Commission Decision of 9 February 2000 declaring a concentration to be compatible with the common market (Case No COMP/M.1628 — TotalFina/Elf) Council Regulation (EEC) No 4064/89 (Text with EEA relevance.)(Notified under document number C(2000) 363)

• CELEX: Regulation (EEC) No 4064/89
• Articles: 3

Article 1

On condition that the commitments annexed to this Decision - with the exception of the elements foreseen in points 9, 10, 27(g), 37(f), second and third indents, and 37(h), last phrase of the second indent, are fully complied with, the concentration notified between TotalFina and Elf Aquitaine is declared compatible with the common market and the functioning of the EEA Agreement.

Article 2

This Decision is addressed to:

TotalFina F - 92069 Paris La Défense Cedes

Done at Brussels, 9 February 2000.

For the Commission

Mario Monti

Member of the Commission

(1) OJ L 395, 30.12.1989, p. 1 (Corrigenda: OJ L 257, 21.9.1990, p. 13).

(2) OJ L 180, 9.7.1997, p. 1 (Corrigenda: OJ L 40, 13.2.1998, p. 17).

(3) OJ C 154, 29.5.2001.

(4) Turnover calculated in accordance with Article 5(1) of the Merger Control Regulation and the Commission notice on the calculation of turnover (OJ C 66, 2.3.1999, p. 25). Figures for turnover prior to 1 January 1999 are calculated on the basis of average exchange rates for the ecu and converted into euro at a one-to-one parity.

(5) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.

(6) The southern region consists of the following departments: 04/05/06/13/83/84/11/30/34/48/66/09/12/31/32/46/65/81/82/2A/2B.

(7) The eastern region consists of the following departments: 08/10/51/52/54/55/57/88/67/68.

(8) The northern region consists of the following departments: 02/60/80/59/62.

(9) The Normandy-Paris region consists of the following departments: 14/50/61/27/76/75/77/78/91/92/93/94/95.

(10) The west-centre region consists of the following departments: 22/23/24/29/40/47/35/64/19/23/87/56/16/17/79/86/18/28/36/37/41/45/44/49/53/72/85.

(11) The Rhône/Burgundy region consists of the following departments: 21/58/71/89/25/39/70/90/01/07/26/38/42/69/73/74/03/15/43/63.

(12) The connection of the other Strasbourg depots to the southern ODC pipeline seems technically possible but would be dependent on TotalFina granting a right of way over land which it owns.

(13) Delivered on 28 September 1993.

(14) NB: TotalFina/Elf's market shares for DHO are underestimated as they do not include the percentage sold by Elf its subsidiaries.

(15) In 1998 France imported 23 million tonnes of refined products, including 2 million tonnes of petrol and 11 million tonnes of diesel.

(16) The depots at Lorient and Port-la-Nouvelle although affording access to large-tonnage vessels, are not connected to any means of bulk transport, so they can trade only within a radius of 100 to 150 kilometres. The Shell Pauillac depot depends on DPA for bulk transport, being both without any lorry or rolling stock loading facilities and unconnected to a pipeline (other than the connection with DPA Bassens).

(17) The level of imports might increase in the years to come, for example because of increasingly stringent product quality specifications, some domestic refiners having temporary difficulty producing the new quality (lower aromatic, benzene and sulphur contents).

(18) The distribution of pipeline shares is based on market shares from the 1950s.

(19) Data on traffic at the two airports (1998):

Toulouse: passengers: 4800000; freight: 46000 tonnes; movements: 97000; destinations: 25 % of traffic outside France.

Lyon: passengers: 5221221; freight: 40000 tonnes; movements: 108355; destinations: 38 % of traffic outside France.

(20) Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports, OJ L 272, 25.10.1996, p. 32.

(21) The distribution network for natural gas in France covers 6705 municipalities out of approximately 36000. Gaz de France anticipates the connection of 400 additional municipalities per year for the next three years.

(22) This analysis did not include natural gas, since it could reasonably be a substitute for LPG (as it is cheaper), provided that the customer can be connected to the gas network, as mentioned above.

(23) LPG producers have recently developed a 6 kg bottle (the traditional bottles were 13 kg) in order to give bottle use a new boost. The new bottle is lighter and thus simpler to buy, transport and install.

