## Facts

- Gencor Ltd. and Lonrho sought to combine their South African platinum-group metals (PGMs) businesses into a jointly controlled entity.
- The relevant products included platinum and rhodium, sold on global markets with substantial demand and sales into the European Union.
- The European Commission concluded the transaction would reduce the market to two major worldwide suppliers in platinum and rhodium: Anglo American Corporation and the merged entity.
- The Commission found the transaction would create or strengthen a collective dominant position (a “dominant duopoly”) enabling tacit coordination on output and prices, significantly impeding effective competition in the EU.
- The parties offered behavioral commitments aimed at addressing coordination concerns; the Commission rejected them as insufficient.
- The Commission prohibited the concentration under Council Regulation (EEC) No. 4064/89 (EU Merger Regulation).
- Gencor, as addressee, brought an annulment action challenging the prohibition decision.

## Issues

1. Whether Gencor had standing and a sufficient interest to seek annulment of the prohibition decision.
2. Whether EU merger control may apply to a concentration between non-EU undertakings where the transaction is principally outside the EU but has foreseeable, immediate, and substantial effects within the EU.
3. Whether the EU Merger Regulation’s reference to a concentration creating or strengthening “a dominant position” includes collective dominance by a small number of firms.
4. What standard of judicial review applies to the Commission’s complex economic assessments in merger control.
5. Whether the Commission committed a legal or manifest economic error in finding likely collective dominance in platinum and rhodium and in rejecting the offered commitments.

## Decision

- The General Court dismissed the action and upheld the Commission’s prohibition decision.
- The Court held Gencor had standing as addressee of the decision.
- The Court confirmed the Merger Regulation can apply to non-EU concentrations where effects in the EU are foreseeable, immediate, and substantial.
- The Court held the Merger Regulation covers collective dominance, not only single-firm dominance.
- The Court upheld the Commission’s economic assessment, finding no manifest error and finding the evidence sufficiently accurate, reliable, and consistent.
- The Court upheld rejection of the behavioral commitments as incapable, taken as a whole, of removing the impediment to effective competition.
- Costs were awarded against Gencor.

## Legal Principles

- EU merger control may reach concentrations involving non-EU undertakings when the concentration is foreseeably capable of producing immediate and substantial effects within the EU.
- A prohibition standard referring to creation or strengthening of “a dominant position” includes collective dominance where market conditions permit coordinated effects among a few firms.
- In reviewing complex economic assessments, the court respects an administrative margin of discretion but verifies the accuracy, reliability, and consistency of the evidence and checks for manifest error, misuse of powers, or exceeding discretion.
- Collective dominance may be inferred from market structure and functioning; formal “structural links” between firms may be relevant but are not required if conditions support tacit coordination.
- If a concentration is found to create or strengthen dominance that significantly impedes effective competition, the Commission must prohibit it unless remedies effectively eliminate the competition concern; behavioral commitments are permissible in principle but must reliably remove the identified impediment.

## Conclusion

The General Court sustained the Commission’s prohibition of a non-EU mining merger, confirming effects-based EU jurisdiction, recognizing collective dominance as actionable under the EU Merger Regulation, and applying a deferential but evidence-focused review to the Commission’s economic findings and its rejection of inadequate remedies.


Gencor Ltd. v. Comm’n, Case T-102/96, ECLI:EU:T:1999:65 (Gen. Ct. Mar. 25, 1999)