Standing to Appeal a Decision on Concentration of Enterprises

Facts

On 7 August 1997, Nouveau Quotidien ERL SA and Société Anonyme du Journal de Genève et Gazette de Lausanne notified the Competition Commission of a project to create a new newspaper, "Le Temps", which was to replace the two existing titles. Pierre Engel, president of the Association of Friends of the Journal de Genève and Gazette de Lausanne, received a questionnaire from the Competition Commission as an opponent and requested to consult the file, which was denied to him. The Competition Commission then authorized the concentration, subject to certain conditions. Pierre Engel filed an administrative appeal with the Federal Court, challenging the decision of the Commission of Appeal for Competition Matters, which had rejected his appeal.

The parties involved are: Pierre Engel, the Competition Commission, the Commission of Appeal for Competition Matters, Nouveau Quotidien ERL SA, and Société Anonyme du Journal de Genève et Gazette de Lausanne. The key dates are: 7 August 1997 (notification of the concentration project), 18 August 1997 (opening of the examination procedure), 1 December 1997 (authorization of the concentration), 11 December 1997 (refusal to notify the decision to Pierre Engel), 22 December 1997 (Pierre Engel's appeal to the Commission of Appeal), and 23 February 1998 (rejection of the appeal by the Commission of Appeal).

Considerations

The Federal Court examined the admissibility of Pierre Engel's appeal and considered that the Commission of Appeal for Competition Matters had correctly interpreted and applied federal law in denying Pierre Engel standing. The CartA distinguishes between companies subject to investigations, which have party status, and third parties whose party status varies according to their economic position.

The Competition Commission had denied Pierre Engel party status under Art. 43 para. 4 CartA, which limits party status to participating companies in the concentration examination procedure. The Federal Court estimated that this legal provision had been adopted to ensure a simple and rapid procedure, and that concerned third parties did not have the right to appeal against a decision of the Competition Commission, except in exceptional cases and with great…