(24) Extracts from the article in the daily Le Monde: "[GdF] must simultaneously develop both upstream, by participating in the development of oil and gas reserves, and downstream, to meet customers' requirements. The principle of opening the capital to TotalFina/Elf and EdF (Le Monde, 29 October) is being adopted with this in mind (...) By taking over Elf, TotalFina, like its main competitors, would gain an important hold over gas distribution. Elf has a pipeline network in the south-west, centred on the Lacq deposit. The new group is de facto becoming an essential partner for GdF."

(25) Cases IV/M. 708 - Exxon/DSM, IV/M.361 - Nesté/Statoil, IV/M. 550 Union Carbide/Enichem.

(26) [...].

Schedules & Appendices

ANNEX 1

COMMITMENTS PROPOSED BY TOTALFINA

I. COMMON PROCEDURES FOR THE IMPLEMENTATION OF COMMITMENTS

Nature of transferee

1. In order to maintain effective competition on the affected markets, the notifying party undertakes to divest the assets which are the object of the present commitments (hereinafter the assets) to one or more transferees which fulfil the following conditions:

(a) neither of the TotalFina or Elf groups shall have a material interest, either direct or indirect, in the transferee(s).

None the less, this provision shall not prevent those companies in which TotalFina or Elf holds material interests which the notifying party undertakes fully to divest in accordance with the present commitments from acquiring some or all of the assets.

In this regard, the notifying party undertakes not to oppose, either directly or indirectly, the candidacy of one or other of such companies or the adoption by them of the measures necessary for implementing such candidacy;

(b) the transferee(s) shall be viable operators, either potentially or currently active on the markets in question, capable of maintaining or developing effective competition;

(c) the transferee(s) shall have obtained or shall be reasonably likely to obtain all the necessary authorisations for the acquisition and exploitation of the assets.

2. The notifying party shall submit to the Commission, as soon as possible:

(a) the draft information document(s) concerning the divestiture of each category of assets (refined product depots, interests in pipelines, motorway service stations, assets in the LPG sector), to be transferred to potential purchasers;

(b) the list of potential purchasers which the notifying party intends to contact.

If the Commission does not pronounce upon the documents in question within five working days from the date of their submission, such documents shall be deemed to be accepted by the Commission.

3. Subject to the Commission's approval of the transferees and of the specific procedures set out below for assets related to storage and to transportation of refined products and for motorway service stations, the transferee(s) in relation to all or parts of the assets may be:

(a) operators established outside France using or holding substantial interests in activities in the petrol sector (production, refining, storage, promotion and sale) or more widely in the energy field, or financial institutions;

(b) entrepositaires agréés or financial institutions established in France.

4. The selection of the transferee(s) shall be subject to the approval of the Commission. The request for approval of the transferee(s) shall include the necessary information to permit the Commission to verify that the proposed transferee(s) meet the conditions indicated in point 1. The Commission shall inform the notifying party of its approval or rejection of the proposed candidates for transferees within 10 days from the date of submission of the request for approval of the proposed transferee(s). The absence of a response from the Commission within 10 days shall be considered as an exceptional circumstance within the meaning of point 6.

Time limit

5. The notifying party undertakes to conclude irrevocable divestiture agreements related to the assets within [...] from the date of receipt of the Decision authorising the merger pursuant to Article 8(2) of Regulation (EEC) No 4064/89 (hereinafter, the first time limit). The transfer of the assets shall become effective within a maximum of [...] following the conclusion of the divestiture agreement (hereinafter, the second time limit).

6. In the event of exceptional circumstances which prevent the conclusion of the divestiture agreement or the effective divestiture, the first or second time limit may be extended at the discretion of the Commission and upon the duly justified request of the notifying party.

7. Any request for extension of the first time limit shall be presented to the Commission by the end of [...] of the first time limit at the latest. Any request for extension of the second time limit shall be presented by the [...] of the second time limit at the latest. The Commission will issue its decision on the request for an extension within eight days from the date of its submission, and the absence of reaction from the Commission at the end of the eight days shall not be considered as tacit acceptance by the Commission of the request for an extension.

Divestiture of the assets

As long as the notifying party has provided to the Commission the means of ensuring that the divestiture is of such a nature as to immediately re-establish effective and long-lasting competition:

8. The notifying party shall be free to proceed with the sale of the assets according to the conditions and procedures of its choice.

9. The notifying party may divest all, or a significant part, of the assets, in either one or several operations, to a single transferee.

10. The notifying party shall also be entitled to proceed with the divestiture of assets by means of the exchange of assets of the same or a different nature outside France.

11. The notifying party undertakes not to regain control of the assets during a period of [...] from the date of divestiture of the assets in question.

