1.Introduction

The one-stop-shop in EU merger control occupies a central place, combining an ex ante regulatory mechanism with strict procedural deadlines. At its core lies the European Commission’s exclusive competence to assess concentrations with an EU dimension under the EU Merger Regulation (Regulation 139/2004, or EUMR). Decisions must be taken within short timeframes, while often requiring complex economic and legal assessments.

Against this background, the scope of third-party participation in merger procedures themselves, and their subsequent access to judicial review of merger decisions, remains contested. Article 263(4) TFEU, as interpreted in the classical Plaumann doctrine, allows standing only in exceptional cases. As a result, annulment actions are generally unavailable to parties other than those directly addressed by Commission merger decisions. At the same time, Article 18 EUMR does provide for third-party consultation, but shies away from anything coming close to full rights of defence enjoyed by the notifying undertakings.

The recent judgment of 26 June 2025 in EVH and others v Commission (Joined Cases C-464/23 P etc.) offers a contemporary illustration of these tensions. In the case at hand, several German municipal utilities sought to challenge the Commission’s 2019 decision approving RWE’s acquisition of certain E.ON generation assets, arguing that their procedural rights during the merger control procedures, most notably their right as a consulted entity to be heard and the right to effective judicial protection under Article 47 of the Charter, had been infringed, and that the Commission’s substantive assessment was flawed. Both the General Court and the Court of Justice dismissed these claims, reaffirming the restrictive line of case law on standing, procedural rights, and the limits of judicial review.

This paper examines EVH and others v Commission in detail, situating it within the wider jurisprudence on effective judicial protection in EU merger control law. It first outlines the factual and procedural background of the case (Part 2). It then explains the Court’s legal reasoning (Part 3). Part 4 critically analyses the decision against the backdrop of earlier judgments, especially Plaumann, Cook, or Matra. Part 5 places the case in comparative context and explores its implications for reform debates.

The paper concludes that EVH and others underscores the persistent tension between procedural economy in merger control and the Charter’s promise of effective judicial protection, with the EU Courts continuing to prioritize efficiency over broad access to justice.

2.Factual and Procedural Background

2.1.The RWE/E.ON Asset Swap

In 2018, German energy giants RWE AG and E.ON SE agreed on a far-reaching asset-swap transaction, highly significant for the German and EU energy markets. It consisted of three main elements:

1. Concentration M.8871: RWE’s acquisition of E.ON’s renewable energy generation assets, plus minority nuclear interests.
2. Concentration M.8870: E.ON’s acquisition of Innogy’s distribution and retail businesses, plus some generation assets.
3. Transaction B8-28/19: RWE’s acquisition of a 16.67% minority shareholding in E.ON.

All three parts were notified separately to the European Commission. RWE notified the decision at hand on concentration M.8871 on 22 January 2019. On 26 February 2019, the Commission adopted Decision C(2019) 1711 final, declaring the concentration compatible with the internal market under Article 6(1)(b) EUMR and Article 57 of the EEA Agreement.

2.2.The Role of Third Parties

Several German municipal utilities – amongst them EVH, Stadtwerke Hamlen Weserbergland, eins energie in sachsen, Mainova, and enercity – participated in the Commission’s procedure as interested parties under Article 18(4) EUMR. Under Article 18(4) EUMR, natural or legal persons can be heard during merger control proceedings ‘in so far as the Commission […] deem[s] it necessary’. At the same time, ‘natural or legal persons showing a sufficient interest’ shall be entitled, upon application, to be heard. By letters of 31 January 2019, the appellants informed the Commission of their wish to participate and to be heard in the procedure conducted by the Commission.

Each of these municipal utilities submitted observations, and, in some cases, responded to the Commission’s subsequent requests for information and/or met with the Commission’s services. They argued that the transaction would distort competition in wholesale and retail electricity markets, strengthen the dominant positions of RWE and E.ON, and ultimately harm consumers and smaller competitors.

Despite these interventions, the Commission cleared the concentration. The municipal utilities claimed that their submissions had not been adequately addressed in the ultimate decision, that the decision lacked sufficient reasoning, and that their procedural rights had been infringed. They also objected to the Commission’s decision to treat M.8871 as a separate concentration, rather than as part of a single overall asset-swap transaction, consisting of all three parts combined.

