‘the relevant product and geographic markets determine the scope within which the market power of the new entity resulting from the concentration must be assessed’.

37      In Section 6, under the heading ‘I. Relevant product markets’, the following is stated:

‘A relevant product market comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer, by reason of the products’ characteristics, their prices and their intended use. …

Factors relevant to the assessment of the relevant product market include the analysis of why the products or services in these markets are included and why others are excluded by using the definition, and having regard to, for example, substitutability, prices, cross-price elasticity of demand or other relevant factors (for example, supply-side substitutability in appropriate cases).’

38      The Commission Notice of 9 December 1997 on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5; ‘the Notice on market definition’), to which Form CO in Annex I to Regulation No 802/2004 refers, sets out the basic principles of market definition.

39      Accordingly, as regards competitive constraints, paragraph 13 of the Notice on market definition states that:

‘Firms are subject to three main sources or competitive constraints: demand substitutability, supply substitutability and potential competition. From an economic point of view, for the definition of the relevant market, demand substitution constitutes the most immediate and effective disciplinary force on the suppliers of a given product, in particular in relation to their pricing decisions. …’

40      In addition, paragraph 14 of the Notice on market definition states:

‘The competitive constraints arising from supply side substitutability other than those described in paragraphs 20 to 23 and from potential competition are in general less immediate and in any case require an analysis of additional factors. As a result such constraints are taken into account at the assessment stage of competition analysis.’

41      The Notice on market definition then defines what is to be understood by ‘demand substitution’, ‘supply substitution’ and ‘potential competition’.

42      Accordingly, paragraph 15 of the Notice on market definition, relating to demand substitution, states:

‘The assessment of demand substitution entails a determination of the range of products which are viewed as substitutes by the consumer. One way of making this determination can be viewed as a speculative experiment, postulating a hypothetical small, lasting change in relative prices and evaluating the likely reactions of customers to that increase. The exercise of market definition focuses on prices for operational and practical purposes, and more precisely on demand substitution arising from small, permanent changes in relative prices. …’

43      According to paragraph 16 of the Notice on market definition, that approach means that, ‘starting from the type of products that the undertakings involved sell and the area in which they sell them, additional products and areas will be included in, or excluded from, the market definition depending on whether competition from these other products and areas affect or restrain sufficiently the pricing of the parties’ products in the short term’.

44      In the context of the approach referred to above, paragraph 17 of the Notice on market definition states:

‘The question to be answered is whether the [customers of the parties to the concentration] would switch to readily available substitutes or to suppliers located elsewhere in response to a hypothetical small (in the range 5% to 10%) but permanent relative price increase in the products and areas being considered. If substitution were enough to make the price increase unprofitable because of the resulting loss of sales, additional substitutes and areas are included in the relevant market. This would be done until the set of products and geographical areas is such that small, permanent increases in relative prices would be profitable. …’

45      Paragraph 20 of the Notice on market definition refers to supply substitution in the following terms:

‘Supply-side substitutability may also be taken into account when defining markets in those situations in which its effects are equivalent to those of demand substitution in terms of effectiveness and immediacy. This means that suppliers are able to switch production to the relevant products and market them in the short term … without incurring significant additional costs or risks in response to small and permanent changes in relative prices. When these conditions are met, the additional production that is put on the market will have a disciplinary effect on the competitive behaviour of the companies involved. Such an impact in terms of effectiveness and immediacy is equivalent to the demand substitution effect.’

46      Paragraph 21 of the Notice on market definition states:

‘These situations typically arise when companies market a wide range of qualities or grades of one product; even if, for a given final customer or group of consumers, the different qualities are not substitutable, the different qualities will be grouped into one product market, provided that most of the suppliers are able to offer and sell the various qualities immediately and without the significant increases in costs described above. In such cases, the relevant product market will encompass all products that are substitutable in demand and supply, and the current sales of those products will be aggregated so as to give the total value or volume of the market. The same reasoning may lead to group different geographic areas.’

47      Paragraph 23 of the Notice on market definition states:

‘When supply-side substitutability would entail the need to adjust significantly existing tangible and intangible assets, additional investments, strategic decisions or time delays, it will not be considered at the stage of market definition. …’

48      As regards potential competition, paragraph 24 of the Notice on market definition states:

‘The third source of competitive constraint, potential competition, is not taken into account when defining markets, since the conditions under which potential competition will actually represent an effective competitive constraint depend on the analysis of specific factors and circumstances related to the conditions of entry. If required, this analysis is only carried out at a subsequent stage, in general once the position of the companies involved in the relevant market has already been ascertained, and when such position gives rise to concerns from a competition point of view.’

49      Paragraph 25 of the Notice on market definition relates to the evidence relied on to define relevant markets in the following terms:

‘There is a range of evidence permitting an assessment of the extent to which substitution would take place. In individual cases, certain types of evidence will be determinant, depending very much on the characteristics and specificity of the industry and the products or services that are being examined. The same type of evidence may be of no importance in other cases. In most cases, a decision will have to be based on the consideration of a number of criteria and different items of evidence. The Commission follows an open approach to empirical evidence, aimed at making an effective use of all available information which may be relevant in individual cases. The Commission does not follow a rigid hierarchy of different sources of information or types of evidence.’

50      It is in the light of those considerations that the applicant’s complaints under the first part of the first plea must be examined.

51      By the first complaint, the applicant challenges the contested decision’s findings that, first, ‘EG and HDG likely constitute distinct markets’ (Section 7.5.4.2. of the contested decision) and, secondly, ‘the outcome of the competitive assessment would be the same regardless of whether a distinct HDG market or [an overall] GS (HDG+EG) market is considered’ (recital 132 of the contested decision).

52      According to the applicant, those claims are incorrect for three reasons. First, competitors have significant spare capacities for EG, the inclusion of which would have to lead to lower capacity shares of the parties to the concentration. Secondly, such inclusion would have shown that spare capacities are not scarce and would post-transaction not ‘largely be in the hands of ArcelorMittal and the parties’ (recital 1039 of the contested decision). Thirdly, there is no justification not to include EG in a relevant market for automotive HDG. Those three reasons appear in the documents submitted to the Commission in the administrative procedure, but the Commission did not examine them adequately.

53      Furthermore, to support its challenge in that regard, the applicant also refers to Commission precedents concerning flat carbon steel products and summarily claims that there was no econometric test in the present case.

54      The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

55      In that regard, it should be noted that, in recital 132 of the contested decision, the Commission stated that it was necessary for it to conclude in that case whether or not HDG and EG constituted distinct product markets or whether an overall GS (HDG+EG) market should be considered. In recitals 132 to 136, 143 and 144 of the contested decision, the Commission set out in detail the reasons which had enabled it to conclude that the outcome of the competitive assessment would be the same for both a distinct HDG market and an overall GS (HDG+EG) market, since the applicant did not show that such an analysis was incorrect. It follows that, even if, as the applicant maintains, the Commission had defined an overall market for GS, it would still have declared the transaction incompatible with the internal market.

56      Accordingly, since the Commission did not definitively conclude that EG and HDG belong to separate markets, the arguments by which the applicant seeks to show that HDG and EG belong to the same market must be rejected in their entirety as ineffective (see, to that effect, judgment of 8 October 2002, M6 v Commission, T‑185/00, T‑216/00, T‑299/00 and T‑300/00, EU:T:2002:242, paragraph 57).

57      In any event, the arguments raised by the applicant in the first complaint must also be rejected as unfounded.

58      In the first place, the Commission’s conclusion, in recital 132 of the contested decision, that ‘[it is] unnecessary for [it] to conclude in this case whether or not HDG and EG constitute distinct product markets or whether an overall GS market (HDG+EG) should be considered’, is based on the fact that, first, ‘[TSE] is not active in EG’ and, secondly, ‘the outcome of the competitive assessment would be the same regardless of whether a distinct HDG market or a GS (HDG+EG) market is considered’, for the reasons set out in recitals 133 to 136 of that decision which, moreover, the applicant does not contest.

59      In particular, the Commission noted that the supply of EG accounts for a very limited portion (8%) of the total supply of GS, most of which (92%) consists of HDG (recital 133 of the contested decision). Moreover, the Commission considered that, since the applicant’s market share for the supply of EG was higher than the parties’ combined market share in the supply of HDG in the EEA in 2017, including EG in the same market with HDG would increase the parties’ combined share. Nonetheless, given the small volume of EG compared to HDG and the consequently small part of GS that it represents, the outcome of the competitive assessment would likely be the same (recital 136). The Commission cannot therefore be criticised for failing to justify the conclusion set out in recital 132.

60      In the second place, as regards the applicant’s claim that there are significant reserve capabilities available for EG in the EEA, it should be noted that supply-side substitutability between HDG and EG cannot arise, since, as is apparent from recital 138 of the contested decision, which refers to an internal TSE document which has not been challenged by the applicant, HDG and EG production processes are different, and that it is undeniable that the equipment used to produce one cannot be used to produce the other. Therefore, as stated in recital 144 of that decision, from the supply side, switching from HDG to EG is not sufficiently cheap and swift.

61      In that regard, recitals 137 and 144 of the contested decision state that, from the demand side, HDG and EG are only substitutable in a single direction, that is to say, from EG to HDG, rather than the reverse, since EG is significantly more expensive. Therefore, even assuming the scenario that that one-side demand substitutability would justify a broader market definition, any EG spare capacity could not be used to satisfy the demand of HDG customers, since substitutability does not occur from HDG to EG.

62      It follows that, as recital 144 of the contested decision correctly states, the fact that competitors have spare capacities for EG cannot, in any event, constrain producers of automotive HDG and, therefore, alter the outcome of the competitive assessment of the transaction, as is maintained in recital 132 of that decision. Accordingly, even taking into account the presence of spare capacities for EG, that would have no bearing on the conclusion reached by the Commission in recital 132, which remains correct, and therefore the applicant’s claim in that regard cannot reasonably succeed.

63      In the third place, as is apparent from recitals 121 and 144 of the contested decision, but also from the analysis set out in recitals 132 to 143 of that decision, it must be found that, contrary to what the applicant claims, the Commission adequately examined the response to the statement of objections (Annex A.8) and the first data room report (Annex A.13), which were submitted in the administrative procedure and which report the presence of spare capacities for EG (see, in particular, Annex A.8, paragraph 3.29 and paragraph 3.160). The Commission did, however, consider that the information contained in those two documents was not capable of altering its assessment. In that regard, it should nevertheless be noted that the applicant does not substantiate its claim that rivals of the parties other than ArcelorMittal (‘AM’) would possess significant EG spare capacities (see Annex A.8, paragraph 3.160(ii)).

64      In any event, it must be borne in mind that the Commission is not required to address explicitly each single argument raised by the parties in the response to the statement of objections (see, to that effect, judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraphs 167 and 169; of 9 July 2007, Sun Chemical Group and Others v Commission, T‑282/06, EU:T:2007:203, paragraph 58; and of 23 May 2019, KPN v Commission, T‑370/17, EU:T:2019:354, paragraphs 139 and 140).

65      In the fourth place, as regards Commission precedents concerning flat carbon steel products and, in particular, the decision in the AM/Ilva case, to which the applicant refers, it must be held that the applicant’s reliance on those precedents is irrelevant.

66      In that connection, it should be pointed out that, according to settled case-law, when the Commission takes a decision on the compatibility of a concentration with the internal market on the basis of a notification and a file pertaining to that transaction, an applicant is not entitled to call the Commission’s findings into question on the ground that they differ from those made previously in a different case, on the basis of a different notification and a different file, even where the markets at issue in the two cases are similar, or even identical. Accordingly, in so far as the applicant relies in this instance on assessments made by the Commission in a previous decision, that part of its argument is irrelevant (see judgments of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 142 and the case-law cited, and of 23 May 2019, KPN v Commission, T‑370/17, EU:T:2019:354, paragraph 79 and the case-law cited).

67      Even on the assumption that the applicant’s argument could be classified instead as an allegation of a breach of the principle of the protection of legitimate expectations, economic operators have no grounds for a legitimate expectation that an earlier decision-making practice that is capable of being varied depending on the change in circumstances or developments in its assessments will be maintained. A fortiori, they cannot plead such an expectation to challenge findings or assessments made in a given set of proceedings by invoking findings or assessments made in the context of just one previous case (see judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 143 and the case-law cited; judgment of 23 May 2019, KPN v Commission, T‑370/17, EU:T:2019:354, paragraph 80).

68      In any event, neither the Commission nor, a fortiori, the Court is bound in this instance by the findings of fact or economic assessments in the Commission precedents concerning flat carbon steel products and, in particular, the decision in the AM/Ilva case, to which the applicant refers. Even on the assumption that the analysis in that decision and the contested decision in the present case differs without any objective justification for that difference, the Court ought to annul the contested decision only if that decision, as opposed to the AM/Ilva decision, was vitiated by error (see, to that effect, judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 144 and the case-law cited).

69      It follows that the applicant cannot criticise the Commission for failing to follow its previous decision-making practice in the contested decision by claiming that the Commission did not carry out the same assessment of the facts in the present case as in the previous cases, and in particular in the AM/Ilva case to which the applicant refers. Accordingly, the applicant’s argument based on Commission precedents cannot reasonably succeed.

70      Furthermore, in that first complaint, the applicant summarily claims that no econometric test was carried out in the present case. Since, in its second complaint, the applicant sets out in detail an argument of the same nature as regards the absence of a SSNIP (small but significant and non-transitory increase in price) test, any need for the Commission to carry out such an econometric test will be examined in that second complaint, in paragraphs 74 to 77 below.

71      Accordingly, the first complaint put forward by the applicant in the first part of the first plea in law must be rejected.

72      By its second complaint, the applicant calls into question the market definition in relation to automotive HDG, referred to in recital 257 of the contested decision, on the ground that the Commission did not apply the SSNIP test to assess supply-side substitutability in accordance with the Notice on market definition. The Commission should have ascertained whether HDG production capacity currently used for non-automotive customers could be used to serve automotive customers. The Commission should have demonstrated that there were significant barriers to substitution.

73      The Commission, on the other hand, disputes the applicant’s arguments and contends that that complaint should be rejected.

74      In that regard, it should be noted that, as is apparent from paragraph 15 of the Notice on market definition, the SSNIP test is only ‘one way’ of assessing substitutability between products. In addition, paragraph 25 of that notice states, as indicated in paragraph 49 above, that ‘there is a range of evidence permitting an assessment of the extent to which substitution would take place’ and that, in that regard, ‘the Commission follows an open approach to empirical evidence, aimed at making an effective use of all available information which may be relevant in individual cases [and] does not follow a rigid hierarchy of different sources of information or types of evidence’.

75      It follows that the Commission is not bound by any test when determining whether the products concerned may be substitutable and, therefore, it retains the right to choose from that range of evidence whatever it considers the most appropriate in each individual case.

76      In that regard, the Court has already confirmed that approach and held that the Commission was not required to apply a SSNIP test, finding that, although that type of economic test is indeed a recognised method for defining the market at issue, it is not the only method available to the Commission (judgment of 11 January 2017, Topps Europe v Commission, T‑699/14, not published, EU:T:2017:2, paragraph 82). It considered that the Commission may also take into account other tools for the purposes of defining the relevant market, such as market studies or an assessment of customers’ and other competitors’ points of view.

77      As regards the applicant’s argument that no econometric test was carried out in the present case, which was summarily alleged in the first complaint, it follows from the foregoing that the Commission was under no obligation to carry out such a test and that that argument must therefore be rejected. In that regard, it should be noted, however, that the finding of a likely distinction between EG and HDG was based on a number of considerations set out in recitals 137 to 142 of the contested decision.

78      In addition, the Court has confirmed that the Commission was not required, when defining the relevant market, to follow a rigid hierarchy of different sources of information or types of evidence, but was instead required to make an overall assessment and could take account of a range of evidence (see, to that effect, judgments of 9 March 2015, Deutsche Börse v Commission, T‑175/12, not published, EU:T:2015:148, paragraph 133, and of 11 January 2017, Topps Europe v Commission, T‑699/14, not published, EU:T:2017:2, paragraph 82).

79      In the present case, the Commission’s finding of a separate market for automotive HDG was based on the overall assessment of a large number of factors, supported by an extensive body of evidence. Accordingly, contrary to what the applicant claims, the Commission carefully examined the extent of supply-side substitutability with respect to automotive HDG, including as regards HDG production capacity currently used for non-automotive customers.

80      In particular, as is apparent, inter alia, from Sections 7.5.4.3. to 7.5.4.7. and from recitals 1066 to 1073 and 1107 to 1127 of the contested decision, the Commission first identified the specific technical requirements of the automotive industry that suppliers must meet in order to produce and supply automotive HDG to automotive customers, including notably the ability to produce steel with specific technical features, the need to homologate individual production lines, the importance of suppliers’ vertical integration and the need to have automotive-capable HDG production lines.

81      Then, the Commission further examined those specific technical requirements and the barriers to meeting them, including (i) the significant investments needed to upgrade non-automotive-capable HDG production lines and start supplying automotive HDG, and (ii) the additional obstacles to reallocating production of non-automotive grade HDG to automotive HDG even for automotive-capable HDG production lines. That analysis by the Commission clearly establishes that those barriers were sufficiently material to sustain the definition of a separate market for automotive HDG.

82      It follows that the Commission demonstrated to the requisite legal standard in the contested decision that switching to the production of automotive HDG would entail, if at all possible, the ‘need to adjust significantly existing tangible and intangible assets, additional investments, strategic decisions and time delays’, within the meaning of paragraph 23 of the Notice on market definition. In accordance with the Notice on market definition, supply-side substitutability would therefore not be effective and immediate enough to constrain automotive HDG suppliers sufficiently and, therefore, would not justify extending the relevant market to the production capacity of non-automotive grade HDG.

83      Therefore, contrary to what the applicant claims, the Commission cannot be criticised for failing to verify, with the requisite level of attention, whether HDG production capacity currently used for non-automotive customers could be used to serve automotive customers. Similarly, the Commission cannot be criticised for failing to demonstrate sufficiently that there were significant barriers to substitution.

84      Furthermore, although there is no hierarchy of evidence, as indicated in paragraph 78 above, it must be observed that, contrary to what the applicant claims, the contested decision also presents, among a whole body of evidence, a wide range of quantitative or economic factors in support of its analysis of the definition of the relevant market (see, inter alia, recitals 153 to 159, 191, 207, 216, 217, 486 and 493).

85      Therefore, the Commission did not err in basing its conclusions as to the definition of a separate market as regards automotive HDG on its assessment of the evidence gathered without applying a SSNIP test, and therefore the second complaint put forward by the applicant in the first part of the first plea must be rejected.

86      By its third complaint, the applicant criticises the Commission for failing to conclude that HDG and EG belonged to the same relevant product market for GS. It criticises recital 137 et seq. of the contested decision, which state that HDG and EG are not substitutable and argues that, if anything, substitution occurs from EG to HDG. According to the applicant, HDG and EG are perfect substitutes. They do not require different tooling when processed, meaning that there are no material switching costs. The price difference between EG and HDG is only 1% to 3%, so a SSNIP test would have shown that customers would switch back to EG. Furthermore, the applicant notes that, during the administrative procedure, it submitted examples of switching in both directions and alternative uses of EG and HDG for similar applications, but they were rejected by the Commission in the contested decision (recital 141 of the contested decision).

87      The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

88      In that regard, it must be borne in mind that the arguments in support of a market definition covering EG and HDG must be considered as being ineffective, as has been set out in paragraphs 55 and 56 above in the first complaint.

89      In any event, the applicant’s arguments in that regard are also unfounded. It must be found that recital 137 et seq. of the contested decision reveal a body of evidence showing that HDG and EG are not interchangeable and that, where relevant, demand-side substitutability occurs only from EG to HDG, and not the other way round. The applicant has in no way disputed that evidence. The applicant merely pointed out that there is a small price difference between EG and HDG, so a SSNIP test would have shown that customers would switch back to EG. That assertion is entirely unsubstantiated.

90      Similarly, as was set out in paragraphs 74 to 76 above in the context of the second complaint, the Commission was not required to carry out such a test in order to assess the substitutability of the products concerned. The Commission was perfectly entitled to rely on other evidence to carry out such an assessment, as it indeed did in recitals 138 to 140 of the contested decision. Accordingly, as those recitals show, the Commission relied on extensive evidence pointing to substitution from EG to HDG, combined with the lack of evidence to the contrary, to reach the conclusion that substitution was likely to occur from EG to HDG, rather than the other way round.

91      Furthermore, as regards the applicant’s argument that the Commission, in recital 141 of the contested decision, rejected its examples of switching in both directions and alternative uses of EG and HDG for similar applications, it must be held that those examples of substitution of HDG by EG are isolated instances which, in essence, do not even relate to the EEA.

92      As appears from the dossier (Annex A.8, paragraph 3.30(i)), the parties maintain that they ‘know’ or ‘suspect’ that that substitution occurs for car models produced in South Africa and Mexico, and possibly in Spain, but they do not in any way substantiate that claim. The fact that those examples relate to car models that are produced globally cannot have any bearing in that regard. Conversely, that could raise the question of why no evidence was available of a similar substitution in the EEA and of a larger scale. It follows that the Commission was fully entitled to reject those examples as being unconvincing, having regard in particular to the trend to switch from EG to HDG in the EEA, as it was able to establish by analysing all the evidence gathered.

93      Therefore, the Commission cannot, in any event, be criticised for failing to conclude that HDG and EG belonged to the same relevant product market for GS, with the result that the third complaint put forward by the applicant in the first part of the first plea must be rejected.

94      By its fourth complaint, the applicant submits that, contrary to what is stated in the contested decision in recital 189 et seq., there is no clear distinction between automotive HDG production lines and non-automotive HDG production lines, since most HDG production lines can produce both automotive and non-automotive HDG, which enables producers to redirect their product range according to changes in demand.

95      In that regard, the applicant claims that those types of steel are perfectly substitutable from a supply-side perspective and that, except in the case of advanced high-strength steel (‘AHSS’), which requires specific assets, the vast majority of HDG production lines in the EEA could produce other HDGs for automotive customers or could be upgraded accordingly with minor investments.

96      Furthermore, the applicant complains that the Commission based that distinction on statements made by customers and competitors since it stressed, inter alia, the special requirements for automotive HDG, without explaining why they should be more credible than the parties’ detailed opposing submissions. Similarly, the applicant criticises the contested decision, which claims that a number of the parties’ internal documents support the Commission’s view that there are dedicated automotive HDG production lines (recitals 202, 211 et seq.), in that that decision ignores the explanations provided by the parties in the administrative procedure, stating that the conclusions drawn by the Commission from those internal documents were wrong and based on a misinterpretation.

97      The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

98      In that regard, it must be held that, as is apparent from recitals 194 to 196 of the contested decision, the Commission concluded that HDG production lines required specific capabilities to produce automotive HDG, on the basis of the responses to the market investigation provided, inter alia, by the parties’ customers and competitors.

99      Contrary to what the applicant claims, the fact that most HDG production lines are capable of being used to produce both automotive HDG and non-automotive HDG does not mean that any HDG production line is by nature capable of doing so, as is apparent from recital 201 of the contested decision.

100    There are HDG production lines which are not capable of producing automotive HDG, [confidential], (1) as stated by the Commission in recital 193 of the contested decision, relying on the parties’ own statements. In addition, it should be noted that the Commission, in recitals 203 to 210 of that decision, relies precisely on the parties’ internal documents to show that, even among their production lines, some appear better suited to producing automotive HDG.

101    Furthermore, even for those HDG lines that are technically capable of producing automotive HDG, that does not automatically mean, as the applicant claims, that suppliers can easily switch their product mixes to such an extent as to justify an expansion of the scope of the market to all HDG, in accordance with paragraph 20 of the Notice on market definition.

102    As the Commission rightly pointed out, in particular in recital 199 of the contested decision, without being challenged in that regard by the applicant, there could be certain objective constraints, such as the need for periods of ‘relaxation’ of production lines for technical and commercial reasons, for example because the bath conditions of the zinc or other alloy are not stable or because rolling cylinders get worn and are no longer suitable, which limits the possibility for the suppliers to switch production from non-automotive HDG to automotive HDG.

103    In addition, it should be noted, as the Commission has done, that the investments needed to upgrade production lines to adapt them for the production of automotive HDG are far from minor, as the Commission demonstrated to the requisite legal standard in the contested decision (Sections 7.5.4.3. to 7.5.4.7.) and as stated above in the context of the second complaint. It follows that the Commission cannot be criticised for holding that automotive HDG and non-automotive HDG were not perfectly substitutable from a supply-side perspective.

104    Furthermore, contrary to what the applicant implies, there is no reason to doubt the credibility of the statements from customers and competitors mentioned in recital 194 et seq. of the contested decision, concerning the technical requirements for supplying automotive HDG. In addition, those statements are supported by other items of evidence mentioned in the contested decision, including the parties’ own internal documents and some of the quantitative evidence (recitals 193, 202, 204, 207, 211, 213 of that decision). Therefore, the Commission cannot be criticised for correctly attaching greater credibility to that body of consistent evidence than to the sometimes-divergent arguments of the parties.

105    Similarly, contrary to what the applicant claims, the Commission did not ignore, in recitals 202 and 211 et seq. of the contested decision, the explanations provided by the parties in their response to the statement of objections (Annex A.8, paragraph 3.12) as regards its interpretation of some of their internal documents in that statement. The Commission merely considered that those explanations were not sufficiently convincing to call into question its interpretation of those documents.

106    Accordingly, although the Commission noted in both the statement of objections and those recitals that the parties’ internal documents classify their own lines and competitors’ lines into two categories, ‘auto’ and ‘non-auto’, and discuss the respective automotive lines’ capabilities, the parties, in their response to that statement, were unable to explain why they would do so if they did not consider such distinction to be relevant for their business activities. In any event, as stated in paragraph 64 above, the Commission is not required to address explicitly each single argument raised by the parties in their response to the statement of objections.

107    Therefore, the Commission cannot be criticised for erring in its conclusion that there were automotive HDG production lines which were separate from non-automotive HDG, and therefore the fourth complaint put forward by the applicant in the first part of the first plea must be rejected.

108    By its fifth complaint, the applicant claims that, contrary to the contested decision, automotive HDG was not considered a separate product market in the Commission’s decision in the AM/Ilva case, despite AM and Ilva being large producers of the same HDG products.

109    In that regard, the applicant notes that the Commission’s explanation attempting to justify that difference in approach, provided in recital 118 of the contested decision, which stated that Ilva had not been supplying large quantities of steel to the automotive industry recently, is irrelevant. It is apparent, in particular, from the decision adopted in that case that the AM/Ilva concentration would lead to AM increasing its automotive HDG capacity significantly. Therefore, the applicant questions whether the definition of a separate market for automotive HDG in the present case was indeed objectively ‘warranted’ or whether it was only adopted to support a ‘pre-determined theory of harm’, as it maintains.

110    Furthermore, the applicant points out that the fact that there is no separate market for automotive HDG is supported by the conclusions in the AM/Ilva decision, according to which there is, in particular, a noticeable level of supply-side substitutability between high-end and commodity products.

111    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

112    In that regard, it should be noted that that complaint is based solely on alleged inconsistencies between the contested decision in the present case and the decision given in the AM/Ilva case.

113    In view of the findings set out in paragraphs 66 to 69 above, the applicant cannot accuse the Commission of failing to follow its previous decision-making practice in the contested decision by claiming that the Commission did not carry out the same assessment of the facts in the present case as in the AM/Ilva case to which the applicant refers. Accordingly, the fifth complaint raised in that regard by the applicant cannot reasonably succeed.

114    In the light of the foregoing, it must be held that the applicant has not established that the Commission made procedural errors, errors of law and manifest errors of assessment in the contested decision as regards the definition of a separate product market for automotive HDG. Accordingly, since all five complaints put forward by the applicant in support of the first part of the first plea have been rejected, that part must be rejected in its entirety.

 The second part, concerning the definition of a separate product market for laminated steel

115    By the second part of its first plea, the applicant submits, in essence, that the Commission’s definition of a separate product market for laminated steel in recitals 290 to 300 of the contested decision is vitiated by procedural errors, errors of law and manifest errors of assessment. In support of that second part, the applicant puts forward three complaints.

116    By the first complaint, the applicant contests the assessment of supply-side substitutability between, on the one hand, laminated steel and, on the other, TP and ECCS, referred to in recital 293 of the contested decision. First, it claims that it is technically possible to produce laminated steel with existing organic coated steel production equipment and takes the view that the fact that it was actually not occurring in practice is due to business decisions which have no bearing on the technical capabilities of that equipment. Secondly, it argues that the contested decision overstates the different processes needed to produce laminated steel and maintains that they are identical to TP and ECCS processes, with only one additional production step, namely the application of a coating (laminating).

117    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

118    In that regard, it should be noted that, first, even if it were technically possible to produce laminated steel with existing organic coated steel production equipment, as the applicant claims, the Commission found in recital 293 of the contested decision that, in practice, participants in the packaging steel sector, including the parties, did not do so. It was noted that organic coated steel production lines are not active in the production and supply of laminated steel. Despite having organic coated steel production lines, those market participants continue to use their specialised lamination lines to produce laminated steel.

119    It should be pointed out in that regard that the applicant’s claim that the fact that it was actually not occurring in practice is due to business decisions on the part of the applicant and of other players in that sector has not been substantiated in any way. Technical feasibility is a necessary but not a sufficient condition for substitutability. It follows that, in the absence of any substantiated claim to the contrary, the actual behaviour of the applicant and other participants in that sector in practice remains the best indicator of the actual possibility to use effectively organic coated steel production equipment to produce laminated steel. Recital 293 of the contested decision is therefore not vitiated by error in that regard.

120    Secondly, as is apparent from paragraph 23 of the Notice on market definition, in order for supply-side substitutability to be relevant for the purposes of product market definition, suppliers should be able to switch production, in particular, without significant delays and without incurring substantial additional investments, which is at odds with the additional production step needed to transform TP or ECCS into laminated steel, which requires them to add an additional coating, namely a plastic film applied to steel substrate.

121    In that respect, it must be noted that the applicant itself acknowledges that an additional production step, namely the application of a coating (laminating), needs to be performed to produce laminated steel as opposed to TP and ECCS. Accordingly, even the use of organic coated steel production equipment to do the coating production step would similarly involve the use of an additional and different production equipment to that used to produce TP or ECCS. Moreover, the Commission’s finding, in recital 293 of the contested decision, that the parties have specific lamination lines for that additional step in the production of laminated steel shows that they have had to incur significant additional costs, which does not suggest any supply-side substitutability within the meaning of paragraph 23.

122    Therefore, the Commission cannot be criticised for erring, in recital 293 of the contested decision, by holding that supply-side substitutability between, on the one hand, laminated steel and, on the other hand, TP and ECCS, could not occur in the present case. Accordingly, the first complaint put forward by the applicant in the second part of the first plea in law must be rejected.

123    By the second complaint, the applicant considers that the contested decision’s analysis of demand-side substitutability is similarly inadequate. It asserts that recital 294 of the contested decision, according to which the market investigation indicates that a majority of customers would not switch from laminated to lacquered steel or vice versa, given a small but significant non-transitory increase in prices, is vitiated by a serious distortion of the evidence arising from the market investigation.

124    In particular, the applicant claims that the questions concerning substitutability between laminated steel and lacquered steel, put to the parties’ customers in that investigation, was based on their reaction to a price increase experienced in the past, rather than their switching behaviour in the event of a hypothetical price increase, even though that would have been the relevant question to address in the light of paragraph 15 et seq. of the Notice on market definition. In addition, citing statements by some customers, the applicant denies that a majority answered those questions in a way that would support the conclusion that there is no sufficient demand-side substitutability between those two types of steel.

125    Furthermore, the applicant claims that the responses to that survey as regards the question concerning substitutability between laminated steel and lacquered steel were not taken into account in the contested decision, since they were not mentioned in the footnotes at recital 294 of the contested decision. In addition, it points out that if the Commission sees that the responses to its survey are insufficient to allow certain conclusions, it needs to ask further questions or accept the parties’ views and evidence. That results in a distortion of evidence and a manifest error of assessment. It also constitutes an infringement of the duty to investigate diligently and impartially in accordance with Article 41(1) of the Charter of Fundamental Rights of the European Union.

126    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

127    In that regard, first, it should be noted, as has been set out in paragraph 74 above, that the SSNIP test is merely one way of determining the range of substitutable products.

128    In accordance with the Notice on market definition, it is open to the Commission to rely on a range of evidence made available to it in order to assess the extent to which substitution would take place and thus define the relevant market. In that regard, the Commission follows an open approach to empirical evidence, aimed at making an effective use of all available information which may be relevant in individual cases (paragraph 25).

129    In addition, that notice states that, for the process of gathering evidence, ‘when a precise market definition is deemed necessary, the Commission will often contact the main customers and the main companies in the industry to enquire into their views about the bou[n]daries of product … markets and to obtain the necessary factual evidence to reach a conclusion’ (paragraph 33). Similarly, that notice states in paragraph 34:

‘Where appropriate, the Commission will address written requests for information to the market players mentioned above. These requests will usually include questions relating to the perceptions of companies about reactions to hypothetical price increases and their views of the boundaries of the relevant market. They will also ask for provision of the factual information the Commission deems necessary to reach a conclusion on the extent of the relevant market. …’

130    In addition, it is apparent from that notice that, when assessing whether two products are demand substitutes, the Commission may rely on evidence of a substitution in the recent past. In that regard, paragraph 38 of that notice goes on to state:

‘In certain cases, it is possible to analyse evidence relating to recent past events or shocks in the market that offer actual examples of substitu[t]ion between two products. When available, this sort of information will normally be fundamental for market definition. If there have been changes in relative prices in the past …, the reactions in terms of quantities demanded will be determinant in establishing substitutability. …’

131    It follows from the general structure of the Notice on market definition that, in a market investigation seeking to gather the necessary factual evidence to reach a conclusion on the definition of the relevant market, the Commission was entitled to question the main customers in the sector concerned to ascertain their opinion on the substitutability between laminated steel and lacquered steel by asking them about their reaction to a price increase experienced in the past. Therefore, the applicant cannot validly complain that the Commission did so in the present case.

132    Secondly, it must be observed that a reading of customers’ responses to the questions concerning substitutability between laminated steel and lacquered steel and, in particular, responses on the behaviour of their undertakings in case of a price increase, in the market investigation launched by the Commission (Annex A.4d), clearly shows that the majority of the customers expressing a position cogently indicated limitations in substitutability. It is clear from those replies that the majority of the respondents indicated limitations in switching from laminated steel to lacquered steel, or vice versa.

133    Therefore, the Commission cannot be criticised for disregarding those customer replies in the conclusions drawn therefrom in recital 294 of the contested decision, according to which ‘a majority [of] customers [would] not switch from laminated to lacquered steel or vice versa given a small but significant non-transitory increase in prices’. It is clear from that recital that the Commission accurately sets out the results of the market investigation as regards the demand-side substitutability between laminated steel and lacquered steel. Accordingly, contrary to what the applicant claims, that recital is in no way vitiated by a distortion of the evidence of that survey or by a manifest error of assessment of that evidence.

134    Thirdly, as regards the applicant’s claim that the contested decision did not take account of customers’ responses to the question of the market investigation concerning substitutability between laminated steel and lacquered steel, it should be noted that the Commission failed to mention the number of the specific question in that regard in the footnotes relating to recital 294 of that decision. However, the fact remains that, as is clear from the wording of that recital and, in particular, from the words ‘or vice versa’, the Commission did indeed take those replies into account, since it expressly refers not only to whether laminated steel might be substituted by lacquered steel, but also to the reverse, namely whether lacquered steel might be substituted by laminated steel, with the result that the conclusions drawn in that recital apply to substitutability in both directions.

135    Fourthly, as regards the applicant’s claim that the Commission should put new questions to customers or accept the parties’ views where customer replies are insufficient to allow certain conclusions, it should be noted that that claim cannot validly succeed in the present case. As stated above, the Commission was able to rely correctly on customers’ responses to the market investigation in order to draw its conclusions concerning substitutability between laminated steel and lacquered steel. Similarly, although the applicant’s reference to the right to good administration and the associated duty to examine a case diligently and impartially were to be understood as referring to its right to have its affairs handled impartially and fairly by the Commission, all within the meaning of Article 41(1) of the Charter of Fundamental Rights, it should be noted that the applicant has in no way demonstrated that the Commission failed to comply with its obligations under that provision.

136    It follows that, contrary to what the applicant claims, the Commission cannot be criticised for distorting the evidence, committing a manifest error of assessment or breaching the obligation laid down in Article 41(1) of the Charter of Fundamental Rights. Accordingly, the second complaint put forward by the applicant in the second part of the first plea in law must be rejected.

137    By its third complaint, the applicant claims that, in recital 296 et seq. of the contested decision, the Commission failed to make a proper assessment of the pricing situation in the present case. In particular, it argues that, although laminated steel is more expensive than TP or ECCS, that is because it is priced to compete with the total cost of ownership to customers for TP and ECCS, including lacquering costs. The contested decision does not take that into account and rejects the information provided by the parties in that regard on the basis of the statements of only two customers (recital 299).

138    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

139    In that regard, it should be noted that the approach advocated by the applicant seeks to take into account the concept of ‘total cost of ownership’, that is to say, the cumulative cost including all costs associated with a product throughout its life cycle, from design to dismantling, including the costs which may be incurred in connection with repairs and maintenance.

140    That concept, referred to by the applicant during the administrative procedure, essentially suggests that the proposition that the pricing of the upstream product – in the present case, laminated steel for packaging – should be disregarded for the purposes of market definition because the cost of the production of the downstream product – in the present case, food cans – would ultimately be more important for the customer, once it reaches a certain scale downstream, that is to say, once it produces a sufficiently large number of food cans, in the present case. Thus, according to the applicant, the Commission should have assessed the substitutability at issue by reference to the downstream costs for end users.

141    As the Commission correctly maintains, that approach is tantamount to abandoning the market definition exercise for upstream products, as set out in Regulation No 802/2004. As mentioned above, under the heading ‘I. Relevant product markets’ in Section 6 of Form CO relating to the notification of a concentration pursuant to the Merger Regulation, set out in Annex I to Regulation No 802/2004, it is stated that ‘a relevant product market comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer, by reason of the products’ characteristics, their prices and their intended use’. Similarly, several paragraphs of the Notice on market definition, in particular paragraphs 7, 13, 15 et seq., 34 and 38 refer to an analysis of substitutability based on the price of the upstream product. It follows that the price of the upstream product is an important factor in the assessment of demand-side substitutability and cannot be ignored.

142    In any event, in recitals 298 to 300 of the contested decision, the Commission did take into account the parties’ submission that laminated steel had lower ‘total cost of ownership’ than lacquered steel. However, the Commission considered that that observation contradicted certain specific responses of customers in that regard (recital 299) and was difficult to reconcile with the actual patterns of substitution, in particular the fact that only very small volumes of laminated steel are being sold compared to other packaging steel (recital 300).

143    It follows that the applicant cannot criticise the Commission for committing any error in the assessment of the pricing situation, carried out in recital 296 et seq. of the contested decision. Accordingly, the third complaint put forward by the applicant in the second part of the first plea in law must be rejected.

144    In the light of the foregoing, it must be held that the applicant has not established that the Commission made procedural errors, errors of law and manifest errors of assessment in the contested decision as regards the definition of a separate product market for laminated steel. Accordingly, since all three complaints put forward by the applicant in support of the second part of the first plea have been rejected, that part must be rejected together with the first plea in its entirety.

 The second plea in law, alleging procedural errors, errors of law and manifest errors of assessment regarding the definition of the relevant geographic markets

145    By its second plea, the applicant submits, in essence, that the definition of the geographic market for automotive HDG and packaging steel, set out in the contested decision, is vitiated by procedural errors, errors of law and manifest errors of assessment. This plea is divided into three parts.

 The first part, concerning sourcing

146    By the first part of its second plea, the applicant submits, in essence, that the evidence presented in the contested decision in support of the finding that customers source flat carbon steel mostly from EEA suppliers (Section 8.3.2.2.) is too generic, not consistent with the Notice on market definition and contradicted by other evidence. In support of that first part, the applicant puts forward six complaints.

147    In that regard, it should be noted that, under the heading ‘II. Relevant geographic markets’ in Section 6 of Form CO relating to the notification of a concentration pursuant to the Merger Regulation, set out in Annex I to Regulation No 802/2004, the following is indicated:

‘The relevant geographic market comprises the area in which the undertakings concerned are involved in the supply and demand of relevant products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring geographic areas because, in particular, conditions of competition are appreciably different in those areas.

Factors relevant to the assessment of the relevant geographic market include inter alia the nature and characteristics of the products or services concerned, the existence of entry barriers, consumer preferences, appreciable differences in the undertakings’ market shares between neighbouring geographic areas or substantial price differences.’

148    It is in the light of those considerations, as well as those set out in paragraphs 32 to 36 above, in the first part of the first plea, that the complaints put forward by the applicant in the first part of the second plea must be examined.

149    By its first complaint, the applicant complains that the Commission based its assertion of sourcing at regional level on a ‘general reference’ to customer feedback and on ‘a few quotations of customer statements’ which it regards as ‘generic’, ‘vague’, ‘unsubstantiated’ and ‘allegedly’ representative of a certain majority.

150    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

151    In that regard, it should be noted that most customers indicated in their responses to the questions relating to geographic sourcing, in the market investigation launched by the Commission (Annexes A.4b, A.4c and A.4d), that, in practice, they obtained their steel mainly from suppliers located near or, in any event, within the EEA rather than outside the EEA and that they had a preference for sourcing from such suppliers.

152    In addition, contrary to what the applicant suggests, the quotations mentioned in some of those replies, in the contested decision, offer examples of detailed factual explanations which adequately illustrate those replies and, in particular, the specific reasons why the majority of EEA customers have a preference for sourcing from EEA-based suppliers, as is clear from recitals 338 to 340, 415 to 417, 445 and 446 of that decision. Those Commission quotations are precise, circumscribed and substantiated in nature and cannot therefore be treated as ‘generic’, ‘vague’ or ‘unsubstantiated’, nor can they be regarded as reflecting the views of isolated customers. It follows that the first complaint cannot validly succeed.

153    By its second complaint, the applicant criticises the Commission’s decision not to seek to quantify the extent of any ‘preference’ for local supply by automotive HDG and packaging steel customers. The evidence relied on by the Commission in that regard does not meet the criteria laid down in paragraphs 29 and 44 et seq. of the Notice on market definition.

154    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

155    In that regard, it should be noted, as has been pointed out in paragraphs 74 to 76 above, that the Commission is not bound to conduct a SSNIP test. Nevertheless, the contested decision provides an answer to the question whether customers would switch to suppliers located elsewhere in the short term and at negligible cost. As is apparent from recitals 338 to 340, 415 to 417, 445 and 446 of the contested decision, the answer to that question is negative, since factors other than transport costs, such as shorter lead times, lack of exchange rate issues and security of supply are also decisive in customer preference for EEA-based suppliers.

156    Furthermore, as has also been stated in paragraph 78 above, there is no hierarchy between quantitative and qualitative evidence. Contrary to what the applicant claims, it is not necessary for each factor mentioned in paragraph 44 et seq. of the Notice on market definition to be examined systematically. Accordingly, paragraph 52 of that notice states that defining markets ‘does not imply that in each individual case it will be necessary to obtain evidence and assess each of [the] factors’ referred to in paragraph 44 et seq. of that notice.

157    Further, in that regard, according to paragraph 45 of that notice, ‘quantitative tests used for product market definition might as well be used in geographic market definition’. That paragraph clearly states ‘might’ and not ‘must’, and therefore there was no obligation for the Commission to carry out quantitative tests even though the Commission took account, in the contested decision, of significant quantitative evidence concerning customers’ sourcing patterns (see, in particular, Section 9.4.3.5.a. mentioned in recitals 413 and 527 to 533 and Figure 100 in recital 678).

158    It follows that the Commission did not disregard the criteria laid down in the Notice on market definition. The applicant’s second complaint must therefore be rejected.

159    By its third complaint, the applicant claims that the evidence provided by the parties shows that automotive original equipment manufacturers (OEMs) typically homologate multiple suppliers, including both EEA and non-EEA suppliers. Those OEMs often produce the same model of car in multiple locations across the globe, and are therefore able to transfer their orders to suppliers outside the EEA.

160    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

161    In that regard, it should be noted that the evidence submitted by the parties, showing that automotive OEMs typically homologate multiple suppliers, including both EEA and non-EEA suppliers, does not demonstrate that a significant number of automotive HDG customers that also homologate non-EEA suppliers, or that switched to non-EEA suppliers, rely on those suppliers’ factories outside the EEA for a large portion of their EEA steel needs. Accordingly, that evidence does not affect the conclusion that most customers prefer to, and in fact predominantly do, source from within the EEA.

162    Furthermore, the Commission has specifically examined the ability of non-EEA suppliers, such as Posco, to satisfy EEA customers’ needs, as is apparent from recitals 411 and 997 to 1022 of the contested decision. Therefore, the Commission cannot be criticised for failing to take the parties’ evidence into consideration. The applicant’s third complaint must therefore be rejected.

163    By its fourth complaint, the applicant claims that it has provided detailed evidence that suppliers based outside the EEA are able to stock imports for automotive use in third-party warehouses in the EEA, which eliminates lead-time issues. The Commission disregarded that claim in recital 411 of the contested decision, which is circular and inconsistent in its reasoning.

164    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

165    In that regard, it must be held that the Commission did not disregard the applicant’s claim in recital 411 of the contested decision.

