COMPETITION • EUROPEAN LAW • MERGERS
The Commission may incur non-contractual liability following the annulment of an incompatibility decision on a concentration. Under Article 340(2) TFEU three cumulative conditions must be fulfilled to initiate an action for damages in order to be compensated for the loss suffered: the conduct attributed to the institution must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage. The mere fact that the incompatibility decision taken by the Commission has been annulled by the General Court for errors of assessment does not per se demonstrate that there has been a sufficiently serious breach of a rule of law intended to confer rights on individuals, as such a rule would result in limiting the exercise of merger control. Likewise, the annulment of the Commission’s incompatibility and divestiture decision does not incur its liability where the direct cause of the damage claimed is the notifying party’s decision who could have refrained from going ahead with the transfer and chosen to participate in the investigation procedure.