2.3.Proceedings before the General Court

The eleven municipal utilities brought a series of annulment actions before the General Court on both the Commission’s decisions to clear the first (cases T-312/20 to T-322/20) and second concentration (cases T-53/21 to T-65/21). They advanced a range of pleas, based inter alia on the fact that, allegedly:

1. The Commission had erred by dividing the overall transaction into multiple concentrations, rather than treating it as a single operation.
2. The decision was vitiated by an inadequate statement of reasons.
3. The applicants’ right to be heard had been infringed.
4. The applicants’ right to effective judicial protection under the Charter had been violated.
5. The Commission had committed manifest errors in its substantive assessment of market effects.
6. The Commission had breached its duty of care by failing to take their submissions properly into account.

On 17 May 2023 and 20 December 2023, the General Court dismissed all actions, inter alia by finding that the Commission had acted within its discretion and had respected procedural safeguards.

2.4.Appeals to the Court of Justice

Nine of the eleven municipal authorities brought appeals before the Court of Justice against the judgments of the General Court, also asking the Court of Justice per Article 61(1) of the Statute to directly rule on the action at first instance and the Commission decisions. The appeals were (partly) joined and ultimately all dismissed by the Court on 26 June 2025, some on substance, some as inadmissible. Yet, the Court’s reasoning was largely uniform across the judgments in crucial points, reflecting the common origin of the disputes and the overlap in legal arguments.

3.The Court’s Legal Reasoning

The Court of Justice dealt with the appeals in a structured and repetitive fashion, reflecting the similarity of the pleas raised in each case. The following analysis summarises the main points of reasoning, common to all nine judgments.

3.1.Scope of Appeal

The Court recalled that appeals are limited to points of law under Article 256(1) TFEU and Article 58 of the Statute. Reassessment of facts is excluded unless a distortion of the evidence is shown.

Many of the appellants’ pleas – such as those contesting the Commission’s economic assessments or the sufficiency of its examination of third-party submissions – were consequently found inadmissible because they effectively sought a re-examination of facts. The Court stressed that such attempts amounted to little more than an invitation to carry out a second factual review, which is outside its jurisdiction. This preliminary filter proved decisive: large parts of the appeals were excluded as inadmissible from the outset.

Yet, the distinction between points of law and points of fact at the appellate level in merger control is not always straight forward. For example, a review by the General Court of the Commission’s assessment of submissions made by third parties during merger proceedings indirectly amounts to a review of the Commission’s examination itself. The boundaries here are not fully set by the Court.

3.2.Procedural Rights of Third Parties

This was the central issue across all the appeals. The appellants invoked their right to be heard and their right to effective judicial protection under Article 47 of the Charter, arguing that as competitors directly affected by the concentration, they should have enjoyed more extensive procedural rights, closer to those of the parties to the transaction.

The Court observed that each had, in fact, submitted observations, provided data, and in some cases attended meetings with the Commission. The Commission had taken account of these submissions, even if it did not adopt their views.

The Court made two important clarifications:

1. The right to be heard does not imply a right to have one’s submissions accepted, nor even to receive a detailed response to each argument. It guarantees only the opportunity to present observations.
2. Effective judicial protection under the Charter does not alter the procedural status of third parties. Article 47 does not expand standing under Article 263(4) TFEU, nor does it transform consultation rights into rights of defence.

This reasoning was repeated across the judgments, most clearly in EVH but echoed in Stadtwerke Hameln Weserbergland, eins energie in sachsen, Mainova, and enercity.

3.3.Effective Judicial Protection under the Charter

All appellants relied on Article 47 of the Charter, claiming that the restrictive interpretation of their procedural rights deprived them of effective judicial protection. The Court dismissed these claims holding that the combination of (i) the opportunity to submit observations during the administrative procedure, and (ii) the possibility of judicial review before the General Court sufficed to guarantee effective judicial protection under Article 47.

The Court was explicit: the Charter cannot expand standing beyond Article 263(4) TFEU or create procedural rights not provided in the Treaties.

4.Analysis in the Light of Earlier Case Law

The nine judgments delivered on 26 June 2025, culminating in EVH and its companion appeals, cannot be fully understood without situating them against the background of the Court’s earlier jurisprudence on standing, third-party participation, and the limits of judicial review in merger control litigation and beyond. Each of these strands of case law has developed gradually, and together they form the doctrinal scaffolding upon which EVH and others rests.

4.1.The Shadow of Plaumann

Perhaps the most decisive obstacle is the restrictive standing test established in case 25/62 Plaumann and continued ever since. Under Article 263(4) TFEU, a non-privileged applicant may bring an action for annulment only if they are “directly and individually concerned” by the act. In Plaumann, the Court defined individual concern narrowly, requiring that the act affects them “by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons.”