166    In recital 411, the Commission simply rejected that claim, taking the view that the evidence gathered in the market investigation and set out in recital 1008 et seq. of the contested decision (Section 9.4.3.5.c. of the contested decision, referred to in recital 411), showed in essence that, in practice, customers do not consider non-EEA suppliers as an alternative because they are not able to satisfy their needs in terms of quality of the products and services requested, and because of a lack of commercial presence and uncertainties linked to trade barriers. The Commission thus considered that, irrespective of possible storage options, non-EEA suppliers are generally not substitutable for EEA-based suppliers from the customers’ perspective.

167    In that regard, it should also be noted that the Commission referred to certain statements by customers pointing out disadvantages connected to relying on warehouses, such as additional costs due to storage (see, inter alia, recital 416 of the contested decision). It follows that recital 411 of the contested decision is neither circular nor inconsistent. The applicant’s third complaint must therefore be rejected.

168    By its fifth complaint, the applicant considers that the parties provided extensive quantitative evidence showing that a significant proportion of packaging steel was exported from the EEA and that the share of imports into the EEA was also substantial, which is confirmed by internal documents showing that there is robust extra-regional demand for that steel.

169    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

170    In that regard, it should be borne in mind that, in recital 452 of the contested decision, the Commission noted [confidential], but at the same time it pointed out that that did not reveal to what extent non-EEA suppliers would be able to meet the requirements of customers in the EEA.

171    In addition, as regards the share of imports of that steel into the EEA, the Commission also acknowledged that share in the contested decision, but noted that, according to the market investigation, most customers considered that imports could not meet their requirements as well as EEA suppliers could, due to factors such as transport costs, lead times, quality levels and security of supply (recitals 1303 to 1322). The Commission cannot therefore be criticised for disregarding that allegation. The applicant’s fifth complaint must therefore be rejected.

172    By its sixth complaint, the applicant criticises the Commission for failing to consider, in recital 336 of the contested decision, the parties’ economic argument that the marginal transport cost advantage that geographically closer suppliers might enjoy would quickly disappear if such a supplier were to seek to increase price above the competitive level. In that regard, the applicant claims that transport costs may be an important factor and criticises the Commission’s failure to carry out an adequate analysis of the ‘extent to which these [transport costs] may hinder trade between different areas’, in accordance with paragraph 31 of the Notice on market definition.

173    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

174    In that regard, it should be noted that, as is apparent from recitals 338 to 340, 415 to 417 and 445 and 446 of the contested decision, the Commission considered that, according to the market investigation, most customers reflected on several factors other than transport costs, such as shorter lead times, the absence of exchange rate issues or security of supply, to be decisive when customers make their sourcing decisions. It follows that, even if the advantages enjoyed by EEA suppliers in terms of lower transport costs were to be reduced as a result of a small price increase, the other factors would still be likely to limit the ability and willingness of customers to source from non-EEA suppliers.

175    Accordingly, since transport costs are not the only determining factor in that regard, the Commission cannot be criticised for failing to consider the parties’ economic argument, which is recalled in recital 335 of the contested decision before being analysed in recital 336 of that decision, taking the view that ‘the market investigation has provided ample evidence that sourcing [took] place predominantly at the regional or even sub-regional level and not only because of transport costs’ (recital 336). In addition, it follows from what is stated in paragraph 174 above that the Commission cannot be criticised for failing to carry out an adequate analysis in accordance with the Notice on market definition and, in particular, paragraph 31 thereof. The applicant’s sixth complaint must therefore be rejected.

176    In the light of the foregoing, it must be held that the applicant cannot validly claim that the evidence presented in the contested decision in support of the finding that customers source mostly from EEA suppliers (Section 8.3.2.2.) is too generic, inconsistent with the Notice on market definition and contradicted by other evidence.

177    Accordingly, since all six complaints put forward by the applicant in support of the first part of the second plea have been rejected, that part must be rejected in its entirety.

 The second part, concerning supply

178    By the second part of its second plea, the applicant criticises, in essence, the evidence presented in the contested decision in support of the conclusion that the supply of flat carbon steel occurs predominantly at EEA level (Section 8.3.2.3.). In support of that second part, the applicant puts forward five complaints.

179    By its first complaint, the applicant criticises the Commission for its failure to ‘ensure that those companies located in differing areas [did] not face impediments in developing their sales on competitive terms throughout the whole geographic market’, in line with paragraph 30 of the Notice on market definition. However, the evidence adduced by the Commission in that regard mainly consists of selective excerpts from a number of internal documents as well as of a description of the parties’ supply patterns.

180    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

181    In that regard, it should be noted that paragraph 30 of the Notice on market definition provides that ‘if necessary, a further check on supply factors will be carried out to ensure that those companies located in differing areas do not face impediments in developing their sales on competitive terms throughout the whole geographic market’. As is clear from the wording of recitals 349 to 351 of the contested decision, the Commission assessed precisely those impediments and found that those are, besides transport costs, long lead times, exchange rate volatility, price differences, and regulatory and trade barriers. The Commission cannot therefore be criticised for failing to comply with that notice.

182    Furthermore, as regards the applicant’s criticism of the parties’ internal documents, those documents constitute very relevant evidence in the supply-side analysis of the geographic market, as is apparent from paragraph 31 of the Notice on market definition, in particular where they show the parties’ supply patterns, but also, as qualitative evidence, constitute a valuable source of evidence when defining the markets in question (see, to that effect, judgment of 3 July 1991, AKZO v Commission, C‑62/86, EU:C:1991:286, paragraph 53), as do, in fact, statements from customers or competitors in response to a market investigation carried out by the Commission (paragraph 47 of that notice).

183    In that regard, it should nevertheless be noted that, in the contested decision, in order to reach the conclusion that supply occurs predominantly at a regional level (Section 8.3.2.3.), the Commission also relied on other evidence, which the applicant fails to mention, namely, inter alia, competitors’ responses to the market investigation. Therefore, the first complaint put forward by the applicant cannot validly succeed and must be rejected.

184    By its second complaint, the applicant disputes, in essence, the Commission’s interpretation of the internal documents, reproduced in Figures 34 to 43, set out in Section 8.3.2.3. of the contested decision. It claims that the Commission ignored the explanations provided by the parties in their response to the statement of objections which demonstrated that those documents are not suitable to prove a limitation of the geographic scope of the markets for automotive HDG and packaging steel to the EEA. Accordingly, the Commission maintains an interpretation of internal documents that is clearly unjustified and has been proven wrong by the parties.

185    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

186    In that regard, it should be noted, first of all, that the Commission relied on a set of evidence to formulate its conclusion in recital 362 of the contested decision that producers generally supply flat carbon steel at a regional level and mostly in the countries of the production plants or in their immediate proximity. That evidence is mentioned in Section 8.3.2.3. of that decision and consists not only of the parties’ internal documents, namely Figures 34 to 43 in that section, but also of statements by competitors gathered during the market investigation.

187    Next, as regards the parties’ internal documents in question (Figures 34 to 43), which the Commission is alleged to have misinterpreted, the applicant has not established that the Commission misconstrued those documents in a manner manifestly at odds with their wording (see, to that effect, judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 44 and the case-law cited; judgment of 28 November 2019, Brugg Kabel and Kabelwerke Brugg v Commission, C‑591/18 P, not published, EU:C:2019:1026, paragraph 63).

188    Similarly, the Commission’s interpretation of those documents is capable of supporting the findings in recitals 351 to 361 of the contested decision. Despite the explanations put forward by the applicant, the Commission’s assessments of the internal documents in question may still be accepted as true or valid. The applicant’s explanations are not sufficiently convincing to render implausible the findings made by the Commission in those recitals. It follows that the Commission did not manifestly exceed the limits of a reasonable assessment of that evidence and, accordingly, it cannot be criticised for distorting that evidence or manifestly erring in its assessment of that evidence.

189    Nor, finally, can the Commission be criticised for ‘ignor[ing]’ the explanations provided by the parties in their response to the statement of objections. It is sufficient merely to note in that regard that the Commission responded, at the very least implicitly but necessarily, to their explanations, taking the view that those explanations were not capable of altering the assessment which it had previously adopted in its statement of objections, as is apparent from the findings made in recitals 351 to 361 of the contested decision and from the conclusion set out in recital 362 of that decision.

190    Consequently, the second complaint put forward by the applicant cannot validly succeed and must be rejected.

191    By its third complaint, the applicant considers that the Commission’s analysis of the parties’ supply patterns is equally flawed. It is mainly confined to the simplistic and irrelevant observations that ‘HR and HDG products of the Parties are mostly sold in the countries of the production plants or in their immediate proximity’ (recital 359), that, with respect to automotive HDG, ‘[the applicant]’s supplies are concentrated in [confidential], while [TSE]’s supplies more to the [confidential]’ (recital 419) and that, with respect to packaging steel, ‘when considering only EEA sales, [confidential]’ (recital 447).

192    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

193    In that regard, it should be noted that the applicant has not sufficiently substantiated the arguments which it puts forward in the context of that complaint. It does not explain how the Commission’s analysis of the parties’ supply patterns in the contested decision is flawed. In so far as those allegations are not supported by any explanation, they must be rejected, as they do not meet the minimum formal requirements set out in Article 21 of the Statute of the Court of Justice of the European Union and Article 76 of the Rules of Procedure of the General Court (see, to that effect, judgment of 8 September 2016, Merck v Commission, T‑470/13, not published, EU:T:2016:452, paragraph 56 and the case-law cited).

194    In any event, the quotations set out by the applicant in that complaint reflect the Commission’s findings that, within the EEA, the parties’ sales of laminated steel, HDG, automotive HDG and packaging steels are concentrated in the countries of their production plants or in their immediate proximity (recitals 359, 419 and 447 of the contested decision). In that regard, the applicant does not dispute the data of the parties on which those findings are based.

195    Furthermore, in so far as they concern trade flow patterns, those findings are relevant for the purpose of geographic market definition, contrary to what the applicant claims. That analysis of trade flow patterns, together with the other evidence presented in the contested decision, supports the finding that, on the supply side, the relevant geographic market did not extend beyond the EEA. Therefore, the third complaint put forward by the applicant cannot validly succeed and must be rejected.

196    By its fourth complaint, the applicant submits, in essence, that the Commission’s observation, in recital 421 of the contested decision, that ‘other factors such as exchange rate volatility, the regulatory environment, different price levels and trade barriers appear also to play a role as for other flat carbon steel product markets, as indicated above in recitals (349) and (350)’, does not refute the explanations provided by the parties in the response to the statement of objections, that the supply of automotive HDG could occur predominantly at regional level only if automotive production were evenly distributed across the EEA, which is not the case. Furthermore, that observation by the Commission is not in line with paragraph 30 of the Notice on market definition.

197    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

198    In that regard, it should be noted that, in recital 420 of the contested decision, the Commission referred to the explanations provided by the parties in the response to the statement of objections, which stated that, as regards automotive HDG, the proximity of supply is mainly a function of the distribution of car producers in the EEA rather than an indicator of regional supply.

199    Then the Commission noted, in recital 421 of that decision, that ‘while the location of customers is certainly a fact that affects the distribution of supplies, … other factors such as exchange rate volatility, the regulatory environment, different price levels and trade barriers appear also to play a role as for other flat carbon steel product markets, as indicated above in recitals (349) and (350)’. The Commission’s arguments cannot be regarded as preventing the parties’ explanations from being refuted.

200    The Commission, relying on the results of the market investigation and the parties’ internal documents, pointed out that the supply patterns for automotive HDG were also influenced by factors other than the mere distribution of automotive production activities. That observation by the Commission, which is supported by a body of evidence and is not disputed by the applicant, cannot be regarded as manifestly wrong and may, on the contrary, still be accepted as true or valid. In that regard, the applicant’s explanations are not sufficiently convincing to render implausible the Commission’s observation in recital 421.

201    Also, further to the wording already mentioned above in relation to the first complaint, paragraph 30 of the Notice on market definition reads as follows:

‘… This analysis will include an examination of requirements for a local presence in order to sell in that area the conditions of access to distribution channels, costs associated with setting up a distribution network, and the presence or absence of regulatory barriers arising from public procurement, price regulations, quotas and tariffs limiting trade or production, technical standards, monopolies, freedom of establishment, requirements for administrative authorisations, packaging regulations, etc. …’

202    It is apparent from the clear wording of paragraph 30, and in particular from the words ‘will include’, that that paragraph does not establish a checklist of supply factors to be examined for the purposes of defining the geographic size of the relevant market. In addition, it is apparent from paragraph 52 of the Notice on market definition, relating to factors which may be taken into account in order to define the geographic dimension of the relevant market, that it is not necessary in each individual case to assess all of those factors. Consequently, the list of factors set out in paragraph 30 must be regarded as being indicative and not mandatory in scope. Therefore, the Commission was not required to analyse all of the factors mentioned in paragraph 30.

203    Contrary to what the applicant claims, the Commission examined several of the factors set out in paragraph 30 in the contested decision, in particular in Sections 8.3.2.5. and 8.3.2.6. and in recitals 411 and 418 to 425 of that decision. Therefore, the applicant cannot regard the Commission’s observation set out in recital 421 of that decision as being contrary to paragraph 30.

204    Accordingly, the fourth complaint put forward by the applicant cannot validly succeed and must be rejected.

205    By its fifth complaint, the applicant claims that, although the Commission acknowledged, in recitals 447 and 1406 of the contested decision, that a [confidential] only in respect of EEA sales, there is no basis for a conclusion that supply predominantly occurs at regional level if sales outside the EEA are disregarded. The parties’ internal documents (Figures 207 and 208 of the contested decision) clearly show that a substantial proportion of the parties’ production of packaging steel is exported to non-EEA countries. Disregarding those facts would lead to a flawed geographic market definition.

206    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

207    In that regard, it should be noted that, in recital 447 of the contested decision, the Commission relied on the outcome of the market investigation and the parties’ internal documents to find, in essence, that the supply of packaging steel within the EEA was concentrated in the proximity of the suppliers’ production plants. Moreover, according to recitals 447 and 1406 of that decision, the Commission acknowledges that the parties export large volumes of packaging steel to non-EEA countries. However, the finding of those facts, which were therefore not ‘disregarded’ by the Commission, as the applicant suggests, cannot in any way be incompatible with the finding of an EEA-wide market, having regard in particular to the results of the market investigation.

208    Although the parties make a significant portion of their sales outside the EEA, it is apparent from the results of the market investigation that the parties’ competitors in the EEA tend mostly to supply in the area around their production plants, due to the existence of factors that hinder supplies from non-EEA suppliers and, more generally, differences in the market structure and competitive conditions between the EEA and the rest of the world (recitals 447, 450 to 451, 441, 442, 448 and 449 of the contested decision). Consequently, the applicant cannot complain that the Commission disregarded those facts in such a way as to result in a flawed definition of the relevant geographic market. Therefore, the fifth complaint put forward by the applicant cannot validly succeed and must be rejected.

209    In the light of the foregoing, it must be held that the applicant’s criticism of the evidence presented in the contested decision to support the conclusion that supply predominantly occurs at EEA level (Section 8.3.2.3.) cannot reasonably succeed.

210    Accordingly, since all five complaints put forward by the applicant in support of the second part of the second plea have been rejected, that part must be rejected in its entirety.

 The third part, concerning pricing

211    By the third part of its second plea, the applicant criticises, in essence, the evidence and facts presented in the contested decision in support of the conclusion that flat carbon steel prices are not set globally (Section 8.3.2.4.). It submits, therefore, that the Commission has committed an ‘error of assessment’ in that regard. In support of that third part, the applicant puts forward six complaints.

212    By its first complaint, the applicant complains that the Commission presented ‘putative’ evidence consisting mainly ‘of mere assumptions’ to deny that prices are set globally and rebut the parties’ submission in that regard. The applicant states that the Commission did not elaborate on the nature of the ‘regional dimensions of competition’ that drive pricing within the EEA (recital 367 of the contested decision). The Commission does not explain which aspects of prices are set globally and which are set locally, why global competition should be determined by some aspects of pricing but not others, and what is the economic model of competition which the Commission believes to result in those pricing outcomes.

213    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

214    In that regard, it should be noted that, in recital 367 of the contested decision, the Commission ‘does not refute that prices in different parts of the world are impacted by common developments in the overall balance between worldwide demand and supply or by the development of the cost of raw materials that are traded on a worldwide basis’. The Commission adds that, nevertheless, it ‘considers that there are also regional dimensions of competition that have a significant impact on prices and drive regional pricing and local margins, reflecting also a variation in the regional conditions of competition described for instance in Sections 8.3.2.1 to 8.3.2.3’.

215    Contrary to what the applicant claims, it must be held that the Commission adequately explained in the contested decision, in particular in Sections 8.3.2.1. to 8.3.2.3. thereof, the ‘regional dimension of competition’ that has an impact on prices in the EEA, as is stated, moreover, in recital 367 of that decision. Those sections analyse, in essence, various features that specifically characterise the conditions of competition, including price levels, the demand and the supply of flat carbon steels within the EEA.

216    Furthermore, the Commission cannot be required to produce an ‘economic model of competition’ or other granular pricing analysis, as the applicant argues. As stated above, the Commission is not required to apply any particular method or test when defining the relevant market. As is apparent from the Notice on market definition, the Commission retains the right to choose, from the range of evidence permitting a definition of the relevant market, the evidence that it considers the most appropriate in each individual case. Similarly, there is no hierarchy between the various types of evidence that the Commission may rely upon when defining that market.

217    In the present case, having regard in particular to the abundant evidence presented in the contested decision, in particular in recitals 323 to 325, 373 to 380 and 386 to 388 of the contested decision, concerning differences in prices and price trends across various regions of the world and even within the EEA, including evidence from the parties’ own internal documents, it was open to the Commission to assess all those elements, without necessarily having to apply any ‘economic model of competition’ or other granular pricing analysis required by the applicant.

218    Consequently, the first complaint put forward by the applicant cannot validly succeed and must be rejected.

219    By its second complaint, the applicant argues that, although the four charts relied on by the Commission in the contested decision (Figures 45 to 48) unquestionably demonstrate a close correlation between European, Chinese, Indian and Turkish prices and spreads, the Commission persists with its position in recitals 368 and 369 of the contested decision that the difference between prices for HDG and laminated steel in different regions is not constant over time and price spreads over raw material costs have increased at a different pace across regions.

220    In that regard, the applicant complains that, in those recitals, the Commission attributed those ‘differences’ to the ‘local conditions of competition’, without however specifying those conditions or explaining why it considers that those conditions prevent the relevant markets from being global. In addition, the applicant claims that the Commission ignored the parties’ argument, raised during the administrative procedure, challenging the suitability of average price indices at country level, such as those set out in Figures 45 to 48 of the contested decision.

221    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

222    In that regard, it should be noted that, in recitals 368 and 369 of the contested decision, the Commission relied on Figures 45 to 48 in order to find, first, that the difference between prices for HDG and laminated steel in different regions was not constant over time and, secondly, that price spreads over raw material costs had increased at a different pace across regions. In both cases, the Commission considered that those price differences were due to the ‘local conditions of competition’.

223    Contrary to what the applicant claims, those conditions and the reasons why they prevented the relevant markets from being global were explained in detail, inter alia, in Sections 8.3.2.1. to 8.3.2.3. of the contested decision. In particular, the Commission explained in those sections that the conditions of competition seemed to vary from one region of the world to another and even within the EEA, that customers predominantly source at regional level, and that demand was also concentrated primarily at regional level. The Commission cannot therefore be criticised in that respect.

224    Furthermore, as regards the applicant’s criticism that the Commission ignored the parties’ argument, raised in the administrative procedure, challenging the suitability of average price indices at country level, it should be pointed out that the Commission relied on an overall assessment of all the evidence made available to it, in particular the statements of customers and competitors in the market investigation and the parties’ internal documents, when defining the relevant geographic market in the present case. It follows that, although the Commission did not take that parties’ argument on that point into consideration in that assessment, that does not mean that it ‘ignore[d]’ that argument, but that it simply did not consider it sufficiently convincing, among all of that evidence, to alter the assessment which it had previously adopted in its statement of objections.

225    In any event, as stated in paragraph 64 above, the Commission is not required to address explicitly each single argument raised by the parties in their response to the statement of objections. Therefore, that criticism must be rejected.

226    Therefore, the second complaint put forward by the applicant cannot validly succeed and must be rejected.

227    By its third complaint, the applicant complains that the Commission mischaracterised the facts when, in recital 370 of the contested decision, it points to rising spreads in 2017 as evidence that global overcapacities were not capable of constraining prices, in the EEA in particular. On the contrary, if global competition had not been the constraining factor for price levels in 2016, there would have been no scope for EEA prices to rise during 2017.

228    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

229    In that regard, it should be noted that, in recital 370 of the contested decision, the Commission took account of the parties’ argument that global overcapacities would discipline any price increase, but rejected it. The Commission considered that the increase of spreads, which typically reflects an increased profitability, shows that global overcapacity has not prevented an overall increase of the margins everywhere in the world, including in the EEA, indicating that global overcapacity did not prevent producers from pricing above costs worldwide or in the EEA.

230    As is apparent from recital 370, even assuming that global factors did constrain EEA prices in 2016, as the applicant claims, that does not mean that EEA-specific factors did not also play a role. Furthermore, although the applicant maintains that competition is a constraining factor for prices and although it discusses factors bringing about a price increase, it does not dispute that there was an increase in prices and margins or that there was global overcapacity, and does not therefore show how competition would have constrained pricing. It follows that the applicant’s argument seeking to criticise the Commission for ‘mischaracteris[ing]’ the facts, by finding that the increase in spreads showed that the global overcapacity had not prevented an overall increase of the margins everywhere in the world, including in the EEA, cannot validly succeed.

231    Moreover, as the Commission pointed out by relying on abundant evidence, in particular, in recitals 329 to 331, 371 to 381 and 387 and 388 of the contested decision, the role of EEA-specific factors is shown, as is also particularly evident in Figures 47 and 48, by the fact that price spreads in Europe and other regions evolved at different paces, with different magnitudes and at times also in opposite directions, while the evolution of price spreads for northern and southern Europe was significantly more similar.

232    Consequently, the third complaint put forward by the applicant cannot validly succeed and must be rejected.

233    By its fourth complaint, the applicant complains that the Commission misconstrued, in recital 371 of the contested decision, the parties’ internal documents and, in some instances, selectively picked them out from a series of documents containing several other examples showing that TSE’s pricing was heavily influenced by global developments. In support of that claim, the applicant refers to certain internal documents, reproduced in Figures 49, 50 and 51 of that decision, and disputes the Commission’s assessment of those figures, by referring to other internal documents presented during the administrative procedure.

234    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

235    In that regard, it must be noted that the Commission’s conclusion, in recitals 371 to 373 of the contested decision, that EEA-specific developments influence pricing decisions in the EEA closely corresponds to Figures 49 to 51, which capture some of TSE’s internal documents. In that regard, mention should be made of TSE’s internal document in Figure 49, which indicates [confidential].

236    Furthermore, as regards the other internal documents presented during the administrative procedure, as has been pointed out above in the second complaint, that the Commission relied on an overall assessment of all the evidence made available to it, in particular the statements of customers and competitors in the market investigation and the parties’ internal documents, when defining the relevant geographic market in the present case. It follows that, although the Commission did not take into consideration those other internal documents in that assessment, that simply means that it did not consider them sufficiently convincing or relevant among all of that evidence. In any event, in the context of a global assessment, the lack of reference to a document does not in itself enable the finding that that document was not taken into account.

237    In that regard, the fact that prices are also influenced by regional developments, as shown by the evidence in Section 8.3.2.4. of the contested decision, disproves the applicant’s claim that prices are essentially only determined by global competition. In any event, as stated in paragraph 64 above, the Commission is not required to address explicitly each single argument raised by the parties in their response to the statement of objections.

238    It follows that the applicant cannot complain that the parties’ internal documents were misinterpreted or interpreted selectively. The applicant’s fourth complaint must therefore be rejected.

239    By its fifth complaint, the applicant claims that, during the administrative procedure, the parties provided strong evidence, including several charts, of a very high correlation between EEA steel prices and global steel prices. Furthermore, the applicant states that the parties have addressed the objection set out in recital 365 of the contested decision that the correlation could simply be the result of common movements in the costs of input. The parties showed that price movements in steel markets cannot be explained solely by the movement in raw material costs.

240    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

241    In that regard, it is necessary to examine the issue of what probative value must be attached to the correlation between EEA steel prices and global steel prices as evidence when defining the geographic market in the present case.

242    It should be noted in that regard that, in recital 365 to the contested decision, the Commission observed that ‘a price correction analysis can only provide indirect evidence of market definition, and is more suitable as a “separation” test rather than an “inclusion” test’. The Commission stated therein that ‘similar price trends may simply be explained by common cost and demand factors [and that,] consequently, the evidentiary value of price correlation analysis is highly dependent on controlling for such common cost and demand factors’.

243    According to the Commission’s analysis, set out in detail in recitals 363 to 382 of the contested decision, the mere fact that a correlation between prices of two different regions can be observed, that is to say, that there is a relationship between the respective price movements, is not necessarily indicative of a high degree of substitutability between the supplies from those two regions.

244    Similar price trends can also be linked to variations of cost or demand factors that are common to the products in both regions, which is precisely the case of flat carbon steel products, which are highly dependent on the cost of raw materials (iron ore and coking coal), as stated in recital 366 of the contested decision. Those costs, and the changes to those costs, are similar across the globe, as the raw materials are traded on a worldwide basis and account for a significant part of the final price of the steel.

245    Therefore, although the prices of flat carbon steel products within and outside the EEA share similar movements, which the Commission acknowledged in the contested decision, that cannot, in its view, be taken as a sufficiently strong indication of the existence of global markets, in particular in the light of all the evidence pointing to the contrary set out in other sections of that decision.

246    That analysis by the Commission appears to be sufficiently consistent, relevant and convincing, and therefore, as stated in recital 365 of the contested decision, the price correction studies can only provide indirect evidence of geographic market definition. Those studies have some inherent limitations as regards their evidentiary value to show that different products or regions form part of the same relevant market.

247    In the present case, while the additional charts produced by the parties (Figures 6.4 to 6.8 at Annex A.2, p. 76 et seq.) probably account for changes in raw material costs, they do not take into account other factors, such as changes in demand and supply that could be common to different world regions, in particular due to a global economic crisis, which could influence levels of supply and demand of steel at the same time in several regions of the world. In any event, it is apparent from those charts that there are significant differences in the price evolution across world regions, in particular in certain periods.

248    It follows that the charts mentioned above do not establish a correlation between steel prices in the EEA and in other regions of the world. Furthermore, all the evidence referred to in Sections 8.3.2.1. to 8.3.2.3. of the contested decision demonstrates the opposite. The applicant’s fifth complaint must therefore be rejected.

249    By its sixth complaint, first, the applicant considers that an obvious correlation, beyond just raw material costs, is also evident from Figures 45 and 46 of the contested decision, indicating either EEA prices following globally determined prices, or global prices following EEA prices.

250    Secondly, the applicant claims to have used examples to test the reaction of EEA steel prices to a number of EEA and global demand and supply shocks. Those examples show that EEA prices are determined by global competition and not intra-EEA rivalry. Those examples contradict the Commission’s theory, set out in recital 367 of the contested decision, that market prices are the product of both global and local factors. In that regard, the applicant points out that the parties provided detailed economic evidence and considerations in relation to each of those examples, but it was ignored in the contested decision.

251    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

252    In that regard, it must be stated that Figures 45 and 46 of the contested decision show that, while there is some degree of commonality of price trends, substantial differences exist in the evolution of prices across the regions considered. The point is that the price gaps between different regions vary significantly in terms of size and even switch from negative to positive or vice versa, and those variations are necessarily indicative of local conditions of competition, which were set out in, inter alia, Sections 8.3.2.1. to 8.3.2.3. of that decision. Those figures, read in conjunction with all of those conditions, considered as a whole, show that the markets at issue are not global in size, as the applicant claims.

253    In addition, the examples by which the parties tested the reaction of EEA steel prices to EEA and global demand and supply shocks actually remain only ‘examples’, which are not capable of establishing that, as a general rule, EEA prices are determined only by global competition and not by intra-EEA competition.

254    In that regard, as stated above, the applicant’s claim that prices are determined only by global competition is refuted by abundant evidence drawn both from statements by customers and competitors in the market investigation and from the parties’ internal documents, which were presented in the contested decision, inter alia, in Sections 8.3.2.1. to 8.3.2.3. Incidentally, the contested decision also contains specific evidence, inter alia in recitals 377 to 381, disproving the applicant’s claim that EEA prices would have limited or no reaction in the event of an EEA demand or supply shock.

255    Furthermore, as has been pointed out above, the Commission relied on an overall assessment of all the evidence made available to it when defining the relevant geographic market in the present case and, although it did not take account of the economic evidence and considerations of the parties relating to the abovementioned examples in that assessment, that does not mean that it ‘ignor[ed]’ it, but that it simply did not consider it sufficiently convincing or relevant among all the evidence. It is apparent from Section 8.3.2.4. of the contested decision that the Commission did not ignore the analysis of the evidence and facts made available or, in particular, the internal documents produced by the parties, inter alia, during the administrative procedure. The Commission responded to those internal documents, at times implicitly but necessarily, by providing in that section evidence and explanations as to why it had considered that their claim that pricing is only determined globally could not be accepted.

256    It follows that the Commission did not manifestly exceed the limits of a reasonable assessment of the parties’ abovementioned internal documents and that, accordingly, it cannot be criticised for distorting that evidence or manifestly erring in its assessment of that evidence in that regard. The applicant’s sixth complaint must therefore be rejected.

257    In the light of the foregoing, it must be held that the applicant’s criticism of the evidence and facts presented in the contested decision to support the conclusion that flat carbon steel prices are not set globally (Section 8.3.2.4.) cannot reasonably succeed.

258    Accordingly, since all six complaints put forward by the applicant in support of the third part of the second plea have been rejected, that part must be rejected together with the second plea in its entirety.

 The third plea in law, alleging procedural errors, errors of law and manifest errors of assessment concerning the finding of an SIEC in the automotive HDG market

259    By the third plea, the applicant submits, in essence, that the Commission made procedural errors, errors of law and manifest errors of assessment in finding, in the contested decision, that there was an SIEC in the automotive HDG market. This plea is divided into seven parts.

 The first part, concerning a procedural error and a manifest error of assessment as regards the important competitive constraint standard

260    By the first part of the third plea, the applicant submits that the Commission did not explain the factors that contributed to its finding that TSE was an important competitive constraint, and to what extent. Moreover, the applicant claims that the Commission conducted that analysis in isolation. It did not provide robust comparisons of TSE with other competitors in the market. It is, however, impossible to determine the importance of a constraint in isolation from an assessment of the importance of other competitive constraints.

261    The Commission disputes the applicant’s arguments and contends that the first part of the third plea should be rejected.

262    In that regard, by the first part of the third plea, the applicant alleges, in essence, a failure to state reasons in the contested decision, in that the Commission did not explain the factors on which it relied in reaching the conclusion that TSE represented an important competitive constraint.

263    Contrary to what the applicant claims, it must be held that the Commission explained those factors to the requisite legal standard in the contested decision. In Section 9.4.3.2. of that decision, the Commission sought to show that the applicant and TSE were important competitors in the automotive HDG market within the EEA. In Section 9.4.3.3., the Commission indicated that the applicant and TSE were close competitors in that market. In Section 9.4.3.4., the Commission explained the reasons why it had concluded that TSE, pre-transaction, was an important competitive force in that market. In addition, in Sections 9.4.3.5. to 9.4.3.7., the Commission explained why other possible constraints on the merged entity would be insufficient to offset the negative effects of the transaction. Moreover, it is apparent from those sections that the Commission made strong comparisons with other market participants.

264    It follows that the applicant cannot claim that the contested decision failed to state reasons in that regard. Accordingly, the first part of the third plea in law must be rejected.

 The second part, concerning a procedural error, an error of law and a manifest error of assessment as regards the assessment of AM’s incentive to constrain a post-transaction price increase

265    By the second part, the applicant submits, in essence, that the Commission made a procedural error, an error of law and a manifest error of assessment as regards the assessment of AM’s incentive to constrain a post-transaction price increase. It claims that the Commission wrongly concluded, in recital 1045 of the contested decision, that AM would not exercise any competitive constraint on the merged entity. That part is divided into three complaints.

–       The first complaint, alleging an error of law in basing a finding of horizontal non-coordinated effects on a de facto finding of post-transaction coordination between the merged entity and AM

266    By the first complaint of the second part, the applicant submits that the Commission erred in law by assuming in the contested decision that AM would coordinate its pricing with the merged entity, and that the merged entity would take such coordination into account in its post-transaction pricing decisions. In so doing, the Commission made a case for a finding of horizontal coordinated effects in all but name, thereby evading certain legal and evidential requirements, such as the requirement to establish that finding in the statement of objections, which it has not done.

267    The Commission disputes the applicant’s arguments and contends that this complaint should be rejected.

268    In that regard, it should be noted that, in recitals 1081 to 1106 of the contested decision, the Commission sought to show that AM would not have any incentive by increasing supplies to automotive customers in order to offset the potentially negative effects resulting from the transaction. It follows from those recitals that the Commission examined AM’s likely reaction to any price increase by the merged entity post-transaction. Thus analysing the actual, rational and independent economic behaviour of AM, the Commission observed that AM, as the leader on the market of automotive HDG, would have every incentive to accompany that price increase rationally, such as to generate higher revenue on all its sales (recital 1082). According to that analysis, AM would have an incentive to increase prices rather than expand output and defeat such a price increase (recital 1085).

269    It follows that the Commission did not take into account, even implicitly, any horizontal coordinated effects between AM and the merged entity. Consequently, it must be held that the applicant’s claim that the Commission implicitly relied on coordinated horizontal effects is based on a misreading of the contested decision. The applicant’s first complaint must therefore be rejected.

–       The second complaint, alleging a manifest error of assessment as regards the economic analysis of AM’s incentive

270    By the second complaint, the applicant submits that the contested decision is also vitiated by a manifest error of assessment as regards the evidence relied on to establish AM’s lack of incentive to constrain post-transaction prices, despite huge free capacities being available to it. In particular, the applicant alleges that the evidence presented in recitals 1083, 1085, 1092, 1101, 1103 and 1104 of that decision is manifestly insufficient to support such a conclusion. According to the applicant, the only economic evidence put forward by the Commission in support of that conclusion amounts to a twisted version of the analysis submitted by the parties in the response to the statement of objections, proving the opposite point.

271    In that regard, the applicant claims that the Commission’s economic analysis, set out in recitals 1088 to 1091 of the contested decision, is manifestly wrong. The Commission did not correctly examine AM’s incentives in failing to analyse the actual level of additional volume AM would gain by competing. Because of its high spare capacity, AM would probably gain volumes much higher than the minimum required in the contested decision, fixed at [confidential] megatonnes (Mt), to counter a price increase caused by the merged entity. That, moreover, is the true meaning of the internal document of the parties reproduced in Figure 171, cited in recital 1083. However, the Commission was selective in which passages of that document it cited and translated them incorrectly, distorting its meaning to the contrary.

272    The Commission disputes the applicant’s arguments and contends that this complaint should be rejected.

273    As a preliminary point, it should be stated that, according to Article 2(3) of Regulation No 139/2004, a concentration which would significantly impede effective competition, in the internal market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, is to be declared incompatible with the internal market.

274    Moreover, according to Article 8(3) of Regulation No 139/2004, where the Commission finds that a concentration fulfils the criterion laid down in Article 2(3) of that regulation, it is to issue a decision declaring the concentration incompatible with the internal market.

275    As stated in paragraph 33 above, according to settled case-law, the basic rules on control of mergers, and, in particular, those concerning the assessment of concentrations such as those laid down in Article 2 of Regulation No 139/2004, confer on the Commission a measure of discretion, especially for assessments of an economic nature. Consequently, review by the EU judicature of the exercise of that discretion, which is essential for defining the rules on concentrations, must take account of the discretionary margin implicit in provisions of an economic nature that form part of the rules on mergers.

276    In particular, it is not for the Court to substitute its own economic assessment for that of the Commission (see judgment of 23 May 2019, KPN v Commission, T‑370/17, EU:T:2019:354, paragraph 107 and the case-law cited).

277    However, as indicated in paragraph 35 above, although the Commission has a measure of discretion with regard to economic matters, that does not mean that the EU judicature must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must it, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it.

278    The Commission’s review of concentrations calls for a prospective analysis which consists in an examination of how a concentration might alter the factors determining the state of competition on a given market in order to establish whether it would give rise to a serious impediment to effective competition. Such an analysis makes it necessary to envisage various chains of cause and effect with a view to ascertaining which of them are the most likely (judgments of 19 June 2009, Qualcomm v Commission, T‑48/04, EU:T:2009:212, paragraph 88, and of 9 March 2015, Deutsche Börse v Commission, T‑175/12, not published, EU:T:2015:148, paragraph 62).

279    In that regard, the onus is on the Commission to produce convincing evidence as to the likelihood of those chains of cause and effect. In some cases, such evidence may consist of economic studies establishing the likely development of the market situation at issue and demonstrating that there is an incentive for the market participants and the merged entity to behave in a particular way. However, having regard to the principle of EU law that the evaluation of evidence should be unfettered, the absence of evidence of that type is not in itself decisive. In particular, in a situation in which it is obvious that the commercial interests of an undertaking militate predominantly in favour of a given course of conduct, the Commission does not commit a manifest error of assessment in finding that it is likely that the market participants or merged entity will actually engage in the conduct foreseen. In such a case, the simple economic and commercial realities of the particular case may constitute such convincing evidence (see, to that effect, judgment of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraphs 295 to 297 and the case-law cited).

280    It follows that it is therefore for the Commission to show, with a sufficient degree of probability, in its decision declaring a concentration incompatible with the internal market that the transaction significantly impedes effective competition in the internal market or in a substantial part of it. Contrariwise, interested parties who bring an action seeking the annulment of such a decision must show that the Commission erred in its assessment of those commitments in such a way that the incompatibility of the merger with the internal market is called into question (see, to that effect, judgment of 23 May 2019, KPN v Commission, T‑370/17, EU:T:2019:354, paragraph 110 and the case-law cited).

281    The second complaint must be examined in the light of those considerations.

282    In the present case, it must be found that the Commission relied on a body of evidence to support its conclusion that AM would not have any incentive to react to price increases by the merged entity post-transaction by increasing supply at lower prices to automotive customers (recital 1081 of the contested decision). Thus, the Commission relied on AM’s actual market conduct demonstrating a focus on price maintenance over market share maximisation (see recitals 1086, 1092, 1098 and 1103 to 1106), and on the general principles of rational economic behaviour which any operator, such as AM, would reasonably have adopted in the circumstances (see recitals 1081, 1082, 1099 and 1102). In addition, the Commission took into consideration the economic data provided by the parties in order to rebut the economic analysis presented by them during the administrative procedure (recitals 1084 and 1085, 1087 to 1091 and 1093 to 1097). Similarly, the Commission took into account the parties’ internal documents (recital 1083) and statements made during the market investigation (recital 1101).

283    It is clear from the case-law cited in paragraph 279 above that in order to establish the likely development of the market situation at issue and to determine whether there is an incentive for the market participants and the merged entity to behave in a particular way, the Commission is not bound to rely on sophisticated economic studies. It may rely on considerations relating to whether those market participants or that merged entity will actually engage in the conduct foreseen, where it is obvious that the commercial interests of an undertaking militate predominantly in favour of a given course of conduct, which it has demonstrated to be the case here. It follows that the Commission was able, in particular, to rely in that regard on the simple economic and commercial realities of the present case.

284    Thus, it should be noted that, in recital 1082 of the contested decision, the Commission explained that any additional margins that AM would gain by increasing its supplies would be offset by earning lower margins on its large base of existing sales, which would not be the case where it followed the parties’ price increase across its entire sales base.

285    It should also be noted that the Commission supported its analysis, in recitals 1087 to 1091 of the contested decision, by taking into consideration the economic data provided by the parties precisely for the purposes of rebutting their economic analysis. Thus, it is clear from those recitals that, based on those data, a 5% price increase by the merged entity would result in a loss of [confidential] Mt of sales for that entity, as a result of which, as soon as AM expanded its output by [confidential] Mt, the impact of the price increase would be defeated. The Commission took the view that it would not be economically rational for AM to continue increasing its output beyond that point as this would further reduce prices below the level prior to the merged entity’s price increase.

286    The Commission therefore considered that, given AM’s current volume of sales, the benefit it would gain from the margins earned on the additional [confidential] Mt of sales would be much lower than the extra margins it could instead earn by increasing its own price by 5% over its total volume of current sales, namely EUR [confidential], on the one hand, and EUR [confidential], on the other (see recital 1088 of the contested decision). According to the Commission, that means that AM would achieve better results by taking account of the price increases rather than by increasing its output to defeat such an increase in prices.

287    It should also be noted that the Commission has confirmed that approach on the basis of AM’s actual behaviour in the relevant market, including recent announcements made by AM. As is clear from recitals 1103 and 1104 of the contested decision, the Commission emphasised that those announcements indicated that AM was aiming at price increases or price maintenance rather than improving its market share by maximising spare capacity.

288    The fact remains that, in the context of its prospective analysis in recitals 1081 to 1106 of the contested decision, which relies on a body of evidence, the Commission has succeeded in demonstrating, convincingly and with a sufficient degree of probability, that it was unlikely that AM would be encouraged to increase its output in the face of a price increase by the merged entity and that it would choose rather to follow that price increase, contrary to what the applicant claims. It should also be made clear that, in accordance with the case-law cited in paragraph 279 above, that body of evidence cannot be regarded as manifestly insufficient for the purposes of supporting such a conclusion. It follows that that analysis is not vitiated by any manifest error of assessment in that regard.

289    Moreover, as is apparent from reading the parties’ internal document reproduced in Figure 171 in full, as cited in recital 1083 of the contested decision, namely an internal email of the applicant dated 4 July 2017, it must be found that the Commission did not selectively quote or falsely translate that document, contrary to what the applicant claims. On the contrary, it follows that the applicant understands that AM is not pursuing a strategy of maximising its production, which is what the Commission stated in that recital. The Commission cannot therefore be accused of having distorted or manifestly erred in its assessment of that document.

290    Therefore, the Commission’s analysis, in recitals 1081 to 1106 of the contested decision, as far as concerns the absence of any incentive for AM to increase sales to automotive customers, cannot be regarded as vitiated by any manifest error of assessment, as maintained by the applicant. The applicant’s second complaint must therefore be rejected.

–       The third complaint, alleging a procedural error in that the Commission’s economic analysis is not included in the statement of objections

291    By the third complaint in the second part, the applicant submits, in essence, that the Commission made a procedural error in that its economic analysis is not included in the statement of objections.

292    In that regard, first, the applicant criticises the Commission for presenting a very limited economic analysis of AM’s incentives for the first time only at the stage of the letter of facts. In previous cases in the steel sector, the Commission allegedly presented very a detailed economic analysis of the incentives for rivals with spare capacity to constrain the merged entity at the statement of objections stage.

293    Secondly, the applicant challenges recital 1086 of the contested decision and criticises in that regard the Commission’s decision to rely on AM’s actual market conduct, without conducting its own economic analysis. The evidence put forward for ‘actual market conduct’ in that decision is allegedly limited and inconclusive. In addition, the assumption made in respect of that conduct is in contradiction to the Commission’s assessment regarding the same player and assets in the AM/Ilva case.

294    Thirdly, the applicant criticises the Commission for communicating its economic analysis, set out in recital 1095 of the contested decision, only in the final decision. In addition, in that recital, the Commission mischaracterised the parties’ arguments in response to the letter of facts. It considers that the reasoning set out in that recital is wrong to the effect that, had the parties been able to point out those errors during the administrative process, then they would have been better able to defend themselves.

295    The Commission disputes the applicant’s arguments and contends that this complaint should be rejected.

296    In that regard, first, as regards the applicant’s claim that the Commission presented only a very limited economic analysis in the letter of facts, it should be noted that, as stated in paragraph 283 above, the Commission is not necessarily required to rely on sophisticated economic studies and may rely in that regard on the simple economic and commercial realities of the case before it. It may rely on considerations relating to whether those market participants will actually engage in the conduct foreseen, where it is obvious that the commercial interests of an undertaking militate predominantly in favour of a given course of conduct.

297    In the present case, it must be found that, on the basis of basic rational economic considerations, the Commission showed, in the contested decision, that it was clear that it would not be in AM’s commercial interest to defeat a price increase instigated by the merged entity. The Commission cannot therefore be criticised for not having relied on sophisticated economic studies. Furthermore, it must be observed that the Commission’s analysis in that regard is set out, albeit in less detail, from the statement of objections (see, in particular, paragraphs 907 to 918 of Annex A.7) and was therefore not presented for the first time at the stage of the letter of facts, as the applicant suggests.

298    Secondly, as regards the applicant’s claim that the Commission could not have relied on AM’s actual market conduct, it should be noted that, as also stated in paragraph 283 above, the Commission is entitled to do so, in particular since, according to the Commission, that conduct shows, in the present case, that AM is not pursuing a strategy to maximise its market share, as is also apparent from the applicant’s internal documents (recital 1083) and from the statements obtained in the course of the Commission’s market investigation (recital 1101).

299    Furthermore, irrespective of whether the Commission’s finding in that regard contradicts its previous decision in the AM/Ilva case, it must be borne in mind that, as stated in paragraphs 66 to 69 above, the applicant cannot accuse the Commission of not having followed its previous decision-making practice in the contested decision by claiming that the Commission did not carry out the same assessment of the facts in the present case as in the case to which the applicant refers.

