## Facts

- Tetra Laval BV, a leading supplier of aseptic carton packaging systems for liquid foods, sought to acquire control of Sidel, a French manufacturer of PET plastic bottle and bottling equipment.
- The European Commission, acting under Regulation (EEC) No. 4064/89 (EU Merger Regulation), prohibited the concentration as incompatible with the common market and the EEA Agreement.
- The Commission’s prohibition rested on asserted:
  - Horizontal and vertical effects in markets connected to PET equipment and liquid food packaging; and
  - Longer-term conglomerate effects, alleging Tetra could leverage its dominance in aseptic carton packaging into PET-related markets through tying, bundling, or similar exclusionary strategies.
- Tetra brought an action for annulment before the Court of First Instance (CFI) under an expedited procedure, alleging procedural violations (including limits on access to the file) and substantive errors in the competitive assessment.

## Issues

1. Whether limits on access to third-party submissions infringed Tetra’s rights of defense in the merger procedure.
2. Whether the Commission proved, under Article 2(2)–(3) of Regulation No. 4064/89, that the concentration would create or strengthen a dominant position significantly impeding effective competition.
3. What evidentiary showing is required when a prohibition is based on prospective conglomerate effects and predicted future conduct (e.g., tying or bundling).

## Decision

- The CFI rejected the procedural challenge, holding that the restrictions on access to third-party submissions, justified by confidentiality concerns, did not prevent effective defense and did not warrant annulment.
- The CFI upheld the substantive challenge, finding the Commission’s assessment relied on insufficient evidence and contained errors of economic appraisal regarding horizontal, vertical, and conglomerate effects.
- The CFI annulled the Commission decision prohibiting the merger.

## Legal Principles

- A merger prohibition requires proof that the concentration creates or strengthens a dominant position that significantly impedes effective competition under the applicable merger regulation.
- While the Commission has discretion in economic assessments, courts must verify the accuracy, reliability, consistency, and completeness of the evidence and whether it supports the Commission’s conclusions.
- Conglomerate and leveraging theories are legally permissible, but a prohibition based on predicted future conduct requires a close examination supported by convincing evidence, not speculative scenarios.
- Confidentiality may justify limiting access to the file, but restrictions must be justified and narrowly construed; annulment for procedural violations depends on whether the impairment could have affected the outcome.

## Conclusion

The CFI set aside the merger prohibition because the Commission did not substantiate its predicted horizontal, vertical, and conglomerate harms with convincing, coherent evidence, and it clarified that prospective leveraging theories must be proven to a demanding evidentiary standard subject to effective judicial review.


Tetra Laval BV v. Commission of the Eur. Cmtys., Case T-5/02, [2002] E.C.R. II-4381