Subject-matter of the divestiture

12. Without prejudice to the supplementary details provided in point 37(b) concerning certain particular assets (motorway service stations), the assets (other than shareholdings in the companies specified in points 26(a) to (d), 26(f) to (h), 31(a) to (c), 38 and 40(c) and (d) shall be divested as autonomous operational entities. For this purpose, the assets shall include tangible assets (land, buildings and other property, fixtures) and intangible assets (customers, computer databases, contracts, authorisations and permits) which are necessary for the management of the assets in question and to enable the transferee to compete effectively. The personnel employed directly within the assets will be divested with the assets in question in accordance with Article L. 122-12 of the French Labour Code.

13. The notifying party shall inform the transferee of the possibility of putting at its disposal on a temporary basis, or of transferring definitively, current employees from the administrative or commercial management of TotalFina or Elf whose services prove necessary for the operation and management of the assets divested to the transferee. If the transferee so requests, the notifying party undertakes to negotiate in good faith putting the said personnel at the disposal of the transferee on a temporary basis or transferring them to him definitively.

14. The notifying party shall inform the transferee of the possibility of concluding with identified third parties contracts for the supply of products or services necessary for the operation of the assets. The notifying party undertakes, if the transferee so requests and subject to the agreement of third party suppliers, to ensure the assignment to the transferee of contracts for the supply of goods and/or services which have been concluded by the TotalFina and Elf groups with third party suppliers and which relate to the assets divested.

15. The notifying party undertakes not to solicit the employment of personnel transferred with the assets during a period of [...] from the date of divestiture of the assets in question. The notifying party shall make its best efforts to encourage the personnel not to resign from their employment before the date of divestiture.

Preservation of conditions of competition and of the value of assets until divestiture

16. The notifying party undertakes to preserve the full economic and competitive value of the assets until the date of divestiture of the assets, in accordance with good commercial practice and to the extent possible with the means at its disposal under the present commitments.

In particular, the notifying party undertakes to not carry out any act upon its own authority which may have a significant impact on the economic value, the management or the competitiveness of the assets until the date of divestiture of the assets.

The notifying party also undertakes not to carry out upon its own authority any act which may be of such a nature as to alter the nature or the scope of activity of the assets, or the industrial or commercial strategy or the investment policy of the assets in question.

Moreover, the notifying party undertakes to put in place the necessary measures to avoid the disclosure of confidential information concerning the assets within the TotalFina or Elf groups or to third parties, with the exception of information necessary for the divestiture of these assets in the best possible conditions in accordance with the present commitments.

As regards the personnel from the TotalFina and Elf groups which are seconded to the assets, the notifying party undertakes, within [...] from the date of receipt of the Decision approving the merger, to invite such members of the personnel to chose between the possibility of either resigning from their post within the TotalFina or Elf groups in which case the latter shall make their best efforts for them to be employed within the assets concerned, or being reintegrated within the TotalFina or Elf groups, in which case the latter shall make their best efforts to replace such personnel with individuals who are independent of the TotalFina and Elf groups.

If the notifying party considers that there are requirements in relation to the preservation of the viability and competitiveness of the assets, it shall contact the Commission to consider an extension of the time limit of [...] indicated above. In the absence of a reaction from the Commission within [...] following submission of the duly reasoned and justified request, the demand shall be deemed to be accepted by the Commission.

The notifying party shall provide to the trustee referred to in point 20 all the means necessary and all information which the trustee considers useful for the purpose of enabling the trustee to be informed of the ongoing management of the assets.

Trustee

17. Within eight days following receipt of the Decision approving the merger pursuant to Article 8(2) of Regulation (EEC) No 4064/89, the notifying party shall propose the names of three trustees to the Commission and shall provide a draft mandate in accordance with the provisions of the present commitments which shall include, in particular, the details of the proposed method of payment of the trustee (without revealing the amount to be paid).

18. The Commission shall issue its decision on the proposed trustee and on the draft mandate within eight days of receiving the proposal.

The Commission may, within the time limit specified, approve or reject one, two or all three of the trustees proposed. If only one of the three trustees proposed is approved by the Commission, that trustee shall be appointed by the notifying party. If more than one trustee is approved by the Commission, the notifying party shall appoint one of them as trustee at its own choice. It all the trustees are rejected by the Commission, the Commission shall select a trustee which shall be appointed by the notifying party.

The notifying party shall amend the draft mandate if the Commission so requests.

19. In the absence of a response from the Commission to the proposal from the notifying party within eight days from the date of its receipt, the names of the three trustees and the draft mandate put forward shall be deemed to be accepted by the Commission.