300    Thirdly, as regards the applicant’s claim that the Commission communicated its economic analysis, set out in recital 1095 of the contested decision, only in the final decision, it should be noted that the Commission’s economic analysis, which was developed in response to that of the parties, which appeared in the response to the statement of objections also containing economic data provided by the parties, was set out in full in its letter of facts (see Annex A.9, paragraphs 49 and 50). Accordingly, the applicant cannot reasonably maintain that it was able to take cognisance of the Commission’s analysis only in the contested decision.

301    In addition, it should be made clear that recital 1095 of the contested decision does not contain any new economic analysis by the Commission. It is clear from a straightforward reading of that recital that, in that recital, the Commission seeks to refute the parties’ argument in their reply to the letter of facts, without in any way altering the substance of its own analysis.

302    Furthermore, it must be observed that recital 1095 of the contested decision refers to the analysis set out in recitals 1088 to 1090 of that decision, which reformulate paragraphs 49 and 50 of the letter of facts, which confirms that recital 1095 adds nothing new to the Commission’s analysis. In that regard, it should also be pointed out that the applicant could have challenged the reasoning in recitals 1088 to 1090 during the administrative procedure. It follows that the Commission cannot be accused of having infringed the applicant’s rights of defence.

303    The applicant’s third complaint must therefore be rejected.

304    Moreover, as regards the applicant’s claim that the Commission wrongly concluded, in recital 1045 of the contested decision, that AM would not exercise any competitive constraint on the merged entity, the applicant has misinterpreted that recital. That recital does not state that AM would not exercise any competitive constraint on the merged entity, but rather that, although it had the necessary spare capacity to be able to react to any potentially negative effect of the transaction on competition, it would probably not be encouraged to use that capacity to counter any price increase by the merged entity post-transaction.

305    It follows that the applicant cannot accuse the Commission of having committed any procedural error, error of law or manifest error of assessment in the contested decision as regards the assessment of AM’s incentive to constrain a post-transaction price increase. Accordingly, since all three complaints put forward by the applicant in support of the second part of the third plea have been rejected, that part must be rejected in its entirety.

 The third part, concerning errors in the collection and assessment of data for automotive HDG

306    By the third part, the applicant submits, in essence, that the Commission’s assessment is based on erroneous capacity data and fundamental mathematical errors when calculating the Herfindahl-Hirschmann Index (‘HHI’) in relation to automotive HDG. This part is divided into six complaints.

–       The first complaint, alleging a methodological error in the determination of automotive HDG capacities

307    By the first complaint in the third part, the applicant submits that the Commission made three methodological errors when determining automotive HDG capacities.

308    First, the applicant asserts that aside being from unreliable external sources, namely plant facts, the data in Tables 13 to 16 of the contested decision do not determine automotive HDG production capacities, since they merely indicate the total capacity of each individual plant, without differentiating between customer industries. Notwithstanding, the Commission only investigated which of those plants were to be considered automotive HDG-capable and then calculated capacity shares based on the crude and wrong assumption that 100% of the capacity of each line that was generally capable of producing automotive HDG was available for the production of automotive HDG.

309    Secondly, the applicant claims that the Commission wrongly calculated automotive HDG capacity shares based on nominal capacity data. However, production lines capable of producing automotive HDG do not do so exclusively. The Commission acknowledges that in the contested decision, but fails to draw conclusions from it (recital 199).

310    The applicant alleges that the Commission calculated capacity shares for specific sub-segments of automotive HDG in recital 525 and Tables 14 to 16 of the contested decision, but failed to consider the fact that the demand for products from those sub-segments is substantially below capacity. As a result, capacity shares of those narrow product types are irrelevant, given that those production lines are never fully utilised.

311    The Commission disputes the applicant’s arguments and contends that this complaint should be rejected.

312    In that regard, first, as regards the applicant’s claim that the data in Tables 13 to 16 of the contested decision are based on the nominal capacity data for each relevant HDG as indicated in plant facts, it should be noted that, in recitals 521 and 522 of that decision, the Commission explained in detail the method used to estimate the shares of production capacity for automotive HDG. It thus stated that it engaged in a market reconstruction, including all key players in supplying automotive HDG, which represented roughly 97% of the relevant market. In addition, the Commission stated, in footnote 403 to that decision, without being contradicted by the applicant, that all the estimates of automotive HDG capacity in those tables were based on the most recently available data provided by each respondent in its market investigation. It follows that the applicant’s assertion that the data in Tables 13 to 16 are based on plant facts is manifestly incorrect.

313    Secondly, as regards the applicant’s claim that the Commission incorrectly calculated the shares of automotive HDG production capacity on the basis of data relating to nominal capacity, it should be noted that, in recitals 199 and 1062 of the contested decision, the Commission accepts that nominal capacity can never fully be used. However, it must be found that, in the absence of actual capacity data for all suppliers, the calculation of production capacity shares based on nominal capacity data may sufficiently contribute to a reasonable and relevant estimate in that regard, in particular since that applies equally to the production lines of the parties and to those of their competitors. It follows that the taking into account of data relating to nominal capacity cannot have a decisive effect on the calculation of capacity shares, with the result that the applicant’s claim is ineffective.

314    Thirdly, as regards the applicant’s claim that the Commission failed to consider the fact that the demand for products from automotive HDG sub-segments is below production capacity, it should be noted that such sub-capacity, which, moreover, exists for all the types of automotive HDG examined in the contested decision, is not relevant for the purposes of estimating the shares of production capacity.

315    In that regard, it should be noted that the Commission explained the reasons why it considered that the calculation of the shares of production capacity was relevant in the context of its control of the concentration. As the Commission stated in recitals 479 to 481 of the contested decision, capacity shares provide a direct indication of overall production possibilities at EEA level and, therefore, are an appropriate informative additional metric of market power in the flat carbon steel industry. In addition, capacity shares and variations thereof reflect lasting changes in the structure of an industry and the extent of such structural changes. The Commission also took into account the market shares of flat carbon steel suppliers in order to assess the size of that market most accurately. The applicant has not disputed those explanations, as a result of which its claim cannot succeed in that regard.

316    The applicant’s first complaint, in which it submits that the Commission made three methodological errors when determining automotive HDG capacity must be rejected.

–       The second complaint, alleging a manifest error of assessment in that legacy Ilva capacities were not properly taken into account

317    By the second complaint, the applicant submits that the Commission made a manifest error of assessment by failing properly to take into account, in Tables 13 to 16 in recitals 524 and 525 of the contested decision, the capacities of AM’s HDG production lines following the acquisition of Ilva’s production sites in Novi Ligure and Genoa (Italy). Irrespective of the decision in the AM/Ilva case, the Commission should have taken into account legacy Ilva capacities when calculating automotive HDG production capacities, since this is merely a numeric exercise, which it did not do, despite being reminded of this several times by the parties during the administrative procedure. The Commission merely noted, in recital 1102, that legacy Ilva assets did not alter its opinion concerning the competitive pressure exerted by AM.

318    The applicant concludes that, by disregarding the existing large legacy Ilva capacities, the Commission overlooked that, even when subtracting the capacities to be divested by AM as remedies following the AM/Ilva case, AM increased its total net HDG capacity by more than 1 Mt. The inclusion of those ignored capacities in the Commission’s competitive assessment therefore led to a further reduction of the parties’ combined capacity shares.

319    The Commission disputes the applicant’s arguments and contends that this complaint should be rejected.

320    In that regard, the Court notes that, as appears from recital 524 and Table 13 of the contested decision, that table is intended to present the results of the market investigation carried out by the Commission with regard to the nominal production capacity of automotive HDG which each steel supplier considered itself capable of producing. That recital also states that the parties’ combined market share in this respect would amount to [20-30]%, behind the market leader, AM, and be between two to three times larger than the capacity market share of the third largest producer post-transaction. In addition, recital 525 and Tables 14, 15 and 16 of that decision themselves concern the nominal production capacity shares of automotive HDG in a number of specific sub-segments of automotive HDG which that investigation identified as being particularly relevant for the automotive industry.

321    It is clear from a reading of recitals 524 and 525 of the contested decision and from Tables 13 to 16 that the Commission calculated the shares of nominal production capacity of automotive HDG, for use in the automotive industry, by relying on its market investigation concerning competitors’ capacities in that market. Those tables refer, in essence, to the applicant’s market share of automotive HDG, that of TSE, the combined market share of the parties and the overall market share of the other suppliers located in the EEA.

322    It is true that those tables do not reproduce the detailed calculation of the market share of each supplier of automotive HDG within the EEA and therefore do not indicate AM’s specific market share. However, that fact does not mean that the Commission did not take into account, when calculating the parties’ capacity shares, the capacities of the HDG production lines belonging to AM which AM acquired from Ilva. It should also be pointed out that the Commission’s analysis in those recitals and those tables related to the estimate of the parties’ market share and, in particular, their production capacity, with the result that it was not relevant to indicate in the abovementioned tables the market share of each automotive HDG supplier, in particular since the data relating to each market share were liable to be confidential.

323    In addition, it should be noted that the Commission stated that it asked AM to provide capacity data for all its automotive HDG production lines, including those that were acquired from Ilva, and it fully considered them in its analysis, which the parties’ advisers were able to verify during the administrative procedure.

324    In any event, the fact remains that the applicant, who is required to prove the error committed by the Commission, as indicated in paragraph 280 above, has not adduced prima facie evidence in support of that claim.

325    Moreover, even if the Commission had disregarded, in Table 13 of the contested decision, the production capacities of the plants acquired from Ilva, which, according to the data provided by the applicant in paragraph 78 of its application, amounted to more than 1 Mt, it must be observed that a recalculation of the shares of production capacity of automotive HDG, which includes an additional 1.1 Mt for the other suppliers in the EEA, which, as the applicant suggests in footnote 202 to its application, would not have had a decisive impact on the estimate of the parties’ nominal production capacity shares in that regard, as set out in that table. Such a recalculation would lower the combined market share of the parties by only 1%, thus raising it to [20-30]% rather than [20-30]%.

326    Furthermore, it should be noted that the applicant’s reference to recital 1102 of the contested decision is, as the Commission notes, beside the point. That recital concerns AM’s incentives to use Ilva’s assets and is irrelevant to the calculation of the parties’ production capacity shares referred to in recitals 524 and 525 and in Tables 13 to 16 of that decision.

327    It follows that the applicant cannot reasonably maintain that the Commission made a manifest error of assessment by failing to take into account properly, in Tables 13 to 16 in recitals 524 and 525 of the contested decision, the capacities of the HDG production lines acquired from Ilva by AM. The applicant’s second complaint must therefore be rejected.

–       The third complaint, alleging a manifest error of assessment in that Liberty House was not fully taken into account

328    By the third complaint, the applicant submits that the Commission made a manifest error of assessment in failing to take into account properly, inter alia in Table 13 of the contested decision, that Liberty House recently acquired substantial additional capacities capable of producing automotive HDG from AM. The Commission could not have been unaware of those additional capacities, since it accepted Liberty House as a ‘suitable purchaser’ in its clearance decision adopted in April 2019 in the AM/Ilva case. In that regard, the applicant claims that at least three of the seven lines acquired were capable of producing automotive HDG and that any non-automotive-capable HDG lines could be upgraded easily and cheaply to produce it. In addition, the capital assets for the production of HDG acquired by Liberty House are used to produce a total capacity of 2.7 Mt and should have been taken into account as future Liberty House capacities rather than as AM capacities.

329    Furthermore, according to the applicant, it follows that, when assessing the competitors’ ability to offset the negative effects of the concentration due to their limited spare capacity, the Commission was wrong not to mention, in recital 1058 of the contested decision, Liberty House as a ‘relevant competitor’ as regards the production of automotive HDG. In that regard, the applicant claims that, if the Commission wanted to argue that Liberty House was not one of the most relevant players for automotive HDG, it would have had to explain that its new HDG capacity was not higher or as high as the capacities of any of the other major players it considered, including TSE.

330    Moreover, the applicant claims that there is a contradiction with the Commission’s decision in the AM/Ilva case, in which it accepted Liberty House as a ‘suitable purchaser’. Furthermore, the applicant considers that the Commission cannot maintain that it only considered the general HDG market in that case and not the relevant submarket for automotive HDG, since automotive HDG is the first largest segment in HDG, so that any assessment applicable to the HDG would cover automotive HDG.

331    In addition, in its reply, the applicant requested, ‘in light of the relevance and seriousness of the misrepresentations of facts and evidence by the [Commission]’, that the Court adopt a measure of organisation of procedure under Article 88 of the Rules of Procedure, requesting the Commission to produce:

–        ‘all relevant remedies-related notifications by AM and/or [Liberty House] in cases M.8444 and M.9172’;

–        ‘[its] decision and all underlying documents to approve [Liberty House] as a suitable buyer in case M.8444 on 17 April 2019 for [the] Court’s inspection’.

332    The Commission disputes the applicant’s arguments and contends that this complaint should be rejected.

333    In that regard, it should first be noted that, as Liberty House itself confirmed in the context of the Commission’s market investigation (see Annex B.2), that company did not supply the automotive HDG market prior to its acquisition of the assets divested by AM in July 2019. In addition, it must be found that the applicant’s claim that three of the seven production lines acquired by Liberty House were automotive HDG capable is not sufficiently substantiated. The applicant does not specify which steel products the respective facilities supply to automotive customers, since those customers not only source automotive HDG, but also other types of steel, such as HRC and Cold Rolled Coils, as is apparent from that investigation.

334    In addition, it is to be noted that, in any event, the fact that Liberty House acquired certain assets capable of producing automotive HDG does not necessarily and automatically make it a relevant competitor in the automotive HDG market. As stated in paragraphs 79 to 82 above, the requirements to be an effective competitor as regards automotive HDG are more stringent than for the production of HDG or of any other market for steel products. As appears from recitals 558 to 753 of the contested decision, production capacity alone is not sufficient to supply customers in the automotive industry – a supplier needs, inter alia, to have access to adequate substrate, to possess technical capabilities, to be homologated by those customers, to have sufficient scale and to be able to offer a wide portfolio of automotive steel products to them.

335    Even after the acquisition of the assets divested by AM, Liberty House could not automatically and immediately fulfil those requirements.

336    As regards, in particular, the need for each production line and automotive HDG product finished on those lines to be homologated by each car producer, it should be noted that, since Liberty House did not manufacture automotive HDG, nor automotive EG, in the EEA prior to its acquisition of the divested assets, it had not been homologated by any car producer. Liberty House would not be able to supply automotive customers without a lengthy and onerous homologation process, as appears from recitals 170 to 175 of the contested decision. The parties themselves explained that such a process takes between three months to a year for non-structural components and up to two years for safety-critical components (recital 173).

337    Furthermore, the homologation of each customer relates not only to the relevant production lines, but also to the entire value chain, from liquid steel to the final product supplied (recitals 171 and 172). It follows that, contrary to what the applicant claims, any line incapable of producing automotive HDG could not be upgraded easily and cheaply in the short term to supply automotive HDG which would be able to meet the strict requirements set out in recitals 558 to 753 of the contested decision. Moreover, the applicant has not shown that the production lines acquired by Liberty House met those requirements.

338    Moreover, even if the Commission had disregarded, in Table 13 of the contested decision, the additional production capacities of the plants acquired by Liberty House, which, according to the data provided by the applicant in paragraph 79 of its application, amounted to less than 2.7 Mt, it must be observed that a recalculation of the shares of capacity of automotive HDG, which includes that additional amount for the other suppliers in the EEA, which, as set out in paragraph 325 above, would not have had a decisive impact on the estimate of the parties’ nominal capacity shares in that regard, as set out in that table. That recalculation would reduce the parties’ combined market share by only a marginal percentage.

339    Furthermore, as regards the applicant’s contention that the Commission was wrong not to mention, in recital 1058 of the contested decision, Liberty House as a ‘relevant competitor’ as regards the production of automotive HDG, it should be noted that, in that recital, the Commission stated that it focused its assessment of spare capacities of competitors on the most relevant players in the automotive HDG market in addition to the parties, namely AM, Voestalpine, Salzgitter and SSAB. In addition, it should be noted that, in recitals 771 to 795 of that decision, the Commission detailed why those suppliers should be considered the most relevant players in that market.

340    In the light of what has been stated in paragraphs 334 and 335 above, the Commission cannot be criticised for having omitted to mention Liberty House as a ‘relevant competitor’ as regards the production of automotive HDG, in the contested decision, delivered on 11 June 2019, given that Liberty House could certainly not be regarded as such a competitor at that date, which predates the acquisition by a number of weeks of the assets sold by AM. Furthermore, the Commission was not required to show that Liberty House’s capacity was not as high as that of one of the major automotive HDG suppliers, contrary to what the applicant claims. As also stated in those paragraphs above, production capacity alone is not sufficient to be an effective competitor for automotive HDG; it is still necessary to satisfy other conditions, such as that of homologation by automotive customers.

341    In addition, as regards the applicant’s claim that the contested decision contradicts the Commission decisions in Cases M.8444 AM/Ilva and M.9172 Liberty House/AM, in which it approved Liberty House as a ‘suitable purchaser’, the fact remains, in any event, that those decisions do not concern the market for automotive HDG, as in the present case. It is apparent from the Commission’s examination of Liberty House’s approval as a suitable purchaser in those decisions (see recital 101 et seq. of the decision in Case M.8444), that Liberty House produces steel of types other than the automotive HDG, such as HRC, Cold Rolled Coils or GS in general, but it never specifies automotive HDG, which requires a series of strict conditions to be met in order to be classified as such, as pointed out in paragraphs 334 and 335 above. That examination does not therefore include any assessment of whether Liberty House is a supplier capable of producing automotive HDG in the EEA.

342    Accordingly, contrary to what the applicant claims, there can be no contradiction with the Commission’s decisions in those cases, irrespective of what exact share automotive HDG forms in the larger market for HDG, since Liberty House was, in any event, not present in the market for automotive HDG.

343    Furthermore, as regards the applicant’s request for a measure of organisation of procedure, it must be held that that request is inadmissible, since it was made late after the first exchange of pleadings and without any reasonable explanation as to why it could not have been presented earlier, contrary to the second sentence of Article 88(2) of the Rules of Procedure.

344    Moreover, it must be pointed out that the Court is the sole judge of whether the information available to it concerning the cases before it needs to be supplemented (see judgment of 24 September 2009, Erste Group Bank and Others v Commission, C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P, EU:C:2009:576, paragraph 319 and the case-law cited). In the light of the considerations set out in paragraphs 341 and 342 above, it is not necessary to adopt the measures of organisation of procedure requested by the applicant. The disclosure of the documents requested by the applicant concerns Cases M.8444 AM/Ilva and M.9172 Liberty House/AM, which do not concern the automotive HDG market, at issue in the present case. In any event, the Court considers that it has sufficient information from the documents in the file in that regard.

345    It follows from all those considerations that the Commission was not required to take into account Liberty House’s additional production capacities acquired from AM and that the applicant’s arguments in that regard are not capable of calling that finding into question. In that context, it must also be held that it is not necessary to adopt the measures of organisation of procedure requested by the applicant.

346    The applicant’s third complaint must therefore be rejected.

–       The fourth complaint, alleging an error in that the Commission concluded that steel manufacturers other than AM did not have spare capacity

347    By the fourth complaint, the applicant claims, in essence, that the Commission made a manifest error of assessment, in recitals 1035 and 1045 of the contested decision, in stating that, with the exception of AM, the parties’ competitors in the automotive HDG sector do not have any spare capacity, and consequently would not be able to counter a potential price increase by the parties post-transaction. The first ‘data room’ report (Annex A.13) demonstrates that a number of competitors, in addition to AM, would also be able to compete against the merged entity, since they have significant capacity to produce automotive HDG or EG.

348    Moreover, the applicant submits that that first report further demonstrates that the majority of spare capacity in HRC is held by competitors other than AM, and that such spare capacity is more than four times the amount of spare capacity held by those competitors downstream. Competitors other than AM have the technical capability and spare capacity to produce automotive HDG. In addition, at least three other competitors, other than the parties and AM, actively compete for automotive volumes in the EEA. Therefore, the competitive pressure in automotive HDG posed on the parties by competitors other than AM cannot be discounted. The Commission therefore committed a manifest error of assessment in concluding in recital 1039 of the contested decision that the only spare capacity was ‘in the hands’ of the parties and AM.

349    The Commission disputes the applicant’s arguments and contends that this complaint should be rejected.

350    In that regard, it should be noted that, beyond the absence of sufficient spare capacity of competitors other than AM in respect of automotive HDG, the contested decision gave a detailed analysis of the reasons why those other competitors were not able to constrain sufficiently the merged entity to offset the negative effects of the transaction on competition in the market for automotive HDG in the EEA. The Commission found, inter alia, in that decision that there are barriers to entry and expansion (recitals 1065 to 1080) and that competitors have limited ability to reorient production from non-automotive products to automotive HDG (recitals 1107 to 1127).

351    It should also be noted that, in recitals 1035 to 1064 of the contested decision, the Commission found that competitors other than AM do not have sufficient spare capacity to offset the negative effects of the transaction. In particular, the Commission explained, in recitals 1036 to 1046 and 1049 to 1052 of the contested decision, that only AM would have the necessary spare capacity to counter a price increase by the merged entity for automotive HDG. In that regard, it is to be noted that that assessment is based on the quantitative data received from other suppliers in the course of the Commission’s market reconstruction, on statements by market participants and on the parties’ internal documents. It should also be noted that, in recitals 1053 to 1063 of that decision, the Commission addressed and dismissed the arguments raised by the parties during the administrative procedure.

352    It should be pointed out in that regard that the Commission does not state, in those recitals of the contested decision, that the parties’ competitors other than AM, which are active in the production of automotive HDG, do not have spare capacity. The Commission states, by contrast, that those competitors do not have the capacities necessary to counter any price increase in automotive HDG by the merged entity and that AM alone is in a position to do so. Consequently, the applicant misinterprets the contested decision when it argues that, in recital 1039 of that decision, the Commission concluded that the only spare capacity of the parties and AM was ‘in the hands of’ the parties and AM. That recital states that ‘EEA spare capacity in automotive HDG would post-Transaction largely be in the hands of only [AM] and the Parties, as also confirmed by market participants in the investigation’.

353    In addition, it must be found that the arguments put forward by the applicant in connection with the fourth complaint are essentially based on the nominal capacities of competitors other than AM, to which the parties’ economic advisers had access in two ‘data room’ exercises organised during the administrative procedure. It should be noted in that regard that, as was stated in recital 1096 of the contested decision, those advisers had access during those two data room exercises to the figures relating to the nominal and effective capacity of all competitors, except those relating to the effective capacity of a competitor, which is not disputed by the applicant.

354    However, it is common ground that nominal capacities are higher than effective capacity, since the latter generally take account of intrinsic technical constraints, but also operational and commercial constraints, such as employment legislation and an efficient use of production lines for profit maximisation. As noted by the applicant itself (see paragraph 74 of the application), not all nominal capacity is fully available for the production of automotive HDG. Although the use of nominal capacity does not have a decisive influence on the calculation of production capacity shares (see paragraph 313 above), it is more appropriate, for the purposes of assessing market participants’ effective spare capacity, in the normal course of business in the relevant market, in reacting to a potential increase in prices in that market, to take account of effective spare capacity rather than nominal capacity, in particular since the parties had access to all of those data.

355    In addition, the Commission was fully entitled to state, in recital 1055 of the contested decision, that ‘the Parties appear to have assumed – in contradiction with their own criticism of doing so – that 100% of an asset’s nominal capacity could be used to produce any given automotive HDG product, without taking into account the fact that effective capacity w[ould] vary significantly in particular in view of actual product mix [and that] they appear to have assumed that an automotive HDG line could make any automotive HDG product; which [was] not the case in view of differentiated technical capabilities’.

356    Similarly, it is to be noted that, as the Commission set out in recitals 1107 to 1127 of the contested decision, without being challenged on that point by the applicant, competitors other than AM had only limited capacity to reorient part of their non-automotive production to automotive HDG. This was explained by the limited access to substrate of adequate quality in sufficient volumes and the need to manage a balanced production mix thus could not overly rely on a single customer group. Therefore, because of those difficulties of reorientation, the nominal capacities of those competitors could not be taken into account in the analysis of their spare capacities and considered as immediately effectively available.

357    It follows that the Commission’s findings on the basis of the analysis of the spare capacity of competitors other than AM, which is based on those competitors’ actual capacity, cannot be validly challenged by the applicant’s allegations, which, on the contrary, are based on an analysis of the nominal spare capacity of those competitors, which therefore does not take account of their actual spare capacity. Consequently, the applicant’s claim that those competitors have significant production capacities of automotive HDG is not sufficiently substantiated and therefore cannot succeed.

358    In addition, as regards the applicant’s allegation that spare capacity in HRC is held by competitors other than AM, it is to be noted that that allegation concerns HRC, and thus not automotive HDG, the capacity analysis of those competitors of which is at issue in this complaint. Moreover, even if competitors other than AM did have the technical capacity and spare capacity to produce automotive HDG on that basis, it has been shown, in particular in paragraph 335 above, that that could not be done easily and cheaply in the short term. It follows that the applicant’s allegation concerning HRC is irrelevant.

359    As regards the applicant’s claim that at least three other competitors, other than the parties and AM, actively compete for automotive volumes in the EEA, it must be pointed out that, in the context of the examination of the competitive pressure exerted on the parties by competitors other than AM and, in particular, of the analysis of the capacity of those competitors in the automotive HDG sector, it is not relevant whether there is competition as such, as the Commission acknowledges, but rather whether, after the transaction, those competitors will be able to exert a sufficient constraint on the merged entity to offset the negative effects resulting from that transaction on competition and to prevent it from increasing prices in the EEA market for automotive HDG.

360    That is not the case here. As the Commission explained in recitals 771 to 785 of the contested decision, without being challenged by the applicant, the other suppliers of automotive HDG were ‘niche players’ who produced much less than AM and the parties and who were limited by much lower steelmaking capacities than those of AM and the parties. In addition, those other undertakings generally offer a more limited portfolio of automotive HDG.

361    It follows that, contrary to what the applicant claims, the Commission did not commit a manifest error of assessment in concluding, in recitals 1035 and 1045 of the contested decision, that competitors active in the automotive HDG sector in the EEA other than AM would unable to undercut a possible price increase by the merged entity. The applicant’s fourth complaint must therefore be rejected.

–       The fifth complaint, alleging a methodological error in excluding import capacity

362    By the fifth complaint, the applicant claims, in essence, that, in recital 494 et seq. of the contested decision, the Commission made an error in the capacity data, in so far as those data cover only assets located in the EEA, despite the parties providing EEA and non-EEA capacity data. This leads to an overestimation of the parties’ true market position and ignores the fact that non-EEA producers have significant capacity for the production of automotive HDG to supply EEA customers. Even if it were assumed that the automotive HDG market is only EEA-wide, capacity shares taking into account only EEA-based assets do not reflect the actual market position of the parties and their competitors because they exclude imports and capacities of exporters from non-EEA countries.

363    In addition, the applicant maintains that that error is exacerbated by the fact that the contested decision relied heavily on distorted capacity data in order to assess the parties’ market positions. Section 9.4.3.6. of that decision, in which the Commission claims that ‘competitors would have limited incentives and ability to offset negative effects resulting from the Transaction’ is based on unreliable data and ignores the fact that the Commission’s calculation method excludes imports and relevant non-EEA capacities.

364    The Commission disputes the applicant’s arguments and contends that this complaint should be rejected.

365    In that regard, it should be noted, as appears from the examination of the second plea in law set out above, that the Commission was fully entitled to find, in recital 456 of the contested decision, that the geographic market at issue for the production and supply of automotive HDG was EEA-wide, and there was even differentiation within the EEA. It follows that only automotive HDG capacity located in the EEA is relevant for determining the capacity shares for automotive HDG.

366    Market shares must be calculated in accordance with the definition of the relevant market. Therefore, in calculating capacity shares, the Commission did not err, in recital 494 et seq. of the contested decision, in considering only capital assets in the EEA regardless of where the production from those assets was sold. Similarly, in the calculation of market shares, the Commission was entitled to confine itself to considering only sales in the EEA, regardless of where the assets producing the sold products were located. The applicant’s criticism therefore cannot be successful in that regard.

367    Nor can the Commission be criticised for having ignored competition resulting from automotive HDG imported from outside the EEA. It must be held, as is apparent from recitals 471 to 481 and 520 to 536 of the contested decision, that the Commission relied not only on production capacity shares but also on market shares in order to capture the full market power of suppliers. It therefore sufficiently took account of competition from automotive HDG imports from outside the EEA. In that regard, it should be noted that, in addition to taking imports into account in the calculation of market shares, the contested decision also includes, in recitals 967 to 1033, a detailed analysis of the limited constraint exerted by those imports on EEA suppliers. The applicant’s criticism cannot therefore be successful in that regard.

368    In addition, as regards the applicant’s criticisms concerning the reliability of the capacity data and calculation methodology, it should be noted that the applicant’s arguments in that regard have already been rejected in paragraphs 312 to 316 above in the examination of the first complaint in the third part of the third plea. Reference is therefore made to those paragraphs.

369    It follows that, contrary to what the applicant claims, the Commission did not err, in recital 494 et seq. of the contested decision, in the data relating to production capacity or in the methodology for calculating it. The applicant’s fifth complaint must therefore be rejected.

–       The sixth complaint, alleging errors in the calculation of the HHI

370    By the sixth complaint, the applicant submits that, in Table 8 of the contested decision, the Commission made errors in calculating the pre- and post-transaction HHI in relation to automotive HDG based on sales (2017). It criticises the Commission for having treated the aggregate market share accounted for by multiple importers as the share of an individual supplier ([10-20]%), which is clearly wrong and misleading, since that share is in fact accounted for by numerous smaller non-EEA suppliers who do not coordinate competitive behaviour.

371    Moreover, the Commission’s approach distorts the HHI test, which is precisely meant to give weight to all remaining firms in the industry and not meant to review them in ‘groupings’. Furthermore, the applicant claims that it is clear from paragraph 16 of the Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (OJ 2004 C 31, p. 5; ‘the Horizontal Merger Guidelines’) that those guidelines do not allow for a summing up of market shares of small players, but rather envisage disregarding such players altogether if no specific information is available.

372    According to the applicant, those errors in the calculation of the HHI result in a substantial overstatement of the degree of concentration in the relevant market. Had the Commission not ‘merged’ several players to one, the HHI for HDG would have been 1 821 pre-transaction and 2 013 post-transaction, with a delta of 192, before any remedies. The contested decision states that those are, respectively, [confidential] with [confidential] delta.

373    The Commission disputes the applicant’s arguments and contends that this complaint should be rejected.

374    In that regard, as regards the HHI, it should be made clear that paragraph 16 of the Horizontal Merger Guidelines states as follows:

‘In order to measure concentration levels [of a particular market], the Commission often applies the [HHI]. The HHI is calculated by summing the squares of the individual market shares of all the firms in the market … The HHI gives proportionately greater weight to the market shares of the larger firms. Although it is best to include all firms in the calculation, lack of information about very small firms may not be important because such firms do not affect the HHI significantly. While the absolute level of the HHI can give an initial indication of the competitive pressure in the market post-merger, the change in the HHI (known as the “delta”) is a useful proxy for the change in concentration directly brought about by the merger …’

375    It follows from paragraph 16 of the Horizontal Merger Guidelines that the HHI is used as the measure of the degree of market concentration in assessing potential anticompetitive effects of a merger. According to the HHI formula to which paragraph 16 refers, that index is calculated on the basis of a weighting of the individual market shares of all the firms in the relevant market.

376    In that regard, it is to be noted that, as appears from paragraph 16, although lack of information about very small firms may not be important, the fact remains that it is best to include all firms in the calculation of the HHI if the Commission has relevant data on those undertakings. That is so in the present case for importers, since the Commission was, in Table 8 of the contested decision, able to determine an aggregate market share for the importers of [10-20]%. If the level of concentration in the relevant market is not to be underestimated, it is necessary to take into account all the undertakings whose data are available rather than omitting them from the calculation of the HHI.

377    However, irrespective of whether, in the calculation of the HHI, the Commission was required to take into consideration all the undertakings present in the relevant market individually, as the applicant claims, or whether, on the contrary, it was able to proceed in a global manner, as it did in Table 8 of the contested decision in respect of importers, it must be found that the calculation of the HHI in Table 8 has no impact in the present case on the Commission’s assessment of the impact of the transaction on competition in respect of the automotive HDG which is at issue in the present plea.

378    First, the values of the HHI referred to in recital 484 and in Table 8 of the contested decision concern the HDG market as a whole and not the market of automotive HDG specifically at issue in the present plea.

379    Secondly, even if one were to accept the calculation proposed by the applicant, which is based on the assumption that there is no need to group several players into one and which suggests that the HHI in the HDG market would have been 1 821 pre-transaction and 2 013 post-transaction, with a 192 delta, the HHI levels and increment for HDG still exceed the thresholds, set out in paragraphs 19 to 21 of the Horizontal Merger Guidelines, above which there may be horizontal competition concerns in the relevant market, as is also the case in the Commission’s calculation.

380    In that respect, it should be noted that paragraphs 19 to 21 of the Horizontal Merger Guidelines essentially define the HHI thresholds below which a merger is unlikely to give rise to competition concerns. Thus, in those paragraphs, the Commission considers, in particular, that a merger is unlikely to raise horizontal competition concerns in a market with a post-transaction HHI between 1 000 and 2 000 and a delta below 250, or where a post-transaction HHI is above 2 000 and the delta below 150, save in exceptional circumstances. However, above those thresholds, HHI values are likely to indicate competition problems.

381    If an HHI of 2 013 and a delta of 192 were assumed post-transaction, as calculated by the applicant, it must be concluded that the thresholds set out in paragraphs 19 to 21 of the Horizontal Merger Guidelines would be exceeded. Therefore, even if the applicant’s calculations are correct, the difference from the calculations made in the contested decision cannot be decisive, such as to affect the Commission’s assessment of the impact of the transaction on competition in the market for HDG, which is the subject of the calculations in question, which, moreover, differs from the market contested in the context of the present plea, as reiterated in paragraphs 377 and 378 above. Furthermore, it should be pointed out that, both in the Commission’s calculation and in that of the applicant, the delta between the HHI pre- and post-transaction [confidential], which means that there is also no difference in that regard between the two calculations.

382    It follows that the applicant’s claim that the Commission’s errors in the calculation of the HHI in respect of the market for HDG result in a substantial overstatement of the degree of concentration in the market for automotive HDG cannot, in any event, succeed.

383    Therefore, the applicant’s sixth complaint, alleging errors in the calculation of the HHI, as presented in Table 8 of the contested decision, must be rejected as ineffective.

384    In the light of all the foregoing considerations, it must be held that the applicant cannot reasonably criticise the Commission for erring, in the contested decision, in the collection and evaluation of data relating to production capacities in the market for automotive HDG, and in the calculation of the HHI in that market. Accordingly, since all six complaints put forward by the applicant in support of the third part of the third plea have been rejected, that part must be rejected in its entirety.

 The fourth part, concerning errors in concluding that the applicant and TSE are important competitors in the automotive HDG sector

385    By the fourth part of the third plea, the applicant submits, in essence, that the contested decision’s assessment of the importance of vertical integration and the parties’ capabilities is undermined by several manifest errors of assessment. That part is divided into nine complaints.

386    As a preliminary matter, it should be noted that, as stated, inter alia, in paragraph 33 et seq. above, according to settled case-law, the basic rules on control of concentrations, and, in particular, those concerning the appraisal of concentrations such as those laid down in Article 2 of Regulation No 139/2004, confer on the Commission a measure of discretion, in particular for assessments of an economic nature. Consequently, review by the EU judicature of the exercise of that discretion, which is essential for defining the rules on concentrations, must take account of the discretionary margin implicit in provisions of an economic nature that form part of the rules on concentrations.

387    It is therefore in the light of those considerations that the applicant’s complaints under the fourth part of the third plea must be examined.

–       The first complaint, based on the importance of vertical integration

388    By the first complaint, the applicant criticises the Commission for not examining the observations made by the parties in the response to the statement of objections. By contrast, the Commission allegedly relied extensively on the unsubstantiated views of a competitor with its own agenda (Salzgitter) and on selective quotations from market participants while ignoring any statements which run contrary to its theory. In addition, the Commission also relied on questionnaires to market players containing a number of pointed, closed, and leading questions, in particular questions 12 to 14 and 34 of Questionnaire 1 and questions 7, 21 and 23 of Questionnaire 3.

389    Furthermore, the applicant criticises the Commission for applying a purposive interpretation to the responses to those market questionnaires, for example by conflating the concept of control with full vertical integration, in recital 580 of the contested decision. Similarly, the Commission distorted the results of question 24 of Questionnaires 12.a and 12.b, asking if the parties and AM were able to meet the addressee’s needs for the supply of automotive HDG, by finding, in recital 744 of that decision, that ‘this statement was agreed to by all respondents providing a non-confidential response’, but omitted to specify that less than 60% of respondents provided a non-confidential response. Furthermore, the Commission takes irrelevant documents, which have been taken out of context, as purported evidence, such as Figures 85 to 87 of the decision.

390    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

391    In that regard, it must be found that the Commission did not ignore the observations made by the parties in the response to the statement of objections. The Commission examined those observations, as is apparent from its response to them in recitals 568 to 572, 595 to 601 and 609 to 613 of the contested decision. The Commission was nevertheless fully entitled to take the view that those observations were not convincing, having regard to all the evidence made available to it. As regards the applicant’s allegation that the Commission relied extensively on the unsubstantiated views of a competitor (Salzgitter), it should be made clear that the applicant does not specify to what extent the Commission relied on that competitor’s statements or why those statements were not substantiated.

392    Moreover, it must be found that the Commission did not ask misleading questions in the questionnaires it sent to market participants during its market investigation. The questions in connection with the importance of vertical integration probed the relevance of product characteristics that were indicated by those market participants or by the parties themselves. In particular, questions 12 to 14 and 34 of Questionnaire 1 (Annex A.4a) and questions 7, 21 and 23 of Questionnaire 3 (Annex A.4c) cannot be regarded as pointed, closed or leading. Those questions invite a reasoned answer in which the respondents could specify that certain product characteristics were not relevant, or are accompanied by follow-up questions that allow further explanation to be added, as is the case of question 34.

393    In addition, as regards the applicant’s claim that the Commission applied a purposive interpretation to the responses to those market questionnaires, by conflating the concept of control of the production chain with full vertical integration, in recital 580 of the contested decision, it should be noted that, in that recital, the Commission asserted that it never claimed that vertical integration was the only possible way to secure control of the entire production chain. However, that assertion notwithstanding, the fact remains that the Commission was entitled to find, as it did in recital 601 of the contested decision, that vertical integration is particularly important for high-quality products such as automotive HDG, since it was justified in relying, in recitals 573 to 600 of that decision, on a detailed and adequate assessment of the advantages of vertical integration, and that those advantages were precisely referred to not only by the market participants in the market investigation but also by the parties in the administrative procedure.

394    In that regard, it is to be noted that that convincing and relevant analysis by the Commission has not been challenged by the applicant in a sufficiently substantiated and detailed manner. The applicant has not, in any event, been able to prove the contrary. The Commission cannot therefore be criticised for erring in that analysis or for having misinterpreted or distorted the results of the market investigation in that regard.

395    Similarly, as regards the applicant’s claim that the Commission distorted the results of question 24 of Questionnaires 12.a and 12.b (Annexes A.4f and A.4g), it should be noted that in recital 744 of the contested decision the Commission referred to ‘all respondents providing a non-confidential response’ in asserting, in that recital, that the investigation had directly confirmed that automotive customers considered that the parties and AM were able to address their ‘EEA needs to an extent not possible for other suppliers’.

396    In that regard, it should thus be noted that, first, the Commission based its conclusion solely on the non-confidential replies and that, secondly, even taking into account only the non-confidential replies, the Commission’s assertion in recital 744 of the contested decision is supported by a majority of respondents, since even the applicant accepts that approximately 60% of respondents provided a non-confidential response (see paragraph 90 of the application).

397    Accordingly, that claim by the applicant cannot validly succeed.

398    Furthermore, as regards the applicant’s claim that Figures 85 to 87 of the contested decision are irrelevant, the Court finds that that is not the case.

399    Figures 85 and 86 of that decision explicitly confirm that [confidential], namely the upstream substrate, may leverage in order to grow [confidential].

400    As far as concerns Figure 87, the Commission referred to it to support the finding that integration enables optimisation of production across the network, [confidential].

401    Accordingly, that claim by the applicant also cannot validly succeed.

402    In the light of those considerations, the applicant’s first complaint must therefore be rejected.

–       The second complaint, based on the upstream market for HRC

403    By the second complaint, the applicant submits, in essence, that the Commission cannot assert that the parties control HRC capacity, in order to reinforce or exacerbate competitive concerns identified in a downstream market, and thus to rely on ‘the strength of the Parties due to their significant upstream presence’ (recital 608 of the contested decision). This is not compatible with the fact that, first, the Commission has made no formal finding of an SIEC in the upstream HRC market and, secondly, it has not considered competitive conditions in the HRC market further because there were no competitive concerns identified in that market, as the Commission stated in recital 610 of that decision.

404    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

405    In that regard, it should be made clear that the Commission notes, in recital 610 of the contested decision, that it never concluded ‘that the merger will not result in a significant impediment to effective competition (“SIEC”) in the HR[C] market’. In addition, in that recital, the Commission states that it was not necessary to discuss further the market for HRC separately, as it had explained in recital 94 of that decision.

406    First, it follows that the Commission did not in fact make any formal finding in the contested decision of an SIEC in the HRC market. However, it must be pointed out that the applicant does not explain why such a finding would be required for the contested decision to make the point that the parties’ presence in this upstream market, and thus their vertical integration, would give them an advantage in the downstream market for automotive HDG. Secondly, the Court finds that the applicant ignores recitals 563 to 572, 609 to 613, 666 to 669 and 1041 to 1044 of the contested decision where the Commission considered the competitive conditions in the HRC market.

407    Accordingly, the applicant cannot criticise the Commission for having contradicted itself in asserting that the parties control HRC capacity, which reinforces or exacerbates competitive concerns identified in a downstream market, and referring to ‘the strength of the Parties due to their significant upstream presence’ in recital 608 of the contested decision. The applicant’s second complaint must therefore be rejected.

–       The third complaint, based on the analysis of the technical capacities of the parties

408    By its third complaint, the applicant submits that the assessment of the technical capabilities of the parties in recitals 636 and 669 of the contested decision is manifestly inadequate.

409    First, with respect to ‘wide widths’, the applicant notes that the contested decision conducts no analysis of the projected demand for widths wider than 1 850 mm as compared to levels of supply, and provides no analysis as to whether the merged entity could increase prices in wide widths or whether it would continue to be constrained by wide widths of less than 1 850 mm. Furthermore, that decision provides no explanation as to how the merged entity could have been able to leverage such apparent strength in wide widths. Moreover, that decision allegedly provides no consideration of the parties’ arguments made in the response to the statement of objections, including that wide widths are not necessary for an OEM.

410    Secondly, with respect to ‘thinner zinc coatings’, the applicant notes that the contested decision asserts, in recital 656, that [20-30]% of automotive HDG production lines that meet the automotive industry’s coating and oiling requirements are currently in the hands of the parties, but does not explain what those requirements actually are, or how the figure of 29% is arrived at. In any case, that decision does not explain how or why this could lead to the merged entity being able to increase prices.

411    In addition, the contested decision accepts that a line not yet capable of meeting automotive demands could be upgraded at a cost of only EUR [confidential], a very small investment in the context of the steel industry. Furthermore, the statement in recital 655 of the contested decision that ‘in view of the necessary investments in particular chemicals, it is likely that only a limited number of HDG producers in the EEA have access to these special oils’ is not based on any evidence and is factually inaccurate.

412    Thirdly, with respect to ‘steel surface requirements, and higher and better controlled production temperatures’, the applicant alleges that the analysis of the contested decision is replete with the same types of error.

413    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

414    In that regard, it should be made clear that recitals 636 to 669 of the contested decision seek to establish that only the parties and AM have all technical capabilities required to meet automotive customers’ demand. The purpose of those recitals is not therefore to define separate markets for products with wide widths, thinner zinc coatings or particular oiling, or with surface or temperatures requirements. Consequently, contrary to what the applicant claims, it is not relevant whether the parties would be able to raise prices for products with such characteristics.

415    In any event, it must be held that the applicant’s claims cannot validly succeed.

416    First, as regards ‘wide widths’, it must be found that, in recitals 640 to 650 of the contested decision, the Commission examined the observations made by the parties in the response to the statement of objections. Thus, the Commission states, inter alia, in recital 641 of that decision, that the parties’ strengths in ‘wide widths’ could be exploited, because they are necessary to cover the full spectrum of automotive HDG products and states, in recital 647 of the decision, that wider coils may represent a not insignificant weight of certain vehicle classes. The applicant cannot therefore criticise the Commission for failing to explain how the merged entity could take advantage of that strong position in respect of ‘wide widths’.

417    Secondly, as regards ‘thinner zinc coatings’, it is to be noted that it is clear from the face of recital 656 of the contested decision that the Commission arrived at the figure of [20-30]% by taking into account all production lines in the EEA which met the automotive industry’s coating and oiling requirements. In that regard, the applicant cannot claim that it does not see what those requirements relate to, since it replied without difficulty to the question raised in that regard by the Commission during the administrative procedure (see Annex A.14, p. 6116).

418    In addition, as appears from recital 656, the cost of EUR [confidential] to which the applicant refers concerns upgrading coating and oiling capacity, rather than the full HDG production line for use in the automotive industry. Moreover, as the Commission rightly maintains, the statement in recital 655 of the contested decision is supported by TSE’s internal document in Figure 97 [confidential].