This test has been criticized for decades as excessively strict.^[1] In practice, it means that only a very small group of applicants – those essentially singled out in the same way as the addressee -are considered to have standing. Competitors, trade associations, NGOs, and even local public utilities like those in EVH and others, rarely satisfy this threshold in judicial review of merger decisions.

In EVH and the companion cases, the appellants were fully aware of the Plaumann hurdle. They did not, strictly speaking, base their appeals on Article 263(4) TFEU standing alone, since they had managed to bring actions before the General Court in the first instance. Instead, their strategy was to rely on Charter rights and procedural guarantees. Interestingly, this dynamic seems to reveal a certain asymmetry between first-instance and appellate access to justice in annulment procedures. While standing at first instance is constrained by the direct application of Article 263(4) TFEU, once an appellant manages to overcome that initial admissibility threshold on General Court level, the appeal procedures at the Court of Justice may paradoxically offer a broader opportunity to invoke Charter-based procedural guarantees. This seems to invert the common assumption that appeals (limited to points of law) narrow the scope of judicial review, suggesting instead that, in contexts like merger control, Article 58 of the Statute might serve as a subtle “picklock” to expand procedural leverage once the initial barrier has been crossed.

In the case at hand, the appellants argued based on Charter rights and procedural guarantees that as directly affected competitors they should enjoy fuller participatory rights during the Commission’s procedure, which could grant them further access in the judicial review stage. They were not addressees of the Commission’s decision, nor could they demonstrate circumstances that differentiated them from all other market actors. Their involvement in the German energy market was significant, but they were not uniquely affected in a Plaumann sense, which is surprising since participation in the procedure adopting the act^[2] that is supposed to be annulled has been viewed to suffice to fulfil Plaumann. The Court’s reasoning therefore effectively shut the door on standing, pushing them back into the category of “interested parties” with only limited procedural rights, also for judicial review.

This illustrates a deeper systemic problem: while merger control decisions can reshape entire markets and directly affect competitors, the Plaumann test continues to exclude most such actors from direct access to later judicial review, making participation in the proceedings even more crucial. EVH and others demonstrates the persistence of this doctrine despite long-standing academic and political criticism, and despite the promise of effective judicial protection laid down in Article 47 of the Charter as well as Article 19 TEU.

4.2.Cook and Matra: Minimum Safeguards for Competitors in Administrative Proceedings

The Court has occasionally acknowledged the need to protect competitors’ interests in other areas of competition law procedures. A key turning point in the case law on third-party rights came with the landmark state aid cases Cook/Commission (Case C-198/91) and Matra/Commission (Case C-225/91), which recognised that competitors in state aid procedures were “interested parties” and entitled to submit comments when the Commission opened a formal investigation. These judgments established a floor of procedural protection, but not rights of defence or automatic standing.

These cases established that procedural rights for competitors exist, but they are limited: the right to be heard in administrative proceedings does not translate into full rights of defence or into automatic standing to bring annulment actions. Their rights are confined to the possibility of participating through observation.

EVH and the companion cases follow this logic closely. The Court emphasised that the municipal utilities had indeed been consulted: they submitted comments and were subsequently invited to provide data, and in some cases to meet with the Commission. This sufficed to satisfy their procedural rights under both prongs of Art 18(4) EUMR. The fact that their submissions were not accepted, or not addressed in detail, did not imply any breach.

By drawing this line, the Court effectively extended the Cook/Matra distinction from the state aid context to the merger control context. However, merger control is arguably even more restrictive than state aid because of the strict deadlines and the need for rapid decisions. The Commission must act within 25 working days (Phase I) or 90 working days (Phase II). Allowing full third-party participation or broadening standing could slow the process and undermine legal certainty for businesses. This concern for efficiency explains why the Courts have been especially strict in merger cases.

Interested third parties remain “consulted entities,” not holders of rights of defence. The cases at hand confirm that competitors in merger control have a voice, but not veto power, and their role remains consultative.

4.3.Effective Judicial Protection and the Charter

Article 47 of the Charter guarantees the right to an effective remedy before a tribunal. The appellants placed heavy reliance on Article 47 of the Charter, arguing that effective judicial protection required a broader interpretation of their rights. This was, in effect, an attempt to soften the harshness of Plaumann and to escape the rigid limits of consultation established in Cook and Matra.

The Court’s answer was categorical: Article 47 of the Charter does not alter the standing requirements of Article 263(4) TFEU, nor does it expand the procedural rights of third parties in administrative procedures. Effective judicial protection means that third parties may submit observations and subsequently challenge the lawfulness of the Commission’s handling of their submissions, but it does not mean they can demand full rights of defence.

This reasoning aligns with earlier judgments such as Telefónica/Commission (C-274/12 P), where the Court stressed that the Charter cannot change the conditions for admissibility under Article 263 TFEU.

EVH and others reveals, therefore, an ongoing tension: the Charter proclaims a fundamental right, but the Court has been reluctant to adjust standing rules or review intensity to give it fuller effect. Instead, Plaumann continues to dominate, with the Charter serving more as a rhetorical confirmation than as a transformative force. The judgments thus close the door on any hope that the Charter might serve as a lever to broaden third-party rights. For consulted entities, Article 47 is less a weapon than a mirror: it reflects existing rights but does not enlarge them.

4.4.Uniform Dismissal as Doctrinal Consolidation

One striking feature of the appeals is the uniformity of dismissal. Despite being brought by different utilities with slightly different emphases – EVH focusing on the division of the transaction, Stadtwerke Hameln Weserbergland emphasising procedural fairness, eins energie in sachsen and Mainova stressing the duty of care, and enercity highlighting Article 47 of the Charter – the Court applied the same template of reasoning in each case.

This uniformity serves two purposes:

1. Doctrinal consolidation: The strict separation between consulted entities and addressees of decisions is not open to case-by-case relaxation. Whether a utility participated in hearings, sent extensive submissions, or claimed that its business was directly threatened, the Court applied the same filter.
2. Policy signalling: By treating all appellants identically, the Court sent a clear signal that the limits of third-party rights are firmly entrenched and will not be expanded judicially.

In practice, this means that competitors face a collective barrier: even when multiple entities challenge the same Commission decision on different grounds, they cannot overcome the fundamental constraints of standing, scope of review, and the consultative status assigned to third parties.

4.5.Effective judicial protection: Formal compliance, substantive deficit

The Court’s reliance on consultation and the availability of judicial review as sufficient for effective protection raises a deeper normative issue. Formally, the appellants had access to the General Court and the Court of Justice. Substantively, however, their chances of success were minimal, given the narrow scope of review.

The judgements at hand provide concrete illustrations: nine determined appellants brought detailed challenges, only to be met with a consistent finding that their pleas were inadmissible or unfounded. The Court appears content with this outcome, prioritising procedural economy over a richer conception of judicial protection. Whether this strikes the right balance is debatable, but as a matter of doctrine, the line is now firmly drawn.

5.Comparative and Precedential Context

The judgments in EVH and its companion cases must be read as a coherent set of rulings. Although each concerned a distinct appellant, all arose from the same Commission merger decisions and raised materially identical issues. The Court of Justice responded with a series of parallel judgments, adopting uniform reasoning. This consistency is as significant as the substance of the individual rulings, since it reveals the Court’s institutional choice to reinforce, rather than refine, its established doctrine.

5.1.A Consistent Jurisprudential Pattern

When viewed alongside earlier case law, EVH and others appears less as a new development and more as a consolidation of long-standing principles. The decision reflects two interlocking strands:

• Procedural rights: Competitors may comment, but do not enjoy equal rights with the parties directly concerned (Cook, Matra).
• Restrictive standing (Plaumann): Non-addressees face almost insurmountable hurdles in bringing following annulment actions.

Together, these principles create a system where third parties can participate but rarely influence outcomes or obtain effective judicial remedies, which is also mirrored in newer areas of competition law.^[3]

Across all judgments, the appellants sought to rely on their role as participants in the administrative procedure. They argued that their procedural engagement should distinguish them from the “general public” and entitle them to broader standing rights under Article 263(4) TFEU – and they were entitled to bring the annulment actions.

The Court of Justice, however, reaffirmed that such participation does not create “party status” in merger control. Consulted entities enjoy procedural rights, but these are strictly limited to the opportunity to be heard and to have their views taken into account by the Commission. They do not confer rights of defence equivalent to those of the notifying parties, nor do they generate automatic standing before the EU Courts. In each judgment, the Court underscored that locus standi must still be assessed under the Plaumann test: a third party is individually concerned only if the decision affects them “by reason of certain attributes peculiar to them or by reason of circumstances in which they are differentiated from all other persons.”

This reasoning demonstrates the Court’s unwillingness to dilute the Plaumann standard. The fact of consultation, while procedurally important, does not suffice to meet the threshold of individual concern.

5.2.The Place of EVH in the Evolution of EU Procedural Law

Seen in historical perspective, EVH and others represents continuity rather than change. From Plaumann in 1963 to EVH and others in 2025, the Court has consistently prioritized procedural economy over broader access to justice. Despite repeated calls from scholars and practitioners to relax standing rules or strengthen third-party rights, the Court has remained unmoved.

