90/363/EEC: Commission Decision of 26 June 1990 relating to a proceeding pursuant to Article 86 of the EEC-Treaty (IV/32.846 - Metaleurop SA) (Only the German and French texts are authentic)

• Articles: 3

Article 1

On the basis of the facts in its possession, the Commission has no grounds for action pursuant to Article 86 of the EEC Treaty in respect of the transaction decided on 22 April 1988 between Preussag and Peñarroya.

Article 2

This Decision is addressed to Preussag Aktiengesellschaft, Leibnitzufer 9, 3 000 Hannover 1, Federal Republic of Germany and Metaleurop SA, 118 Péripole, 44 rue Roger Salengro, 94126 Fontenay-sous-Bois, Cedex, France.

Done at Brussels, 26 June 1990.

For the Commission

Leon BRITTAN

Vice-President

(1) OJ No 13, 21. 2. 1962, p. 204/62.

(2) OJ No C 100, 21. 4. 1989, p. 2.

(1) OJ No L 220, 17. 8. 1984, p. 27.

(2) Metal Bulletin, 30. 12. 1988, No 7347, p. 7.

(1) Judgment of the Court of 21 February 1973, Case No 6-72, 1973, ECR, p. 215.

Article 86

(14) Article 86 prohibits as incompatible with the common market any abuse by an undertaking of a dominant position within the common market or a substantial part thereof in so far as it may affect trade between Member States.

(15) Preussag had acquired a holding in Peñarroya by subscribing only to an increase in the capital of that company. The transaction was achieved by transferring to Peñarroya al Preussag's metals activities previously grouped together in a holding company.

Following a second capital increase reserved for Imetal, which is the other major shareholder in Peñarroya, the latter changed its name to Metaleurop SA.

(16) Metaleurop has thus taken the place of Peñarroya and comprises all the metals activities formerly owned by Preussag and Peñarroya.

(17) Prior to the concentration of their metals activities, the undertakings in question held relatively large shares of both the Community zinc and lead markets. Peñarroya's market share in zinc was approximately 12 % and Preussag's in the region of 8 %.

In the market for lead, Peñarroya held approximately 18 %, whilst Preussag's was approximately 11 %.

As a result, neither party held a dominant position in the market for the products forming the subject of the merger in question, thus excluding the application of the case law of the Court of Justice in Continental Can (1) in this case.

(18) Despite the size of the merger between Peñarroya and Preussag which gives the new economic entity, Metaleurop, approximately 20 % of the zinc market and some 30 % of the lead market, it seems unlikely to prevent the maintenance of effective competition on the Community market, chiefly because of the presence of other major producers and the continued flow of a large number of imports into the Community from non-member countries.

Similarly, the characteristics of price formation in the lead and zinc sectors and the essentially speculative nature of transactions within the LME make it highly unlikely that Metaleurop will have a decisive influence on the formation of prices.

(19) There are therefore no grounds for concern that the operation in question will have the effect of impeding effective competition contrary to the provisions of Article 86. Consequently, a negative clearance may be issued in accordance with Article 2 of Regulation No 17,

HAS ADOPTED THIS DECISION: