Judgment in Case C-265/17 P, Commission v UPS: the Form Matters—Due Process as a Necessary Condition to Efficient Decision-Making*

Abstract

The CoJ upholds the annulment of the Commission's decision prohibiting UPS' acquisition of TNT for failure to disclose economic evidence and thereby confirms that due process is not an obstacle to efficient decision-making, but a necessary condition for it. On 16 January 2019, the Court of Justice of the European Union (‘CoJ’) confirmed the General Court’s annulment of the European Commission’s decision to prohibit UPS’ acquisition of TNT. The CoJ agreed that the Commission violated UPS’ rights of defence by basing its prohibition on an econometric model that it failed to disclose to the merging parties. The CoJ confirmed the General Court’s judgment at first instance, as well as Advocate General Kokott’s Opinion, stating that failure to disclose material changes to the econometric model constitutes a fundamental procedural error that vitiates the merger decision—regardless of whether the outcome might have been different absent the error.