419    Thirdly, with respect to ‘steel surface requirements, and higher and better controlled production temperatures’, it is to be noted that the applicant’s claim criticising the analysis in the contested decision as being vitiated by errors in that regard is not substantiated and must therefore be rejected.

420    In the light of all those considerations, it must be held that none of the arguments put forward by the applicants in support of the third complaint can validly succeed. Accordingly, that complaint must be rejected.

–       The fourth complaint, based on the number of players of scale in the EEA automotive HDG market

421    By the fourth complaint, the applicant submits that the evidence in Figure 100 of the contested decision does not support a finding that the parties and AM are the only players of scale and/or ‘scope’ in the EEA market for automotive HDG. The applicant claims, on the contrary, that that evidence shows that [confidential] of the 18 automotive customers surveyed by the Commission source GS from at least [confidential] different suppliers; and at least [confidential] of those competitors has higher sales volumes of automotive HDG than TSE, across all 4 years for which data are available.

422    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

423    In that regard, the Court finds that, as the applicant has pointed out, Figure 100 of the contested decision shows that [confidential] of the 18 automotive customers surveyed by the Commission source GS from at least [confidential] different suppliers, which the Commission also accepts. However, the Court notes that, as appears from Section 9.4.3.2. of that decision, relating to the size and capacity of the parties and of AM, those other suppliers are not in a position to meet the needs of customers in full, as the parties and AM would do (see recitals 688 and 691). It follows that, for that reason in particular, those suppliers cannot be capable of exerting a constraint on the merged entity in the EEA market for automotive HDG.

424    The applicant’s complaint cannot therefore reasonably succeed and must be rejected.

–       The fifth complaint, based on the assessment of network benefits and economies of scale

425    By the fifth complaint, the applicant claims that the assessment in the contested decision of purported scale and network benefits is replete with unsubstantiated statements. For example, in recital 716 of that decision, the Commission asserts that ‘only the three large players have a sufficient number of production facilities and sufficient geographic coverage across the EEA to be able to optimise production and supply to their automotive customers – generating a competitive advantage – and also to deal with unexpected production difficulties’. The contested decision does not explain at what stage the number of production facilities or geographic coverage becomes ‘sufficient’. No evidence at all is provided for that assertion.

426    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

427    In that regard, it should be noted that the applicant cannot validly maintain that the Commission failed to substantiate, in the contested decision, the findings on which the assessment of network benefits and economies of scale is based. Aside from recital 716 of that decision, to which the applicant refers and which is itself sufficiently substantiated, in recital 717 et seq. of that decision, the Commission found that only the parties and AM had sufficient economies of scale, a finding which it based, inter alia, on quantitative data relating to their market shares (see, in particular, Table 17 and recitals 656, 659, 665, 694, 698 and 712) concerning the parties’ internal documents (see, in particular, recitals 634 and 635 as well as 674 and 675) and the responses of market players in the market investigation (see, in particular, recitals 645, 706 to 710 as well as 743 and 744).

428    Accordingly, the applicant’s complaint in that regard must be rejected.

–       The sixth complaint, based on the provision of a ‘one-stop shop’ solution

429    By the sixth complaint, the applicant states that, according to recital 719 of the contested decision, only the parties and AM have a portfolio of products able to cover the bulk of automotive customer needs, providing customers with a ‘one-stop shop’ solution. However, the decision does not provide any assessment as to whether customers indeed value that solution.

430    Moreover, the contested decision allegedly ignores the evidence provided by the parties that their competitors are able to produce a broad range of HDG products. Furthermore, the applicant complains that the Commission wrongly focused, in recital 723 of that decision, on whether TSE could increase its profits through economies of scale where the real question to be assessed was whether smaller players could still compete with the parties – which it claims is the case and was shown in the response to the statement of objections.

431    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

432    In that regard, the Court finds that the applicant cannot criticise the Commission for failing to assess whether customers attached importance to a ‘one-stop shop’ solution. In recitals 705 to 710 of the contested decision, the Commission referred to feedback from competitors confirming that being able to provide the full range of products constituted a competitive advantage.

433    Furthermore, in recitals 746 and 750 of the contested decision, the Commission set out its arguments supporting the finding that automotive customers prefer suppliers with a broad portfolio. Furthermore, it should be noted that the Commission did not ignore the arguments raised by the parties in their response to the statement of objections as regards the capabilities of other suppliers. It dismissed those arguments in recitals 779 to 785 of the contested decision, which, moreover, have not been disputed by the applicant.

434    It follows that the Commission carried out an adequate analysis of the importance of a ‘one-stop shop’ solution. The applicant’s sixth complaint must therefore be rejected.

–       The seventh complaint, based on the location of the parties’ production sites

435    By the seventh complaint, the applicant disputes the analysis, set out in recitals 754 to 770 of the contested decision, of the parties’ strength in north-west Europe and Germany, in that it is simply based on the location of their assets.

436    According to the applicant, the Commission did not undertake any detailed analysis or comparison of transport costs, did not engage with the analysis of the transport costs of key EEA competitors provided by the parties and proceeded from the premiss that all EEA-based suppliers must be able to supply all OEMs in an ‘equally competitive manner’ (recital 769). However, the issue was whether they could supply OEMs on a competitive basis – which they could notwithstanding the fact that other EEA players already supplied significant percentages of their HDG to automotive customers in Germany. The contested decision does not provide any analysis of the quantum of the parties’ alleged advantage or how this would impact competition post-transaction.

437    Moreover, the applicant takes the view that fact that imports from outside of the EEA already account for a very significant proportion of the demand of Fiat Chrysler Automobiles NV (‘FCA’) necessarily means that EEA-based suppliers must be able to compete for OEMs based in other locations in the EEA. The contested decision simply dismissed that in recital 760 et seq.

438    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

439    In that regard, it should be noted that the findings in recitals 754 to 770 of the contested decision enabled the Commission to reach the conclusion that the location of the parties’ production sites clustered near automotive sites, in the ‘automotive heart’ of Europe, contributed to their particular importance as competitors in the automotive HDG market in the EEA. It is to be noted that, as appears from recitals 755 to 767 of the contested decision, that finding is essentially based on the parties’ internal documents, which were confirmed by the results of the market investigation, as is not disputed by the applicant.

440    Furthermore, contrary to what the applicant maintains, the fact that FCA already sources some automotive HDG from non-EEA importers does not necessarily mean that EEA-based suppliers must be able to compete for customers based in other locations in the EEA. As explained in recital 769 of the contested decision, such a conclusion cannot be drawn from the single example of FCA, based in southern Europe and thus far from the parties’ production sites, being supplied by imports.

441    In addition, it should be made clear that the fact that a specific automotive customer purchases imported products does not mean that that applies to all customers. In any event, the applicant’s argument cannot succeed, since, by relying principally on the market investigation which it carried out, the Commission was fully entitled to find, in recitals 967 to 1033 of the contested decision, that imports represent only a limited constraint on the merged entity in the automotive HDG sector.

442    It follows that the applicant’s complaint, relating to the location of the parties’ production sites, must be rejected.

–       The eighth complaint, based on the assessment of the parties’ research and development (‘R&D’) capabilities

443    By the eighth complaint, the applicant maintains that the assessment of the parties’ R&D capabilities is simplistic, in failing to compare their R&D spend with other competitors, and places weight on the fact that R&D related internal documents are ‘detailed’, a fact which is entirely irrelevant.

444    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

445    In that regard, it should be noted that that complaint is not substantiated. By that decision, the applicant merely criticises the Commission’s analysis of the parties’ R&D capacities, but it does not indicate any recital of the contested decision which is vitiated by any error in that regard or what that error consisted of. For that reason, this complaint must be rejected.

446    However, it should be pointed out that, in so far as the applicant disputes recitals 733 to 743 of the contested decision, based on the parties’ R&D capacities, it is clear from those recitals that the Commission found that only larger companies, namely AM and the parties, were able to sustain the large number of R&D projects needed to be competitive in the market for automotive HDG (recital 735). The contested decision further compares this to the situation of smaller players who are unlikely to be able to pursue similar R&D efforts (recitals 740 to 742). This finding is moreover confirmed by one of the competitors (recital 743). It must be held that recitals 733 to 743 are not vitiated by any distortion or manifest error of assessment.

447    Consequently, the applicant’s complaint, relating to the parties’ R&D capabilities, must be rejected.

–       The ninth complaint, based on the assessment of ‘niche players’

448    By its ninth complaint, the applicant submits that the assertion, set out in recitals 771 to 785 of the contested decision, that major steel manufacturers such as Voestalpine, Salzgitter and SSAB are ‘niche’ players having limited ranges of products and focusing on higher-value and lower-volume products is unsubstantiated by any actual evidence, including, for example, a comparison of actual product ranges. However, the fact that the parties provided such a comparison shows that those competitors offer a wide range of products.

449    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

450    In that regard, it should be noted that the Commission did substantiate its finding of ‘niche players’. As appears inter alia from recitals 645 and 772 to 777 of the contested decision, the Commission sufficiently explained that assessment in detail. Thus, recital 645 provides direct feedback from one of those players indicating that it is unable to manufacture strips with the largest widths.

451    In addition, recitals 772 to 774 of the contested decision explain that ‘niche players’ are limited by their smaller capacities, which prevents them from providing the full portfolio of automotive products. Recitals 775 and 776 state that those operators appear to focus on higher-value, more technical products. Recital 777 provides express confirmation by one of those niche players of those findings. Accordingly, the applicant’s complaint based on the assessment of ‘niche players’ must be rejected.

452    In the light of all the foregoing considerations, it must be held that the applicant cannot validly criticise the Commission for having committed, in the contested decision, errors vitiating the finding that the applicant and TSE are important competitors in the automotive HDG sector, by submitting, in essence, that the assessment in that decision of the importance of vertical integration and the capacities of the parties is vitiated by manifest errors of assessment.

453    Accordingly, since all nine complaints put forward by the applicant in support of the fourth part of the third plea have been rejected, that part must be rejected in its entirety.

 The fifth part, concerning errors in concluding that TSE is an important competitive force

454    By the fifth part of the third plea, the applicant disputes, in essence, the conclusion, set out in recitals 965 and 966 of the contested decision, that TSE is an important competitive force (‘ICF’) and the concentration would result in the elimination thereof in the alleged automotive HDG market, submitting that the Commission applied the wrong legal criteria for defining an ICF and made manifest errors of assessment. That part contains two complaints.

455    By the first complaint, the applicant submits that, in recital 883 et seq. of the contested decision, the Commission failed correctly to apply the criteria for defining an ICF laid down in paragraphs 37 and 38 of the Horizontal Merger Guidelines.

456    First, the first criterion referred to in paragraph 37 of the Horizontal Merger Guidelines, according to which an ICF may refer to ‘a firm [which is] a recent entrant that is expected to exert significant competitive pressure in the future on the other firms in the market’, was not satisfied in the present case. TSE is not a recent entrant to the automotive HDG market. The contested decision itself states that TSE launched its strategy 10 years ago and accepts that, even then, TSE was not a new player in that market (recitals 884 and 894).

457    Secondly, nor was the second criterion referred to in paragraph 38 of the Horizontal Merger Guidelines satisfied, according to which an ICF may refer to ‘a firm with a relatively small market share … if it has promising pipeline products’. In fact, Table 12 of the contested decision considered TSE’s market share on the automotive HDG market to be [10-20]%, which cannot be regarded as a small share of the market.

458    In that regard, the applicant claims that, while the criteria in paragraphs 37 and 38 of the Horizontal Merger Guidelines are only examples, they demonstrate that it is not sufficient for a firm to expand its share in the market or being a ‘growing competitive force’ but there must be a relevant additional observation leading to its market shares not being representative of its market position, such as it being a new entrant. The analysis of an ICF needs to take account of the firm’s position relative to other players. However, the contested decision does not even assess the applicability of the criteria for an ICF in the present case.

459    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

460    In that regard, it is appropriate to cite paragraphs 37 and 38 of the Horizontal Merger Guidelines which introduce the concept of an ICF.

461    Thus, under the heading ‘Merger eliminates an [ICF]’, paragraphs 37 and 38 of the Horizontal Merger Guidelines read as follows:

‘37.      Some firms have more of an influence on the competitive process than their market shares or similar measures would suggest. A merger involving such a firm may change the competitive dynamics in a significant, anti-competitive way, in particular when the market is already concentrated … For instance, a firm may be a recent entrant that is expected to exert significant competitive pressure in the future on the other firms in the market.

38.      In markets where innovation is an [ICF], a merger may increase the firms’ ability and incentive to bring new innovations to the market and, thereby, the competitive pressure on rivals to innovate in that market. Alternatively, effective competition may be significantly impeded by a merger between two important innovators, for instance between two companies with “pipeline” products related to a specific product market. Similarly, a firm with a relatively small market share may nevertheless be an [ICF] if it has promising pipeline products …’

462    It follows from paragraphs 37 and 38 of the Horizontal Merger Guidelines that the scenarios mentioned in those paragraphs are indeed only examples, as the applicant itself acknowledges in paragraph 102 of its application. First, paragraph 37 generally concerns situations where market shares do not fully capture a firm’s market power and gives an example to illustrate such situations which reads as follows: ‘For instance, a firm may be a recent entrant.’ Secondly, paragraph 38 refers to the specific situation of markets where innovation is an ICF and refers in that regard to the example of ‘a firm with a relatively small market share’. It follows that the applicant cannot maintain that the examples given in paragraphs 37 and 38 of the Horizontal Merger Guidelines are the only possible scenarios in which an ICF may take place.

463    In addition, as is particularly clear from paragraph 37 of the Horizontal Merger Guidelines, the concept of ICF captures any situation where market shares only give a first indication of the competitive importance of market players. In that regard, it should be noted that that concept is compatible with the principle, set out in particular in paragraph 14 of the Horizontal Merger Guidelines, that market shares, although relevant, give only ‘useful first indications’ of the competitive importance of market participants (see, to that effect, judgment of 6 July 2010, Ryanair v Commission, T‑342/07, EU:T:2010:280, paragraph 42). The Commission must thus carry out an in-depth analysis of the conditions of competition also by taking into account factors other than market shares, such as the effects of the concentration on competition between the parties and any reactions that could be expected from customers and competitors.

464    The fact remains that, in recitals 883 to 966 of the contested decision, the Commission conducted a detailed analysis of the competition between the parties and the competitive constraint exercised by TSE in the automotive HDG market. Accordingly, it analysed TSE’s specific role and capabilities, reviewed TSE’s position relative to other players and found that TSE stood out from most of those other players.

465    In particular, the Commission’s analysis enabled it to be found that TSE targeted market share growth specifically in that market (recitals 883 to 909), that TSE pursued large investments to expand in that market (recitals 910 to 933), that TSE focused its R&D projects on that market (recitals 934 to 942), that TSE’s automotive HDG strategy was known to market participants (recitals 943 to 956), and that TSE was particularly targeting expansion as regards automotive HDG in Germany, which is precisely the applicant’s main area of activity within the EEA (recitals 957 to 966).

466    It follows from that analysis that the Commission provided relevant evidence explaining why TSE’s market share was not entirely representative of its competitive importance. The Commission cannot therefore be criticised for having relied on all that evidence in order to conclude, in recitals 965 and 966 of the contested decision, that TSE was an ICF and that the transaction would result in the elimination of an ICF in the automotive HDG market. Accordingly, the applicant’s complaint, relating to the constituent elements of the legal definition of an ICF, cannot validly succeed and must be rejected.

467    By the second complaint, the applicant submits that the contested decision is vitiated by manifest errors of assessment in so far as it categorises TSE as an ICF.

468    In particular, first, the applicant claims that the parties had demonstrated that TSE had not been making larger investments or grown its shares in automotive HDG. In addition, the applicant criticises the Commission, in recital 896 of the contested decision, for dismissing the evidence provided by the parties for the purpose of demonstrating that other automotive HDG suppliers were also making investments similar to those made by TSE in that sector, on the ground that that they contradicted the responses of the suppliers themselves and of customers in that sector. The applicant states that it is unclear on which specific evidence the Commission relied and why the Commission preferred the feedback received in its market investigation, which remains unclear. In that regard, the Commission has still not conducted its own investigation into the investment plans of TSE’s competitors.

469    Secondly, the applicant submits that the sales data provided by the parties showed that TSE was not an ICF, since they demonstrated that, despite TSE’s investments, its market share in automotive HDG has not grown in recent years (2012 to 2017). However, the contested decision rejects those data, in recital 900 thereof, on the ground that they were ‘outdated’. In addition, the applicant challenges recital 901 of that decision, in stating that the parties themselves specified that certain new assets of TSE ‘will likely only start upgraded production at the earliest in 2019-2021’. It is wrong to assume that between 2019 and 2021 TSE’s market share would increase, since it would then be necessary to take into account the contemporaneous investments of competitors.

470    Thirdly, the applicant submits that the Commission’s assertion, in recital 896 of the contested decision, that ‘the claim that other steelmakers would also be making allegedly “comparable” investments … is only indirectly relevant to the assessment of [TSE] as a growing competitive force, which should mainly focus on [TSE]’s behaviour, not its competitors’ is in itself a manifest error of assessment. In order to determine whether an undertaking should be considered to be an ICF, it must be assessed in comparison to its competitors, and the competitors’ behaviour has to be taken into account as well. However, the Commission failed to ask TSE’s competitors for their detailed investment plans, R&D spending or internal strategic plans for automotive HDG. As the Commission considered that it can assess importance as an absolute metric, it failed to conduct a proper inquiry.

471    Fourthly, the applicant claims that the parties had also explained, on the basis of internal documents, that TSE’s investment level used to be low and that its investment strategy aimed at bringing it back on par after it had ‘fallen behind the capabilities of its competitors’ as a consequence of this underinvestment. However, according to the applicant, the Commission criticised the parties, in recital 897 of the contested decision, for not ‘pointing to any persuasive evidence’ that the consequence of such continued lower investments would be for TSE to fall behind competitors’ capabilities. The applicant notes that it is also a matter of logic and common sense that underinvestment does not improve a company’s product offering and competitiveness.

472    Fifthly, the applicant adds that the reasoning of the contested decision by which TSE is regarded as an ICF is contradictory. On the one hand, recital 907 of the contested decision states that the ‘[Commission’s] concerns are not strictly and only premised on [TSE]’s ability to increase its market share of automotive HDG in the EEA, but more generally on its growing relevance as a supplier of automotive HDG, notably in terms of product quality and portfolio, overall sales, and its more general ability to meet customer needs’ and, on the other, recital 909 concludes that ‘the investigation shows that [TSE] was pre-Transaction pursuing a strategy to target market share growth in automotive HDG in the EEA, notably to the detriment of [the applicant]’.

473    Furthermore, the applicant considers that the contested decision partly relies on customer and competitor feedback which allegedly confirms the Commission’s view that TSE is an ICF in the automotive HDG market. However, the Commission ignores evidence presented by the parties demonstrating that a number of TSE’s automotive customers do not share that view.

474    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

475    In that regard, first, it must be found that the Commission’s findings, in recitals 883 to 966 of the contested decision, that TSE is making above average investments and focuses on growing its share in the automotive HDG sector rely on a body of evidence which was mentioned in that decision, contrary to the applicant’s assertion.

476    Thus, the Commission relied, inter alia, on internal documents of the parties, as appears, inter alia, from recitals 884 to 892 and 948. In addition, the Commission relied in that regard on the responses of competitors and customers in the market investigation which it carried out and which reflected their own observations on TSE’s strategy in that sector, as is clear inter alia from recitals 888 and 949 to 954. Accordingly, the applicant cannot validly criticise the Commission for not having cited the evidence on which it relied or even claim that it does not understand it.

477    In addition, as regards the applicant’s criticism of the Commission, in recital 896 of the contested decision, for having dismissed the evidence provided by the parties for the purpose of demonstrating that other automotive HDG suppliers were also making investments similar to those made by TSE in that sector, it must be held that the Commission stated, in that recital, that it relied on its market investigation in rejecting them. It is clear that greater weight should be given to the statements of those suppliers made in that investigation, since they are better placed than the parties to comment on their own investment plans.

478    In that regard, it is to be noted that, in recital 1079 of the contested decision, the Commission stated that it examined particularly closely the expansion plans of four competitors following their responses to its request for information, and gave as examples competitors’ responses to the questionnaire of 28 February 2019. There is no reason to doubt the reliability of that assessment.

479    Moreover, it must be held that all the evidence referred to, in recitals 883 to 966 of the contested decision, shows that the Commission carried out a proper investigation. In any event, it should be noted that, in the light of the case-law cited in paragraph 35 above, the applicant has not shown that, in recitals 883 to 966 of the contested decision, the Commission was incapable of relying on a body of factually accurate, reliable and consistent evidence that is capable of substantiating the inferences drawn from it.

480    Secondly, as regards the dismissing of the parties’ data as being ‘outdated’ because they concerned the lack of growth in TSE’s market share between 2012 and 2017 in the automotive HDG market in the EEA, it must be observed that, as explained in paragraph 278 above, the Commission’s review of concentrations calls for a prospective analysis. Consequently, past evolution in TSE’s market share cannot per se be decisive in the prospective analysis which the Commission must conduct in order to determine whether, in the absence of the transaction, TSE would exercise a competitive constraint as an ICF.

481    In addition, it should be observed in that regard that, as is apparent from recital 901 of the contested decision, the Commission stated that there were specific insights as to why TSE’s market share may not have significantly increased in the past in spite of investment. Thus, the Commission advanced, inter alia, the fact that some of TSE’s assets will likely only start upgraded production at the earliest between 2019 and 2021.

482    Therefore, it is to be noted that the Commission was entitled to dismiss, as not decisive, the parties’ sales data relating to the past evolution in TSE’s market share, in particular since it had identified, at the very least, one reason why that share had not increased. Moreover, contrary to what is suggested by the applicant, it must be held that, as is apparent from the face of recital 901, the Commission did not assume that TSE’s market share between 2019 and 2021 would increase, but gave one of several valid reasons why that share had not increased significantly in the recent past.

483    It follows that the applicant’s criticism of recitals 900 and 901 of the contested decision, which dismissed such economic data of the parties on the past development of TSE’s market shares, cannot reasonably succeed.

484    Thirdly, as regards the applicant’s claim that the Commission did not compare TSE’s investments with those of its competitors, it must be borne in mind, as has been stated in paragraph 464 above, that the Commission carried out, in recitals 883 to 966 of the contested decision, a detailed analysis of the competitive constraint exerted by TSE in the automotive HDG market. Accordingly, it analysed TSE’s specific role and capabilities, reviewed TSE’s position relative to other market players and found that TSE stood out from most of those other players. In particular, that analysis established that TSE made significant investments in order to expand in that market (recitals 910 to 933).

485    As regards in particular those investments of TSE and the comparison with those of its competitors, it was pointed out, in paragraph 477 above, that the Commission had indicated, in recital 1079 of the contested decision, that it had closely examined the expansion plans of four competitors in that sector following their replies to its request for information, and that there was no reason to doubt the reliability of that examination. Accordingly, the applicant cannot criticise the Commission for not comparing, in the contested decision, TSE’s investments with those of its competitors.

486    In addition, it is clear from recital 896 of the contested decision that the Commission considers that the investments made by the various steelmakers must be assessed in the light of their respective capacities. In recitals 883 to 966 of that decision, the Commission analysed TSE’s specific capabilities, reviewed TSE’s position relative to other players and found that TSE stood out from most of those other players. In that assessment, the Commission took into account that, through its large investments, TSE was better able to grow its market share given that TSE had access to adequate upstream substrate and generally has more resources than smaller suppliers, as found in recitals 558 to 614 and 634 to 795 of that decision. Similarly, it should be made clear that such an analysis was also carried out by the Commission in respect of both TSE’s R&D projects (recitals 934 to 942) and TSE’s strategy concerning automotive HDG (recitals 943 to 956).

487    Fourthly, as regards the applicant’s claim that TSE’s investments only enabled it to catch up with its competitors, it should be noted that, as appears from recital 897 of the contested decision, that claim reiterates one of the parties’ submissions during the administrative procedure which was not substantiated to the requisite legal standard. According to that recital, the parties did not provide persuasive evidence in that regard and they themselves admitted that they had no evidence to support their observation, which the applicant does not dispute. Similarly, it must be held that the applicant has also failed to adduce any evidence in that regard to substantiate its claim.

488    In any event, it should be noted that that observation by the parties, repeated by the applicant in the present proceedings without adducing any new evidence, was rejected by the Commission in recitals 920 to 932 of the contested decision. In that regard, it must be held that no sufficiently persuasive evidence to the contrary was put forward by the applicant to render the assessments made by the Commission in those recitals implausible. It follows that the applicant’s claim must also be rejected.

489    Fifthly, as regards the alleged contradiction between recital 907 and recital 909 of the contested decision, it must be observed that, as is apparent from recitals 883 to 966 of the contested decision, the Commission’s finding that TSE is an ICF does not depend solely on its ability to increase its share of the automotive HDG market. However, the fact that TSE pursues a strategy to increase its share is one factor among others which allowed the Commission to conclude that TSE constitutes an ICF. As stated in paragraph 463 above, market shares provide useful first indications of an undertaking’s competitive strength, but they are not decisive. Accordingly, the applicant cannot validly criticise the Commission for contradicting itself in those recitals.

490    Furthermore, the criticism levelled at the Commission, for having ignored the evidence adduced by the parties demonstrating that a number of customers did not share its view that TSE is an ICF, is incorrect. It must be observed that, as is apparent from recitals 883 to 966 of the contested decision, the Commission merely considered that that evidence was not sufficiently persuasive to alter its assessment in that regard, which was based on a large body of evidence which had been made available to it, in particular statements by customers and competitors in the market investigation and the parties’ internal documents. The applicant’s criticism must therefore be rejected.

491    Accordingly, the applicant’s second complaint, by which it complains that the Commission committed manifest errors of assessment with respect to regarding TSE as an ICF, cannot validly succeed and must be rejected.

492    In the light of all the foregoing considerations, it must be held that the applicant cannot validly criticise the Commission for having committed, in the contested decision, errors vitiating the finding that TSE is an ICF, by submitting that the Commission applied the wrong constituent elements of the definition of an ICF and made manifest errors of assessment.

493    Accordingly, since both complaints put forward by the applicant in support of the fifth part of the third plea have been rejected, that part must be rejected in its entirety.

 The sixth part, concerning the assessment of the closeness of competition

494    By the sixth part of the third plea, the applicant disputes, in essence, the Commission’s analysis in recitals 798 to 882 of the contested decision which concludes that the parties are particularly close competitors in the EEA market for automotive HDG. It submits that the Commission misapplied the concept of the closeness of competition and failed to follow the principles laid down in the Horizontal Merger Guidelines, which provide that closeness of competition is essentially an economic assessment of the extent of substitutability between the merging firms’ products. That part is divided into five complaints.

495    By the first complaint, the applicant criticises the Commission for an analysis of the closeness of competition which, as appears from recital 802 of the contested decision, amounts to eliminating all players that are smaller than the parties and claiming that AM would follow the parties’ price increases post-transaction. Thus, the parties are left as the only relevant players in the automotive HDG market, alongside AM, and the Commission concludes that they are close competitors and that the concentration would have negative effects on competition.

496    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

497    In that regard, the Court finds that, in recitals 798 to 882 of the contested decision, the Commission carried out a reasoned assessment of the closeness of competition between the parties based on four elements.

498    Thus, first, the Commission relied, in recitals 802 to 813 of the contested decision, on the fact that the parties have similar technical capacities and greater production capacity than the other competitors, apart from AM. Secondly, it relied, in recitals 814 to 855, on the fact that the parties have a similar focus on automotive products or important specific segments of the automotive industry. Thirdly, it relied, in recitals 856 to 866, on the very large share of sales they achieve from common customers. Fourthly, it relied, in recitals 867 to 882, on the fact that the parties’ activities were geographically close. Contrary to what the applicant claims, the Commission did not seek to eliminate all players smaller than the parties, but merely identified the causes of the closeness between the parties.

499    Furthermore, as regards the claim that AM would follow the parties’ price increases post-transaction, it must be borne in mind that, in recital 1081 et seq. of the contested decision, the Commission found that that would be the case. As appears from the assessment of the second complaint in the second part of the third plea set out in paragraph 270 et seq. above, the Commission correctly demonstrated in those recitals that, despite that increase, AM would not have any incentive by increasing supplies to automotive customers in order to offset the potentially negative effects resulting from the transaction.

500    The applicant’s first complaint must therefore be rejected.

501    By the second complaint, the applicant criticises the fact that, first, in recital 798 et seq. of the contested decision, the Commission only discussed in great detail why the parties are thought to be close competitors and failed to put into perspective the parties’ closeness to any other competitors, including the market leader AM. However, the Horizontal Merger Guidelines underline that an assessment of the closeness of other competitors is also highly relevant to an assessment of closeness of competition overall.

502    In addition, the applicant claims that, instead of conducting a proper analysis of the closeness of other competitors, the Commission tried to downplay smaller players’ competitive force. Thus, the applicant states that the Commission, first, excluded all non-integrated players (recital 180 et seq.), all smaller integrated players (recitals 703 et seq. and 771 et seq.) and imports (recital 967 et seq.) and, secondly, claimed that AM would have no incentive to increase sales to offset the parties’ price increases post-transaction. Thus, the Commission effectively eliminated all remaining competitors, including importers, instead of putting the closeness of competition between the parties into perspective with other players.

503    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

504    In that regard, it must be held that, contrary to what the applicant claims, the Commission put into perspective the parties’ closeness to the other competitors. As is apparent from paragraph 498 above, the Commission relied on four factors in order to assess the closeness of competition between the parties and explained in detail, for each of those factors, the reasons why the parties were closer to each other than to the other competitors, with the exception of AM. Thus, in particular, it is necessary to refer, in particular, to recitals 802, 804, 805, 811 and 812 of the contested decision as regards the first element, recitals 822, 826, 835, 836, 842 and 853 as regards the second element, recital 861 as regards the third element and recitals 870 and 876 as regards the fourth element.

505    Moreover, as regards the applicant’s criticism that the Commission tried to downplay smaller players’ competitive force, it is to be noted that, in recitals 798 to 882 of the contested decision, the Commission did in fact assess the lack of vertical integration of competitors other than AM, their lack of technical capabilities and their smaller product portfolios against those of the parties. As is apparent in particular from the examination of the second complaint in the second part of the third plea set out in paragraph 270 et seq. above, AM’s lack of incentive to defeat a price increase by the merged entity and the limited competitive constraint exercised by imports has been fully reasoned, in recital 1081 et seq. and in recital 967 et seq. of the contested decision, respectively.

506    In that regard, the Court finds that the applicant has not explained why the Commission’s analysis in those recitals does not follow the approach set out in the Horizontal Merger Guidelines. The applicant seems to suggest that in assessing the closeness of competitors the Commission had to confine itself to an assessment of the degree of substitutability between competing products. It must be borne in mind that although, according to paragraph 28 of the Horizontal Merger Guidelines, closeness between the parties is assessed by reference to the degree of substitutability between the parties’ products, that same paragraph explains that indications as to the degree of substitutability may result, inter alia, from the fact that a substantial number of customers regard the merging parties as their first and second choices of supplier, that rivalry between the parties has been an important source of competition and that their competitors produce substitutes which are not close to the products of the merging parties. The Court therefore accepted that, in order to assess the degree of substitutability between products, the Commission was entitled to examine competitors’ capacities, their product range and whether they had common customers (see, to that effect, judgment of 9 July 2007, Sun Chemical Group and Others v Commission, T‑282/06, EU:T:2007:203, paragraphs 69 to 76).

507    The applicant’s second complaint must therefore be rejected.

508    By the third complaint, the applicant maintains that the parties had pointed out during the administrative procedure that the evidence provided by the Commission concerned only dual-phase HDG which accounts for only [5-10]% and [5-10]% of TSE’s and the applicant’s automotive HDG sales, that their sales data suggested that they have a relatively differentiated automotive HDG product offering, and that TSE could not produce AHSS because it did not have a licence to do so. Thus, the parties’ HDG portfolios differed. The contested decision did not take account of those claims in recitals 816 and 821 of the contested decision.

509    In addition, the applicant considers that the Commission’s statement, in recital 836 of the contested decision, according to which the ‘importance of this segment [with a width equal to or greater than 1 650 mm] and the limited number of other competitors … make [TSE] and [the applicant] closer than other competitors’ is erroneous, since the ‘degree of closeness’ of competition cannot depend on the number of competitors active in the production of a specific product or segment. Furthermore, the Commission’s statement, in recital 848, according to which ‘the Parties are aware of the fact that they are close competitors, which would therefore likely be reflected in their market behaviour’, seems to allude that the parties collude tacitly, without presenting any supporting evidence.

510    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

511    In that regard, it should be noted, first of all, that, as the Commission points out, it had already addressed, in recitals 816 to 821 of the contested decision, the arguments of the parties raised during the administrative procedure, which the applicant reiterates in the context of this third complaint.

512    Next, it should be noted that, although the applicant disputes the relevance of the closeness of competition in relation to dual-phase products and focuses on the AHSS that TSE clearly cannot produce since it does not have the patent licence, the Commission did not ignore the parties’ claims in that regard. As is apparent from recitals 816 to 821 of the contested decision, the Commission simply refuted those claims, taking the view that they were not sufficiently convincing to render implausible its findings relating to the fact that the parties would concentrate in the same way on specific products or segments of the market.

513    In any event, it is important to note that the closeness of competitors must be taken into account in view of the parties’ entire automotive HDG portfolio and not solely with regard to certain products in that portfolio taken individually, such as dual-phase products or AHSS. In that regard, it should be noted that the applicant does not contest closeness in relation to exposed parts and products with large widths, as the parties also did not do during the administrative procedure, which is apparent from recital 818 of the contested decision. Similarly, the applicant, as the parties during that procedure, also does not challenge the probative value of the parties’ internal documents on which the Commission relied in demonstrating closeness at the level of their product portfolio, as maintained in recitals 822 to 825. It follows that the applicant cannot criticise the Commission for having considered that the parties had a portfolio of automotive HDG products with numerous common product types.

514    In addition, as regards the applicant’s criticism of recital 836 of the contested decision, it should be noted that, as was stated in paragraphs 497 and 498 above, closeness of competition does not only follow from the similarity in the parties’ products but also from their similar technical and production capabilities, the commonality of their customers and their geographical proximity. Furthermore, it must be pointed out that the applicant has not called into question the closeness of competition as regards large-width products, such as those with a width of 1 650 mm or more, or the significance of that product segment in terms of production capacity. The applicant’s criticism must therefore be rejected.

515    Lastly, the applicant’s claim that, in recital 848 of the contested decision, the Commission alluded to tacit agreement between the parties must be rejected as unfounded. The Commission did not allege any coordinated effects in the contested decision and its finding of an SIEC does not depend on coordinated effects.

516    The applicant’s third complaint must therefore be rejected.

517    By the fourth complaint, the applicant submits that the Commission found, in recitals 857 and 858 of the contested decision, that [confidential]% of the applicant’s customers are served by TSE and that [confidential]% of TSE’s customers are served by the applicant. Customers that are common to the parties are also common to a number of other competitors; this simply reflects customers’ preference towards multi-sourcing – there are no customers that source only from both of the parties. In addition, the Commission’s definition of a ‘common customer’ fails to exclude instances where a customer only sources a negligible proportion of their purchases from one of the parties.

518    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

519    In that regard, it should be made clear that the Commission found, in recitals 856 to 866 of the contested decision, that the closeness of the parties was also reflected in the fact that they achieved a large share of sales of automotive HDG from common customers. It should also be noted that, in recitals 860 to 865 of the contested decision, the Commission had already addressed the arguments of the parties raised during the administrative procedure, which the applicant reiterates in the context of this fourth complaint.

520    Thus, in recital 861 of that decision, the Commission found that the share of common customers is consistently and significantly higher between the parties than between either of them and any other competitor. The fact that the customers common to both parties are also customers of several other competitors is irrelevant to that finding, since the share of common customers between the parties remains still higher, which, moreover, the applicant has not disputed by adducing evidence to the contrary.

521    In addition, the applicant criticises the Commission’s definition of a ‘common customer’ which, in its view, fails to exclude from that definition instances where a customer only sources a negligible proportion of its purchases from one of the parties. The Court finds that that criticism is not substantiated. In any event, it should be noted that, in recital 864 of the contested decision, as the Commission was entitled to find, the fact that one of the parties is supplying some volumes, although small, a customer is a clear indication that that party is competing for volumes from that customer and the level of competitive pressure exerted is not necessarily represented by the volumes sold, even if below 5%.

522    The applicant’s fourth complaint must therefore be rejected.

523    By the fifth complaint, the applicant submits that the argument that ‘market participants largely confirm the closeness of the Parties on a number of generally important parameters of competition’, set out in recital 812 of the contested decision, is not fully confirmed by the results of the market investigation. Thus, inter alia, the applicant cites, by way of example, the responses to questions 56 and 57 of Questionnaire 1 (Annex A.4a) and the responses to questions 41 to 43 of Questionnaire 3 (Annex A.4c) in order to state that few respondents identified it as one of the closest competitors of TSE, respectively, as far as concerns the automotive HDG product portfolio.

524    In addition, the applicant disputes the findings set out in recital 805 of the contested decision, according to which ‘automotive customers providing a view consider that the Parties and [AM] are able to address their “EEA needs to an extent not possible for other suppliers”’. In that regard, in reference to question 24 of Questionnaires 12(a) and 12(b) of the market investigation (Annexes A.4f and A.4g), the applicant claims that less than 60% of the respondents actually gave a reasoned response. Furthermore, the contested decision ignores the nuances contained in the reasoned replies, in order to give preference to its predetermined point of view. It is therefore misleading to conclude that market participants confirmed the closeness of the parties, in particular relative to other players.

525    The Commission, on the other hand, disputes the applicant’s arguments and contends that this complaint should be rejected.

526    As regards that complaint, by which the applicant disputes, in essence, the Commission’s interpretation of the results of the market investigation, in the first place, it should be noted that the Commission concluded, in recital 812 of the contested decision, that ‘even beside these specific capabilities, market participants largely confirm the closeness of the Parties on a number of generally important parameters of competition [and that, in] particular, some respondents identified the Parties as close or even the closest competitors in terms of their general portfolio, lead times, on-time delivery, pricing, quality, R&D, new grade development capabilities, their portfolio of [automotive HDG], extensive homologation services or close involvement in automotive production process’. In that regard, the Commission refers to the responses to questions 56 and 57 of Questionnaire 1 (Annex A.4a) and responses to questions 41 to 43 of Questionnaire 3 (Annex A.4c) of the market investigation.

527    In order to challenge the findings made in recital 812, the applicant relies, by way of example, on those responses to assert that few respondents identified it as one of the closest competitors of TSE, respectively, as far as concerns the automotive HDG product portfolio. However, it must be held that the applicant refers only to one parameter, namely the automotive HDG product portfolio, while the Commission’s interpretation relies on several parameters as is evident from questions 56 to 57 of Questionnaire 1 and questions 41 to 43 of Questionnaire 3, which recital 812 correctly states. It follows that the Commission has not erred in its interpretation in that regard, so that, by relying solely on the parameter of the automotive HDG product portfolio, the applicant cannot validly claim that market participants did not confirm that the parties were close competitors.

528    In the second place, as regards the applicant’s challenge to the finding made in recital 805 of the contested decision, it should be noted that that recital is worded as follows: ‘In this context, it should be noted once again that all automotive customers providing a view consider that the Parties and [AM] are able to address their “EEA needs to an extent not possible for other suppliers”.’

529    For the purposes of challenging the finding made in recital 805 of the contested decision, the applicant refers to question 24 of Questionnaires 12(a) and 12(b) of the market investigation (Annexes A.4f and A.4g) to claim that less than 60% of the respondents actually gave a reasoned response. Although it is true that less than 60% of the undertakings consulted provided a reasoned reply, it must, however, be found that that percentage corresponds to all automotive customers who provided a view, in which they confirmed that the parties and AM were able to address their needs to an extent not possible for other suppliers. Furthermore, it must be found that the applicant’s claim that the Commission ignored the nuance in some responses to question 24 is unsubstantiated.

530    It follows that the Commission cannot be criticised for having misinterpreted the results of the market investigation in recital 805 of the contested decision, so that, by relying on a biased reading of that investigation, the applicant cannot validly claim that all automotive customers providing a view did not consider that the parties and AM were able to address their EEA needs to an extent not possible for other suppliers. In any event, it must be held that, of the 17 undertakings consulted, the 10 undertakings which answered the question whether the parties and AM were able to meet their needs within the EEA to an extent unachievable by the other suppliers answered ‘yes’, which means that no undertakings consulted answered that question in the negative.

531    The applicant’s fifth complaint must therefore be rejected.

532    In the light of all the foregoing considerations, the Court finds that the applicant cannot, by claiming that the Commission misapplied the concept of closeness of competition and infringed the principles set out in the Horizontal Merger Guidelines in that regard, validly complain that the Commission erred, in recitals 798 to 882 of the contested decision, manifestly in its assessment or distorted the evidence with the effect of vitiating the finding that the applicant and TSE are close competitors.

533    Accordingly, since all five complaints put forward by the applicant in support of the sixth part of the third plea have been rejected, that part must be rejected in its entirety.

 The seventh part, concerning the effect of imports on competition

534    By the seventh part of the third plea, the applicant disputes, in essence, the Commission’s analysis, in recitals 967 to 1033 of the contested decision, which concluded that imports constitute a limited competitive constraint on EEA suppliers in the automotive HDG sector in the EEA.

535    First, the applicant submits that the Commission focused erroneously on the current extent of demand represented by imports, without sufficiently assessing to what extent imports constitute a constraint on the parties post-transaction. The Commission should have examined the question whether the constraint from imports was sufficiently strong to prevent post-transaction price increases by the merged entity.

536    Secondly, the applicant considers that the Commission ignored or downplayed key evidence suggesting that imports could play a major role. In particular, it is clear from the Commission’s own evidence that the majority of automotive customers already import some of their requirements and that for certain customers, such as FCA, this is a very significant percentage.

537    Thirdly, the applicant states that, in order to assert, in recitals 998 and 999 of the contested decision, that EEA customers are not a strategic focus for Posco, Hyundai Steel and Baosteel, which have the technical capabilities to produce and deliver automotive HDG in the EEA, the Commission does not appear to have asked those undertakings directly what their strategic focus was, and instead, in recital 1001 of the contested decision, inferred it from the current strategy of Tata Steel Limited, TSE’s parent company, which is a manifest error of assessment.

538    Fourthly, the applicant maintains that there is an inherent contradiction in dismissing Posco as an importer, by labelling it a ‘quasi’-EEA supplier in recital 1007 of the contested decision, and at the same time not recognising it as an EEA supplier in the competitive assessment of the automotive HDG market in the EEA.

539    The Commission disputes the applicant’s arguments and contends that this part should be rejected.

540    In that regard, it should be noted that, in recitals 967 to 1033 of the contested decision, the Commission examined in detail whether imports of automotive HDG from non-EEA suppliers exerted competitive pressure on suppliers of automotive HDG who are located in the EEA.

541    First, as regards the criticism of the Commission for not sufficiently assessing to what extent imports constitute a constraint on the parties post-transaction, the Court notes that, as appears from recitals 967 to 984 of the contested decision, the Commission began its analysis first by taking into consideration possible future trade flows into the EEA for automotive HDG and EEA customer sourcing data. In that regard, as stated in recital 974, the Commission’s market investigation revealed that such trade flows were minimal.

542    The Commission then specified, in recitals 985 to 1022, that that was mainly because of non-price factors, such as longer lead times, lack of reactivity of the importers, the risk of damage during transport, non-EEA suppliers’ lack of technical ability, lack of commercial presence and structural limitations they face, as well as trade defence measures which affect the security of supply. On the basis of all those factors, the Commission concluded, lastly, in recital 1033, that imports constituted at most a limited competitive constraint.

543    It should be noted that the abovementioned factors are essentially structural in nature and are not therefore capable of changing in the future or, at the very least, in the immediate future, irrespective of any post-transaction price increase caused by the parties. Moreover, the regulatory framework, and in particular the recently imposed commercial safeguard measures targeting imports of automotive HDG products, as the Commission stated in recitals 1023 to 1032 of the contested decision, make it even less likely that imports would increase in the event of a price increase in the EEA.

544    It follows that, in the light of that analysis by the Commission, set out in recitals 967 to 1033 of the contested decision, the Commission cannot be criticised for not sufficiently assessing to what extent imports would constitute a constraint on the parties post-transaction.

545    Secondly, as regards the applicant’s claim according to which certain customers, such as FCA, obtain supplies using imports, which shows that those imports constitute a constraint, it should be noted that the applicant referred only to that singular example of FCA. As was stated in paragraph 440 above, the fact that a specific automotive customer is supplied by imports does not mean that this is true for all customers. Furthermore, in recital 769 of the contested decision, the Commission explained the particular reasons justifying why FCA obtained supplies from imports, which were not applicable to other customers. In any event, a single example, or even several singular examples, cannot alone undermine the fact that the vast majority of automotive customers do not rely, or only to a negligible extent, on imports from suppliers outside the EEA, as is apparent from recitals 974 and 981, which, moreover, have not been disputed by conclusive evidence to the contrary presented by the applicant.

546    Moreover, it should be pointed out in that regard that Commission did not ignore or downplay key pieces of evidence suggesting that imports could play a major role, as the applicant claims. The Commission merely refuted them, taking the view that they were not sufficiently persuasive, as part of the body of evidence made available to it, to render implausible its assessments of the competitive pressure that imports might exert.

547    Thirdly, as regards the criticism levelled at the Commission, which, in recital 1001 of the contested decision, allegedly inferred from the current strategy of Tata Steel Limited that EEA customers are not a strategic focus for Posco, Hyundai Steel and Baosteel, it should be made clear that the contested decision set out, inter alia, in recital 1000, that those three undertakings were not strategically focused on EEA customers because products were difficult and expensive to ship globally. In addition, in recital 1002 of that decision, the Commission relied on Table 8 of that decision, drawn up on the basis of the parties’ data, in order to state that the limited share of imports into the EEA, which were only [confidential]%, indicated that those imports constituted a limited constraint on EEA suppliers. Similarly, it is clear from recital 1003 of the contested decision that the market investigation showed that customers themselves expressed a clear preference for sourcing within the EEA.

548    It follows that, even without making such an inference, the Commission would necessarily have reached the same conclusion, namely that EEA customers are not a strategic target for Posco, Hyundai Steel and Baosteel. Therefore, contrary to what the applicant claims, the Commission cannot be criticised for having made a manifest error of assessment in that regard.

549    It should nevertheless be noted that, in recital 1005 of the contested decision, the Commission acknowledges that Posco could have a greater incentive to supply EEA customers. That, moreover, explains the Commission’s finding, in recital 1007 of that decision, that imports constitute limited, but not inexistent, competitive pressure on automotive HDG’s suppliers within the EEA. In any event, as Posco is the only significant importer, according to the finding made in recitals 1005 to 1007 of that decision, its presence alone could not have lead the Commission to call into question its general finding on imports.

550    Fourthly, it should be noted that, by labelling it a ‘quasi’-EEA supplier, there is no contradiction in the contested decision in (i) dismissing Posco’s relevance as an importer of automotive HDG into the EEA by regarding it as a ‘quasi’-EEA supplier in recital 1007 of that decision and (ii) in not recognising it as a competitive EEA supplier. As an importer, Posco constitutes only a limited constraint on the parties, whereas, due to its growing physical presence in the EEA, Posco is turning into a ‘quasi’-EEA supplier, albeit of only minimal relevance as a competitor to the parties in the market for automotive HDG in the EEA. Moreover, as is apparent in particular from that recital, it must be held that the Commission did not fail to take into account Posco, as such, in its competitive analysis of that market.

551    In the light of all the foregoing considerations, it must be held that the applicant cannot validly criticise the Commission for having committed, in recitals 967 to 1033 of the contested decision, manifest errors of assessment vitiating the finding that imports constitute a limited competitive constraint on EEA suppliers in the automotive HDG sector in the EEA. Accordingly, the seventh part of the third plea in law must be rejected.

552    Therefore, since the seven parts in support of the third plea have all been rejected, that plea must be rejected in its entirety.

 The fourth plea in law, alleging procedural errors, errors of law and manifest errors of assessment concerning an SIEC in the markets for TP, ECCS and laminated steel

553    By the fourth plea, the applicant submits, in essence, that the Commission made procedural errors, errors of law and manifest errors of assessment in concluding, in the contested decision, that there was an SIEC in the markets for TP, ECCS and laminated steel. This plea is divided into eight parts.

1.      The first part, concerning an error of law as regards the SIEC test

554    By the first part of its fourth plea, the applicant submits, in essence, that the Commission made an error of law as regards the interpretation and application of the SIEC test, so the entire competitive assessment of packaging steel, in recitals 1251 to 1419 of the contested decision, is incorrect.

555    In particular, the applicant maintains that the Commission mixes up two different and incompatible theories of harm to competition, in concluding, in recital 1419 of the contested decision, that the transaction would create a dominant position and, in any event, also give rise to horizontal non-coordinated effects as a result of the elimination of an important competitive constraint, as regards TP and laminated steel. There cannot be at the same time an SIEC resulting from the creation of a single dominant position and an SIEC resulting from horizontal non-coordinated effects in oligopolistic markets. As is apparent from recital 25 of Regulation No 139/2004, these are two distinct concepts, the first based on the structure of the market and the second on effects. The two concepts are mutually exclusive since a market cannot be regarded as being dominated by a single undertaking yet oligopolistic at the same time.

556    According to the applicant, it follows that the finding of the creation of a dominant position and the finding of horizontal non-coordinated effects requires a specific and focused analysis. The Commission applied the same analysis to both, irrespective of whether it aimed to reason competition concerns due to alleged single market dominance or non-coordinated horizontal effects in an oligopolistic market. Thus, in the subdivisions of Section 9.5. of the contested decision, various factors of the Commission’s competitive assessment, such as market structure and shares, switching possibilities for customers, constraints by imports, buyer power, are analysed without any reference to one of those two specific theories of harm to competition.

557    In addition, the applicant notes that several factors are the subject of a single analysis in respect of TP, ECCS and even laminated steel, without any differentiation between those three products, as is the case in recital 1364 of the contested decision, in which the Commission regarded the ‘market for metallic coated steel for packaging’ as oligopolistic. Similarly, the applicant states that, although Section 9.5.3.2. of that decision contains separate headings for TP and ECCS, the respective recitals therein do not contain for either product any economic analysis of whether AM has an incentive to engage in price competition following a hypothetical price increase post-transaction. Furthermore, the applicant states that the statement of objections was not alleging any theory of harm to competition based on coordinated effects.

558    The Commission disputes the applicant’s arguments and contends that this complaint should be rejected.

559    As a preliminary matter, it should be noted that Article 2(2) and (3) of Regulation No 139/2004 is worded as follows:

‘2.      A concentration which would not significantly impede effective competition in the [internal] market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, shall be declared compatible with the [internal] market.

3.      A concentration which would significantly impede effective competition, in the [internal] market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, shall be declared incompatible with the [internal] market.’

560    In that regard, recital 25 of Regulation No 139/2004 states as follows:

‘In view of the consequences that concentrations in oligopolistic market structures may have, it is all the more necessary to maintain effective competition in such markets. Many oligopolistic markets exhibit a healthy degree of competition. However, under certain circumstances, concentrations involving the elimination of important competitive constraints that the merging parties had exerted upon each other, as well as a reduction of competitive pressure on the remaining competitors, may, even in the absence of a likelihood of coordination between the members of the oligopoly, result in a significant impediment to effective competition. The [EU] courts have, however, not to date expressly interpreted [Council] Regulation (EEC) No 4064/89 [of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1)] as requiring concentrations giving rise to such non-coordinated effects to be declared incompatible with the [internal] market. Therefore, in the interests of legal certainty, it should be made clear that [Regulation No 139/2004] permits effective control of all such concentrations by providing that any concentration which would significantly impede effective competition, in the [internal] market or in a substantial part of it, should be declared incompatible with the [internal] market. The notion of “significant impediment to effective competition” in Article 2(2) and (3) should be interpreted as extending, beyond the concept of dominance, only to the anti-competitive effects of a concentration resulting from the non-coordinated behaviour of undertakings which would not have a dominant position on the market concerned.’

561    It follows from those provisions that an SIEC due to unilateral non-coordinated effects may ‘in particular’ correspond to the creation or strengthening of a dominant position. As recital 25 of Regulation No 139/2004 clearly explains, the purpose of the 2004 legislative amendment was to facilitate a ‘broader’, that is to say, non-restrictive, interpretation of the criterion of an SIEC. An SIEC now extends ‘beyond the concept of dominance’.

562    It follows that the concepts of the creation or strengthening of a dominant position and of the existence of non-coordinated horizontal effects due to the elimination of a significant competitive constraint on an oligopolistic market are perfectly compatible and are not mutually exclusive, as the applicant claims. In that regard, it should be noted that a market may be dominated by an individual undertaking and at the same time be oligopolistic, as was confirmed by the Court of Justice in its judgment of 13 February 1979, Hoffmann-La Roche v Commission (85/76, EU:C:1979:36, paragraph 51). Moreover, it should be noted that both concepts take account of the structure of the markets concerned and the effects of the concentration on competition in those markets. Therefore, the Commission cannot be criticised for concluding, in recital 1419 of the contested decision, that there could be both an SIEC resulting from the creation of a dominant position and an SIEC resulting from non-coordinated horizontal effects in oligopolistic markets.

563    In addition, as regards the applicant’s claim according to which the Commission applied the same analysis, in finding, first, the creation of a dominant position and, secondly, horizontal non-coordinated effects in the TP and laminated steel markets, whereas it should have carried out a specific and focused analysis of both of those infringements of competition, it should be noted that the applicant does not refer to any specific element of the Commission’s analysis in the contested decision, which is, according to the applicant, affected by the alleged error of law.

564    In any event, contrary to what the applicant claims, the Commission did not rely on the same analysis in reaching two different conclusions. As is apparent from recitals 1413 to 1419 of the contested decision, the Commission clearly distinguishes the elements on which the finding of the creation of a dominant position is based from those which lead it to conclude that there are non-coordinated horizontal effects. Thus, in those recitals, the Commission found, primarily, that a dominant position would be created on the basis of market shares and several other factors mentioned in Sections 9.5.3. to 9.5.9. of that decision and, in the alternative, that there would also be non-coordinated horizontal effects resulting from the elimination of a significant competitive constraint, on the basis of the considerations set out in Sections 9.5.3. to 9.5.12. of that decision.

565    In that regard, it should be pointed out that the Commission’s analysis of a dominant position and of non-coordinated horizontal effects cannot be carried out other than by necessarily focusing on the same factual elements, such as market shares and capacity, imports, the reaction of competitors and buyer power, as examined in the subdivisions of Section 9.5. of the contested decision, since the same factors must be taken into account for both analyses. Consequently, the Commission cannot be criticised for having proceeded in that way.

566    As regards the applicant’s complaint that there was no economic analysis of AM’s incentive to follow a price rise post-transaction, it should be noted that the applicant itself never put forward any ‘economic analysis’ on that point during the administrative procedure or before the Court. Furthermore, the applicant has not referred to any particular legal or economic problem and has also failed to indicate how the Commission departed from the framework laid down in the Horizontal Merger Guidelines, in particular paragraphs 32 to 35 of those guidelines concerning that issue.

567    In any event, in so far as the applicant considers that the assessment of the factors likely to encourage competitors to create or strengthen a dominant position must be carried out in a different way from the assessment of other non-coordinated effects, it must be held that the Commission examined separately AM’s interests in the specific markets for TP and ECCS, in recitals 1288 and 1289, and then in 1294 to 1297 of the contested decision, respectively, by relying on factors specific to each of those two markets.

568    Thus, as regards the market for TP, the Commission assessed AM’s incentives to counter a price increase by the merged entity, taking into consideration, inter alia, economic factors, such as the oligopolistic structure of the market, the unwillingness of customers to increase their dependence on AM, the fact that combating a price increase would lead to a fall in prices on all volumes and the lack of AM’s spare capacity (recitals 1288 and 1289). As regards the market for ECCS, the Commission evaluated AM’s incentives to offset such an increase, relying in particular on the oligopolistic structure of the market and on an analysis of the applicant’s internal documents showing, according to the applicant, AM’s likely behaviour in that market (recitals 1294 to 1297).

569    Furthermore, it should be noted that the applicant’s claim that the statement of objections ‘was not alleging a theory of harm based on coordinated effects’ is irrelevant. The Commission did not find that there were any coordinated effects in the contested decision, as stated in paragraph 515 above.

570    In the light of all the foregoing considerations, it must be held that the applicant cannot validly accuse the Commission, in recitals 1251 to 1419 of the contested decision, of erring in law as regards the interpretation and application of the SIEC test to the effect that the entire competitive assessment of packaging steel is incorrect.

571    Accordingly, the first part of the fourth plea in law must be rejected.

 The second part, concerning a manifest error of assessment regarding market shares and the HHI

572    By the second part of its fourth plea, the applicant submits, in essence, that the Commission made a manifest error of assessment in the calculation of the market shares and capacity shares, as well as the calculation of the HHI, with respect to TP and ECCS. The Commission disregarded the parties’ detailed submission regarding a material decrease in the parties’ combined sales share. At the same time, it gives inadequate weight to the parties’ capacity shares.

573    As regards the market shares, the applicant states that, in the response to the statement of objections, the parties set out their combined sales share in the period from January to September 2018, which was below 40% in the market for packaging steel as well as in the segments for TP and ECCS. The Commission disregarded that downward trend, in recital 488 of the contested decision, and did not evaluate it at all so that its market-share-related conclusions, in recitals 1261, 1263 and 1264 of that decision in respect of TP and in recitals 1267, 1269 and 1270 of the decision in respect of ECCS, are premissed on an incorrect and incomplete factual basis.

574    As regards capacity shares, the applicant claims that their evaluation, in Table 10 of the contested decision, is flawed, since it fails to take into account system bottlenecks. As regards TP, the applicant maintains that TSE faces a bottleneck in its annealing lines, but AM does not face such a bottleneck, as a result of which the spare capacity share of AM is understated in Table 10 of the decision, leading to an inflated share of the parties’ combined spare capacity.

575    In that regard, the applicant disputes the Commission’s conclusion, in recital 1264 of the contested decision, that the parties’ claim regarding the inaccuracy of the Commission’s spare capacity calculation is ‘immaterial’ to the competitive assessment, whilst at the same time strongly basing its theories of harm on those very capacity shares in recitals 1265, 1271 and 1274 of that decision. According to the applicant, the reasoning in recital 1264 of the decision that AM would in any event have no incentive to use its spare capacity is moreover irrelevant in the present context.

576    Furthermore, the applicant considers that it is not correct that all TP spare capacity belongs to the parties and AM, since the Commission failed to take into account AM’s divestment of the tinning line in Tilleur (Belgium) to Liberty House.

577    Furthermore, the applicant submits that, as a general point, the Commission should not have based its competitive assessment on capacity shares because of the structural limitations of capacity share estimates. Capacity shares do not provide a meaningful and reliable benchmark for the competitive assessment since they fail to take account of the constraints from imports, that there is no consistent reliable data source for capacity figures and that measures of effective and spare capacity are difficult to calculate on a consistent and reliable basis. The contested decision remains silent on those concerns and in recital 472 et seq. merely provides very generic arguments for the relevance of capacity shares.

578    As regards the calculation of the HHI, in Table 8 of the contested decision, the applicant takes the view that the Commission made the same calculation error for TP and ECCS as it did for automotive HDG (see the sixth complaint of the third part of the third plea). The Commission treated the aggregate market share accounted for by importers as the share of an individual firm, which is the wrong approach as that market share is in fact accounted for by numerous smaller firms. The result of that error was materially to overstate the degree of concentration in the markets for TP and for ECCS, calling into question the validity of the conclusions reached in that regard in recitals 1262 and 1268 of the decision.

579    The Commission disputes the applicant’s arguments and contends that this complaint should be rejected.

580    In that regard, as regards the market shares for TP and ECCS, the applicant criticises the Commission, in essence, for disregarding, in recital 488 of the contested decision, the downward trend for the period from January to September 2018 that the parties had indicated in their response to the statement of objections, since those shares were comfortably below 40%.

581    It should be noted in that regard that, as is apparent from recital 487 of the contested decision, the Commission did not disregard the observations of the parties in that regard, raised in their response to the statement of objections. The Commission expressly referred to those observations in that recital and responded to them in recitals 488 and 489 of the decision.

582    In particular, the Commission stated, in recital 488 of the contested decision, that it had reconstructed the parties’ sales market shares for the full year of 2018 based on information requested from the association Eurofer, of which the applicant is also a member, and on import surveillance data from its Directorate-General (DG) for Taxation and Customs Union. On the basis of that information, the Commission concluded that the market share of the merged entity has not decreased materially to the extent claimed by the parties, but remained at [40-50]% for TP and [30-40]% for ECCS.

583    In addition, it should be noted that, in recital 489 of the contested decision, the Commission observed that due to [confidential], the competitive constraint which TSE would exert in the markets for ECCS and laminated steel was likely to increase in the future. Relying in that regard on the parties’ responses during the administrative procedure, the Commission found that the market shares based on merchant sales presented in Table 8 of the contested decision likely underestimated the constraint exerted by TSE.

584    The Court notes that, aside from the claims made by the parties in their response to the statement of objections, which are set out in recital 487 to the contested decision, the applicant has not provided further evidence to contradict the evidence made available to the Commission, relating to the whole of 2018, which served as the basis for the findings made in recitals 488 and 489 of the contested decision.

585    It follows that, contrary to what the applicant claims, the Commission did not disregard the observations made by the parties during the administrative procedure, but considered that they could not be regarded as sufficiently relevant and persuasive as part of the body of evidence made available to it in order to determine the parties’ market shares in respect of TP and ECCS. Therefore, the applicant’s complaint that the Commission’s findings on market shares, in recitals 1261, 1263 and 1264 of the contested decision for TP and in recitals 1267, 1269 and 1270 of that decision for ECCS, are premissed on an incorrect and incomplete factual basis cannot validly succeed.

586    As regards the capacity shares for TP and ECCS, the applicant complains, in essence, that the Commission erred in failing to take into account system bottlenecks when evaluating those shares in Table 10 of the contested decision, notwithstanding the parties’ observations in that regard.

587    In that regard, it should be noted that, as is apparent from recitals 1264 and 1525 of the contested decision, the Commission took into account the potential impact of system bottlenecks on the parties’ capacities in respect of TP and ECCS, as claimed by the parties in their response to the statement of objections. The Commission expressly referred to that claim of the parties in those recitals and addressed it. In particular, it is apparent from recital 1264 of the contested decision that the Commission considered that that claim was immaterial to the competitive assessment because, even if it were accepted that bottlenecks could limit the capacities of the parties, the transaction would risk there being even less spare capacity in the markets for TP and ECCS and such available spare capacity would be only in the hand of AM, the current market leader. Moreover, AM would not be capable of exerting pressure on the merged entity once the transaction was completed, as explained in Section 9.5.7. of that decision.

588    Last, it should be noted that, in recital 1525 of the contested decision, the Commission examined the extent to which the bottlenecks units alleged by the parties, in particular the bottlenecks on TSE’s tempering lines which are upstream of the tinning line, would effectively reduce TP’s available capacities. It is apparent from that recital that the Commission observed, on the basis of the information provided by the parties, that the parties’ production of TP was close to the actual production capacity of their tinning lines, notwithstanding such upstream bottlenecks.

589    Furthermore, the applicant disputes the Commission’s finding that all TP spare capacity belongs to the parties and AM, which the Commission justified on the basis of information given by the parties (see footnote 954 to the contested decision), whereas the applicant does not put forward any argument in that regard. Moreover, contrary to what the applicant claims, the Commission took account AM’s divestment of the tinning line in Tilleur to Liberty House, as is apparent from recitals 1290 to 1293 of the contested decision.

590    It follows that, contrary to what the applicant claims, the Commission did not disregard the parties’ claims relating to system bottlenecks raised during the administrative procedure, but rather took the view that those bottlenecks did not have a decisive impact on its evaluation of the capacity shares for TP and ECCS in Table 10 of the contested decision. In any event, it must be held that the applicant’s arguments in that regard are not sufficiently convincing to render implausible its findings made by the Commission in the abovementioned recitals, which are, moreover, based on information provided by the parties (see footnotes 954 and 1151 to 1154 to the contested decision).

591    Moreover, as regards the criticism levelled at the Commission that it should not have based its competitive assessment on capacity shares, it should be noted that, as appears from paragraph 54 of the Notice on market definition, capacity, in addition to sales, is a particularly useful measure of market power. Moreover, as the Commission has stated, it has always taken into account capacity as a reference for calculating market shares in its decision-making practice in that field, as in the AM/Ilva case, to which the applicant has referred on several occasions. Furthermore, the fact remains that, in recitals 474 to 481 of the contested decision, the Commission was justified in its explanation why capacity shares capture the full market power of suppliers in the steel industry.

592    Similarly, in so far as the applicant challenges the reliability of the capacity data and calculation methodology, such criticism must be rejected for the same reasons as those set out in paragraphs 312 to 316 and 368 above in respect of the first and fifth complaints of the third part of the third plea.

593    In addition, as regards the applicant’s claim that capacity shares do not provide a reliable benchmark since they fail to take account of the constraints from imports, it should be noted that, by relying essentially on the market investigation which it carried out, the Commission was entitled to find, in recitals 1303 to 1322 of the contested decision, that imports are unlikely adequately to constrain the merged entity as regards metallic-coated steel for packaging in the EEA. That claim cannot therefore validly succeed.

594    As regards the calculation of the HHI, in Table 8 of the contested decision, the applicant criticises the Commission, in essence, for the same calculation error for TP and ECCS as it did for automotive HDG (see the sixth complaint of the third part of the third plea above).

595    In that regard, as regards the markets for TP and ECCS, it must be stated that the applicant repeats, in essence, the same arguments as those which it has already put forward in the sixth complaint in the third part of the third plea above, as regards the automotive HDG market. They must therefore be rejected as ineffective for the same reasons as those set out in paragraphs 374 to 383 above in respect of the sixth complaint in the third part of the third plea.

596    In any event, it should be noted that the HHI values proposed by the applicant, as regards the markets for TP and ECCS, still exceed the thresholds, set out in paragraphs 19 to 21 of the Horizontal Merger Guidelines, above which horizontal competition concerns may arise in the relevant market, as is also the case in the Commission’s calculation in Table 8 of the contested decision. Furthermore, the HHI delta, which also exceeds those thresholds, equally remains unchanged even with the calculation method proposed by the applicant. It follows that the values and calculation method proposed by the applicant cannot affect the Commission’s competitive assessment in the contested decision. Consequently, contrary to what the applicant claims, the validity of the Commission’s findings in that regard, in recitals 1262 and 1268 of that decision, cannot be called into question.

597    In the light of all the foregoing considerations, it must be held that the applicant cannot validly accuse the Commission, in recitals 1260 to 1278 of the contested decision, of erring manifestly in its assessment as regards the calculation of the market shares and capacity shares, as well as the calculation of the HHI, with respect to TP and ECCS.

598    Accordingly, the second part of the fourth plea in law must be rejected.

 The third part, concerning an error of law and manifest errors of assessment regarding customers’ possibilities to switch to other suppliers within the EEA

599    By the third part of its fourth plea, the applicant submits, in essence, that the Commission made manifest errors of assessment in wrongly concluding, in recitals 1279 to 1302 of the contested decision, that customers’ possibilities to switch to other suppliers of TP, ECCS or laminated steel within the EEA, such as US Steel Kosice (USSK), AM or Liberty House, were limited or non-existent. According to the applicant, the arguments relied on by the Commission to support that finding disregard the arguments of the parties and are inappropriate, inconsistent and lacking any sound economic analysis.

600    As regards USSK, the applicant disputes the Commission’s finding, in recital 1281 of the contested decision, that, with respect to TP, ‘the results of the investigation show that USSK is not a viable option for customers to turn to’. That conclusion is remarkable, considering that USSK’s market share in 2017 was [confidential]%. In addition, according to the applicant, the Commission’s analysis, based on its market investigation, which leads to that conclusion does not meet the requisite legal standard of proof. In particular, the applicant questions the probative value of the replies from two customers, namely [confidential], referred to in recital 1282 of that decision, which downplay USSK’s relevance, despite the parties having presented contrary evidence demonstrating the relevance of that supplier in both customers’ rankings. The applicant concludes that the Commission failed to prove that, despite a market share of [confidential]% and evidence provided by the parties to the contrary, USSK is not a viable switching option for TP customers.

601    As regards AM, the applicant disputes, in essence, the Commission’s ‘illogical’ assessment with respect to TP, set out in recital 1288 of the contested decision, that AM would probably have neither the ability nor the incentive to increase its volumes, because, post-transaction, customers already exposed to AM might not want to increase their exposure and AM might prefer to follow the merged entity’s price increase rather than increase its volumes. Similarly, the applicant challenges recital 1294 et seq. of that decision concerning ECCS. According to the applicant, the Commission has not proved to the requisite legal standard that AM is not a viable switching option for customers of TP or ECCS. Moreover, the Commission relies on mere assumptions rather than sound economic analysis in that regard.

602    Furthermore, the applicant disputes the Commission’s reading, in recital 1297 of the contested decision, of its internal document on ECCS, reproduced in Figure 198 of that decision. By erroneously maintaining that that document shows that the applicant had foreseen [confidential], the Commission disregarded the applicant’s explanation that [confidential].

603    As regards Liberty House, the applicant disputes, in essence, the Commission’s ‘flawed’ assessment, in recitals 1290 to 1293 of the contested decision, of whether that undertaking, as buyer of AM’s divested packaging steel facility in Tilleur may be considered a viable option for switching supplier on the TP market. The applicant claims that the parties had submitted that the existing assets on that site had a capacity of [confidential] kilotonnes once re-activated by Liberty House and could be expanded to a capacity of [confidential] kilotonnes following further investment. The Commission disregarded the parties’ arguments, resolving the unfounded doubts raised by customers as to the competitiveness of those assets after that transfer and showing that Liberty House had the potential to become a significant player in that type of steel, even though it had approved that undertaking as a ‘suitable purchaser’ in the AM/Ilva case.

604    Furthermore, the applicant complains that the Commission misinterpreted the internal TSE document, reproduced in Figure 199 of the contested decision. The applicant notes that the parties had explained that the reference to the [confidential] players in the title of that document was a reference to [confidential], which is apparent from reading the names in the blue boxes of that document. Furthermore, the document states that [confidential]. However, the Commission states, in recital 1301 of that decision, that the abovementioned document shows, in line with the parties’ own view, that the European market for packaging steel was dominated by [confidential] players, ‘namely [confidential]’, which is a distortion of the evidence.

605    The Commission disputes the applicant’s arguments and contends that this part should be rejected.

606    In that regard, first, as regards USSK, the applicant complains, in essence, that the Commission failed to prove that, although that supplier had a market share of [confidential]% in 2017 and despite evidence provided by the parties to the contrary during the administrative procedure, that supplier was not a viable switching option for TP customers in the EEA.

607    It should be noted in that regard that, as is apparent from recitals 1281 to 1286 of the contested decision, the Commission relied on the results of the market investigation and, principally, the responses provided by customers active on the market for TP in that investigation to find that (i) USSK suffers from limitations in product portfolio making it less attractive as a switching option for customers, (ii) USSK did not have an optimal location from a logistics point of view to serve customers in the EEA, and (iii) USSK was capacity constrained. However, the applicant does not dispute the Commission’s findings and does not explain how USSK’s market share of [confidential]% in 2017 make it a sufficiently viable switching option for customers, despite those findings.

608    Furthermore, as regards the applicant’s argument that the Commission wrongly rejected, in recital 1282 of the contested decision, evidence provided by the parties to the contrary during the administrative procedure demonstrating the relevance of USSK in the rankings of two of their customers, namely the undertakings [confidential], it should be noted that the Commission questioned those two customers, which instead downplayed the relevance of that supplier compared with the parties as to the requirements in terms of quality and TP product portfolios. In that regard, as appears from that recital, the replies of those customers were supported by replies from other operators, the credibility of which are not called into question by the applicant.

609    It follows that the probative value of the replies provided to the Commission of the undertakings [confidential], which are furthermore the two main buyers of TP within the EEA and also the parties’ largest customers, as is apparent from recital 1253 of the contested decision, cannot be called into question. The Commission merely refuted the parties’ evidence, taking the view, in recital 1282 of the contested decision, that that evidence was not sufficiently convincing, among all the evidence made available to it and, in particular, the statements of operators on the market for TP, to render implausible its findings on the limited relevance of USSK for customers of TP in the EEA.

610    Therefore, the applicant cannot criticise the Commission for failing to provide sufficient evidence to conclude, in recital 1281 of the contested decision, that USSK was not a viable switching option for TP customers in the EEA.

611    Secondly, as regards AM, the applicant complains, in essence, that the Commission failed to establish to the requisite legal standard that AM would not be a viable switching option for customers of TP or ECCS. In that regard, it should be noted that the Commission took the view, in recital 1279 of the contested decision, that, post-transaction, AM was the only remaining credible alternative for TP and ECCS.

612    In particular, it is also relevant that, as regards the market for TP, the Commission assessed AM’s incentives to counter a potential price increase by the merged entity, taking into account, in particular, in recitals 1288 and 1289 of the contested decision, economic factors, such as the oligopolistic structure of the market, the unwillingness of customers to increase their dependence towards AM, the fact that combating such a price increase would lead to a fall in prices on all TP volumes and AM’s lack of spare capacity. As regards the market for ECCS, the Commission evaluated AM’s incentives to offset such an increase, relying in particular, in recitals 1294 to 1297 of that decision, on the oligopolistic structure of the market and on an analysis of the applicant’s internal documents showing, according to the applicant, AM’s likely behaviour in that market.

613    Furthermore, it should be noted that the applicant’s criticisms of the Commission’s prospective analysis, in recital 1288 of the contested decision, that AM would probably not have the ability or incentive to expand its TP volumes, fail to take account of the Commission’s finding, in recital 1289 of that decision, that AM does not have the sufficient spare TP capacity to offset any price increases by the merged entity, which is not disputed by the applicant.

614    In addition, the Commission’s prospective analysis is based on an economic analysis which is consistent with paragraphs 32 to 35 of the Horizontal Merger Guidelines, under the heading ‘Competitors are unlikely to increase supply if prices increase’. It is apparent from those paragraphs and, in particular, from paragraph 32 of those guidelines that, when market conditions are such that competitors of the merging parties are unlikely to increase output following a price increase, the merged entity would have an incentive to raise prices. It also follows from paragraph 34 of those guidelines that an increase in output is unlikely, in particular, when competitors face binding capacity constraints, as is the case with AM in the present case with respect to TP.

615    It follows that it is highly likely that, in the presence of such a price increase by the merged entity, customers who would try to switch to a competitor, such as AM, which is the only other significant player on the market concerned, would also face price increases. When a competitor would see its demand increasing, it would itself, unilaterally, have an incentive to increase prices rather than keeping constant prices or lowering prices to gain further customers, since to do so would be less economically advantageous for it and would be logically at odds with the pursuit of profit maximisation. Therefore, the Commission’s prospective analysis following that approach, in recital 1288 of that decision, is coherent and very plausible.

616    The Commission’s prospective analysis is also supported by evidence from actual market conduct, as is apparent from footnote 834 to recital 1103 of the contested decision, and by customer statements in the Commission’s market investigation, as is apparent from recital 1356 of that decision.

617    Similarly, the reasoning set out in paragraph 612 et seq. above, relating to the market for TP, also applies, in essence, to the ECCS market, which was the subject of a prospective analysis by the Commission in recital 1294 et seq. of the contested decision. The Commission’s prospective analysis, according to which AM would not have any incentive to counter a hypothetical post-transaction increase in ECCS prices, but would instead follow it and benefit from it, is equally as coherent and very plausible. Moreover, that analysis is all the more justified, since, as stated in recitals 1294 and 1295 of that decision, USSK is not present on the ECCS market and the oligopolistic structure of that market is likely to be further strengthened following the transaction.

618    It follows from the foregoing considerations that, contrary to what the applicant claims, the Commission established to the requisite legal standard, in recitals 1288 and 1289 and in recital 1294 et seq. of the contested decision, that AM would not be a viable switching option for purchasers of TP or ECCS.

619    Nor can the Commission be criticised for relying on mere assumptions in that regard. The Commission’s prospective analysis, in recitals 1288 and 1289 and in recital 1294 et seq. of the contested decision, is based on a sound economic analysis of AM’s reaction to a hypothetical price increase by the merged entity in the markets for TP and ECCS. In any event, the applicant does not explain what the required economic analysis should be in the present case or why that additional analysis would, in its view, invalidate the analysis on which the Commission relied in those recitals. Accordingly, the complaint to which the applicant’s analysis relates must be rejected.

620    Furthermore, as regards the applicant’s complaint regarding the Commission’s reading of the applicant’s internal document, reproduced in Figure 198 of the contested decision, it should be noted that, as is apparent from recital 1297 of the contested decision and the footnotes mentioned therein, [confidential] AM’s exit from the ECCS market. In any event, even if the Commission’s assessment of that internal document had been incorrect, the fact remains that the applicant does not dispute, in a substantiated and convincing manner, the essential findings relied on by the Commission, in recitals 1294 to 1296 of that decision, to support its conclusion in relation to the limited possibilities for customers to change supplier on the ECCS market. Accordingly, the applicant’s complaint must, in any event, be rejected as having no bearing on the merits of the Commission’s conclusion to which it relates.

621    Thirdly, as regards Liberty House, the applicant complains, in essence, that the Commission erred in its assessment, in recitals 1290 to 1293 of the contested decision, of whether that undertaking, as buyer of AM’s divested packaging steel facility in Tilleur, may be considered a viable option for switching supplier on the TP market.

622    In that regard, it should be noted that, in recital 1290 of the contested decision, the Commission established, by referring to AM’s statements and rejecting what the parties had indicated during the administrative procedure, that AM’s divestment of the Tilleur plant to Liberty House contained only one TP production line as regards packaging steel, a point which is no longer disputed by the applicant. In addition, the Commission demonstrated, in recital 1291 of that decision, that [confidential], another point which is not disputed by the applicant. Moreover, the Commission stated, in recitals 1292 and 1293 of that decision, that its assessment in respect of the limited capacities of the divested plant to compete credibly with the parties in the market for TP, was corroborated by the customer statements which it mentions in those recitals.

623    The applicant submits, in essence, that the Commission’s analysis is incorrect. It relies on the fact that, as a result of AM’s divestment of the Tilleur plant, Liberty House may be considered a viable option for switching supplier on the TP market, because the TP capacity of that site could be doubled ‘following further investment’. It should be noted at the outset that the applicant does not in any way explain how the Tilleur plant’s capacity could be raised from [confidential].

624    Moreover, as is apparent from recitals 1290 and 1291 of the contested decision, which have not been challenged by the applicant, the Tilleur plant divested to Liberty House has only one production line which actually produces up to [confidential] kilotonnes out of a total capacity of [confidential] kilotonnes, whereas, in comparison, TSE sold [confidential] kilotonnes and the applicant sold [confidential] kilotonnes in the EEA in 2017.

625    Similarly, it is apparent from recitals 1292 and 1293 of the contested decision, in which the Commission cited customer statements indicating that they considered that Liberty House did not have, inter alia, the know-how, research and development capabilities and required experience to produce high quality TP. Moreover, it follows from recital 1254 of that decision that the market for TP is characterised by quite extensive homologation requirements for production lines, which means that that plant cannot be considered, at least not in the short term, a viable option for switching supplier on that market.

626    It follows that, contrary to what the applicant claims, the Commission did not disregard the argument raised by the parties during the administrative procedure in relation to the doubts expressed by customers on the competitiveness of the Tilleur plant divested to Liberty House. However, the Commission considered that those arguments could not be considered sufficiently relevant and convincing in the light of all the evidence at its disposal, such as the statements of the parties, AM and customers as well as the parties’ internal documents, to determine whether Liberty House was a viable option for switching supplier on the TP market.

627    In addition, in the light of the considerations set out in paragraphs 623 to 625 above, it is relevant that the argument put forward by the applicant that the production capacity of the Tilleur plant divested to Liberty House could be doubled [confidential], even if that were demonstrated, which is not the case, cannot in itself demonstrate to the requisite legal standard that the Commission erred in its analysis, in recitals 1290 to 1293 of the contested decision, that Liberty House, with the acquisition of that plant, could not be considered a viable option for switching supplier on the TP market. In any event, the fact remains that the applicant has produced no evidence supporting the claim that Liberty House had the potential to be become, at least in the short term, a major player in the TP market.

628    Furthermore, the applicant also cannot validly rely in that regard on the fact that the Commission approved Liberty House as a ‘suitable purchaser’ in AM/Ilva. It is apparent from the Commission’s examination of that approval in decision M.8444 and, in particular, from recitals 81 and 101 et seq. of that decision, that that examination did not relate to the specific market for TP. That examination did not include any assessment of the fact that Liberty House was a supplier capable of producing TP in the EEA precisely because, as AM had claimed in that decision, Liberty House did not produce TP in the EEA on the date of adoption of decision M.8444, namely 17 April 2019.

629    Fourthly, as regards the complaint, in recital 1301 of the contested decision, that the Commission distorted the internal TSE document from 2016, reproduced in Figure 199 of that decision, the applicant claims, in particular, that the Commission should have understood the title of that document as pointing to USSK instead of TSE, because TSE’s name did not appear in the blue boxes of that document. In that regard, it must be borne in mind that there is a distortion of evidence where, without recourse to new evidence, the assessment of the existing evidence appears to be manifestly wrong (see judgment of 18 July 2007, Industrias Químicas del Vallés v Commission, C‑326/05 P, EU:C:2007:443, paragraph 60 and the case-law cited, judgment of 28 November 2019, Brugg Kabel and Kabelwerke Brugg v Commission, C‑591/18 P, not published, EU:C:2019:1026, paragraph 63).

630    The Court notes that, as is apparent from a reading of that internal document, the inferences which the Commission drew from its content, in recital 1301 of the contested decision, are consistent with the wording, meaning and scope of that document read in its entirety, with the result that the Commission’s assessment of that document does not appear to be manifestly wrong. Accordingly, the Commission’s inference that ‘the European market for packaging steel was dominated by [confidential] players, namely [confidential]’, is free from distortion of the internal document, reproduced in Figure 199 of the contested decision.

631    The internal document in question is entitled ‘[confidential]’ and therefore refers to the [confidential] suppliers of considerable size on the market for packaging steel, which could not reasonably be the case of USSK, since, as is apparent in particular from the contested decision (see, in particular, recitals 1260, 1281 to 1286, 1294 and 1298), that undertaking is much smaller than TSE, in particular as regards sales, capacity and product range, and it is not present on the markets for ECCS and laminated steel for packaging, unlike TSE. Furthermore, the words ‘[confidential]’, positioned under the blue box reserved for USSK, logically suggest that that undertaking is in a position to match the [confidential] leading players in that market as regards quality of steel products for packaging, but that it is not yet one of them. Moreover, it was reasonable for the Commission to infer that, since that was an internal TSE document, it would have been unusual for TSE to portray itself as a rival to itself by highlighting its own features and strengths in comparison to those of its competitors in an internal brief.

632    It follows that the Commission cannot be criticised for distorting TSE’s internal document, reproduced in Figure 199 of the contested decision.

633    Furthermore, although the applicant, by its complaint alleging that that internal document was distorted, seeks to maintain that USSK could be considered a major player in the market for packaging steel and, therefore, a viable option for switching supplier on that market, the Commission correctly found, in recitals 1281 to 1286 of the contested decision, that that undertaking was not a viable option for TP customers to turn to in the EEA, as is apparent from paragraphs 606 to 610 above. Similarly, USSK cannot be considered such an alternative on the market for ECCS or on the market for laminated steel for packaging, since that undertaking is not present on those markets, as is apparent from recitals 1294 and 1298 of the contested decision, which is furthermore not disputed by the applicant. It follows that that complaint has no bearing on the conclusion drawn by the Commission in recital 1302 of that decision that there is little or no possibility for customers to switch supplier in the EEA as regards TP, ECCS and laminated steel for packaging.

634    In the light of all of the foregoing considerations, it must be held that the applicant cannot validly criticise the Commission for making manifest errors of assessment by wrongly concluding, in recitals 1279 to 1302 of the contested decision, that customers’ possibilities to switch to other suppliers of TP, ECCS or laminated steel for packaging within the EEA, such as USSK, AM or Liberty House, were limited or non-existent.

635    Accordingly, the third part of the fourth plea in law must be rejected.

 The fourth part, concerning manifest errors of assessment regarding the competitive constraint exerted by imports

636    By the fourth part of its fourth plea, the applicant submits, in essence, that the Commission made manifest errors of assessment by wrongly concluding, in recitals 1303 to 1322 of the contested decision, that imports would be unlikely adequately to constrain the merged entity as regards metallic-coated steel for packaging in the EEA. The Commission’s conclusion relies on selectively picked quotes from the market investigation and on a few misinterpreted internal documents of the parties.

637    In particular, first, the applicant considers that the Commission’s conclusion, in recital 1306 et seq. of the contested decision, that lead times ‘significantly restrict sourcing from imports’ is vitiated by a manifest error of assessment. The application complains that the Commission, in those recitals, gave disproportionate weight to some customer statements regarding lead-time restrictions allegedly following from demand volatility. The parties have set out in that regard that seasonality, if at all, only concerns a small proportion of the overall demand (that is, specific food applications). In addition, some of those declarations give no indication as to the fraction the products concerned by seasonality represent.

638    Furthermore, the applicant claims that the Commission failed to consider that even if there was some volatility of demand, this did not mean that lead times must prevent customers from sourcing at least a significant part of their demand from imports. The Commission did not take account of the statements of several customers who confirmed that they used consignment stocks in the EU that could compensate for short lead times or that they tolerated long lead times. In addition, the Commission disregards the fact that the parties themselves sell significant volumes to non-EEA countries, demonstrating that short lead times are not an important factor for major international customers. Lastly, the applicant alleges an error of interpretation by the Commission as regards its internal documents, reproduced in Figures 200 and 201 of the contested decision, and an inherent contradiction in recital 1310 of that decision.

639    Secondly, the applicant is of the view that the Commission’s conclusion, in recital 1312 et seq. of the contested decision, that imports are unable to offer the qualities that customers require, is also vitiated by a manifest error of assessment. The applicant complains that the Commission again selectively quoted from its market investigation and disregarded other – contradicting – information received from the parties and from that investigation. In that regard, the applicant notes that less than half of the customers consulted stated that there were differences between EEA suppliers and importers in their ability to meet customers’ needs. More generally, the Commission disregards the fact that the results of the market investigation as presented in the contested decision are not consistent with the high share of imports, amounting to [10-20]% for TP and [10-20]% for ECCS in the EEA in 2017. Those large shares show that imports are an important competitive constraint.

640    The Commission disputes the applicant’s arguments and contends that this part should be rejected.

641    In that regard, it should be noted that the Commission reached the conclusion, in recital 1322 of the contested decision, that imports would exert only limited competitive pressure on the merged entity as regards metallic-coated steel for packaging in the EEA, following an analysis based, inter alia, on the statements of customers in that sector provided in the market investigation and on the parties’ internal documents. In that analysis, in recitals 1303 to 1321 of that decision, the Commission examined several factors, such as lead times (recitals 1306 to 1311), product quality (recitals 1312 to 1316), the applicant’s internal documents (recital 1317) and security of supply (recitals 1318 to 1321).

642    By the fourth part of its fourth plea, the applicant challenges only the Commission’s analysis of those first two factors, namely lead times and the quality of imported products. The applicant therefore fails to engage with the essential findings made by the Commission in recitals 1317 to 1321 of the contested decision in its examination of the other two factors. In those recitals, the Commission showed that the applicants’ own internal documents depict competition from imports as weak, and that imports did not provide sufficient security of supply.

643    First, as regards lead times, the applicant complains, in essence, that the Commission found, in recitals 1306 to 1309 of the contested decision, that sourcing by food packaging customers was characterised by seasonal volatility and, as such, those customers are able to place their orders only at a very late stage, requiring them to have shorter lead times for sourcing which only EEA-based suppliers are able to offer. According to the applicant, such volatility only concerns a small proportion of the overall demand (that is, specific food applications).

644    It must be observed that the applicant does not therefore dispute the existence of seasonal volatility for food applications, but rather suggests that only a limited number of applications are concerned. As is apparent from recital 1307 of the contested decision, without being challenged on that point by the applicant, food packaging represents the largest packaging application of the parties’ TP and ECCS sales. Furthermore, the Commission has demonstrated that volatility, in recitals 1307 and 1308 of that decision, by relying on statements by major customers in that sector. In addition, the Commission’s findings, in recital 1309 of that decision, reference a broad range of food applications subject to that volatility and to paint packaging, which is also dependent on weather conditions.

645    In that regard, it is apparent from the market investigation carried out by the Commission and, in particular, from the responses to Questionnaire 13 (Annex A.4h) that the Commission did not, as the applicant claims, attach excessive weight to certain customer statements. The Commission’s findings, in recitals 1307 to 1309 of the contested decision, reasonably reflect those responses. In particular, in that regard, although the Commission did not mention, in the contested decision, the statements of customers who confirmed that they used consignment stocks in the EEA or the fact that they tolerated long lead times, that does not necessarily mean that the Commission disregarded them. In the present case, the Commission merely took the view, as is apparent in particular from recital 1311 of that decision, that those statements were not sufficiently representative or relevant from among all the responses obtained from customers in its market investigation. Moreover, it should be noted that, on reading the responses to Questionnaire 13, that is indeed the case.

646    Similarly, the applicant’s complaint that the Commission disregarded the fact that the parties themselves sell significant volumes to non-EEA customers can have only very limited relevance for the assessment of the relevant markets and the reaction of EEA customers, since the applicant has not proved the contrary. The Commission did not therefore err in that regard.

647    Furthermore, the applicant’s claim that the Commission misinterpreted its internal documents, reproduced in Figures 200 and 201 of the contested decision, and that recital 1310 of that decision contains an inherent contradiction, cannot succeed. As is apparent from the very wording of that recital, the applicant’s internal documents, which are interpreted by the Commission in that recital, merely ‘corroborate’ the Commission’s findings as to the importance of lead times, which are rightly supported in recitals 1307 to 1309 and 1311 of that decision and are a sufficient basis to assess lead times. Therefore, even if such error or contradiction did occur on the part of the Commission, as the applicant claims, it could have no effect on the Commission’s assessment in that regard.

648    It follows that the Commission cannot be criticised for making a manifest error of assessment, in recital 1306 et seq. of the contested decision, by concluding that lead times significantly restrict sourcing from imports.

649    Secondly, as regards the quality of imports, the applicant complains, in essence, that the Commission, in recitals 1312 to 1316 of the contested decision, again selectively quoted from its market investigation and disregarded other – contradicting – information received from the parties and from that investigation. In particular, the applicant notes that less than half of the customers consulted stated that there were differences between EEA suppliers and importers in their ability to meet customers’ needs. However, it must be stated that that is not the case here and that the applicant’s reading of the responses provided by customers to Questionnaire 4 (Annex A.4d) is incomplete and biased. Contrary to what the applicant claims, it is apparent from the responses to question 63 of that questionnaire that the majority of customers which answered that question mentioned the existence of such differences.

650    Furthermore, as regards the applicant’s complaint that the Commission disregarded the fact that the alleged results of the market investigation, as presented in recitals 1312 to 1316 of the contested decision, are not consistent with the high share of imports, amounting to [10-20]% in TP and [10-20]% in ECCS in the EEA in 2017, the applicant fails to take into account that, as is apparent from Table 23 of that decision, those imports come mainly from a single country, namely the People’s Republic of China. Those Chinese imports are associated with insufficient quality, as is apparent from recitals 1314 to 1316 of that decision, which are furthermore based on an internal TSE document which has not been called into question by the applicant. Therefore, that share cannot demonstrate to the requisite legal standard that imports constitute a significant competitive constraint, and therefore that complaint cannot validly succeed.

651    It follows that the Commission cannot be criticised for making a manifest error of assessment, in recital 1312 et seq. of the contested decision, in concluding that imports were unable to offer the qualities that customers required.

652    In the light of all the foregoing considerations, it must be held that the applicant cannot validly complain that the Commission made manifest errors of assessment in concluding, in recitals 1303 to 1322 of the contested decision, that imports would be unlikely to constrain adequately the merged entity as regards metallic-coated steel for packaging in the EEA.

653    Accordingly, the fourth part of the fourth plea in law must be rejected.

 The fifth part, concerning manifest errors of assessment regarding the likelihood of entry or expansion of suppliers

654    By the fifth part of its fourth plea, the applicant submits, in essence, that the Commission made manifest errors of assessment in wrongly concluding, in recitals 1323 to 1350 of the contested decision, that entry or expansion of suppliers into or in the markets for packaging steel (TP, ECCS and laminated steel) in the EEA was unlikely, because the requirement of vertical integration would act as a substantial barrier to entry and expansion. The Commission disregards the ample evidence showing that vertical integration is not a requirement for entry or expansion into or in those markets.

655    First, the applicant notes that customers indicated during the market investigation that they could source from non-integrated packaging steel suppliers (re-rollers). The Commission overlooked the fact that the responses from customers relied on in the contested decision are likely to be skewed in favour of integrated producers, given that producers of packaging steel based in the EEA have chosen the integrated model, which does not mean that non-integrated suppliers do not exercise a competitive constraint.

656    Secondly, the applicant claims that customers recognised during the market investigation that there were numerous examples of non-integrated suppliers of metallic-coated steel for packaging operating globally in countries such as Belarus, Brazil, China, South Korea, India and Thailand. However, the Commission overlooked those examples and failed to explain why it should be possible for non-integrated suppliers globally to operate successfully a re-roller business model in the markets for packaging steel in those countries, but not in the EEA.

657    Thirdly, the applicant claims that the parties understood that AM acquires substrate for the production of packaging steel from, inter alia, its plant in Tilleur, and that Liberty House, as the acquirer of that plant may continue to acquire substrate from third parties, and is therefore an example of a non-integrated producer in the EEA. However, the Commission has not endeavoured to verify that understanding with AM. That means that it must not assume the opposite when reasoning its decision.

658    Fourthly, the applicant maintains that, by wrongly relying on the assessment that vertical integration is a requirement for entry and/or expansion, the Commission made a manifest error of assessment in refusing to consider, in recitals 1331 to 1335 of the contested decision, the Turkish-Japanese JV Tosyali Toyo as a competitive constraint on the packaging steel market in the EEA.

659    In that regard, the applicant notes that, in recital 1333 of the contested decision, the Commission, citing a customer, admits that Tosyali Toyo can exercise a significant competitive constraint in the EEA and produce high-quality TP for import. Furthermore, several customers have recognised that undertaking as a viable and effective competitor, even though it is not integrated. In addition, the Commission disregarded the parties’ evidence showing that TP’s imports into the EEA from Turkey had increased in 2018. Furthermore, the applicant states that, without explanation and without conducting an economic analysis, the Commission assumes, in recital 1335 of that decision, that that undertaking ‘is likely incentivised to sell locally’. Nor is it a valid argument that Tosyali Toyo ‘does not appear to be larger than USSK’.

660    Fifthly, the applicant notes that the Commission also made a manifest error of assessment in dismissing, in recitals 1336 to 1340 of the contested decision, the Chinese supplier Hebei Steel, which acquired a packaging steel plant in Serbia, as a competitive constraint on the packaging steel market in the EEA. In that regard, the applicant complains that the Commission overlooked the fact that non-EEA suppliers that are active in the EEA market might also have spare capacity outside the EEA and an incentive to use it to increase their supply to the EEA prices rise. However, the Commission seems to assume that their capacities used for exports to the EEA are fixed, but without further explaining or substantiating that misguided claim.

661    Sixthly, the applicant disputes the Commission’s claim, in recital 1330 of the contested decision, that entry into the markets for packaging steel requires ‘a lengthy homologation process’. In that regard, the applicant claims that the parties had explained that that procedure was purely technical, informal, unproblematic and low-cost, and usually took around two to three months to complete. The applicant concludes that had the Commission based its assessment on that correct and known set of facts, it would not have reached the wrong conclusion that homologation acts as a barrier to entry to those markets.

662    The Commission disputes the applicant’s arguments and contends that this part should be rejected.

663    In that regard, it should be noted that the Commission’s conclusion, that entry or expansion of suppliers into or in the markets for packaging steel (TP, ECCS and laminated steel) in the EEA was unlikely, is based on several factors, analysed in recitals 1323 to 1350 of the contested decision, which rely essentially on the market investigation which it carried out. That evidence shows, as the Commission explained in recitals 1323 to 1343 and 1344 to 1350 of that decision, (i) that barriers to entry are high, particularly because of the importance of vertical integration, and (ii) that redirection of European exports back to the EEA appears unlikely.

664    By the fifth part of its fourth plea, the applicant disputes only the Commission’s conclusion, in recitals 1323 to 1343 of the contested decision, that the barriers to entry are high by claiming that vertical integration is not a requirement for entry or expansion in the markets for packaging steel. The applicant therefore fails to take account of the essential findings made by the Commission, in recitals 1344 to 1350 of that decision, concerning the prospects of redirection of European exports.

665    First, as regards the applicant’s claim that customers indicated during the market investigation that they could source from non-integrated packaging steel suppliers, it should be noted that the Commission stated, in recital 1324 of the contested decision, that ‘the results of [that] investigation [suggested] that for an entry into metallic coated steel for packaging to be successful, a new supplier would have to be integrated[; customers] indicated that it [was] essential for their suppliers to have precise control over the production process throughout the value chain[; they] point out that non-integrated steelmakers (re-rollers) are not able to offer the same product range and product quality as integrated steelmakers [and that, furthermore], for a large majority of customers, non-integrated steelmakers cannot fulfil their needs equally as integrated steelmakers’. Furthermore, in recitals 1325 to 1329 of that decision, the Commission upheld its conclusion that vertical integration is a requirement for entry or expansion in the markets for packaging steel, citing statements by customers and suppliers to that effect.

666    It must be pointed out that the Commission’s findings, which are based on statements made by customers and suppliers in the market investigation, are not disputed as such by the applicant. The applicant merely notes that customers indicated during that investigation that they ‘could’ source from non-integrated suppliers and cites three customers in that regard, whereas the Commission relies on the statements of a multitude of customers and suppliers to establish those findings and that, for some of them, it relies even on the statements of ‘a large majority of customers’.

667    Furthermore, the customer quotes relied on by the applicant are based on the purely hypothetical possibility that they could source from non-integrated producers. As the applicant itself pointed out in arguing that producers of packaging steel in the EEA have chosen the integrated model, there are no non-integrated suppliers on the packaging steel market in the EEA. Consequently, those customers have essentially no experience or, at most, only limited experience with such suppliers.

668    In addition, the applicant’s complaint that responses from customers relied on in the contested decision are likely to be skewed in favour of integrated producers is not substantiated in any way. On the other hand, as was pointed out in paragraphs 665 and 666 above, the fact remains that the Commission relied on the statements of ‘a large majority of customers’.

669    It follows that the Commission cannot be accused of disregarding the responses from customers relied on by the applicant. The Commission merely took the view, as is apparent in particular from recitals 1324 to 1329 of the contested decision, that the statements made by customers and suppliers which it had relied on in those recitals were more representative or relevant from among all the responses obtained from customers in its market investigation. In any event, it must be held that the Commission did not manifestly exceed the limits of a reasonable assessment of that evidence.

670    Secondly, as regards the applicant’s complaint that the Commission did not explain in the contested decision why it should be possible for non-integrated suppliers of metallic-coated steel for packaging to operate successfully on a global basis a re-roller business model in some non-EEA countries, but not in the EEA, it should be noted that, as the Commission rightly pointed out, the contested decision states in recital 444 that ‘a majority of customers … indicated to source mostly from suppliers in the same [country] or nearby countries within the EEA and also to have a preference to source domestically at the EEA-level [and that customers] point to lead times, quality levels and delivery performance as reasons for their preference for EEA or domestic sourcing’. As was pointed out in paragraph 667 above, there are no non-integrated suppliers on the packaging steel market in the EEA.

671    In addition, it should be pointed out that, in order to assess whether there is an SIEC in the EEA, the Commission was not required to investigate the requirements of customers outside the relevant product and geographic markets in the EEA, in particular since it had sufficient evidence from the relevant markets in the EEA.

672    It follows that the Commission cannot be criticised for failing to provide an explanation as to why it should be possible for non-integrated suppliers to operate successfully on a global basis a re-roller business model in some non-EEA countries, but not in the EEA.

673    Thirdly, as regards the applicant’s complaint that the Commission did not endeavour to verify with AM whether it acquired substrate for the production of packaging steel at, inter alia, its plant in Tilleur, and that Liberty House, as the acquirer of that plant may continue to acquire substrate from third parties, it should be noted that the applicant depicts the TP production line at Tilleur as an isolated example of a non-integrated producer in the EEA. Not only is it an isolated example, but that line is far from representing AM’s strategic asset. As is apparent from recitals 1290 to 1293 of the contested decision, it has been shown that that line was of limited capacity and competitiveness. It follows that the Commission cannot be criticised for failing to take account of the Tilleur plant in its analysis of whether the entry or expansion of suppliers into or in the markets for packaging steel in the EEA was likely.

674    Fourthly, as regards the applicant’s complaint that the Commission made a manifest error of assessment in refusing to consider, in recitals 1331 to 1335 of the contested decision, the Turkish-Japanese JV Tosyali Toyo, a ‘non-integrated’ producer, as a competitive constraint, it should be noted that, in recital 1333 of that decision, the Commission noted, relying on the market investigation, that that undertaking was nonetheless an outlier in that it was ‘able to source HR from its Japanese JV partner’ and was therefore ‘different from a re-roller that would need to buy HR on the market’.

675    Furthermore, it should be noted that, in recital 1335 of the contested decision, the Commission relied on a series of findings based on the market investigation in order to conclude that Tosyali Toyo was not capable of exercising sufficient competitive constraint to offset the effects brought about by the transaction. Accordingly, the Commission relied, inter alia, on the arguments that that undertaking had rather limited capacity, its geographical distance was far from the EEA, its volumes were insufficient and its exports to the EEA were insignificant during the period from 2015 to 2017. In that regard, particular attention should be drawn to the Commission’s finding that a majority of customers stated that ‘Tosyali Toyo JV would not have sufficient volumes available for customers to switch to in the event of a hypothetical price increase brought about by the Proposed Transaction’. The applicant does not dispute those findings in its complaint, even though they are essential to the Commission’s conclusion.

676    Moreover, the Commission did not disregard the arguments raised by the parties in that regard – in particular, the evidence of the parties showing an increase in imports of TP into the EEA from Turkey in 2018. The Commission merely took the view, as is apparent from recitals 1331 to 1335 of the contested decision, that the parties’ arguments and evidence were not sufficiently convincing or relevant, having regard to all the evidence made available to it and, in particular, the responses from the market investigation.

677    It follows that the applicant’s complaint relating to the Turkish-Japanese JV Tosyali Toyo cannot validly succeed.

678    Fifthly, as regards the applicant’s complaint that the Commission made a manifest error of assessment in refusing to consider, in recitals 1336 to 1340 of the contested decision, the Chinese supplier Hebei Steel as a competitive constraint, it should be noted that, in recital 1337 of that decision, the Commission explained that that supplier was already supplying at full capacity and that, in any event, the volumes that that supplier would be able to redirect would remain limited compared to the parties’ sales and capacities. In that regard, it must be pointed out that the applicant fails to substantiate why the finding of a capacity constraint is wrong.

679    Furthermore, the Commission relied on a series of findings in concluding that Hebei Steel was not capable of exercising sufficient competitive constraint to offset the effects brought about by the transaction. Accordingly, the Commission relied, inter alia, on the arguments that that supplier had limited capacity, its geographical distance was far from the parties, its volumes were less competitive due to safeguard measures and that it is active only on the market for TP and not on the markets for ECCS and laminated steel. The applicant does not dispute those findings in its complaint, even though they are essential to the Commission’s conclusion.

680    It follows that the applicant’s complaint relating to the Chinese supplier Hebei Steel cannot validly succeed.

681    Sixthly, as regards the applicant’s complaint that the Commission wrongly asserted, in recital 1330 of the contested decision, that entry into the markets for packaging steel would require ‘a lengthy homologation process’, it should be noted that, as is apparent from the market investigation carried out by the Commission and, in particular, from the replies to Questionnaires 1 and 4 (Annexes A.4a and A.4d), the Commission correctly interpreted and presented, in recitals 1254 and 1299 of that decision, the responses of the relevant market players pointing out their homologation requirements. Those responses run directly counter to the applicant’s claims in that regard. Consequently, the Commission’s assertion, in recital 1330, is not vitiated by any error, contrary to what the applicant claims.

682    It follows that the Commission did not disregard the explanations provided by the parties in that regard. The Commission merely took the view, as is apparent from recitals 1254 and 1299 of the contested decision, that those explanations were not sufficiently convincing or relevant from all the evidence made available to it and, in particular, the responses from the market investigation.

683    In the light of all the foregoing considerations, it must be held that the applicant cannot validly complain that the Commission made manifest errors of assessment in concluding, in recitals 1323 to 1350 of the contested decision, that entry or expansion of suppliers into or in the markets for packaging steel (TP, ECCS and laminated steel) in the EEA was unlikely, in particular because the requirement of vertical integration would act as a substantial barrier to entry and expansion.

684    Accordingly, the fifth part of the fourth plea in law must be rejected.

 The sixth part, concerning a manifest error of assessment regarding buyer power

685    By the sixth part of its fourth plea, the applicant submits, in essence, that the Commission made a manifest error of assessment by wrongly concluding, in recitals 1351 to 1360 of the contested decision, that the customers’ buyer power in the packaging steel sector was unable to address post-transaction price increases.

686    First, the applicant criticises the Commission for finding, in recital 1352 of the contested decision, that the significance of packaging steel sales for customers in the packaging sector exceeded the significance of packaging steel sales for steelmakers, based on a comparison of the share of the material costs of the total production cost of a beverage can, on the one hand, with the share of packaging steel sales of the parties’ overall steel sales, on the other. According to the applicant, that comparison is not meaningful, since the parties have production plants which are dedicated to the production of packaging steel and have significant fixed costs which cannot be recouped if the parties do not sell sufficient volumes. The correct reference point for the comparison would have been the proportion of the parties’ packaging steel sales accounted for by the parties’ largest customers, which is significant.

687    Secondly, the applicant disputes the Commission’s analysis, in recital 1353 of the contested decision, that buyer power can only exist if there are credible alternatives to switch to and no significant barriers to switching. The applicant considers that analysis to be vitiated by errors similar to those identified in relation to the switching possibilities to other EEA suppliers, competitive constraints exerted by imports and barriers to entry or expansion.

688    Thirdly, the applicant complains, in essence, that the Commission rejected, in recitals 1357 and 1358 of the contested decision, the parties’ argument that the price premium of TP to HRC (substrate) in 2018, although higher than in the period from 2016 to 2017, which was characterised by an unusually low premium, was lower than in 2015, by stating that 2015 was not likely to be a better reference year to compare the price premium in 2018. The Commission does not put forward any argument to sustain that point aside from the fact that an internal TSE document, reproduced in Figure 30 of that decision, seems to suggest that [confidential]. The Commission ignores the fact that the same document shows that [confidential], indicating that, despite [confidential], it is not correct to assume that 2015 as a whole was any different from 2016 or 2017.

689    Fourthly, the applicant complains that the Commission did not put forward any evidence to show that the price premium in 2017, which was significantly below the premium in 2015 and 2016, was at a sustainable level, whereas, in recital 1359 of the contested decision, it claimed that the fact that the increase in premium between 2017 and 2018 had not been defeated by EEA competitors supported the argument that EEA competitors did not actually have the ability or the incentive to defeat a price increase. In addition, the applicant states that the lower price premium in 2017 was the result of HRC prices going up at a time when packaging steel contracts were already in place for the year and then that price increase was then reflected in the 2018 prices, which saw the premium returning to a level in line with 2015 and 2016.

690    The Commission disputes the applicant’s arguments and contends that this part should be rejected.

691    In that regard, it should be stated at the outset that the Commission’s finding that customers’ buyer power in the packaging steel sector is unable to address post-transaction price increases, is based on a series of factors, analysed in recitals 1351 to 1360 of the contested decision. Those factors, which rely essentially on the results of the market investigation carried out by the Commission, show in particular the significance of packaging steel for packaging customers compared to the significance of packaging steel sales for steelmakers (recital 1352), the existence of limitations on the extent to which customers can resort to other suppliers (recital 1353), the existence of barriers emanating from the requirement by customers to homologate (recital 1354), concentration levels (recital 1355), the increase in the price premium of TP to HRC (recitals 1356 to 1359) and customer preferences (recital 1360).

692    First, as regards the applicant’s claim that the Commission’s comparison, in recital 1352 of the contested decision, is not meaningful, since the parties have production plants which are dedicated to the production of packaging steel and have significant fixed costs which cannot be recouped if the parties do not sell sufficient volumes, it is necessary to examine the scope of that recital and, in particular, the comparison therein.

693    Accordingly, in recital 1352 of the contested decision, the Commission states:

‘… the significance of purchases of packaging steel for packaging customers exceeds the significance of packaging steel sales for steelmakers. Figure 204 for instance shows that the material cost of a steel can would account for more than half of the production cost of a beverage can. The sales of TP, ECCS and laminated steel for packaging however only account for a fraction of the Parties’ overall steel sales. Steel suppliers are in that regard more important to can makers than can markers are to steel suppliers.’

694    It is apparent from that recital that sales of packaging steel (TP, ECCS and laminated steel) account for a small proportion of the parties’ total steel sales, whereas purchases of packaging steel by packaging customers account for more than half of the production cost of a beverage can. According to the Commission, that suggests limited buyer power given that steel purchases are economically more significant to customers than steel sales are to steel producers.

695    It should be noted that the applicant does not challenge the accuracy of the assessment of sales, purchases and costs set out by the Commission in recital 1352 of the contested decision. On the other hand, the applicant claims that the Commission’s comparison of the share of the material costs of the total production cost of a beverage can, on the one hand, with the share of packaging steel sales of the parties’ overall steel sales, on the other, is ‘not meaningful’, because the parties incur large fixed costs which they can only recoup by selling large quantities to packaging customers.

696    However, it must be held that the applicant does not substantiate its claim concerning those non-recoverable fixed costs. Nor does it explain why those costs related to one of the parties’ many activities would be significant to them in the way that steel input costs are significant to their packaging customers, such as can-makers. In the absence of any substantiated evidence to contradict the Commission’s comparison, there is no reason to believe that the fraction of parties’ fixed costs allotted to packaging steel would be greater than that allotted by packaging customers to steel purchases.

697    It follows that the applicant cannot validly criticise the Commission for comparing, in recital 1352 of the contested decision, the share of the material costs of the total production cost of a beverage can, on the one hand, with the share of packaging steel sales of the parties’ overall steel sales, on the other, to reach the conclusion that the significance of packaging steel sales for customers in the packaging sector exceeded the significance of packaging steel sales for steelmakers.

698    Secondly, the applicant claims that the Commission’s analysis, in recital 1353 of the contested decision, that buyer power can only exist if there are credible alternatives to switch to and no significant barriers to switching, by arguing that that analysis is vitiated by errors similar to those identified in relation to the switching possibilities to other EEA suppliers, competitive constraints exerted by imports and barriers to entry or expansion. In so far as the applicant does not provide any further indications, reference should be made in that regard to the assessment in paragraphs 606 to 635, 641 to 653, 663 to 684 above, in the third, fourth and fifth parts of the fourth plea in law.

699    Thirdly, the applicant claims that the price premium of TP to HRC in 2018 was lower than in 2015, thus challenging the Commission’s finding, in recital 1358 of the contested decision, that 2015 is not likely to be a better reference year to compare the price premium in 2018. It must be stated that the applicant does not explain in any way how that is capable of vitiating with a manifest error the Commission’s assessment, set out in recitals 1351 to 1360 of the contested decision, of customers’ buyer power in the packaging steel sector.

700    In any event, it should be noted that the applicant in no way disputes the Commission’s essential finding, in recital 1359 of the contested decision, of a significant spread between the price of TP and the price of HRC. That spread over the years 2015 to 2018, which in reality represents the price premium of TP to HRC, is also set out in an internal TSE document, reproduced in Figure 71 of that decision. As the Commission has rightly pointed out, the persistence of that spread shows that EEA competitors have no incentive to compete away that margin, indicating that, as shown in the contested decision, a post-transaction price increase is likely to be profitable for the merged entity due to the loss of competition between the parties and insufficient competition from the competitors.

701    It follows that that claim and the applicant’s complaint cannot reasonably succeed.

702    Fourthly, as regards the applicant’s complaint that the Commission did not present any evidence showing that the price premium of TP to HRC in 2017 was at ‘a sustainable level’, it should be noted that, by that complaint, the applicant seeks, in reality, to call into question the finding of an increase in price premiums, in recitals 1357 to 1359 of the contested decision, by suggesting that that price in 2017 was not at ‘a sustainable level’. However, it must be stated that the applicant does not in any way explain what its notion of ‘sustainable pricing’ is or how the Commission’s assessment is erroneous. It follows that that complaint must be rejected.

703    In the light of all the foregoing considerations, it must be held that the applicant cannot validly accuse the Commission of erring manifestly in its assessment by concluding, in recitals 1351 to 1360 of the contested decision, that the customers’ buyer power in the packaging steel sector was unable to address post-transaction price increases.

704    Accordingly, the sixth part of the fourth plea in law must be rejected.

 The seventh part, concerning manifest errors of assessment regarding the competitive constraint exercised by alternative packaging materials

705    By the seventh part of the fourth plea, the applicant submits, in essence, that the Commission made manifest errors of assessment in wrongly concluding, in recitals 1368 to 1385 of the contested decision, that constraints on the merged entity exercised by suppliers of other packaging materials, such as plastics and aluminium, would be limited, since the possibility for customers in the packaging sector to switch to those other materials is limited for both technical and commercial reasons.

706    In the first place, the applicant criticises the Commission for disregarding the parties’ argument, raised during the administrative procedure, that TSE’s sales of beverage TP in the EEA had fallen to [confidential] in 2018 due to one of its key customers switching to aluminium. In recital 1375 of the contested decision, the Commission confined its analysis to the years 2016 and 2017, during which the parties’ sales volumes did not decrease, and concluded, having been proven wrong by the development of TSE’s sales in 2018, that ‘even if aluminium might gradually be taking over the use of steel in beverage packaging, this process would in any event take time and demand for beverage steel will remain until … the beverage packaging production lines are converted into aluminium’. Furthermore, the Commission contradicts itself by referring, in recital 1383 of that decision, to an internal document supplied by the applicant allegedly proving the applicant’s view that [confidential].

707    In the second place, the applicant complains that the Commission also disregarded the detailed evidence submitted by the parties, in particular a document showing that alternative aluminium or plastic products exist for many TP and ECCS applications, which are not limited to beverage applications but also include food and industrial applications. The Commission omits numerous examples of customers switching to alternative materials that the parties have already provided.

708    In the third place, the applicant maintains that the evidence relied on by the Commission to support its conclusion that possibilities for customers to switch to alternative materials are limited is less conclusive than the evidence provided by the parties.

709    In that regard, first, the applicant quotes a number of statements from the market investigation, captured in recitals 1370, 1372, 1380 and 1381 of the contested decision, to argue that those statements are often vague and inconclusive, do not contain explanations or reasons for the views stated and in some instances even demonstrate that switching is possible and that alternative materials do impose a constraint. Secondly, the applicant reiterates the observation made by the parties that, during the market investigation, only six customers responded to the question on the substitutability of aluminium for two-piece non-beverage cans, and that 50% of those respondents indicated that aluminium was substitutable for steel for at least some applications. Thirdly, the applicant complains that the Commission omitted to quote from customers, namely [confidential], indicating that there is substitutability between packaging steel and other packaging materials.

710    In the fourth place, the applicant submits that, when assessing the evidence, the Commission erroneously seems to require that switching to alternative materials must be possible for all applications or an undefined majority of applications, since it disregards the evidence from the parties and from the market investigation demonstrating switching possibilities for a significant number of applications. The correct test would have been whether the competitive constraint imposed by alternative materials is sufficient to prevent the transaction from increasing prices. In the light of that evidence, the Commission should have conducted a more detailed and thorough economic analysis to justify its conclusion that the constraint was not sufficient.

711    The Commission disputes the applicant’s arguments and contends that this part should be rejected.

712    In that regard, it should be noted that, in recitals 1368 to 1385 of the contested decision, the Commission analysed in detail the competitive pressure from other packaging materials, such as plastic and aluminium. By relying essentially on the market investigation which it carried out, the Commission concluded, in recitals 1368 and 1385 of the contested decision, that constraints on the merged entity exercised by suppliers of other packaging materials, such as plastics and aluminium, would be limited, since the possibility for customers in the packaging sector to switch to those other materials is limited for both technical and commercial reasons.

713    The applicant seeks to challenge that finding essentially by pointing to past examples of switching to alternative materials, by disputing the Commission’s interpretation of responses to market questionnaires, and by complaining that the Commission erroneously assumes that switching must be possible for the majority of applications.

714    In the first place, as regards the applicant’s complaint that the Commission disregarded the fact that TSE’s sales of beverage TP had fallen in 2018, it should be borne in mind that, in recital 1375 of the contested decision, the Commission noted that, as to the potential beverage segment, ‘the Notifying Parties’ sales volumes [had] not decreased between 2016 [and] 2017’. According to the same recital, ‘in 2016 they sold [confidential] kt of beverage TP in the EEA … while in 2017 they sold [confidential] kt’. Consequently, ‘it … appears that, even if aluminium might gradually be taking over the use of steel in beverage packaging, this process would in any event take time and demand for beverage steel will remain until and if the beverage packaging production lines are converted into aluminium’.

715    It should be stated that, although the Commission does not set out, in that recital, the data for TSE’s sales of beverage TP in 2018, it cannot nevertheless be considered that its findings are incompatible with the fact that one of TSE’s largest customers decided to switch to aluminium, as the applicant maintains, and that that would have had an immediate effect on that undertaking. That specific situation does not, in itself, support the view that the Commission should have concluded, overall, that customers would be able to switch, in a timely manner, to alternative materials in response to a price increase post-transaction, and the applicant, moreover, has not demonstrated that to be the case.

716    In that regard, the Commission relied on an overall assessment of all the evidence made available to it, in particular the statements of customers and competitors in the market investigation and the parties’ internal documents, in order to conclude, in recitals 1368 to 1385 of the contested decision, that customers were unlikely to be able to switch to alternative materials in a timely manner and without incurring significant investments. It follows that the applicant’s internal document, referred to by the Commission in recital 1383 of that decision, according to which [confidential], is only one piece of the evidence gathered and relied on by the Commission to reach its conclusion in a global manner. That document cannot therefore be extracted from that body of evidence to invalidate in itself that conclusion.

717    In the second place, as regards the applicant’s complaint that the Commission ignored the parties’ examples of customers switching to alternative materials, which were not limited to beverage applications, it should be noted that the fact that those alternative materials can technically be used for applications other than beverages is, in itself, insufficient to show that customers could switch to other products timely and without incurring significant costs. The Commission’s conclusion relied on an overall assessment of all the evidence made available to it, with the result that, although it did not take into consideration the parties’ examples in that assessment, that does not necessarily mean that it ‘ignore[d]’ them, but simply, in the present case, that it did not consider them sufficiently convincing among all of that evidence.

718    In that regard, in any event, evidence obtained directly from customers in the market investigation, in particular the responses of those customers to Questionnaire 4 (Annex A.4d), is consistent with the Commission’s findings, set out in particular in recitals 1369, 1371 and 1379 of the contested decision, that, in essence, customers cannot switch, or can only to a limited extent, switch to alternative materials.

719    In the third place, first, as regards the applicant’s complaint challenging the Commission’s interpretation of the customer statements in the market investigation, it must be held that the statements quoted by the applicant, reproduced in recitals 1370, 1372, 1380 and 1381 of the contested decision, are fully consistent with the Commission’s finding that switching to alternative materials is limited. Those statements indicate, in particular, that the trend to switch to alternative materials is only noted for beverage applications, that that transition requires non-reversible investments and is impeded by time and capital constraints, performance, technical barriers and customer preferences. Furthermore, contrary to what the applicant claims, those statements are sufficiently clear and persuasive. It follows that the applicant cannot criticise the Commission for making a manifest error of assessment in that regard.

720    Secondly, as regards the interpretation of the results of the market investigation relating to the question on the substitutability of aluminium for two-piece non-beverage cans, it should be noted that question 12 of Questionnaire 4 (Annex A.4d) specifically asked about that substitution, which is a particular application. Given that particularity, the responses given to such a question cannot be generalised such as to call into question the Commission’s assessment, set out in recital 1368 of the contested decision and based on a body of evidence, that switching to alternative materials is limited. It follows that, although the Commission did not take into consideration those responses in that assessment, that simply means that it did not consider them sufficiently convincing or relevant among all of that evidence. It follows that the applicant cannot criticise the Commission for making a manifest error of assessment in that regard.

721    Thirdly, it is also necessary to reject the applicant’s complaint alleging that the Commission omitted to quote from customers, namely [confidential], indicating that there is substitutability between packaging steel and other packaging materials. As stated above, the Commission relied on an overall assessment of all the evidence made available to it, with the result that, although it did not take into consideration the four parties’ examples in that assessment, that does not necessarily mean that it ‘ignore[d]’ them, but simply, in the present case, that it did not consider them sufficiently convincing among all of that evidence. In that regard, it should be noted that, as is apparent from recital 1369 of the contested decision, the Commission stated that ‘the vast majority’ of customers had indicated that they could not, or only to a limited extent, switch from TP or ECCS to other materials, which means that the four competitors mentioned by the applicant were minor. That proportion of customers was not disputed by the applicant.

722    In the fourth place, as regards the applicant’s complaint criticising the Commission for erroneously assuming that switching to alternative materials must be possible for all or most applications, it should be noted that, in its assessment of the competitive pressure exerted by alternative materials, the Commission is required to verify that substitution is likely for all applications on the relevant market. The assessment of switching possibilities should encompass the needs of all buyers on the relevant market (see, to that effect, judgment of 9 July 2007, Sun Chemical Group and Others v Commission, T‑282/06, EU:T:2007:203, paragraph 89). Ignoring specific end-uses would be contrary to the need for such an assessment. It follows that the applicant cannot criticise the Commission for examining the possibility of using alternative materials for all applications on the packaging market.

723    Furthermore, in so far as the applicant’s complaint also seeks to challenge the assessment of the evidence, it should be noted that that complaint merges with the applicant’s arguments examined in paragraphs 716 to 721 above, and it must therefore be rejected for the same reasons.

724    Furthermore, the applicant’s complaint alleging that the Commission failed to conduct ‘a more detailed and thorough economic analysis’ to justify its conclusion that the constraint was not sufficient to counter a price increase must also be rejected. That complaint is not substantiated in any way. The applicant does not explain why such an analysis invalidates the analysis of the evidence set out in recitals 1368 to 1385 of the contested decision, or why such an analysis is necessary.

725    In the light of all the foregoing considerations, it must be held that the applicant cannot validly accuse the Commission of erring manifestly in its assessment by concluding, in recitals 1368 to 1385 of the contested decision, that constraints on the merged entity exercised by suppliers of other packaging materials, such as plastics and aluminium, would be limited, since the possibility for customers in the packaging sector to switch to those other materials is limited for both technical and commercial reasons.

726    Accordingly, the seventh part of the fourth plea in law must be rejected.

 The eighth part, concerning an error of law and manifest errors of assessment regarding the closeness of competition between the parties

727    By the eighth part of its fourth plea, the applicant submits, in essence, that the Commission made an error of law and manifest errors of assessment in concluding, in recitals 1394 to 1410 of the contested decision, that the parties are close competitors, so the transaction was likely to result in the elimination of a close competitive relationship between them, and, therefore, to eliminate the significant competitive pressure they exerted on each other pre-transaction. That conclusion is based on a wrong test, a skewed representation of facts and inadequate arguments.

728    First, the applicant complains that the Commission concluded, in recital 1396 of the contested decision, that the parties ‘are both active with regular sales in the potential beverage and non-beverage segments’. TSE’s sales of beverage TP in the EEA fell to [confidential] in 2018, which the Commission failed to specify. Therefore, it is factually incorrect to state, at the date of that decision, that TSE ‘[is] active with regular sales in the potential beverage [segment]’.

729    Secondly, the applicant disputes the Commission’s conclusion, in recitals 1397 to 1401 of the contested decision, that ‘the Parties are close competitors on several important parameters of competition’. That conclusion is incorrect because it is based on customers’ responses to the questions asked by the Commission in its market investigation, which is not the correct method to determine whether two suppliers are close competitors. Those questions are leading, meaningless and not suitable to establish that the parties’ products are closer substitutes than others. Paragraph 28 of the Horizontal Merger Guidelines required the Commission to determine whether the merging parties offer products which a substantial number of customers regard as their first and second choices, which those questions do not do. In addition, despite paragraph 28, the Commission attaches no importance to the outcome of that investigation indicating that AM is also a close competitor of the parties.

730    Thirdly, the applicant disputes the Commission’s finding, in recital 1401 of the contested decision, that the parties have ‘similar portfolio capabilities’. According to the applicant, when looking at the split of end applications that the parties’ steel is sold for, as a share of each parties’ sales volume in packaging steel, it becomes evident that food and aerosol products are the only end applications for which TSE and itself have a similar share of sales. For all other applications, their shares materially differ.

731    Fourthly, the applicant disputes the Commission’s conclusion, in recital 1402 of the contested decision, that the parties are geographically close. According to the applicant, Figure 206 of that decision shows that the parties’ factories are as close to the AM facilities and the Tilleur facility as they are to each other, if not closer. Moreover, the Commission’s conclusion is inconsistent with its finding of an EEA-wide market. It is contradictory to define an EEA-wide market and then to consider as relevant in the competitive assessment the fact that the parties ‘have a presence concentrated near each other in north-west Europe’, an area which has not, moreover, been proved to be relevant for the competitive assessment. That decision does not provide any proof of a particular geographical closeness between the parties in the EEA.

732    The Commission disputes the applicant’s arguments and contends that this part should be rejected.

733    In that regard, it should be noted that, in recitals 1394 to 1409 of the contested decision, the Commission analysed in detail the closeness of competition, by relying essentially on the results of the market investigation which it carried out. In the context of that analysis, the Commission found that the parties did not have materially different focus within TP (recitals 1394 to 1396), that they were close competitors on several important parameters of competition (recitals 1397 to 1401), and that they were also close geographically (recitals 1402 to 1409). The Commission concluded, in recital 1410 of that decision, that the parties were close competitors, so the transaction was likely to result in the elimination of a close competitive relationship between them, and therefore to eliminate the significant competitive pressure they exerted on each other pre-transaction.

734    The applicant attempts to call into question the Commission’s findings on the closeness of competition.

735    First, as regards the Commission’s assessment that the parties did not have materially different focus within TP, the applicant complains, in essence, that the Commission wrongly stated, in recital 1396 of the contested decision, that TSE was active with regular sales in the potential beverage segment, whereas TSE’s sales of beverage TP in the EEA decreased to [confidential] in 2018.

736    In that regard, although TSE [confidential] sales in beverage TP in 2018, it should be noted that, during 2016 and 2017, sales of beverage TP represented [5-10]% of TSE’s total TP sales, as is apparent from recital 1395 of the contested decision. The fall in sales in beverage TP in 2018, caused by the fact that TSE [confidential], cannot, however, be incompatible with the Commission’s finding, in recital 1396 of the contested decision, that the parties do not have a materially different focus within TP.

737    Apart from the fact that the beverages sector constitutes only one segment of TP’s food applications and that it represents only a small percentage of TP’s total sales in the EEA, as is apparent from recital 1395 of the contested decision, it should be noted that the fall in sales in 2018 referred to by the applicant does not mean that TSE does not remain active in the beverage market. That follows from the fact that it was active in previous years and that it cannot be disputed that it has always been, and will probably continue to be, active, since it publicly advertises itself on its website as a ‘leading producer of high quality steels for the fast production rates demanded by two-piece beer and beverage can manufacture’.

738    It follows that that complaint cannot validly succeed.

739    Secondly, as regards the Commission’s assessment, in recitals 1397 to 1401 of the contested decision, that the parties are close competitors on several important parameters of competition, the applicant complains, in essence, that the Commission put questions in its market investigation on the closeness of competition between the merging parties which were leading and not suitable to establish whether the two suppliers were close competitors, so that the responses to those questions were no longer able to establish that the parties’ products were closer substitutes than others.

740    In that regard, it should be noted that the concept of ‘close competitor’ does not appear in Regulation No 139/2004, but only in the Horizontal Merger Guidelines, which include a heading entitled ‘merging firms are close competitors’.

741    According to paragraph 28 of those guidelines, proximity of competition between merging parties is assessed by reference to the degree of substitutability between the parties’ products. It is apparent, in essence, from that paragraph that indications as to the degree of substitutability may result, inter alia, from the fact that a substantial number of customers regard the merging parties as their first and second choices of supplier, that rivalry between the parties has been an important source of competition and that their competitors produce substitutes which are not close to the products of the merging parties (judgment of 9 July 2007, Sun Chemical Group and Others v Commission, T‑282/06, EU:T:2007:203, paragraph 69).

742    In the present case, the Commission questioned customers in the packaging sector in the context of its market investigation and put to them five questions concerning the closeness of competitors, namely questions 35 to 38.1 of Questionnaire 4 (Annex A.4d). It is clear from reading those questions that customers were requested to provide views on closeness of competition with regard to, inter alia, clearly defined commercial parameters of competition, such as lead times, quality, pricing, portfolio breadth, research and development, homologation and assistance. The respondents were called, in particular, to classify the suppliers individually per parameter, rather than in the order of magnitude, by designating for each parameter the supplier offering the closest alternative to one of the parties.

743    It must be observed that those questions are sufficiently intelligible, detailed and specific to be regarded as being appropriate for the purpose of providing the Commission with information concerning the degree of substitutability between the parties’ products, thus making it possible to assess the closeness of competition between the merging parties, in accordance with paragraph 28 of the Horizontal Merger Guidelines. Accordingly, the applicant cannot, for that reason, complain that the Commission formulated ‘leading’ questions in that regard.

744    Furthermore, in that regard, the applicant has not disputed that market participants have considered parameters such as lead times, quality, pricing and portfolio breadth as relevant parameters of competition, as is apparent from recital 1398 of the contested decision. Nor has the applicant disputed the Commission’s finding, in recitals 1399 to 1401 of that decision, that the competitors are close for those parameters.

745    Furthermore, as regards the applicant’s argument that the Commission does not attach any importance to the outcome of the market investigation indicating that AM is also a close competitor of the parties, it should be noted that, without error on the part of the Commission, it is not stated anywhere in the contested decision that AM is not a competitor of the parties. As was explained in paragraphs 611 to 620 above in the context of the third part of the fourth plea, the Commission explained in that decision that AM did not constitute an adequate competitive force to counter anticompetitive effects of the transaction, for example due to lack of incentives and spare capacity. Therefore, the applicant’s argument must be rejected and the applicant must be referred to paragraphs 611 to 620.

746    It follows that the applicant’s complaint cannot validly succeed either.

747    Thirdly, as regards the applicant’s criticism of the Commission’s finding, in recital 1401 of the contested decision, that the parties have ‘similar portfolio capabilities’, it must be noted that the applicant misinterprets that recital and therefore its criticism in that regard is irrelevant.

748    In stating in recital 1401 that ‘the Parties have similar portfolio capabilities as regards the specific segments they can serve in a differentiated product market’, the Commission refers to the ability of the parties to supply a product portfolio, in terms of the range or variety of products, and not to ability by reference to the parties’ sales of individual products within that portfolio, in terms of the quantity or volume of sales, as the applicant suggests. Moreover, it should be noted in that regard that the applicant did not dispute the responses of market participants concerning the product portfolios of the parties, as is apparent from recitals 1399 and 1400 of the contested decision.

749    Fourthly, as regards the assessment that the parties are geographically close, the applicant complains, in essence, that the Commission concluded, in recital 1402 of the contested decision, that the parties were close competitors geographically.

750    In that regard, it should be noted that the applicant does not dispute the Commission’s findings based on the market investigation, set out in recital 1404 of the contested decision, which show that half of customers responding to that survey indicate that they source mostly from nearby countries in the EEA. Having regard precisely to those findings, the Commission cannot be criticised for taking into account geographical proximity as an indicator of competitive closeness since, according to paragraph 28 of the Horizontal Merger Guidelines, it is assessed by reference to the degree of substitutability between the products of those competitors. That degree of substitutability is itself evaluated, according to paragraph 29 of those guidelines, on the basis, inter alia, of customer preferences. Consequently, the consideration of geographic closeness within the relevant geographic market is not, contrary to what the applicant claims, incompatible with the definition of the geographic market.

751    As regards the applicant’s argument that the parties’ facilities are as close to the AM facilities as they are to each other, if not closer, it must be noted that, as is apparent from Figure 206 of the contested decision, the majority of AM’s packaging steel production lines are located in the Iberian Peninsula and in France and are relatively far from those of the parties which are concentrated more towards the north of Europe, mainly in Germany, the Netherlands and the United Kingdom. In any event, the relative proximity of AM’s production lines cannot be regarded as sufficiently relevant for the same reasons as those set out in paragraph 745 above. Therefore, the applicant’s argument must be rejected.

752    In the light of all the foregoing considerations, it must be held that the applicant cannot validly complain that the Commission made any error of law or manifest errors of assessment in concluding, in recitals 1394 to 1410 of the contested decision, that the parties were close competitors.

753    Accordingly, the eighth part of the fourth plea in law must also be rejected.

754    Therefore, since the eight parts in support of the fourth plea have all been rejected, that plea must be rejected in its entirety.

 The fifth plea in law, alleging procedural errors and manifest errors of assessment of the remedies offered by the parties

755    By its fifth plea, the applicant submits, in essence, that the assessment made by the Commission, in recitals 1464 to 1668 of the contested decision, of the commitments of 1 April 2019 and the revised commitments of 23 April 2019 submitted by the parties to address the Commission’s competition concerns is vitiated by procedural errors and manifest errors of assessment. This plea is divided into seven parts.

 The first part, concerning the application of the wrong legal standard to assess the remedies

756    By the first part of its fifth plea, the applicant submits, in essence, that the Commission applied the wrong legal standard when it assessed the remedies proposed by the parties.

757    In particular, the applicant claims that, as is apparent from recitals 1586, 1603 and 1605 of the contested decision, as well as from the administrative procedure, the Commission applied a stricter legal test than the one laid down in Regulation No 139/2004 and its notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004 (OJ 2008 C 267, p. 1; ‘the Remedies Notice’). Rather than analysing whether the remedies offered by the parties would eliminate competition concerns and whether it would give rise to an SIEC, the Commission examined whether those remedies would replicate pre-transaction competition that would be lost through the notified transaction. That approach by the Commission also appears in its press release on the prohibition of the transaction and in the wording of the questions asked in the market test of those measures.

758    Furthermore, the applicant claims that, as is apparent from recitals 1524, 1529 and 1584 of the contested decision, the Commission placed too much weight on measuring the proportion of the overlap accounted for by the remedies rather than focusing on whether the concentration, as modified, gave rise to an SIEC. In that regard, the applicant maintains that, during the state-of-play meetings of the administrative procedure, the Commission, at different levels of the hierarchy, repeatedly stated that a conditional clearance decision would require the removal of the parties’ full overlap on the relevant market.

759    Accordingly, the applicant takes the view that the replication of competition or removal of the full overlap is a stricter standard than the mere prevention of an SIEC, as stipulated in the Remedies Notice. There is no justification for such a standard, which would lead to the discrimination of mergers of almost equals. In fact, the removal of the full overlap appears to be equivalent with the ‘clear-cut’ standard that the Remedies Notice stipulates for Phase I remedies and leads de facto to the inadequacy of any non-structural remedies. Furthermore, the application of such a stricter standard constitutes a breach of the parties’ fundamental rights, guaranteed by Article 16 and Article 52(1) of the Charter of Fundamental Rights.

