The European Court of Justice’s Judgment In Case C-265/17 P, Commission v. United Parcel Service

February 2019

CPI EU News Column edited by Thibault Schrepel, Sam Sadden & Jan Roth (CPI) presents:

The European Court of Justice’s Judgment In Case C-265/17 P, Commission v. United Parcel Service By Marjolein De Backer (Dechert)¹

Summary

On January 16, 2019 the European Court of Justice (“CJEU”) confirmed the General Court’s annulment² of the European Commission’s (“Commission”) decision to block the UPS/TNT³ transaction. The decision was overruled in view of infringements of the rights of defense which had been characterized by Advocate General Kokott as “a textbook example of the issues arising.”⁴ The judgments confirm the importance of the rights of defense and demonstrate that procedural infringements can have more far-reaching implications than substantive errors. The case also calls for reflection about the role of economics in antitrust, and the balancing of regulatory deadlines with a fair hearing.

Facts of the Case

The Commission Decision

On January 30, 2013 the Commission prohibited the acquisition by United Parcel Service, Inc. (“UPS”) of TNT Express (“TNT”) because the transaction would significantly impede effective competition on the market for international express parcel delivery services in several Member States.⁵ The planned merger would have reduced the number of market players with an integrated air and ground operation, so-called “integrators,” from four to three. According to the Commission, the merged en