The fact that multiple municipal utilities brought parallel appeals highlights the structural impact of the Commission’s clearance decision. Each utility claimed that the merger threatened their market position, yet the Court treated them as interchangeable from a procedural perspective. This reflects a deliberate policy choice: the EU Courts prefer to avoid fragmenting merger litigation by recognising individual standing for numerous competitors. Instead, the protection of third parties’ interests is channeled through consultation and, indirectly, through the Commission’s duty to conduct a careful examination.

The uniform dismissal of all appeals therefore reinforces the precedent that competitors, even those closely involved in the administrative process, cannot easily secure judicial review in their own right.

5.3.The Unresolved Tension

Nevertheless, the tension with Article 47 of the Charter is unresolved. Effective judicial protection requires that parties affected by administrative acts have meaningful access to courts. In merger control, competitors and local utilities may be significantly harmed by concentrations, yet they are effectively barred from challenging them.

In sum, the EVH cluster of judgments crystallises the EU Courts’ restrictive approach to third-party rights. Consulted entities are heard, but they are not treated as parties in the full sense. This doctrinal clarity provides legal certainty, but it also exposes a persistent tension between formal procedural guarantees and the practical capacity of competitors to challenge Commission decisions that reshape the markets in which they operate.

The Court’s response is to rely on the Commission’s duty of care and the consultation process to safeguard third-party interests. But critics might argue that this substitutes administrative discretion for judicial protection, leaving affected parties with little recourse.

6.Conclusions: Implications and Reform Debates

The likelihood of doctrinal change from the Court seems low. Only Treaty reform – such as amending Article 263(4) TFEU – or an amendment to the EUMR could significantly broaden standing and third-party participation. Either way, such reforms are politically sensitive, as they risk slowing merger reviews and discouraging investment.

For municipal utilities and other competitors, the judgments confirm that consultation provides a voice but not a right of action. The Commission remains the gatekeeper of third-party interests: it must receive and consider submissions, but the EU Courts will not guarantee judicial access for those who feel their input has been inadequately addressed.

The restrictive approach in EVH and others raises normative questions. Should competitors and municipal utilities have stronger judicial recourse, given their role in energy markets and potential exposure to harm? Or does the need for speedy and efficient merger control justify limiting their rights?

The broader consequence of the EVH judgments is a reaffirmation of the Court’s institutional preference for efficiency and uniformity in merger control. By excluding a flood of competitor litigation, the Court protects the Commission’s ability to manage complex economic assessments without constant judicial interference. Yet this efficiency comes at a price: competitors and market participants may perceive their procedural rights as hollow if they cannot obtain judicial enforcement.

The debate is therefore not settled. The 2025 rulings resolve the specific appeals but leave open the enduring question: should EU law continue to rely on indirect ways to grant access to effective judicial protection, or is a more direct right of action for consulted entities ultimately required?

The Court’s judgment clearly favours efficiency, reinforcing procedural economy. Yet this leaves unresolved tensions with effective judicial protection under the Charter. Calls for reform – either of Article 263(4) TFEU or of the Merger Regulation – are likely to persist.

EVH and others thus closes one chapter but leaves the central question open: whether the EU legal order can continue to prioritise speed and legal certainty over the effective judicial protection of consulted entities, or whether future reform will finally tip the balance toward a more inclusive vision of access to justice.

 

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^[1] L. Hornkohl, The CJEU dismissed the People’s Climate Case as inadmissible: the limit of Plaumann is Plaumann, European Law Blog, 6 April 2021, https://www.europeanlawblog.eu/pub/the-cjeu-dismissed-the-peoples-climate-case-as-inadmissible-the-limit-of-plaumann-is-plaumann/release/1.

^[2] See generally W. Cremer, Kommentar zu Art. 263 AEUV, in C. Calliess/M. Ruffert (eds.), EUV/AEUV, 2022, para 42; for merger control General Court, 19 May 1994, Case T-2/93, Air France/Commission, ECLI:EU:T:1994:55, para 44 and 47.

^[3] See e.g. L. Hornkohl, The Role of Third Parties in the Enforcement of the Foreign Subsidies Regulation: Complaints, Participation, Judicial Review, and Private Enforcement, (2023) CPLD, pp. 30 – 43; L. Hornkohl, Transparency Unveiled: Access to Information in Digital Markets Act Proceedings on EU Level, (2024) NJEL 7, pp. 69 – 104.