760    The Commission disputes the applicant’s arguments and contends that this part should be rejected.

761    In that regard, it should be noted that the purpose of the control of concentrations pursuant to Regulation No 139/2004 is to provide to the undertakings concerned the authorisation which is necessary and preliminary to the implementation of any concentration having an EU dimension. As part of the arrangements for control, those undertakings may, as is apparent from paragraphs 5 and 6 of the Remedies Notice, submit commitments to the Commission in order to obtain a decision finding their concentration to be compatible with the internal market (see, to that effect, judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 289 and the case-law cited).

762    In accordance with paragraphs 7 and 8 of the Remedies Notice, the parties are required to propose commitments sufficient to remove the competition concerns and submit the necessary information to assess them, in particular information enabling the assessment of the viability, competitiveness and marketability of the business proposed for divestiture under those commitments. In the light of those factors, it is for the Commission to establish whether or not a concentration, as modified by commitments validly submitted, leads, despite the commitments, to a significant impediment of effective competition and must therefore be declared incompatible with the internal market. The Commission thus has to assess whether the proposed remedies, once implemented, would eliminate the competition concerns identified.

763    In that regard, under the heading ‘Basic conditions for acceptable commitments’, paragraph 9 of the Remedies Notice states that ‘in accordance with Regulation [No 139/2004], the Commission only has power to accept commitments that are deemed capable of rendering the concentration compatible with the [internal] market so that they will prevent a significant impediment of effective competition’. Similarly, ‘the commitments have to eliminate the competition concerns entirely [as provided for in recital 30 of that regulation] and have to be comprehensive and effective from all points of view’. Lastly, ‘commitments must be capable of being implemented effectively within a short period of time as the conditions of competition on the market will not be maintained until the commitments have been fulfilled’.

764    In determining whether the proposed commitment will likely eliminate the competition concerns identified, paragraph 12 of the Remedies Notice requires the Commission to consider ‘all relevant factors relating to the proposed remedy itself, including, inter alia, the type, scale and scope of the remedy proposed, judged by reference to the structure and particular characteristics of the market in which the competition concerns arise, including the position of the parties and other players on the market’.

765    It is in the light of those principles that the arguments put forward by the applicant should be assessed.

766    The applicant submits, in essence, that, in order to assess the remedies proposed by the parties, the Commission applied a stricter legal test than the one laid down in Regulation No 139/2004 and the Remedies Notice. As is apparent from recitals 1586, 1603 and 1605 of the contested decision and from the administrative procedure, the Commission wrongly demanded replication of pre-transaction competition that would be lost through the notified transaction instead of examining whether those remedies would eliminate the competition concerns.

767    It is apparent from an overall reading of recitals 1464 to 1668 of the contested decision, relating to the Commission’s assessment of the commitments proposed by the parties, that the Commission carried out an overall analysis of the competition concerns which the commitments were intended to remove and did not confine itself solely and strictly to examining the ability of those commitments to replicate exactly the competition that would be lost through the transaction. The Commission thoroughly examined all the elements of the commitments to establish whether they were comprehensive and effective from all points of view, also taking into account the viability of the business proposed for divestiture by the parties, and whether they would make it possible to eliminate entirely all the competition problems identified, in accordance with the Remedies Notice.

768    That follows precisely from Sections 12.3.3.1. to 12.3.3.4. and from Sections 12.3.4.2. to 12.3.4.4. of the contested decision. In those sections, the Commission analysed a body of evidence on which it based its conclusion, in recitals 1575 and 1623 of that decision, that the 1 April 2019 commitments would not eliminate the SIEC identified in the markets for packaging steel (TP, ECCS and laminated steel) and automotive HDG. The fact that the Commission examined, among that body of evidence, whether the businesses to be divested on the markets proposed by the parties would exert a sufficient constraint to replicate the pre-transaction competition that would be lost in the market as a result of the transaction does not mean that the Commission applied the wrong legal standard. Recitals 1586, 1603 and 1605 of that decision constitute only some of the factors of analysis delineated in relation to that evidence.

769    In that regard, as regards the applicant’s argument that the Commission asked market participants the wrong question: namely, if they considered the remedies ‘sufficient to replicate the competition that is lost in the market through the merger’, it should be noted that, contrary to what the applicant claims, the wording of the questions asked in the context of that test was not limited solely to that question.

770    It is clear from questionnaires sent in the context of that test (see Annexes A.4i to A.4n) that they started with a more general question by which the Commission asked whether ‘the proposed commitments [would] be suitable and adequate (taking into account e.g. size, capabilities, overall arrangements) to effectively remove [its] competition concerns regarding the production and supply of [the different products concerned]’. However, those questionnaires contained many other questions intended to assess whether the remedies were comprehensive and effective in order to remove fully the competition concerns identified and whether the business proposed for divestiture by the parties on the relevant markets would be viable and competitive, also considering the lack of vertical integration, as the Commission stated in paragraph 290 of the defence, without, moreover, the applicant contradicting it.

771    Similarly, the Commission’s press release on the prohibition of the transaction is more comprehensive than the applicant suggests. As appears from that document (see Annex A.3), that document notes expressly that, in the present case, ‘the remedies offered by [TSE] and [the applicant] were not sufficient to address the serious competition concerns and would not have prevented higher prices and less choice for steel customers’. In any event, the applicant cannot refer to such a press release, which was addressed to the general public, to demonstrate the alleged error concerning the legal standard used to assess the remedies. Such an error can be established only on the basis of the Commission’s actual assessment in that regard in the contested decision.

772    It follows that the Commission’s analysis, in recitals 1464 to 1668 of the contested decision, relating to its assessment of the commitments proposed by the parties, is consistent with paragraphs 762 to 764 above and, therefore, with the Remedies Notice.

773    Furthermore, the applicant claims, in essence, that the Commission placed too much weight on measuring the proportion of the overlap accounted for by the remedies rather than focusing on whether the concentration, as modified, gave rise to an SIEC. In that regard, the applicant refers specifically to recitals 1524, 1529 and 1584 of the contested decision.

774    It should be noted that, in recitals 1524, 1529 and 1584 of the contested decision, the Commission simply referred to the limited size of the business proposed for divestiture by the parties on the relevant markets for packaging steel (TP, ECCS and laminated steel) and automotive HDG in relation to the overlapping of the parties’ activities on those markets as a result of the transaction. In those recitals, the Commission did not state that any divestment of a size smaller than the overlap would, as such, be insufficient to remedy the anticompetitive effects of the concentration. Rather, by relying in particular on market participants’ responses in the context of the market test, the Commission took into consideration the insufficient size of those divestment businesses and several other factors in concluding that the parties’ commitments were insufficient to eliminate the SIECs identified.

775    Accordingly, with respect to the commitments of 1 April 2019, the Commission took into account, in the contested decision, not only the limited size of the businesses proposed for divestiture by the parties, but first, as regards packaging steel (TP, ECCS and laminated steel), the scope of the divestment business, considering the types of products produced, the quality of the assets and their technical limitations (recitals 1535 to 1542), the geographic location of the assets concerned (recitals 1543 to 1547), the uncertainties stemming from the lack of vertical integration upstream (recitals 1548 to 1571), and the risk relating to potential purchasers (recitals 1572 to 1574).

776    Then, as regards automotive HDG, the Commission took into consideration the scope of the divestment business, considering the types of products produced, the quality of the assets and their technical limitations (recitals 1590 to 1598), the geographic location of the assets concerned (recitals 1599 to 1603), the uncertainties stemming from the lack of vertical integration upstream (recitals 1604 to 1618), the fact that one of the lines of the Sagunto (Spain) plant had recently been placed into dormancy, raising questions on the competitiveness of the plant (recital 1620), and the difficulties stemming from the mix of productions lines (recital 1621).

777    Accordingly, the Commission cannot be criticised for simply refusing the parties’ commitments on the sole ground that the size of the business to be divested was insufficient.

778    In that regard, the applicant argues that, during the state-of-play meetings that took place during the administrative procedure, the Commission, at different levels of the hierarchy, repeatedly stated that a conditional clearance decision would require ‘the removal of the Parties’ full overlap on the relevant market’.

779    In that regard, it should be noted that the applicant does not claim any procedural issue concerning the state-of-play meetings that preceded those commitments. In particular, the applicant does not claim that the indications provided by officials from the Commission’s DG for Competition have in any way misled it or induced it to present remedies less comprehensive and far reaching than those that it could have devised.

780    Furthermore, it should be noted that although state-of-play meetings serve to provide the parties with guidance on the remedies that may give rise to a positive evaluation, it is ultimately for the parties to submit to the Commission the remedies which they consider appropriate, as is apparent from paragraphs 5 and 6 of the Remedies Notice and from paragraphs 761 and 762 above.

781    Accordingly, in such a situation, what matters for the examination of the first part of the fifth plea is the specific assessment in the contested decision of the commitments presented by the parties and not the content of the exchanges which may have taken place before that decision. The wording of that decision, and in particular that of recitals 1464 to 1668 thereof, clearly shows that the Commission did not require the removal of the parties’ full overlap on the relevant market, but that it assessed all the elements of those commitments to establish whether they were comprehensive and effective from all points of view, also considering the viability of the divestment business, and whether they would allow the SIECs identified to be prevented, which is consistent with paragraphs 762 to 764 above and, consequently, with the Remedies Notice.

782    It follows that the applicant cannot criticise the Commission for applying, in the contested decision, a stricter legal test than the one laid down in Regulation No 139/2004 and the Remedies Notice, by claiming that it required the replication of competition or removal of the parties’ full overlap on the relevant market, which is not the case. Similarly, the applicant’s argument that the application of that standard constitutes a breach of the parties’ fundamental rights, guaranteed by Article 16 and Article 52(1) of the Charter of Fundamental Rights, cannot logically succeed.

783    In the light of all of the foregoing considerations, it must be held that the applicant cannot validly complain that the Commission, in recitals 1464 to 1668 of the contested decision, applied the wrong legal standard when it assessed the remedies proposed by the parties.

784    Accordingly, the first part of the fifth plea in law must be rejected.

 The second part, concerning the remedies regarding automotive HDG

785    By the second part of its fifth plea, the applicant claims, in essence, that the Commission made manifest errors of assessment as regards the importance of the vertical integration of automotive HDG suppliers and the remedies relating to the divestment of automotive HDG production plants. That part is divided into two complaints.

–       The first complaint, relating to the importance of vertical integration

786    By the first complaint in the second part of its fifth plea, the applicant submits, in essence, that the Commission made a manifest error of assessment, in so far as it overstated the importance of the vertical integration of automotive HDG suppliers, or confused it with necessary control of automotive HDG supply chains.

787    In particular, the applicant claims that the parties addressed the Commission’s concerns in detail in their response to the statement of objections, providing ample evidence that vertical integration was not required to be able to compete effectively in the automotive HDG market, but that the contested decision did not address that argument. Accordingly, the applicant criticises, in essence, the competitive analysis carried out by the Commission, in recitals 573 to 601 of the contested decision, relating to the importance of vertical integration in that market, and specifically challenges the Commission’s assessment of the evidence relied on in that regard. The applicant submits, in particular, that that evidence has not shown that it was important for a downstream producer of automotive HDG to control the entire steel production line. Furthermore, in those recitals, the Commission confuses the necessity to control the supply chain in order to guarantee sufficient product quality with the requirement of vertical integration.

788    Also, the applicant claims that, to assess the remedies proposed by the parties, the Commission adopted an erroneous approach which led it to require a remedy solution including upstream assets, which not only overstates the importance of vertical integration, but also leads to the extension of the required remedies to product markets where no competition concerns. In fact, the single largest part of the assessment of ‘automotive HDG’ in recitals 1604 to 1618 of the contested decision discusses the lack of vertical integration of the package.

789    Furthermore, the applicant points out that the contested decision overlooks the fact that other solutions could have ensured control of the whole automotive HDG supply chain. Accordingly, the ‘upfront buyer’ requirement, which was added to the revised commitments of 23 April 2019, allows the divestiture of the automotive HDG business to an acquirer with available corresponding upstream capacity, which ensured that control. However, the applicant criticises the fact that the Commission rejected that solution, in recitals 1480, 1481 and 1660 of the contested decision, without actually examining that buyer’s resources, on the ground that the divestment businesses must be viable in themselves.

790    In that regard, the applicant points out that that rejection thereby fails to take into account paragraph 47 of the Remedies Notice. It states that, in accordance with that paragraph, the revised commitments of 23 April 2019 contained specific requirements as to the suitability of the buyer which went beyond the requirements contained in the Commission’s standard forms. Accordingly, that requirement of an ‘upfront buyer’ with existing steel assets could have been taken into account, which the contested decision did not even assess. By that, the Commission confuses the remedy’s viability requirement with an expansion of the remedy to upstream markets where no competition concerns exist.

791    The Commission disputes the applicant’s arguments and contends that this complaint should be rejected.

792    In that regard, it should be pointed out that, in the context of merger control, the Commission has power to accept only such commitments as are capable of rendering the notified transaction compatible with the internal market, that is to say, commitments that enable it to conclude, with certainty, that it will be possible to implement them and that the remedies resulting from them will be sufficiently workable and lasting to ensure that the creation or strengthening of a dominant position, or the impairment of effective competition, which the commitments are intended to prevent, will not be likely to materialise in the relatively near future (see, to that effect, judgment of 6 July 2010, Ryanair v Commission, T‑342/07, EU:T:2010:280, paragraphs 452 and 453).

793    As regards the review carried out by the EU judicature over the commitments that the parties submitted to the Commission in the context of the control of concentrations, according to settled case-law, the Commission enjoys a broad discretion in assessing the need for commitments to be given in order to dispel the serious doubts raised by a concentration. It follows that it is not for the Court to substitute its own assessment for that of the Commission, since its role must be limited to assessing that the Commission has not made a manifest error of assessment. In particular, the alleged failure to take into consideration commitments does not, by itself, prove that the contested decision is vitiated by a manifest error of assessment (see, to that effect, judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 295 and the case-law cited).

794    It is in the light of those principles that the arguments put forward by the applicant should be assessed.

795    The applicant argues that the Commission overstated the importance of vertical integration or confused it with the need to control the supply chains. Vertical integration is not required to be able to compete effectively in the automotive HDG market. Accordingly, the applicant criticises, in essence, the competitive analysis carried out by the Commission, in recitals 573 to 601 of the contested decision, relating to the importance of vertical integration in that market, and specifically challenges the Commission’s assessment of the evidence relied on in that regard.

796    It should be noted at the outset that, in the context of that criticism, the applicant relies on arguments which largely overlap with those already advanced to challenge the Commission’s competitive analysis, which have already been examined and rejected in paragraphs 391 to 402 above in the context of the fourth part of the third plea. Therefore, the applicant’s arguments must be rejected for the same reasons.

797    In that regard, it should nevertheless be pointed out that the Commission did not overlook the observations made by the parties during the administrative procedure, as the applicant indeed acknowledges, but responded sufficiently to them, in particular in recitals 573 to 601 of the contested decision, by correctly taking the view that those observations were not convincing, having regard to all the evidence made available to it. Furthermore, the Commission’s competitive analysis has not been challenged by the applicant in a sufficiently substantiated and detailed manner. The Commission cannot therefore be criticised for misinterpreting or distorting the results of the market investigation in that regard.

798    In addition, as is apparent from paragraphs 393 and 394 above, although the Commission never claimed that vertical integration is the only possible way to secure control over the chain of production, the fact remains that it was justified in concluding, in recital 601 of the contested decision, that vertical integration is particularly important for high-quality products such as automotive HDG.

799    Also, the applicant claims that, to assess the remedies proposed by the parties, the Commission adopted an erroneous approach which led it to require a remedy solution including upstream assets, which not only overstates the importance of vertical integration, which was analysed in recitals 1604 to 1618 of the contested decision, but also leads to the extension of the required remedies to product markets where no competition concerns.

800    In that regard, it should be noted at the outset that the applicant does not, however, challenge the detailed assessment, in recitals 1604 to 1618 of the contested decision, concerning the uncertainties stemming from the lack of vertical integration of the automotive HDG divestment business, in particular as to whether it would operate as a viable business independently from the parties or from other suppliers in the oligopolistic market structures of automotive HDG. It should also be noted that, as is apparent from paragraph 776 above, those uncertainties are only one of the elements considered in that decision in order to conclude that the commitments submitted by the parties were not sufficient to entirely eliminate the SIECs identified. Most of those other factors, referred to in that paragraph, are not, in essence, challenged by the applicant.

801    In addition, in so far as the applicant complains that the vertical integration of the automotive HDG divestment business would have extended the ‘remedies to product markets where no competition concerns exist’, it should be pointed out that, as stated in paragraph 25 in the Remedies Notice, ‘the business [to be divested] has to include all the assets … which are necessary to ensure its viability and competitiveness’, irrespective of whether some of those assets operate in an upstream market. Indeed, if in the absence of upstream assets a business would not be viable, and therefore could not exert a sufficient competitive pressure on the merging parties, its divestiture without such assets, which were specifically those which were considered by the Commission to be necessary in the present case, would not constitute a comprehensive and effective remedy and therefore could not eliminate the SIEC caused by the concentration.

802    Furthermore, the applicant submits that the ‘upfront buyer’ requirement, which was added to the revised commitments of 23 April 2019, would allow the divestiture of the automotive HDG business to an acquirer with available corresponding upstream capacity, allowing it to control the whole supply chain. In that regard, the applicant claims in general terms that those commitments contained specific requirements as to the suitability of the buyer which went beyond those contained in the Commission’s standard forms, which is consistent with paragraph 47 of the Remedies Notice.

803    However, it must be stated at the outset that the applicant does not in any way dispute the Commission’s finding, set out in recital 1659 of the contested decision, that ‘the purchaser criteria included in the [revised] Commitments of 23 April 2019 set no explicit requirements as to existing upstream capabilities, including the scope and location of the purchaser, but are confined to requiring that the purchaser has existing activities “in the steel industry” and has “sufficient capabilities and activities in order to operate successfully the Divestment Business”’.

804    In addition, under the heading ‘Transfer to a suitable purchaser’, paragraph 47 of the Remedies Notice states that ‘the divestiture will only be achieved if and once the business is transferred to a suitable purchaser in whose hands it will become an active competitive force in the market’. Also, ‘the potential of a business to attract a suitable purchaser is an important element already of the Commission’s assessment of the appropriateness of the proposed commitment’. Lastly, ‘in order to ensure that the business is divested to a suitable purchaser, the commitments have to include criteria to define its suitability which will allow the Commission to conclude that the divestiture of the business to such a purchaser will likely remove the competition concerns identified’.

805    In the light of the importance of vertical integration for high-quality products such as automotive HDG, as has been pointed out in paragraph 798 above, the Commission cannot be criticised for disregarding paragraph 47 of the Remedies Notice by rejecting the revised commitments of 23 April 2019, which were limited to the requirement that the purchaser had sufficient existing activities in the steel industry. Those commitments did not contain criteria to define suitability, as required by that paragraph, in particular as to the purchaser’s existing upstream capacities, thus ensuring it that vertical integration, which would have allowed the Commission to determine whether the divestiture of the business to such a purchaser was likely to remove the competition concerns identified.

806    Similarly, it is apparent from paragraph 47 of the Remedies Notice and, more specifically, from the sentence ‘the potential of a business to attract a suitable purchaser is an important element already of the Commission’s assessment of the appropriateness of the proposed commitment’, that the business to be divested has to be attractive in itself. Therefore, the Commission cannot be criticised for rejecting as inappropriate a business that is not viable as such without examining that acquirer’s resources. The Commission was therefore correct in pointing out, in recital 1660 of the contested decision, that ‘businesses to be divested [had] to be viable as such [and, therefore], the resources of a possible or even presumed future purchaser [were] not taken into account … at the stage of assessing the remedy’.

807    It follows that, contrary to what the applicant claims, paragraph 47 of the Remedies Notice does not support its argument that, where the remedies provide for an ‘upfront buyer’, the Commission is in all circumstances bound to accept them even if the business to be divested is not viable in the absence of certain assets.

808    In the light of all the foregoing considerations, it must be held that the applicant cannot validly complain that the Commission committed any manifest error of assessment, in that it allegedly overstated, in the contested decision, the importance of the vertical integration of automotive HDG suppliers or confused it with the need to control the automotive HDG supply chains.

809    Accordingly, the first complaint of the second part of the fifth plea in law must be rejected.

–       The second complaint, alleging inconsistent and inaccurate assessment of the remedies

810    By the second complaint in the second part of its fifth plea, the applicant submits, in essence, that the Commission made errors of assessment in its analysis, in recitals 1576 to 1623 of the contested decision, of the remedies relating to the divestment of automotive HDG production plants.

811    In particular, first, the applicant submits that, when considering the automotive HDG business as unsuitable as a remedy, the Commission contradicts its earlier decision in Case M.1351 Usinor/Arbed/Aceralia, where the plants in Sagunto and Segal (Belgium) were considered as suitable and viable remedies, without the inclusion of upstream assets. This was raised by the parties during the administrative procedure, but the contested decision does not adequately address it.

812    Secondly, the applicant disputes the Commission’s assessment, in recitals 1582 to 1589 of the contested decision, of the automotive HDG divestment business as being too small. That assessment is based on errors, which have already been disputed above, concerning the calculation of market shares and the legal standard applicable to remedies. The two production lines in question (Sagunto and Segal) each have a nominal production capacity in excess of [confidential] tonnes/year, making them two of the largest HDG lines in Europe. In that regard, the applicant notes that that decision recognises Salzgitter as a smaller, but viable competitor in automotive HDG, whereas that undertaking has a lower total nominal HDG capacity than the two production lines in question, which is inconsistent.

813    Thirdly, the applicant criticises the Commission for concluding, in recitals 1591 and 1598 of the contested decision, that divestment of the automotive HDG business was a remedy which was insufficient in scope, because the Sagunto and Segal plants were unable to produce strip widths greater than [confidential] mm and had some restrictions regarding tensile strength.

814    In that regard, the applicant claims that strip widths of that size are required only exceptionally, for a small number of finished products, and only a few HDG lines are currently capable of producing such products. Similarly, it is not essential for an HDG line to be able to process certain tensile strengths to supply to automotive customers. Moreover, the Commission does not find distinct product markets for those parts or for AHSS, which requires higher tensile strengths. It would therefore be inconsistent to consider the automotive HDG business as an inadequate remedy, because the two lines offered cannot produce specific niche products in an already too narrowly defined relevant market for automotive HDG.

815    The Commission disputes the applicant’s arguments and contends that this complaint should be rejected.

816    In that regard, first, as regards the Commission’s earlier decision in Case M.1351 Usinor/Arbed/Aceralia, which is relied on by the applicant, it should be noted that, as stated in paragraphs 66 to 69 above, the applicant cannot accuse the Commission of failing to follow its previous decision-making practice in the contested decision by claiming that the Commission did not carry out the same assessment of the facts in the present case as in the case to which the applicant refers. Therefore, irrespective of whether the Commission’s assessment of the automotive HDG remedies, referred to in recitals 1576 to 1623 of the contested decision, is inconsistent with that earlier decision, any argument of the applicant based on that precedent must be rejected.

817    Secondly, the applicant disputes the Commission’s assessment, in recitals 1582 to 1589 of the contested decision, of the size of the automotive HDG divestment business. It considers that it is not too small.

818    In the first place, as regards the applicant’s complaint that the Commission’s assessment is based on a flawed calculation of market shares and on an erroneous perception of the legal standard applicable to the remedies, it should be noted, as the applicant itself acknowledges, that those errors have already been alleged above in the context of the third part of the third plea and the first part of the fifth plea. Consequently, since those errors have already been alleged, examined and rejected in that context, reference should be made to the relevant paragraphs of the assessment made in that context.

819    In the second place, as regards the comparison with the capacity of Salzgitter, it must be noted that the applicant has not established any manifest error of assessment on the part of the Commission as regards recitals 1582 to 1589 of the contested decision. In those recitals, the Commission, without being challenged, found, by relying inter alia on the statements of market participants provided in the context of the market test which it carried out, that the automotive HDG divestment business represented, in terms of capacity, only a limited part of the overlap between the parties’ activities on the automotive HDG market, and therefore, despite that divestment, the transaction would bring about a significant increment in an already concentrated market with a limited number of full-portfolio competitors, both in terms of capacity and EEA sales.

820    Furthermore, it must be noted that that comparison with Salzgitter is not relevant and cannot, in itself, be decisive in refuting the Commission’s assessment of the remedies relating to the divestment of automotive HDG production plants. As is apparent from recitals 1590 to 1622 of the contested decision, the Commission established that there were several other factors which affected the viability and competitiveness of the automotive HDG divestment business. Those factors, most of which have not been disputed by the applicant, have already been mentioned in paragraph 776 above, to which reference must be made.

821    Thirdly, the applicant disputes the Commission’s assessment, in recitals 1591 to 1598 of the contested decision, of the scope of the automotive HDG divestment business. It maintains that that divestment business is a remedy of sufficient scope, by minimising the importance of producing specific parts greater than [confidential] mm and strip widths offering a certain tensile strength.

822    It must be observed that the applicant’s claims as to the limited relevance of those specific products relate solely to the current period. It does not therefore dispute the Commission’s forward-looking approach in that regard. As the Commission maintained in recital 1591 of the contested decision, the lack of production capabilities regarding those specific segments ‘is a significant deficiency considering that, as the investigation has revealed, the relevance of such very high-strength and wide automotive HDG products has been constantly growing and is likely to increase in the future’. Since, as is apparent from paragraph 792 above, the divestment business must be viable and competitive in the long term, the Commission cannot be criticised for committing any manifest error of assessment by taking into consideration the technical limitation of the automotive HDG divestment business as regards those specific products.

823    Furthermore, contrary to what the applicant claims, the lack of technical capabilities of the automotive HDG divestment business, as regards the specific products mentioned above, could be validly taken into account to assess the long-term viability and competitiveness of that business, even if those specific products were not defined as separate markets. As is apparent from paragraph 25 of the Remedies Notice, ‘the business has to include all the assets … which are necessary to ensure its viability and competitiveness’. Having regard to the importance – at least for the future – of those specific products, divestiture without the assets capable of producing those products would not constitute a comprehensive and effective remedy, in accordance with paragraph 9 of that notice, cited in paragraph 763 above, and therefore could not eliminate the SIEC caused by the concentration.

824    It follows that the applicant has not in any way demonstrated that the Commission did not accurately and consistently assess the automotive HDG remedies.

825    In the light of all the foregoing considerations, it must be held that the applicant cannot validly complain that the Commission made manifest errors of assessment in its analysis, in recitals 1576 to 1623 of the contested decision, of the remedies relating to the divestment of automotive HDG production plants.

826    Accordingly, the second complaint of the second part of the fifth plea in law must be rejected together with that part in its entirety.

 The third part, concerning the remedies regarding packaging steel

827    By the third part of its fifth plea, the applicant submits, in essence, that the Commission made manifest ‘errors of assessment’ in its analysis, in recitals 1517 to 1575 of the contested decision, of the remedies regarding packaging steel.

828    In particular, first, the applicant disputes the dismissal of the remedies regarding packaging steel, as revised following the revised commitments of 23 April 2019, on the ground that the divestment business proposed by the parties was small. According to the applicant, that business would account for [confidential] of the overlap, which would be sufficient to remove any SIEC. The applicant claims that, in so far as the Commission wrongly applies a ‘removal of the full overlap’ analysis, that significant divestment is dismissed, at recital 1647 of the contested decision, as representing ‘only … [confidential]% of the scale of [TSE] pre-transaction’.

829    Secondly, the applicant criticises the Commission’s assessment concerning the insufficient scope of the commitments of 1 April 2019. In particular, the applicant disputes that assessment as regards (i) the capabilities of the lines and the range of products produced on those lines, offered as packaging steel remedies and (ii) the quality of products produced at the Trostre (United Kingdom) plant. The applicant complains that the parties’ arguments were rejected on the basis of customer conjecture which, as stated in recital 1536 of the contested decision, constitutes only a ‘slight majority’ of respondents, even though the parties had provided objective data proving that customers’ concerns were overblown and unfounded. Those concerns result from one recent temporary problem involving delivery to the Trostre plant, which does not support the conclusion that the assets are generally or fundamentally flawed.

830    Thirdly, the applicant claims that, in its assessment of the remedies, the Commission referred to assets located in the United Kingdom to assert, in recitals 1543 to 1545 of the contested decision, that there were significant transportation obstacles, uncertainty around the Brexit process, additional trade barriers and currency fluctuations which created an uncertainty in the competitiveness of those assets. None of those factors was examined in the Commission’s competitive assessment concluding that the geographic market was the EEA, which is contradictory and wrong, and at no point was the competitive significance of Trostre downgraded to reflect those purported barriers to competitiveness, even though the Commission is required to conduct a forward-looking competitive analysis. In that regard, despite the parties’ evidence explaining why those alleged barriers had been overstated, the Commission wrongly preferred to rely on the unsubstantiated views of market participants.

831    The Commission disputes the applicant’s arguments and contends that this part should be rejected.

832    In that regard, first, as regards the size of the divestment business proposed by the parties in the context of the remedies regarding packaging steel, it should be noted at the outset that the applicant’s claim relates only to the assessment of the revised commitments of 23 April 2019. The applicant does not in any way dispute the Commission’s assessment, in recital 1524 of the contested decision, that the size of that business as envisaged in the commitments of 1 April 2019 was insufficient regarding TP, considering that, even taking into account [confidential], that business ‘would only be a fraction ([20-30]%) of the incremental overlap brought about by the Transaction’.

833    As regards the size of the divestment business proposed by the parties in their revised commitments of 23 April 2019, it should be noted that the rate of [50-60]%, referred to in recital 1647 of the contested decision, takes account of a future increase in capacity which should have been made possible by a financial commitment offered by the parties in those revised commitments. As is apparent from recital 1628 of that decision, that financial commitment consisted, inter alia, in making available EUR [confidential] to the purchaser of that business to fund a capacity increase and consolidation of that business.

834    However, in recitals 1635 to 1646 of the contested decision, the Commission took the view that such a capacity increase was uncertain, a view which has not been challenged by the applicant. The Commission considered that the parties’ new commitments were neither comprehensive nor effective in that regard, since they contained, inter alia, a number of uncertainties, and therefore any increase in capacity could not be taken into account as regards the divestment of the packaging steel business.

835    In any event, it should be noted that the Commission correctly pointed out, in recital 1647 of the contested decision, that, even if such an increase in capacity had actually taken place, ‘the Transaction as amended by the [new] commitments of 23 April 2019 would still bring about a significant increment … in terms of capacity [for the merged entity] in an already concentrated market’, which the applicant has not disputed. In the same recital, the Commission further pointed out that the divestment of the packaging steel business ‘would only have about [50-60]% of the scale of [TSE] pre-transaction’ as regards TP and that the size of the divestment business proposed by the parties would in fact be even smaller than that rate of [50-60]% because that increase in capacity could not have been taken into account for the reasons set out in paragraph 834 above, which the applicant has not disputed either.

836    Furthermore, in so far as the applicant criticises the Commission for applying a ‘removal of the full overlap’ analysis, that criticism must be rejected and reference made to paragraphs 778 to 783 above.

837    It follows that the applicant has not shown that the Commission made any manifest error of assessment as regards its assessment of the size of the divestment business.

838    Secondly, as regards the scope of the divestment business proposed by the parties in their commitments of 1 April 2019, it must be noted at the outset that the applicant fails to take account of the assessment set out in that regard by the Commission in recitals 1535 to 1542 of the contested decision.

839    In those recitals, the Commission relied, inter alia, on the market test in order to find, in essence, that certain critical product offerings of the parties remained unmatched by the packaging steel divestment business (recital 1536), that the product portfolio would be limited going forward due to the lack of control over the HR input (recital 1537), that the assets included in that business were of lower quality than those at TSE’s and the applicant’s retained plants (recital 1538), that such assets were dependent on TSE’s IJmuiden (Netherlands) plant to deal with such quality issues (recital 1539), and that the dependency on that IJmuiden plant seemed also to concern the research and development capabilities of the packaging divestment business (recital 1541).

840    It should be pointed out in that regard that the applicant merely disputes the Commission’s assessment of the capabilities of the lines, the range of products produced on those lines and the quality of the products from the divestment business, without calling into question the other factors of that assessment mentioned in the preceding paragraph.

841    As regards the challenge to those two factors in the Commission’s assessment of the scope of the divestment business, the applicant relies on general assertions which cannot in themselves demonstrate that that assessment is vitiated by any manifest error. The applicant’s assertions as regards the customer statements are not substantiated in any way. There is nothing to suggest, as the applicant claims, that the Commission relied in that regard on ‘conjecture’ or ‘unsubstantiated comments’ from customers. In addition, even though the Commission stated, in recital 1536 of the contested decision, that it relied on a ‘slight majority’ of respondents, it remains nevertheless a majority, which is sufficiently representative. Furthermore, although the Commission did not take into consideration the parties’ arguments and data in the context of that assessment, that simply means that it did not consider them sufficiently convincing or relevant among all of the evidence that it was able to gather, inter alia, in its market test.

842    As regards the applicant’s reference to a recent temporary problem concerning the delivery performance of the Trostre plant, the Commission’s assessment, which is disputed by the applicant, is not based on issues concerning the delivery performance of the divestment business. Consequently, that reference is irrelevant.

843    It follows that the applicant has not shown that the Commission made any manifest error of assessment as regards its assessment of the scope of the divestment business.

844    Thirdly, as regards the geographic location of the divestment business proposed by the parties in their commitments of 1 April 2019, it should be noted at the outset that the applicant does not dispute the Commission’s finding, in recital 1543 of the contested decision, that the TP and ECCS production assets included in that business ‘are geographically located in the periphery of [their] area of operations for packaging steel products, and [that] due to the location of the key assets in the United Kingdom the location poses significant transportation obstacles’.

845    It should also be noted that, besides those significant transportation obstacles, the Commission referred to the location of the parties’ assets in the United Kingdom to emphasise, in recitals 1543 to 1545 of the contested decision, inter alia, the need to take into account ‘the ongoing uncertainties related to the Brexit process and the extent to which there would be additional trade barriers if the United Kingdom were to leave the internal market’ or the existence of ‘material fluctuations between the [pound sterling] and [the euro]’, resulting in ‘uncertainty in the competitiveness or cost position of the remedy assets to compete in the Euro countries’.

846    The applicant claims, in essence, that it is contradictory and wrong to take those factors into account when analysing the remedies since none of them was examined in the Commission’s competitive analysis, which is based on a geographic market definition covering the EEA, thus including the parties’ assets located in the United Kingdom. Similarly, according to the applicant, at no point was the competitive significance of the Trostre assets downgraded in relation to the assets located in mainland Europe, in particular, to reflect the barriers to competitiveness referred to by the Commission, even though the Commission is required to conduct a forward looking competitive analysis.

847    In that regard, it must be stated that the Commission took account, in its competitive analysis, of the geographic location of the parties’ assets located in the United Kingdom.

848    In its assessment with respect to the geographic market definition for packaging steel, the Commission observed, in recitals 444 and 447 of the contested decision, that customers ‘source[d] mostly from suppliers in the same or nearby countries within the EEA’ and that ‘packaging steel competitors in the EEA suppl[ied] mostly in the area around their production plants [and that that was] also the case for the Parties’.

849    In addition, in its competitive analysis, the Commission considered, in recital 1403 of the contested decision, that the parties were close competitors, inter alia, because their production plants are located geographically close to one another, being ‘concentrated near each other in north-west Europe’, and stated, in recital 1406 of that decision, that ‘[TSE’s] United Kingdom production sites predominantly [sold] in the United Kingdom whereas [TSE’s] production site in the Netherlands (IJmuiden) [made] most of their EEA sales to continental Europe’.

850    Therefore, the Commission cannot be criticised for failing to take the location of the parties’ UK assets into consideration in its competitive analysis.

851    Moreover, precisely because a review of concentrations calls for a prospective analysis, the Commission was entitled to take into account, as an additional factor that could have a decisive impact on the state of competition, the ‘ongoing uncertainties related to the Brexit process and the extent to which there would be additional trade barriers if the United Kingdom were to leave the internal market’, as pointed out in recital 1544 of the contested decision. The Commission cannot be criticised for considering such a development, which was very likely, when examining the remedies, particularly since it had observed in that regard that the parties’ customers had already anticipated a risk from Brexit and that [confidential], as is apparent from that recital, which has not been challenged by the applicant.

852    Furthermore, the applicant claims that the Commission preferred to rely on the unsubstantiated views of market participants rather than on the parties’ evidence explaining why the abovementioned barriers had been exaggerated. In that regard, it need merely be recalled that, although the Commission did not rely on that evidence when examining the remedies, that was because it did not consider it sufficiently convincing or relevant from all of the evidence that it was able to gather in its market test. In any event, in the context of a global assessment, the lack of reference to a document does not, in itself, enable the finding that that document was not taken into account.

853    It follows that the applicant has not shown that the Commission made any manifest error of assessment as regards its assessment of the geographic location of the divestment business.

854    In the light of all the foregoing considerations, it must be held that the applicant cannot validly complain that the Commission made manifest errors of assessment in its analysis, in recitals 1517 to 1575 of the contested decision, of the packaging steel remedies.

855    Accordingly, the third part of the fifth plea in law must be rejected.

 The fourth part, concerning the interest of potential buyers on the market proving the viability of the divestment businesses

856    By the fourth part of its fifth plea, the applicant submits, in essence, that the Commission made a manifest error of assessment when assessing the expressions of interest from potential buyers of the automotive HDG and packaging steel divestment businesses, in the context of its analysis of the remedies. Therefore, the Commission’s conclusion regarding the divestment businesses’ lack of stand-alone viability is also based on that error of assessment.

857    In particular, the applicant claims that, although the parties communicated to the Commission the positive feedback they had received from multiple potential buyers for both the automotive HDG and packaging steel divestment businesses, the contested decision failed to take it into account in its assessment of the remedies. As is apparent from recitals 1564, 1572, 1616 and 1622 of the contested decision, the Commission favoured the results of its own market test, without explaining why those results should be more reliable than the feedback received from the parties, or why it disregarded the potential buyers presented by the parties. However, many of them are active in the production and supply of carbon flat steel and are better qualified to assess the viability of the remedies than their customers are.

858    In addition, the applicant claims that the large number of potential buyers who expressed an interest in the proposed automotive HDG and packaging steel divestment businesses in fact proves the stand-alone viability of these remedies. The applicant maintains that if there were serious doubts as to the viability of those businesses, the parties would not have received such a large number of positive responses to their outreach. The applicant concludes that if the Commission had not dismissed the potential purchasers presented by the parties, it would have concluded that the divestment businesses were regarded as sufficiently viable by the parties’ competitors.

859    The Commission disputes the applicant’s arguments and contends that this part should be rejected.

860    In that regard, it should be noted that, by the fourth part of its fifth plea, the applicant is in fact raising two separate complaints.

861    The applicant’s first complaint concerns, in essence, the assessment of the evidence made available to the Commission in its assessment of the expressions of interest from potential buyers of the automotive HDG and packaging steel divestment businesses. In particular, the applicant calls into question the greater probative value that the Commission ascribes to the statements of market participants which were sent to it in the context of a market test over those which were communicated to the parties by potential purchasers which were contacted directly by those parties.

862    In that regard, it should be noted that market participants responding to the Commission’s requests for information under Article 11(2) of Regulation No 139/2004 have an obligation to provide correct and non-misleading information, failing which there may be considerable penalties, such as fines of up to 1% of the aggregate turnover of the undertaking concerned, under Article 14(1)(b) of that regulation. Those sanctions do not apply where market participants contacted by the merging parties informally provide information, which explains why answers to requests for information under Article 11(2) are considered by the Commission to be more reliable.

863    In addition, in the present case, as the applicant observes, without being challenged by the applicant, the Commission systematically asked market participants whether they would be interested in the divestment businesses as they were or whether they requested some amendments, whereas the document submitted by the parties concerning allegedly interested purchasers did not systematically provide such information, which means that the replies given directly to the Commission are more precise and therefore more reliable.

864    Furthermore, it should be noted that, in its assessment of the expressions of interest from potential buyers of the automotive HDG and packaging steel divestment businesses, the Commission relied, as is apparent in particular from recitals 1564, 1572, 1616, 1617, 1622, 1641 and 1655 of the contested decision, essentially on the statements of market participants responding to the requests for information under Article 11(2) of Regulation No 139/2004, notwithstanding the fact that it also took into account the statements made by the potential purchasers presented by the parties. Accordingly, the Commission did not ‘disregard’ the responses submitted by the parties; it simply did not consider them sufficiently relevant in that regard, in the light of all of that evidence.

865    Consequently, the applicant cannot complain that the Commission made a manifest error of assessment of the evidence made available to it in its assessment of the expressions of interest from potential buyers of the automotive HDG and packaging steel divestment businesses. Accordingly, the applicant’s first complaint based on the assessment of the evidence must be rejected.

866    The applicant’s second complaint seeks, in essence, to invoke the alleged ‘large number of potential purchasers’ to call into question the finding that the automotive HDG and packaging steel divestment businesses lacked stand-alone viability.

867    In that regard, it should be noted that, as regards the automotive HDG divestment business, the applicant does not dispute the Commission’s findings, in recitals 1616 and 1617 of the contested decision, that only one competitor (a re-roller) which responded to the market test carried out by the Commission expressed its interest in that business as it was, and that many interested purchasers for that business indicated in the parties’ overview would require a supply agreement. In addition, it is apparent from recital 1661 of that decision that the revised commitments of 23 April 2019 do not alter the commitments of 1 April 2019 in that regard, a point which the applicant does not dispute.

868    Similarly, it should be noted that, as regards the packaging steel divestment business, the applicant, in addition, does not dispute the Commission’s findings, in recitals 1564 and 1572 of the contested decision, that none of the competitors which responded to the Commission’s market test expressed interest in that business as it was, and that all interested purchasers for that business indicated in the parties’ overview would require a supply agreement for HR. In addition, it is apparent from recital 1652 of that decision that the revised commitments of 23 April 2019 do not ultimately alter the commitments of 1 April 2019 in that regard, a point which the applicant does not dispute.

869    It follows from those findings that the Commission demonstrated to the requisite legal standard, without being validly challenged by the applicant, that few of the market participants consulted were interested in the automotive HDG and packaging steel divestment businesses as they were. Therefore, the applicant cannot validly invoke the alleged ‘large number of potential purchasers’ to call into question the Commission’s finding, which relied on a body of evidence, that those businesses lacked stand-alone viability, that is to say, irrespective of the possible combination with the purchasers’ assets.

870    Consequently, the applicant cannot validly claim that the Commission’s conclusion is vitiated by a manifest error of assessment. Accordingly, the applicant’s second complaint in that regard must also be rejected.

871    In the light of all the foregoing considerations, it must be held that the applicant cannot validly complain that the Commission made a manifest error of assessment when assessing the expressions of interest from potential buyers of the automotive HDG and packaging steel divestment businesses, in the context of its analysis of the remedies.

872    Accordingly, the fourth part of its fifth plea in law must be rejected.

 The fifth part, concerning the ‘upfront buyer’ requirement

873    By the fifth part of its fifth plea, the applicant submits, in essence, that the Commission made a manifest error of assessment in assessing the ‘upfront buyer’ requirement proposed by the parties in their revised commitments of 23 April 2019.

874    In particular, the applicant submits that the Commission mischaracterised the parties’ commitments as regards the functioning of the ‘upfront buyer’ requirement, by stating, in recital 1640 of the contested decision, that, in the event that the parties failed to propose an adequate purchaser, the divestiture trustee could have sold the packaging steel undertaking to a buyer that was not adequate. This is incorrect, according to the applicant, since those commitments required the Commission’s prior approval of any potential purchaser, whether identified by the parties or the trustee. Therefore, there could be no case in which the Commission cannot sufficiently control and make sure that the prospective buyer of the divestment is adequate. This constitutes a manifest error of assessment in failing to interpret the basic structure of the remedies.

875    In that regard, the applicant denies that the ‘upfront buyer’ commitment proposed by the parties would have necessitated the description of specific criteria for ‘upfront buyers’. It argues that recitals 53 to 55 of the Remedies Notice, which deal with the ‘upfront buyer’, do not stipulate any requirement that an ‘upfront buyer’ solution would have to comprise the offer of specific buyer requirements. There is no need to include such characterisations in the ‘upfront buyer’ proposal since any buyer needs to be pre-approved by the Commission.

876    Similarly, the applicant claims that concerns expressed in recitals 1637 and 1640 of the contested decision, with respect to the ‘upfront buyer’ commitment compared with a ‘fix-it-first’ commitment, arise from the Commission’s inability to ensure that a buyer would have the necessary incentives to carry out the investments proposed by the parties. It is not clear to the applicant how a ‘fix-it-first’ commitment would have offered the Commission greater opportunity to ensure that, nor does the Commission explain why that would have been the case. It is inconceivable why the ‘upfront buyer’ commitment should not have provided the same degree of certainty as a ‘fix-it-first’ commitment. Moreover, the latter was not a possible solution in the present case.

877    In addition, the applicant submits that the Commission’s position is contrary to paragraph 57 of its Remedies Notice, which provides that ‘fix-it-first’ solutions enable the Commission to ensure that commitments are implemented with a sale to a suitable purchaser and ‘an “up-front buyer” solution containing specific requirements as to the suitability of a buyer will generally be considered equivalent and acceptable’. In that regard, the applicant claims that the revised commitments of 23 April 2019 contained specific requirements as to the suitability of the buyer which went beyond the requirements contained in the Commission’s standard forms. Therefore, the ‘upfront buyer’ requirement ought to have been equivalent to a ‘fix-it-first’ solution and, on this basis, acceptable.

878    Furthermore, according to the applicant, that position taken by the Commission would also be counter to the Commission’s recent acceptance of remedies offered in the AM/Ilva case, where, in the same industry, neither an ‘upfront buyer’ nor a ‘fix-it-first’ commitment were requested by the Commission.

879    The Commission disputes the applicant’s arguments and contends that this part should be rejected.

880    In that regard, it should, first of all, be noted that the arguments raised by the applicant in the context of the fifth part of the fifth plea overlap, to some extent, with those relating to the ‘upfront buyer’ requirement, which was already relied on in the context of the first complaint of the second part of that plea and which was addressed in paragraphs 802 to 807 above. Accordingly, it is appropriate, to that extent, to refer to those paragraphs.

881    Next, as regards the applicant’s claim that the Commission distorted the revised commitments of 23 April 2019, which included an ‘upfront buyer’ clause, in so far as it stated, in recital 1640 of the contested decision, that those commitments could lead to the sale of the packaging steel divestment business to a buyer that was not suitable, it must be held that the applicant misreads that recital.

882    Recital 1640 of the contested decision states that ‘the Parties did not commit to wait for a “fix it first” buyer before completing the Transaction nor provided for specific purchaser requirements that would ensure that the potential purchaser would also have the incentive to carry out the envisaged investments’. It is in such a context that the Commission considered that ‘the currently proposed “upfront buyer” commitment would, in the event of the Parties failing to propose an adequate purchaser, lead to a sale of the Packaging Steel Divestment Business by a Divestiture Trustee (at no minimum price), [and that] this would not guarantee a purchaser to be adequate and have satisfactory incentives or business case to carry out the envisaged investments’.

883    It is apparent from recital 1640 that the parties did not lay down specific ‘upfront buyer’ requirements in their revised commitments of 23 April 2019. It is precisely because of that lack of specific requirements that the Commission considered that the ‘upfront buyer’ requirement might not ensure that the buyer was appropriate. Moreover, the Commission does not exclude the possibility that an ‘upfront buyer’ clause may be added, subject, however, to specific requirements. Similarly, the Commission does not necessarily ascribe greater importance to a ‘fix-it-first’ commitment than an ‘upfront buyer’ commitment, subject also to the same requirement.

884    It should be noted that, in its criticism of recital 1640 of the contested decision, the applicant distorts the content of that recital and fails to state that the Commission relied on the absence of specific ‘upfront buyer’ requirements to argue that the revised commitments of 23 April 2019 could, as they were, lead to the sale of the packaging steel divestment business to a buyer that was not suitable. It follows that the applicant cannot validly complain that the Commission distorted or misinterpreted those commitments.

885    Lastly, as regards the applicant’s claim that the Remedies Notice does not necessitate the description of specific requirements applicable to the ‘upfront buyer’, it should nevertheless be observed that paragraph 57 of that notice clearly states that ‘the Commission welcomes fix-it-first remedies [and that this] concerns cases where, given the circumstances, only very few potential purchasers can be considered suitable, in particular as the divested business is not a viable business in itself, but its viability will only be ensured by specific assets of the purchaser, or where the purchaser needs to have specific characteristics in order for the remedy to solve the competition concerns’. Paragraph 57 goes on to state explicitly that ‘an “upfront buyer” solution containing specific requirements as to the suitability of a buyer will generally be considered equivalent [to a “fix-it-first” commitment] and acceptable’.

886    It follows that the ‘upfront buyer’ solution is acceptable only if it contains ‘specific requirements as to the suitability of a buyer’. Contrary to what the applicant claims, the Remedies Notice therefore necessitates the description of specific requirements applicable to the ‘upfront buyer’.

887    Similarly, the applicant cannot validly argue that it is inconceivable why the ‘upfront buyer’ commitment should not have provided the same degree of certainty as a ‘fix-it-first’ commitment. As is apparent from paragraph 57 of the Remedies Notice, the ‘upfront buyer’ solution will generally be regarded as equivalent to the ‘fix-it-first’ solution only if it contains specific requirements as to the purchaser.

888    As regards whether the parties’ commitments do indeed contain such specific requirements as to the purchaser, the applicant merely claims in general terms, without substantiating that claim, that ‘the [revised] Commitments of 23 April 2019 contained specific requirements as to the suitability of the buyer which went beyond those contained in the [Commission’s] standard form commitments’. In that regard, it must be stated above all that it does not dispute the Commission’s findings, in recitals 1640 and 1659 of the contested decision, that the ‘upfront buyer’ clause proposed by the parties in their revised commitments of 23 April 2019 did not contain ‘specific requirements as to the suitability of a buyer’, in accordance with paragraph 57 of the Remedies Notice.

889    In particular, the applicant does not dispute, as is stated in recital 1640 of the contested decision, as regards the packaging steel divestment business, that the parties had not ‘provided for specific purchaser requirements that would ensure that the potential purchaser would also have the incentive to carry out the envisaged investments’. Nor does it dispute, as is made clear in recital 1659 of the decision, as regards the automotive HDG divestment business, that ‘the purchaser criteria included in the [revised] Commitments of 23 April 2019 set no explicit requirements as to existing upstream capabilities, including the scope and location of the purchaser, but are confined to requiring that the purchaser has existing activities “in the steel industry” and has “sufficient capabilities and activities in order to operate successfully the Divestment Business”’. In any event, even if the applicant were to dispute the claim in those two recitals that the ‘upfront buyer’ clause does not contain such specific requirements, the fact would remain that its challenge is not substantiated, since it does not respond to the omissions identified by the Commission.

890    Moreover, as regards the applicant’s claim that the solution adopted by the ‘upfront buyer’ does not necessitate ‘specific requirements as to the suitability of a buyer’, since every acquirer must necessarily be approved by the Commission, it should be observed that that claim runs counter to paragraph 57 of the Remedies Notice. In order to be acceptable, the solution must contain such requirements, as indicated in paragraphs 885 and 886 above.

891    In addition, it must be stated that, in order to determine whether a potential buyer is capable of obtaining its approval, the Commission must necessarily verify whether the requirements foreseen in the commitments of the parties to the concentration are satisfied. The Commission therefore does not enjoy unlimited discretion in that regard.

892    As stated in paragraph 47 of the Remedies Notice, ‘in order to ensure that the business is divested to a suitable purchaser, the commitments have to include criteria to define its suitability which will allow the Commission to conclude that the divestiture of the business to such a purchaser will likely remove the competition concerns identified’. If the commitments only lay down standard purchaser requirements, such as those set out in paragraph 48 of that notice, the Commission can only verify whether those requirements are satisfied.

893    However, it is also possible, as stated in paragraph 49 of the Remedies Notice, that those standard requirements ‘have to be supplemented on a case-by-case basis’, for example by requiring, ‘where appropriate, that the purchaser should be an industrial, rather than a financial purchaser’. Accordingly, it is apparent from paragraph 49 that, owing to the particular circumstances of the case, the parties’ commitments must, in addition to those standard requirements, also contain specific requirements as to the buyer, so as to ensure that the latter is sufficiently capable and motivated to develop the divestment business concerned as a viable and competitive force in the relevant market. In such cases, those specific requirements must appear in the parties’ commitments and then be verified by the Commission.

894    In the present case, in the light of the importance of vertical integration for the products at issue, which is apparent in particular from the analysis in Section 12.3.3.3. of the contested decision, as regards packaging steel, and in Section 12.3.4.3. of that decision, as regards automotive HDG, and as was pointed out, in particular, in paragraph 798 above, the Commission was entitled to require the parties to include in their commitments explicit and specific requirements for the buyer as regards existing upstream capacities, as is apparent from recital 1640 and 1659 of that decision, precisely because of the specific circumstances of the present case. However, as indicated in paragraphs 888 and 889 above, no such requirement was laid down in the revised commitments of 23 April 2019, a point which the applicant has not, moreover, disputed. Consequently, the Commission was entitled to conclude, in essence, in recital 1668 of the contested decision, that the parties’ commitments did not entirely eliminate the SIECs and that they were not comprehensive and effective and, therefore, that they did not make it possible to overcome the viability problems of the divestment business.

895    Furthermore, as regards the Commission’s earlier decision in the AM/Ilva case, which is relied on by the applicant, as stated in paragraphs 66 to 69 above, the applicant cannot accuse the Commission of failing to follow its previous decision-making practice in the contested decision by claiming that the Commission did not carry out the same assessment of the facts in the present case as in the case to which the applicant refers. Therefore, irrespective of whether the Commission’s assessment of the ‘upfront buyer’ solution proposed by the parties in their revised commitments of 23 April 2019 is inconsistent with that earlier decision, any argument of the applicant based on that precedent must be rejected.

896    In the light of all the foregoing considerations, it must be held that the applicant cannot validly complain that the Commission made a manifest error of assessment in assessing the ‘upfront buyer’ solution proposed by the parties in their revised commitments of 23 April 2019.

897    Accordingly, the fifth part of the fifth plea in law must be rejected.

 The sixth part, concerning an infringement of the principle of proportionality

898    By the sixth part of its fifth plea, the applicant submits, in essence, that the Commission infringed the principle of proportionality in its assessment of the remedies proposed by the parties.

899    In particular, the applicant takes the view that the Commission’s insistence on full vertical integration up to liquid steelmaking is entirely disproportionate to the scale of the SIECs identified in the automotive HDG and packaging steel markets. In that regard, the applicant states that the products covered by the SIECs represent at most 25% of the parties’ total output, so the parties’ upstream assets provide inputs for a large range of products completely unaffected by the Commission’s findings of an SIEC.

900    According to the applicant, the requirement that the inclusion of one of the parties’ upstream assets – which are already limited in number – is necessary in order to create a viable remedy package is factually incorrect and based on the mischaracterisation of the importance of vertical integration as an ability to compete in the relevant downstream markets. Furthermore, it is an entirely disproportionate requirement. By removing significantly more capacity than is needed to remedy the issues identified, the divestment of a blast furnace and integrated steelworks for liquid steelmaking fatally impacts the economics of the concentration. In addition, the inclusion of that type of asset would provide the purchaser with an unattractive and top-heavy upstream asset package, whereas the supply agreements contained in the commitments would have constituted a more attractive and flexible arrangement for the operation of the downstream assets to those potential buyers who did not already have complementary upstream assets.

901    Furthermore, the applicant claims that the disproportionate nature of the requirement for assets up to liquid steelmaking is also shown by the parties’ relatively low market shares, in particular in automotive HDG, by the evolution of the markets which have seen increasing competition from non-EEA suppliers, and by the very small percentage of the overall cost of the final product to consumers which automotive HDG constitutes, and the consequentially small impact that the SIECs could have on consumers.

902    The Commission disputes the applicant’s arguments and contends that this part should be rejected.

903    In that regard, it should, first of all, be noted that the arguments raised by the applicant in the context of the sixth part of the fifth plea overlap, to some extent, with those relating to the importance of vertical integration, which was already relied on in the context of the first complaint of the second part of that plea and which was addressed in paragraphs 792 to 808 above. Accordingly, it is appropriate, to that extent, to refer to those paragraphs.

904    Next, as regards the alleged infringement of the principle of proportionality, it is apparent from the case-law that decisions taken by the Commission in proceedings for the control of concentrations must satisfy the requirements of the principle of proportionality, which is one of the general principles of EU law (see, to that effect, judgment of 18 December 2007, Cementbouw Handel & Industrie v Commission, C‑202/06 P, EU:C:2007:814, paragraph 52 and the case-law cited).

905    According to settled case-law, the principle of proportionality requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 133 and the case-law cited).

906    However, as stated in paragraph 33 above, according to settled case-law, the basic rules on control of concentrations, and, in particular, those concerning the assessment of concentrations such as those laid down in Article 2 of Regulation No 139/2004, confer on the Commission a measure of discretion, in particular for assessments of an economic nature, the exercise of which is nevertheless subject to a judicial review by the EU Courts.

907    Application of the principle of proportionality by the Commission in the context of commitments, provided for in Article 6(2) and Article 8(2) of Regulation No 139/2004, is explained in paragraph 85 of the Remedies Notice. Accordingly, that paragraph states that ‘where the parties are informed that the Commission intends to maintain in its final decision that the transaction raises competition concerns for a specific market, it is for the parties to propose commitments’. Further, ‘the Commission is not in a position to impose unilaterally any conditions to an authorisation decision, but only on the basis of the parties’ commitments’. Similarly, ‘the Commission will review whether the commitments submitted by the parties are proportionate to the competition problem when assessing whether to attach them as conditions or obligations to its final decision’. Finally, ‘it has to be stressed that, in a commitments proposal, all those elements which are required to fulfil the basic conditions for acceptable commitments … will be considered necessary’.

908    It follows that, in the context of the acceptance of commitments provided for in Article 6(2) and Article 8(2) of Regulation No 139/2004, the Commission is not required itself to seek out less onerous or more moderate solutions than the commitments offered to it by the parties to a merger transaction. It is required only, as regards the proportionality of the commitments, to ascertain whether those commitments are sufficient to address the competition concerns it identified during the administrative procedure relating to the control of concentrations (see, to that effect and by analogy, as regards Article 9 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1), judgment of 29 June 2010, Commission v Alrosa, C‑441/07 P, EU:C:2010:377, paragraph 61).

909    In particular, the review of the proportionality of the commitments, provided for in Article 6(2) and Article 8(2) of Regulation No 139/2004, consists of ensuring that those commitments are proportionate to the competition problem identified and enable it to be fully resolved (see, to that effect, judgment of 18 December 2007, Cementbouw Handel & Industrie v Commission, C‑202/06 P, EU:C:2007:814, paragraph 54). That is precisely what recital 30 of Regulation No 139/2004 refers to when it states that ‘where the undertakings concerned modify a notified concentration, in particular by offering commitments with a view to rendering the concentration compatible with the [internal] market, the Commission should be able to declare the concentration, as modified, compatible with the [internal] market’. Further, ‘such commitments should be proportionate to the competition problem and entirely eliminate it’.

910    The aim pursued by the commitments entered into by the undertakings concerned and, where appropriate, by the imposition of conditions and obligations designed to ensure that those undertakings comply with those commitments, is solely to ensure that competition in the common market is not distorted, for which purpose concentrations must be rendered compatible with the internal market. It is only in relation to that purpose that the commitments and the conditions and obligations imposed, where appropriate, by the Commission must be appropriate, necessary and proportionate (Opinion of Advocate General Kokott in Cementbouw Handel & Industrie v Commission, C‑202/06 P, EU:C:2007:255, point 73).

911    In that regard, the principle of proportionality implies that the Commission may not subject the merger transaction to disproportionate remedies if the parties have submitted less onerous commitments which also make it possible to eliminate the SIEC identified on the relevant market and thus render that concentration compatible with the internal market. However, such a principle cannot be interpreted as meaning that the Commission must accept commitments insufficient to eliminate that SIEC, if alternative remedies which could achieve that same result imply the divestiture of assets which operate in an upstream market, considered as necessary – as in the present case – to ensure the viability and competitiveness of the divestment business and, accordingly, eliminate the competition concerns entirely.

912    That is apparent, moreover, from paragraph 25 of the Remedies Notice, which states that ‘the [divestment] business has to include all the assets … which are necessary to ensure its viability and competitiveness’, irrespective of whether some of those assets operate in an upstream market. Indeed, if in the absence of upstream assets a business would not be viable, and therefore could not exert a sufficient competitive pressure on the merging parties, its divestiture without such assets, which were specifically those which were considered by the Commission to be necessary in the present case, would not constitute a comprehensive and effective remedy and therefore could not eliminate the SIEC caused by the concentration.

913    It follows that, in such a situation, the proportionality principle could not be interpreted as forcing the Commission to accept insufficient commitments.

914    Therefore, the principle of proportionality can be relied upon only if it has been shown that the commitments proposed by the parties to the concentration were already comprehensive and effective from all points of view and, therefore, made it possible to eliminate entirely all the competition problems identified, without the need for any further improvement. The fact remains that, in the present case, that is not the case. As is apparent from paragraph 894 above, the applicant has not been able to prove that the parties’ commitments contained explicit and specific requirements for the purchaser which would allow the remedy to eliminate the competition concerns entirely, with the result that the Commission was entitled to conclude, in recital 1668 of the contested decision, that those commitments were not comprehensive and effective. Consequently, since not all competition concerns have been entirely eliminated, the applicant’s claim concerning an alleged breach of the principle of proportionality cannot validly succeed.

915    In the light of all of the foregoing considerations, it must be held that the applicant cannot validly maintain that the Commission infringed the principle of proportionality when it assessed the remedies proposed by the parties.

916    Accordingly, the sixth part of the fifth plea in law must be rejected.

 The seventh part, concerning a procedural error in conducting the market test

917    By the seventh part of its fifth plea, the applicant submits, in essence, that the Commission made a procedural error in conducting the market tests carried out in the context of the analysis of the remedies proposed by the parties.

918    In particular, the applicant submits that the Commission cannot claim, as it does in particular in recitals 1521, 1580, 1641 and 1656 of the contested decision, that the results of those market tests were negative with regard to both the automotive HDG and packaging steel remedies, when those market tests were vitiated by errors from the outset. Several of the questions put to the market participants in that regard are either incomprehensible or worded tendentiously. Nor are those questions self-explanatory for the undertakings consulted, but rather they are closed and leading. Moreover, they do not contain any reference to the parties’ views. Therefore, as such, those questions are not suitable to produce meaningful results.

919    In that regard, relying on the wording of certain questions put to market participants in the second follow-up market test on the revised commitments of 23 April 2019 (Annexes A.4l to A.4n), the applicant claims that those questions were often worded in such a way as to exclude positive or even neutral responses. Similarly, the applicant criticises those questions by referring to their particularly unintelligible, incomplete, biased, leading, general, closed, unsuitable or meaningless nature.

920    Furthermore, the applicant claims that the poor quality of the Commission’s market tests and corresponding assessment is even more apparent when comparing it to market tests in other cases. Accordingly, for example, in Case M.6471 Outokumpu/lnoxum, the Commission assessed the responses received in the market test critically and reflected on their meaningfulness, which it did not do in the present case.

921    The Commission disputes the applicant’s arguments and contends that this part should be rejected.

922    In that regard, it should be noted from the outset that the applicant claims that the Commission made a ‘procedural error’ as regards the conduct of the market tests on the commitments proposed by the parties. However, the applicant does not state which procedural rule was infringed by the Commission.

923    It must be observed in that regard that the Commission has the possibility of requesting information from market participants on the basis of Article 11 of Regulation No 139/2004. However, apart from that provision, no other specific rule governs the conduct of market tests launched by the Commission. Thus, in reality, the applicant does not contest a procedural infringement, but argues that ‘the market tests are flawed’, as ‘many questions are either not comprehensible or worded tendentiously’.

924    It should be noted that, as is apparent from the file, the Commission conducted two market tests in the context of its analysis of the remedies proposed by the parties. The first market test (see Annexes A.4i to A.4k) was carried out as to the commitments submitted by the parties on 1 April 2019, whereas the second test (see Annexes A.4l to A.4n) was launched later, in a complementary manner, when the parties submitted their revised commitments of 23 April 2019. In that regard, although the applicant claims that those two tests are vitiated by errors, the arguments which it puts forward are nevertheless confined only to the second test. Therefore, its unsubstantiated claim relating to the first test must be rejected.

925    As regards the applicant’s claim that the second market test, relating to the revised commitments of 23 April 2019, is vitiated by errors, it must be observed that, as is apparent from recital 1469 of the contested decision, those commitments were submitted at a late stage in the procedure, that is to say, after the expiry of the period laid down in Article 19(2) of Regulation No 802/2004 for submitting commitments, meaning that the Commission was not even required to test the market operators again on those late commitments and that it had very little time to do so. Moreover, as is apparent from recitals 1624 to 1631 of that decision, the revised commitments of 23 April 2019 made only a few amendments to the commitments of 1 April 2019, which had already been subject to a market test with those same market participants during the first test.

926    In that context, it should also be pointed out that, even though it was not required to do so, the Commission nevertheless agreed to examine the revised commitments of 23 April 2019. As is apparent from recital 1469 of the contested decision, the Commission exceptionally decided to subject those commitments to market participants in the context of a second market test conducted from 25 to 29 April 2019. It sent back questionnaires (see Annexes A.4l to A.4n) to the same customers and same competitors which had already responded to the first market test on the 1 April 2019 commitments.

927    However, since those were follow-up questionnaires on revised commitments, the Commission cannot be criticised for asking more targeted and specific questions regarding the changes introduced by those revised commitments, without reiterating the more general elements and questions already addressed to those same market players during the first test relating to the commitments of 1 April 2019. That approach is appropriate to avoid discouraging those actors from responding and providing precise and complete answers to the follow-up questions submitted by the Commission. If the Commission had chosen to send numerous questions on the unchanged parts of the commitments which they had already answered, it would have run that risk of discouraging them, which would have been counter-productive.

928    Furthermore, the complementary nature of the second market test also explains why the Commission did not consider it necessary to reiterate its concerns, which had, moreover, already been mentioned in the first test, and the logic behind the questions. It must be stated in that regard that the questions asked in the context of the first test were sufficiently complete and explicit to reflect fully those concerns. In addition, the Commission maintains that it sent to the market participants consulted a non-confidential version of the commitments which the parties had themselves provided, a point which the applicant has not disputed, with the result that it was not necessary to describe in detail the different elements of the commitments.

929    It follows that, in the light of the context described above in which the two market tests were conducted, the questions put by the Commission in the context of its second test cannot be regarded as being incomprehensible or worded tendentiously, or indeed incomplete, general or inappropriate. Rather, as is apparent in particular from recitals 1624 to 1667 of the contested decision, those questions helped to provide the Commission with informative responses for its analysis of the revised commitments of 23 April 2019 which were proposed at a late stage by the parties.

930    In any event, the applicant has not been able to demonstrate to the requisite legal standard that the Commission committed any ‘procedural error’ or other error in the conduct of the second follow-up market test on the revised commitments of 23 April 2019. Moreover, the applicant has failed to establish how such alleged error affected the Commission’s assessment of those revised commitments, in recitals 1624 to 1667 of the contested decision.

931    Furthermore, as regards the Commission’s earlier decision in Case M.6471 Outokumpu/Inoxum, relied on by the applicant, as indicated in paragraphs 66 to 69 above, the applicant cannot criticise the Commission for failing to follow its previous decision-making practice in the contested decision. Accordingly, in so far as the applicant relies in this instance on assessments made by the Commission in a previous decision, that part of its argument is irrelevant. Therefore, irrespective of whether the conduct of the market tests adopted by the Commission in the present case was different or performed less well than that in that case, it is necessary to reject any argument of the applicant based on that precedent.

932    In the light of all of the foregoing considerations, it must be held that the applicant cannot validly complain that the Commission committed any ‘procedural error’ or any other error as regards the conduct of the market tests carried out in its analysis of the remedies proposed by the parties.

933    Accordingly, the seventh part of the fifth plea in law must be rejected.

934    Therefore, since the seven parts in support of the fifth plea have all been rejected, that plea must be rejected in its entirety.

 The sixth plea in law, alleging a lack of reasoning in the contested decision regarding GOES

935    By the sixth plea, the applicant submits that the Commission infringed its obligation to state reasons, in recital 94 of the contested decision, in so far as it did not include any arguments as to why it did not uphold its preliminary conclusions, as expressed in the statement of objections, regarding GOES. It claims that, in its response to that statement of objections, it set out the arguments that GOES, automotive HDG and packaging steel are global markets, as well as other arguments applicable to all three types of steel. To reject those arguments regarding automotive HDG and steel for packaging, while silently accepting them for GOES in that recital is inconsistent and constitutes a manifest error of assessment. The lack of a statement of reasons in the contested decision with regard to GOES also constitutes a ‘procedural error’, since it deprives the applicant and the Court of being able to assess those inconsistencies in its review of that decision.

936    The Commission disputes the applicant’s arguments and contends that this plea should be dismissed.

937    In that regard, it must be recalled that, according to settled case-law, the obligation to state reasons laid down in the second paragraph of Article 296 TFEU is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a plea in law alleging breach of Article 296 TFEU (see judgment of 16 June 2016, SKW Stahl-Metallurgie and SKW Stahl-Metallurgie Holding v Commission, C‑154/14 P, EU:C:2016:445, paragraph 39 and the case-law cited).

938    Furthermore, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent EU Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 23 May 2019, KPN v Commission, T‑370/17, EU:T:2019:354, paragraph 138 and the case-law cited).

939    The institution which adopted the measure is not required, however, to define its position on matters which are plainly of secondary importance or to anticipate potential objections. Moreover, the degree of precision of the statement of the reasons for a decision must be weighed against practical realities and the time and technical facilities available for making the decision. Thus, the Commission does not breach its obligation 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 (see judgment of 23 May 2019, KPN v Commission, T‑370/17, EU:T:2019:354, paragraph 139 and the case-law cited).

940    Furthermore, it should be noted that the statement of objections is a procedural and preparatory document which, in order to ensure that the rights of the defence may be exercised effectively, delimits the scope of the administrative procedure initiated by the Commission, thereby preventing it from relying on other objections in its decision terminating the procedure in question. It is therefore inherent in the nature of that statement that it is provisional and liable to be changed during the assessment subsequently undertaken by the Commission, on the basis of the observations submitted to it by the parties and other findings of fact. The Commission must take into account the factors emerging from the whole of the administrative procedure, in order either to abandon such objections as have been shown to be unfounded or to amend and supplement its arguments, both in fact and in law, in support of the objections which it maintains. Thus, the statement of objections does not prevent the Commission from altering its standpoint in favour of the undertakings concerned (see judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 63 and the case-law cited).

941    It follows that the Commission is not obliged to maintain the factual or legal assessments set forth in that document. On the contrary, it must give as reasons for its ultimate decision its final assessments based on the situation existing at the time the formal proceedings are closed and is not obliged to explain any differences with respect to its provisional assessments set out in the statement of objections (see judgment of 9 March 2015, Deutsche Börse v Commission, T‑175/12, not published, EU:T:2015:148, paragraph 251 and the case-law cited).

942    In the present case, it should be noted that, in recital 94 of the contested decision, the Commission considered that, on the basis of the competitive concerns identified, the relevant products for the purpose of the contested decision were, first, automotive HDG and, secondly, metallic-coated (TP and ECCS) and laminated steel products for packaging. In addition, the Commission made clear that the preliminary concerns raised with regard to electrical steel, such as GOES, were not confirmed by the further investigation and that that was therefore not discussed further in that decision.

943    As regards the applicant’s criticism that the Commission failed to include any arguments as to why it did not uphold its preliminary conclusions, as expressed in the statement of objections, regarding GOES, it is to be noted that, where the Commission declares a concentration to be incompatible with the internal market on the basis of Article 8(3) of Regulation No 139/2004, the requirement to state reasons is satisfied, in accordance with the principles set out in paragraphs 937 to 939 above, when that decision clearly sets out the reasons for which the Commission considers that the concentration in question is capable of significantly impeding effective competition in one or several markets. Where such a decision of incompatibility is based solely on the Commission’s finding that the proposed concentration would significantly impede effective competition in one or several markets, the reasoning of that decision consists in a formal statement, in accordance with those principles, of the grounds on which that decision is based, as set out in paragraph 937 above. It follows that the Commission is not required to provide reasons or make findings which do not underpin its incompatibility decision or explain why it did not find competition concerns, in particular an SIEC, on markets other than those which form the subject matter of that decision.

944    In addition, it should be noted that, as stated in paragraph 941 above, the Commission is not obliged to explain any differences with respect to its provisional assessments set out in the statement of objections. Accordingly, the fact that the Commission, in the notification of the statement of objections, made a preliminary finding of an SIEC in respect GOES is irrelevant.

945    Therefore, the Commission cannot be criticised for failing to include, in the contested decision, any arguments as to why that decision was not based on the finding of an SIEC in respect of GOES. The Commission did not breach the obligation to state reasons or any other error alleged in that regard.

946    The sixth plea in law, alleging that there was no statement of reasons for the contested decision with regard to GOES, must therefore be dismissed.

 The seventh plea in law, alleging a procedural error in not enforcing answers from market participants to requests for information

947    By the seventh plea, the applicant submits that, in the market investigation, the Commission made a procedural error, since it did not ensure that market participants’ responses to its requests were sufficiently complete and representative by requiring all, or at least a sufficient number of them, to respond to those requests under Articles 11, 14 and 15 of Regulation No 139/2004. The applicant is of the view that, if the Commission fails to enforce outstanding replies, while suitable enforcement tools are available under those provisions, and taking into account that, according to the case file, the percentage of replies received is on average less than 50%, the contested decision cannot draw any conclusions from the replies received as to whether or not a majority of customers or competitors is of a particular view or another. Therefore, the failure to adhere to a fair, unbiased and balanced process in the present case infringes Article 41 of the Charter of Fundamental Rights.

948    Moreover, the applicant requests that the Court adopt a measure of organisation of procedure ordering the Commission to ‘[disclose] the true response rates to [requests for information] sent out to market participants in the present case in phase I and II, including the remedies market test’, claiming that it has not been granted full access to the underlying information in the context of access to the file.

949    The Commission disputes the applicant’s arguments and contends that this plea should be dismissed.

950    In that regard, it should be noted that Article 11(1) of Regulation No 139/2004 provides that ‘in order to carry out the duties assigned to it by this Regulation, the Commission may, by simple request or by decision, require the [parties to the concentration], as well as undertakings and associations of undertakings, to provide all necessary information’. According to that provision, the Commission has the ability – not the obligation – to request information, in particular from customers or competitors of the parties in the market investigation.

951    If those persons do not supply information within the prescribed period, the Commission may by decision impose a fine pursuant to Article 14(1)(c) of Regulation No 139/2004 or a periodic penalty payment under Article 15(1)(a) of that regulation. However, such a possibility is available to the Commission only if the request for information was made by a decision under Article 11(3) of that regulation. That possibility is not, however, provided for a simple request for information under Article 11(2) of that regulation.

952    It follows from those provisions that the Commission is able – but not required – to impose a fine or periodic penalty payment where market participants fail to respond to its requests for information. The Commission therefore enjoys a broad discretion in that regard. Furthermore, in order to impose a fine or periodic penalty payment on recipients who do not reply or do not reply on time under Articles 14 and 15 of Regulation No 139/2004, the Commission must first adopt a formal information decision in accordance with Article 11(3) of that regulation; a simple request for information is not sufficient.

953    In the present case, the Commission claims that it sent simple requests for information and that it systematically sent reminders to the recipient, which did not reply within the deadline, a point which is not disputed by the applicant. Nevertheless, the applicant complains that it did not take any further steps, in particular by adopting decisions under Article 11(3) of Regulation No 139/2004, and then possibly starting procedures for the imposition of fines or periodic penalty payments for each case of failure of a market participant to reply.

954    The fact remains that those steps required by the applicant are incompatible with the need for speed, which characterises the general scheme of Regulation No 139/2004 and which requires the Commission to comply with strict time limits for the adoption of the final decision (see, to that effect, judgments of 18 December 2007, Cementbouw Handel & Industrie v Commission, C‑202/06 P, EU:C:2007:814, paragraph 39, and of 5 October 2020, HeidelbergCement and Schwenk Zement v Commission, T‑380/17, EU:T:2020:471, paragraph 176 (not published)). Those steps are likely to prolong the time limits, in particular because the decisions adopted in that context may be the subject of subsequent actions before the EU judicature, a situation which is inapt for merger control proceedings which are subject to tight deadlines.

955    Therefore, in view of the broad discretion enjoyed by the Commission in the application of Articles 11, 14 and 15 of Regulation No 139/2004, it cannot be criticised for requiring all, or at least a sufficient number, of them to reply to those requests for information in accordance with those provisions, besides the reminders that it sent to addressees who did not reply within the time limits.

956    Furthermore, the Commission states in its written pleadings (see footnote 179 relating to paragraph 343 of the defence and paragraph 102 of the rejoinder) that the rate of reply regarding the relevant questionnaires sent to customers in the markets where the Commission eventually uncovered SIECs, namely the automotive HDG and packaging steel (TP, ECCS and laminated steel) markets, was on average above the 50% threshold. There is no reason to doubt the reliability of that statement. Moreover, that rate cannot be considered insufficiently representative. In any event, the applicant has not furnished any proof to the contrary.

957    Consequently, the allegation of an alleged procedural error leading to an infringement of Article 41 of the Charter of Fundamental Rights cannot succeed. Accordingly, the seventh plea, alleging a ‘procedural error’ in not enforcing answers from market participants to requests for information, must be rejected, without it being necessary to grant the measure of organisation of procedure requested by the applicant, since the Court considers that it has sufficient information from the documents in the file.

 The eighth plea in law, alleging errors of assessment concerning the analysis of the alleged failed AM/Ilva merger

958    In the letter accompanying its reply, the applicant raises an ‘additional plea’ concerning a ‘new and important factual development that occurred only after the application was filed’, which it entitles ‘Additional Plea regarding failed AM/Ilva merger’, and requests that that plea be admitted under Article 84 of the Rules of Procedure.

959    Specifically, citing an online press article, the applicant makes reference to a development which took place in November 2019, namely that AM sent to Ilva’s commissioners a notice to withdraw from, or terminate, the agreement for the acquisition of Ilva, which, according to the applicant, resulted in the AM’s acquisition of Ilva being ‘cancelled’. On that basis, the applicant asserts that ‘the Commission would thus have had to make sure that no negative assessment of the tk/Tata merger would be based on an assumed combination of the AM/Ilva merger having taken place as long as the consummation of this merger was unsure’. Because it failed to do so, the Commission’s flawed analysis of the AM/Ilva merger led to flawed assessments in the contested decision, which is based, in particular, on that now annulled AM/Ilva merger.

960    The Commission submits that that new plea is inadmissible and in any event unfounded.

961    In that regard, it should be recalled that Article 84 of the Rules of Procedure, entitled ‘New pleas in law’, is worded as follows:

‘1.      No new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.

2.      Any new pleas in law shall be introduced in the second exchange of pleadings and identified as such. Where the matters of law or of fact justifying the introduction of new pleas in law are known after the second exchange of pleadings or after it has been decided not to authorise a second exchange of pleadings, the main party concerned shall introduce the new pleas in law as soon as those matters come to his knowledge.

…’

962    Except where the new plea is a matter of public policy and may therefore be invoked by the parties at any stage of the proceedings or must be raised by the EU courts of their own motion (see, to that effect, judgment of 11 July 2019, Klymenko v Council, T‑274/18, EU:T:2019:509, paragraphs 53 and 54 and the case-law cited), it is apparent from Article 84 of the Rules of Procedure that the introduction of a new plea in law must comply with the requirements laid down in that provision.

963    In particular, Article 84(2) of the Rules of Procedure provides that, where the matters of law and of fact justifying the introduction of a new plea in law are known before the second exchange of pleadings, as the applicant submits in the present case, that new plea must be introduced ‘in the second exchange of pleadings’ and identified as such. The wording of paragraph 2 is drafted in general terms and indicates that the new plea must be introduced ‘in’ the second exchange, that is to say, in the context of the second exchange of pleadings. That does not therefore mean that the new plea must necessarily appear in the actual text of the reply, as the Commission claims. In those circumstances, it is sufficient for the new plea to be introduced in the context of that second exchange.

964    That interpretation is confirmed by paragraph 2, which provides for a different situation. It follows from paragraph 2 that if the matters of law and of fact justifying the introduction of the new plea in law had been known after the second exchange of pleadings, the new plea in law could have been invoked subsequently, by separate document, as soon as the main party concerned became aware of those matters.

965    Therefore, a new plea in law may be introduced in the letter accompanying the reply, provided however that it has been sufficiently identified as such, which is the case here. Accordingly, the arguments of inadmissibility raised by the Commission in that regard must be rejected.

966    Furthermore, as is clear from Article 84 of the Rules of Procedure, for a new plea to be admissible, it must be based on matters of law or of fact which came to light in the course of the procedure, that is to say, in the present case, after the application initiating proceedings was filed as regards the applicant. It should therefore be examined whether the new plea raised by the applicant is based on matters of law or of fact which came to light or which were known to the applicant after its application was lodged on 22 August 2019.

967    First, in so far as the new plea in law put forward by the applicant seeks to maintain that, at the time when the contested decision was adopted, namely 11 June 2019, the Commission should have foreseen that the implementation of the AM/Ilva merger was uncertain and could have failed due to the removal of the immunity granted to AM under Italian law with regard to the environmental risks at Ilva’s plant, it must be held that that alleged omission on the part of the Commission was already capable of being known and relied on by the applicant at the time when the applicant brought the action, on 22 August 2019.

968    The essential factual and political circumstances surrounding the AM/Ilva merger, including AM’s disagreement as to the possible removal of its immunity by the Italian legislature, were publicly known before the applicant brought its action, as is apparent in particular from an online press article, dated 27 June 2019, submitted by the Commission in Annex D.5(a) to its rejoinder, which, moreover, was not disputed by the applicant at the hearing. In that press article, a head of AM, who is also the president of the association Eurofer, of which the applicant is also a member, states that ‘[AM] could relinquish control of the ex-Ilva plant in Taranto [(Italy)] as soon as 6 September [2019] if its problems with proposed Italian government legislation on environmental matters are not resolved’ and announces that he shared that news on the sidelines of the European Steel Day organised in Brussels (Belgium) the day before.

969    In any event, it is for the applicant to show that the new plea in law was based on matters of law or of fact which came to light in the course of the procedure before the Court (see, to that effect, judgment of 14 March 2017, IR v EUIPO – Pirelli Tyre (popchrono), T‑132/15, not published, EU:T:2017:162, paragraph 37). However, it should be noted that the applicant did not do so.

970    The applicant’s claim that a new development became apparent in November 2019, after the application was lodged, namely that AM sent a notice to withdraw from, or terminate, the agreement for the acquisition of Ilva, supported by a quotation from a press article from Reuters in its letter accompanying the reply, cannot in itself establish that it had not been aware or could not reasonably have foreseen that the implementation of the AM/Ilva merger was uncertain and could have failed, which is precisely what the applicant criticises. That claim alone, supported by that quotation from a press article, is insufficient to show that that matter of fact, namely the possibility of a failed AM/Ilva merger, came to light in the course of the procedure, particularly in the light of all the circumstances surrounding the AM/Ilva merger, in particular those confirmed by the Commission’s documents, of which the applicant was very probably aware.

971    Accordingly, the new plea cannot be considered to be ‘based on matters of law or of fact which come to light in the course of the procedure’ within the meaning of Article 84 of the Rules of Procedure. It must therefore be declared inadmissible.

972    Secondly, in so far as, by contrast, the new plea in law put forward by the applicant seeks to maintain that the Commission made an error of assessment in the contested decision resulting from a factual development which took place in November 2019, that is to say, after the adoption of that decision on 11 June 2019, that factual development must be regarded as irrelevant for the purposes of reviewing the legality of the decision. In an action for annulment, as in the present case, the legality of the contested act must be assessed on the basis of the facts and the law as they stood at the time when the act was adopted (see judgments of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 31 and the case-law cited, and of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 22 and the case-law cited). It follows that, from that point of view, the new plea must be regarded as ineffective.

973    In any event, the new plea is unfounded. As is apparent from the documents (online AM press releases) produced by the Commission in its rejoinder (Annexes D.5(b) to D.5(e)), which, moreover, were not disputed by the applicant at the hearing, the AM/Ilva transaction was not ‘cancelled’, contrary to what the applicant claims in its letter accompanying the reply.

974    In particular, it should be noted that the AM/Ilva merger had already been completed on 1 November 2018 (see Annex D.5(b)). Accordingly, contrary to what the applicant argues, AM had already acquired control over the Ilva assets at the time when the contested decision was adopted in June 2019 and it had even taken strategic decisions concerning the Ilva assets’ operational capacity and investments (see Annex D.5(c)). The Commission cannot therefore be criticised for assessing that concentration on the basis that it had been implemented.

975    In addition, it is apparent from the last factual developments, indicated by the publicly available press releases provided by the Commission, that, following AM’s sending of the notice of withdrawal in November 2019, as set out by the applicant, AM and the Ilva commissioners signed, in December 2019, a non-binding agreement to continue negotiations (see Annex D.5(d)) and, in March 2020, they signed an amendment agreement to the original lease and purchase agreement for the Ilva assets (see Annex D.5(e)). Furthermore, according to AM’s press release set out in Annex D.5(e), AM and the Ilva commissioners entered into a separate settlement agreement by which AM agreed to revoke that notice to withdraw. Meanwhile, AM continued to exercise control over Ilva’s assets. It follows that all those arguments, which are thoroughly documented by the Commission’s documents, clearly show that, contrary to what the applicant alleges, the AM/Ilva merger did not fail but is still underway.

976    Accordingly, the new plea, alleging errors of assessment concerning the analysis of the AM/Ilva merger following the failure of that concentration and raised by the applicant in the letter accompanying its reply, must be rejected as inadmissible or ineffective and, in any event, unfounded.

977    In the light of all of the foregoing considerations, the action is dismissed in its entirety.

 Costs

978    Under Article 134(1) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

979    Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders thyssenkrupp AG to pay the costs.

Delivered in open court in Luxembourg on 22 June 2022.

Table of contents

Background to the dispute

The entities concerned

Administrative procedure

Contested decision

The relevant markets

– The product market

– The geographic market

The effects of the concentration on competition

The commitments

Procedure and forms of order sought

Law

The first plea in law, alleging procedural errors, errors of law and manifest errors of assessment regarding the definition of the relevant product markets

The first part, concerning the definition of a separate product market for automotive HDG

The second part, concerning the definition of a separate product market for laminated steel

The second plea in law, alleging procedural errors, errors of law and manifest errors of assessment regarding the definition of the relevant geographic markets

The first part, concerning sourcing

The second part, concerning supply

The third part, concerning pricing

The third plea in law, alleging procedural errors, errors of law and manifest errors of assessment concerning the finding of an SIEC in the automotive HDG market

The first part, concerning a procedural error and a manifest error of assessment as regards the important competitive constraint standard

The second part, concerning a procedural error, an error of law and a manifest error of assessment as regards the assessment of AM’s incentive to constrain a post-transaction price increase

– The first complaint, alleging an error of law in basing a finding of horizontal non-coordinated effects on a de facto finding of post-transaction coordination between the merged entity and AM

– The second complaint, alleging a manifest error of assessment as regards the economic analysis of AM’s incentive

– The third complaint, alleging a procedural error in that the Commission’s economic analysis is not included in the statement of objections

The third part, concerning errors in the collection and assessment of data for automotive HDG

– The first complaint, alleging a methodological error in the determination of automotive HDG capacities

– The second complaint, alleging a manifest error of assessment in that legacy Ilva capacities were not properly taken into account

– The third complaint, alleging a manifest error of assessment in that Liberty House was not fully taken into account

– The fourth complaint, alleging an error in that the Commission concluded that steel manufacturers other than AM did not have spare capacity

– The fifth complaint, alleging a methodological error in excluding import capacity

– The sixth complaint, alleging errors in the calculation of the HHI

The fourth part, concerning errors in concluding that the applicant and TSE are important competitors in the automotive HDG sector

– The first complaint, based on the importance of vertical integration

– The second complaint, based on the upstream market for HRC

– The third complaint, based on the analysis of the technical capacities of the parties

– The fourth complaint, based on the number of players of scale in the EEA automotive HDG market

– The fifth complaint, based on the assessment of network benefits and economies of scale

– The sixth complaint, based on the provision of a ‘one-stop shop’ solution

– The seventh complaint, based on the location of the parties’ production sites

– The eighth complaint, based on the assessment of the parties’ research and development (‘R&D’) capabilities

– The ninth complaint, based on the assessment of ‘niche players’

The fifth part, concerning errors in concluding that TSE is an important competitive force

The sixth part, concerning the assessment of the closeness of competition

The seventh part, concerning the effect of imports on competition

The fourth plea in law, alleging procedural errors, errors of law and manifest errors of assessment concerning an SIEC in the markets for TP, ECCS and laminated steel

1. The first part, concerning an error of law as regards the SIEC test

The second part, concerning a manifest error of assessment regarding market shares and the HHI

The third part, concerning an error of law and manifest errors of assessment regarding customers’ possibilities to switch to other suppliers within the EEA

The fourth part, concerning manifest errors of assessment regarding the competitive constraint exerted by imports

The fifth part, concerning manifest errors of assessment regarding the likelihood of entry or expansion of suppliers

The sixth part, concerning a manifest error of assessment regarding buyer power

The seventh part, concerning manifest errors of assessment regarding the competitive constraint exercised by alternative packaging materials

The eighth part, concerning an error of law and manifest errors of assessment regarding the closeness of competition between the parties

The fifth plea in law, alleging procedural errors and manifest errors of assessment of the remedies offered by the parties

The first part, concerning the application of the wrong legal standard to assess the remedies

The second part, concerning the remedies regarding automotive HDG

– The first complaint, relating to the importance of vertical integration

– The second complaint, alleging inconsistent and inaccurate assessment of the remedies

The third part, concerning the remedies regarding packaging steel

The fourth part, concerning the interest of potential buyers on the market proving the viability of the divestment businesses

The fifth part, concerning the ‘upfront buyer’ requirement

The sixth part, concerning an infringement of the principle of proportionality

The seventh part, concerning a procedural error in conducting the market test

The sixth plea in law, alleging a lack of reasoning in the contested decision regarding GOES

The seventh plea in law, alleging a procedural error in not enforcing answers from market participants to requests for information

The eighth plea in law, alleging errors of assessment concerning the analysis of the alleged failed AM/Ilva merger

Costs

*      Language of the case: English.

1      Confidential data omitted.

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