20. The trustee shall be appointed by the notifying party within five working days following the approval of the Commission. The remuneration of the trustee shall be agreed between the trustee and the notifying party. A copy of the mandate provided to the trustee shall be given to the Commission.

When the mandate is signed, the notifying party may make no further modification to the mandate without the approval of the Commission. At the request of the trustee, the Commission may require the amendment of the mandate if it is shown that it does not permit the trustee to fully carry out the tasks given to it.

21. The trustee's assignment shall be to:

(a) ensure that the notifying party maintains the viability and saleability of the assets and continues the management and operation of the assets in the ordinary course of trade and in accordance with past practice, until the date of effective divestiture of the assets;

(b) report on a regular basis to the Commission on the state of implementation of the commitments specified above and on the execution of the trustee's tasks. For this purpose, the trustee shall draw up a confidential report every four weeks and submit it to the Commission in the five working days following each period, or at the request of the Commission.

The report shall cover the following points, in particular:

(i) confirm that the assets are managed in a manner such as to preserve their full economic and competitive value, in accordance with point 21(a);

(ii) indicate the steps taken with a view to the execution of the commitments, the reaction of third parties contacted (potential transferees, third parties with rights of consent and/or pre-emption rights, labour organisations and administrative authorities) and the state of formalisation of the acts of divestiture; and

(iii) identify, if necessary, the aspects of the mandate which the trustee has not been able to fulfil and the reasons justifying the non-execution of the mandate in this respect.

A non-confidential version of the report submitted to the Commission by the trustee shall also be sent to the notifying party;

(c) as regards shareholdings in the companies specified in points 26(a) to (d), 26(f) to (h), 31(a) to (c), 38, 40(c) and (d) and 41, which the notifying party undertakes to divest and the seats on the boards of directors which the notifying party undertakes to vacate:

(i) subject to the provisions below, exercise the voting rights attached to the shareholdings to be divested and to take the place of the director(s) holding the seats to be vacated or to obtain on their behalf a proxy (except in respect of the seats of the President of the board of directors of CIM and of SFDM, as indicated in point 21(c)(v), it being specified that one SFDM director's seat to be vacated shall not be taken by the trustee or be subject to a proxy issued to the trustee and that, in such a case, the director in question shall give a proxy to the President of SFDM in accordance with the instructions of the trustee;

(ii) to exercise the powers invested in those people whose board seats he has taken or those who gave him a proxy in accordance with point 21(c)(i). In the completion of this task in the areas concerning significant sales of assets, payment of dividends, company dissolution, new share issues and increases or reductions in capital, the trustee shall take into account the protection of the financial interests of the notifying party and will consult the notifying party on such matters without communicating to him any confidential information, on condition that the primary obligation of ensuring that the company in question remains a viable entity is not prejudiced;

(iii) should the trustee consider it useful, request whichever of the TotalFina or Elf groups is owner of the shareholding to be divested and/or the directors whose board seats must be vacated pursuant to the present commitments to be present at the entire or part of the proceedings of the general shareholders meeting or of the meeting of the board of directors and, if necessary, request that they exercise at such time the powers invested in them, on condition that they do not communicate confidential information concerning the company in question to the TotalFina or Elf group;

(iv) in any event, when the decision on the sale of shares between shareholders or on the approval of a new shareholder is put to the general assembly of shareholders or to the board of directors, either the TotalFina group or the Elf group, whichever is applicable, or the directors representing them shall have the right to either direct the trustee on the position to be adopted on such questions, or participate themselves in the general assembly or the board of directors meeting which is presented with such a question in its agenda and take part in the vote on that question in accordance with the rules established in the articles of association of the company in question;

(v) as regards CIM and SFDM where the notifying party holds the Presidency of the board of directors (CIM and SFDM) and the position as Managing Director (SFDM), give prior approval to acts of general policy and strategic decisions and to supervise the daily management actions carried out by the President of the board and/or the Managing Director of the companies in question, with the purpose of ensuring that the assets relevant thereto are managed in a manner such as to preserve their full economic and competitive value, without communicating any confidential information to the notifying party;

(d) as regards assets other than company shareholdings, as specified in points 26(e), 36 and 40(a):

(i) take all decisions relating to the commercial activities of the assets to be divested within the currently existing management structures until the date of effective divestiture of the assets in question, it being understood that the notifying party shall ensure the ongoing administrative and technical management of the assets (such as payment of salaries, regular technical inspections, etc.) in accordance with past practice, under the supervision of the trustee;

(ii) ensure that the assets in question are utilised in the ordinary course of trade and in accordance with past business practices until the date of the effective divestiture;

(iii) ensure that measures have been taken in order that no information concerning the assets in question which is sensitive from a competition standpoint is communicated to the notifying party, with the exception of information which is necessary for the divestiture of those assets according to the best possible conditions and in accordance with these commitments;

(iv) in general, ensure that the full economic and competitive value of the assets is preserved and take all necessary measures for this task;

and

(e) in general, verify the satisfactory completion of the present commitments by the notifying party.

22. In case of failure by the notifying party to carry out the commitments in the time limit specified in points 5 to 7, the trustee shall be charged with taking up negotiations with interested third parties, for the purpose of, as a trustee, selling the assets in good faith at the best possible price to a transferee approved by the Commission. The divestiture commitments shall be completed within a maximum period of [...], which may be extended in accordance with the provisions in points 6 and 7.

23. If the notifying party fails to substantially respect its commitments, the Commission may supplement the trustee's task as set out earlier, in order to provide the trustee with every possibility of ensuring that the commitments are respected.

24. The notifying party undertakes to provide the trustee with all reasonable assistance as well as all information necessary for the execution of his task, as described above. The notifying party shall make available to the trustee one or several offices on its premises or in the premises of the entities subject to the present commitments. The notifying party shall hold regular meetings with the trustee, according to a timetable agreed between them, in order to provide the trustee, either orally or in document form, with all information necessary for the completion of his task. At the request of the trustee, the notifying party shall provide the trustee with access to sites which are being divested.

25. As soon as the tasks given to him are completed, the notifying party shall request the Commission to be allowed to discharge the trustee from his assignment. The Commission may, nevertheless, require the reappointment of the trustee if it later appears that the commitments have not been completely carried out.

II. SUBSTANCE AND IMPLEMENTATION OF THE COMMITMENTS CONCERNING THE MARKET FOR THE OFF-NETWORK SALE OF REFINED PRODUCTS: DEPOT LOGISTICS

A. SUBSTANCE OF THE COMMITMENTS

26. The notifying party undertakes to divest:

(a) the entire interest of 38,72 % held by BTT, a 50/50 jointly controlled subsidiary of TotalFina and Elf groups, in the share capital of CPA, owner of, or holder of an interest in, the following depots: CPA Rouen (Normandy/Paris region), CPA Dunkerque (northern region), STOCKBREST (western region), CPA Saint Priest (Rhône-Alpes region), and SES Strasbourg;

(b) the entire interest of 49 % held by the Elf group in the share capital of SFDM, a company operating, in addition to the DMM pipeline, four depots: SFDM Donges, SFDM La Ferté Alais, SFDM Vatry la Chaussée sur Marne and SFDM Saint Baussant;

(c) the entire interest of 50 % held by the Elf group in the share capital of CIM which is the owner of three depots: CIM Le Havre, CIM Coignières and CIM Grigny;

(d) the entire interest of 15,07 % directly held by the Elf group in the share capital of DP Fos, as well as the entire interest (of 76,65 %) held by the Elf group in the share capital of Fos Import, shareholder with an interest of 10,63 % of the share capital in DP Fos;

(e) the companies Fina Port-la-Nouvelle and Fina Nanterre;

(f) the 51 % interest in the share capital of Fina Lorient;

(g) the 8,76 % interest held by the Elf group in the share capital of EPL Lyon;

(h) the 6,54 % interest held by the TotalFina group in the share capital of SES Strasbourg, in whose depot TotalFina/Elf shall no longer hold an interest.

27. The notifying party undertakes to relinquish at the latest between the end of the trustee's mandate and the effective divestiture of the asset in question:

(a) the three seats held by the TotalFina and Elf groups on the board of directors of CPA;

(b) the three seats held by the Elf group on the board of directors of CIM;

(c) three of the six seats held by the TotalFina and Elf groups on the board of directors of DP Fos;

(d) the three seats held by the TotalFina group on the board of directors of Fina Nanterre;

(e) the three seats held by the TotalFina group on the board of directors of Port-la-Nouvelle;

(f) two of the four seats held by TotalFina on the board of directors of Fina Lorient;

(g) one of the six seats held by the Elf group on the board of directors of EPL.

28. The notifying party also undertakes not to increase the level of representation of TotalFina/Elf on the boards of directors concerned, as results from the implementation of the above commitments, during a period of [...] from the date the board seats specified above are vacated. In case of alteration of the total number of seats on the board of directors of the company in question, the number of seats held by TotalFina/Elf will be modified in due proportion with the above, the total, if necessary, being rounded down without this figure being less than one.

29. The notifying party undertakes, for a period of [...] from the date of divestiture of the depot in question, not to solicit customers of the depots which are the object of the present commitments in which, following the completion of the above commitments, TotalFina/Elf shall no longer hold any ownership interest, in order to propose to such customers lease contracts or rights of passage in depots owned by TotalFina/Elf, or in which TotalFina/Elf holds an interest, and which are located within the customer area of the depots specified in the present commitments.

B. MEANS OF IMPLEMENTATION

30. As regards the implementation of the commitments set out above, the notifying party makes reference to the common procedures described above and adds the following points:

(a) as soon as the notifying party receives the Decision approving the merger and approval of the information document specified in point 2(a), it shall consult the various operators both outside and within France that may be interested in the acquisition of all or part of the assets in question and shall provide them with the technical, environmental, contractual, commercial and financial data and specifications enabling them to make an offer;

(b) the name of the proposed acquirers of all or part of the assets in question shall be subject to the approval of the Commission according to the conditions laid down in the common procedures and subject to the rights of consent and of pre-emption provided by the articles of association of CPA, SFDM, CIM, DP Fos and Fos Import, EPL and SES.

It is recalled that, as regards SFDM and CIM, the acquirer(s) of the divested assets must also be approved by the relevant Government commissioners and the authority granting the exploitation rights (the Government for SFDM and Le Havre Port authority for CIM).

III. SUBSTANCE AND IMPLEMENTATION OF THE COMMITMENTS CONCERNING THE MARKET FOR THE OFF-NETWORK SALE OF REFINED PRODUCTS: PIPELINES FOR FINISHED PRODUCTS

A. SUBSTANCE OF THE COMMITMENTS

31. The notifying party undertakes to divest

(a) the entire interest of 26,60 % held by the Elf group in the share capital of Trapil;

(b) the entire interest of 49 % held by the Elf group in the share capital of SFDM, the DMM pipeline operating company;

(c) the entire interest of 14,10 % held by the Elf group and an interest of 3,50 % held by TotalFina in the share capital of SPMR.

32. The notifying party undertakes:

(a) to make, within [...] from the date of receipt of the Decision approving the merger, a proposal to the GIE Groupement Pétrolier de Strasbourg (GPS) to offer access through pipes owned by GPS which link ODC with SPLS to all operators in the area (SES, Bolloré, Propétrol) which make such a request, within the capacity limits of the pipes, and to vote in favour of this proposal; it being specified that any disagreement over the utilisation of capacity of GPS pipes shall be put before an expert jointly appointed by the parties in question and, in the absence thereof, before the Commercial Court of Strasbourg;

(b) at the same time to make a proposal to SPLS to carry out as soon as possible the necessary works to open up SPLS's pipes in order to enable the operators identified above within the area to transport their products coming from and going to the ODC without having to make use of SPLS' tanks, and to vote in favour of this proposal; and

(c) to carry out the collective treatment of all contaminated products on the site of the GPS resulting from the traffic of all operators, immediately after completion of the above work.

33. The notifying party undertakes to vacate, at the latest between the end of the trustee's mandate and the date of the effective divestiture of the asset in question:

(a) two out of six seats on the board of directors of Trapil which comprises 10 in total;

(b) two out of five seats on the board of directors of SPMR which comprises 10 in total;

(c) four seats held by Elf on the board of directors of SFDM which comprises eight in total.

34. The notifying party also undertakes not to increase the level of representation of TotalFina/Elf on the boards of directors of Trapil and SPMR, as it results from the implementation of the abovementioned commitments, during a period of [...] from the date the board seats specified above are vacated. In case of alteration of the total number of seats on the board of directors of Trapil and/or SPMR, the number of seats held by TotalFina/Elf will be modified in due proportion with the above, the total, if necessary, being rounded down without this figure being less than one.

B. MEANS OF IMPLEMENTATION

35. As regards the implementation of the commitments set out above, the notifying party makes reference to the common procedures described above and adds the following details:

(a) as soon as the notifying party receives the Decision approving the merger and the approval of the information document specified in point 2(a), as indicated in the common procedures it shall consult the various operators both outside and within France that may be interested in the acquisition of all or part of the assets in question and shall provide them with the technical, environmental, commercial and financial data and specifications enabling them to make an offer;

(b) the name of the candidates for the acquisition of all or part of the assets in question shall be subject to the approval of the Commission according to the conditions laid down in the common procedures and subject to the rights of consent and of pre-emption provided by the articles of association of Trapil, SPMR and SFDM, as well as the agreement of the Government commissioners.

IV. SUBSTANCE AND IMPLEMENTATION OF THE COMMITMENTS CONCERNING THE MARKET FOR THE SALE OF PETROL ON MOTORWAYS

A. SUBSTANCE OF THE COMMITMENTS

36. The notifying party undertakes to divest 70 Elf, Total and Fina service stations on motorways which fall within the market definition as provided by the Commission.

They shall comprise 35 Elf, 26 Total and 9 Fina stations.

The 70 service stations which are the object of these commitments are listed in Annex 1 hereto, indicating the motorways on which they are located, and where applicable the motorway operator company under whose jurisdiction the station falls, the annual sales turnover in petrol and in other products, as well as the date of expiry of the exploitation licence.

B. MEANS OF IMPLEMENTATION

37. As regards the means of implementation of the commitments set out above, the notifying party refers to the common procedures described above, and adds the following details thereto:

(a) as soon as the notifying party receives the Decision approving the merger and the approval of the information document specified in point 2(a), it shall consult the various operators as specified in the common procedures, both outside and within France, that may be interested in the acquisition of the assets being divested. The notifying party shall supply to operators that may be interested in purchasing the assets being divested, the contractual, environmental, commercial, technical and financial data and specifications relating to the service stations in question in order that they may draw up such offers;

(b) the divestiture of the service stations shall be completed through the assignment for valuable consideration of the exploitation licence granted by the motorway operators as well as installations, fixtures, equipment, machinery and tools which are essential for their operation.

The personnel employed directly at the points of sale shall be transferred with the service stations.

The notifying party specifies that the only tangible and intangible assets located on or used at the service stations in question which shall not be transferred, are those assets related to intellectual property rights and know-how and, in particular, the notifying party's branded assets and software management systems;

(c) in order to ensure the immediate re-establishment of effective and long-lasting competition, the notifying party undertakes to propose to purchasers of all or some of the divested service stations, to transfer to them a sufficient number of administrative, commercial and accounting management personnel.

The number, functions and conditions of transfer of these employees shall be determined on a case-by-case basis in accordance with, in particular, the wishes of the purchasers, the number of stations being acquired and the means of management that they intend to use (direct management or location-gérance agreement).

In addition, the notifying party undertakes to notify the purchasers of stations of the possibility of concluding with them, on a temporary basis, administrative management contracts with regard to the points of sale in question until such time as they have set up their own management infrastructure. The notifying party undertakes to conclude such contracts with those purchasers that request it.

Until the date of effective transfer of the service stations in question, the notifying party undertakes to supply such stations at internal transfer prices.

During the same period, the sale price of petrol in the stations in question shall be fixed by the trustee on the basis of Platt's quotations and profit targets which he will determine with a view to maintaining the viability, competitiveness and saleability of the said stations;

(d) the notifying party undertakes to inform the transferee of the possibility of allowing holders of the TotalFina GR and Eurotrafic cards and Elf Credit and PAN cards to use their cards for a maximum period of [...] from the date of effective transfer of the service station in question in those divested stations where such cards are accepted at the date of notification of the Decision approving the merger, on condition that the transferee does not already operate a card system for the sale of petrol which competes directly with the TotalFina and Elf cards indicated above and that he complies with the management principles in relation to the cards in question such as established by contract with a subsidiary of TRD SA, called Centre de Management de Transaction Monétiques SA (definition of products and services provided by the card, technological, financial, administrative and commercial specifications concerning the card system, responsibilities and complaints, invoicing and payment of suppliers, debt collection, processing costs and administration, commercial and financial procedures, duration and clause providing for allocation of competence).

Should the transferee so request, the notifying party undertakes to conclude with him an agreement for the purpose of allowing holders of the cards in question to use them in stations divested during a maximum period of [...] from the date of effective transfer of the service station in question, to the extent that and for as long as the conditions specified in the first indent of this point 37(d) remain fulfilled.

The notifying party specifies that it shall not influence the terms or conditions of sale of petrol and other products in the transferred stations by means of the card systems in use at such stations and that, in any event, this condition takes precedence over the consequences resulting from membership of the transferee(s) in the card management system.

As regards cards other than those of the TotalFina and Elf groups, such as the DKV and UTA cards, used in the divested stations, the notifying party undertakes to carry out the steps specified in point 14;

(e) any potential purchaser of all or some of the service stations shall be capable of meeting the requirements of the terms and conditions and the consultation regulations imposed by the motorway operator companies.

As a result, those operators intending to make a purchase offer, in addition to the conditions set out in the common procedures above, must be capable of showing their direct or indirect experience in the operation of a service station network of any type;

(f) offers made by potential purchasers may target either a single station, a group of stations or all the stations subject to the present commitment.

The offers may include, either in whole or in part, proposals for the exchange of assets, either of the same nature or not, outside France.

In the event of receiving equivalent offers, the notifying party reserves the right to give priority to those offers covering the entire network or a significant number of stations, as well as to those offers including proposals to exchange assets;

(g) in order to facilitate completion of this commitment, any offer to acquire five or more service stations shall include a proportionate number of stations whose exploitation licence comes to an end in or before 2005. The notifying party may also give priority to offers for five or more stations over offers for four or less stations which do not include the obligation set out in the preceding sentence;

(h) the notifying party shall present the purchase offer or offers which it has retained for the approval, on the one hand, of the motorway operator companies in question and, on the other hand, of the lease-holder manager(s) (locataires-gérants) which may be concerned.

In case of refusal by the motorway operator company and/or by the lease-holder manager, the notifying party may either propose to swap the service station in question with another service station or put forward for approval the potential purchaser which made the second best offer. For this purpose, the notifying party shall present a duly documented and supported request to the Commission. The notifying party shall also make contact with the French competition authorities.

If the Commission does not reject this request in writing within 10 working days after receiving it, the proposal of the notifying party shall be considered as accepted.

In the event that service stations are to be swapped, the notifying party confirms that the new station that will be proposed shall have the same characteristics as the first station and, in particular, an equivalent volume of sales of petrol, an equivalent turnover in other products and a similar date of expiry of its exploitation permit and shall be located in the same area (except where this proves impossible because the obligation to make a swap results from the motorway operator company's refusal to approve the offeror). Moreover, the swapping of service stations shall not affect the overall economic and competitive value of the initial proposal;

(i) it will be for the transferees, in agreement with the motorway operators in question, to carry out the works required for the transfer of the exploitation licence. The notifying party shall not be held liable for delays in the implementation of such works, following the conclusion of the divestiture agreements.

V. SUBSTANCE AND IMPLEMENTATION OF THE COMMITMENTS CONCERNING THE MARKET FOR THE SALE OF AVIATION FUELS AT TOULOUSE-BLAGANC AND LYON-SATOLAS

A. SUBSTANCE OF THE COMMITMENTS

38. The notifying party undertakes to divest:

(a) the 50 % interest held by Elf in GAT (Groupement pour l'Avitaillement de Toulouse-Blagnac); and

(b) the 50 % interest held by Elf in GALYS (Groupement pour l'Avitaillement de Lyon-Satolas).

B. MEANS OF IMPLEMENTATION

39. As regard the means of implementation of the commitments set out above, the notifying party refers to the common procedures described above and adds the following details thereto:

(a) as soon as the notifying party receives the Decision approving the merger and approval of the information document specified in point 2(a), it shall consult the various operators referred to in the common procedures, both outside and within France, that may be interested in the acquisition of all or part of the assets in question. The notifying party shall supply to operators that may be interested in purchasing the assets being divested, the contractual, environmental, commercial, technical and financial data and specifications relating to membership in GAT and GALYS in order that they may draw up such offers,

(b) the transferee shall fulfil the objective conditions for admission as provided for in the articles of association of GAT and GALYS.

VI. SUBSTANCE AND IMPLEMENTATION OF THE COMMITMENTS CONCERNING THE LPG MARKET

A. SUBSTANCE OF THE COMMITMENTS

40. The notifying party undertakes:

(a) To divest 100 % of the shareholding held by Elf in Elf Antargaz, a company having as its object the marketing of LPG, with respect to its LPG operation in the metropolitan areas of France.

(b) The following shall be excluded from the present divestiture:

- the shareholdings held by Elf Antargaz in those subsidiaries operating in the LPG sector outside metropolitan France,

- the shareholdings held by Elf Antargaz on behalf of Elf Antar France in companies in France or abroad which are not active in the LPG sector.

Before the transfer of shares in Elf Antargaz takes effect, the notifying party shall transfer the exempted shareholdings, as indicated above, to Elf Antar France. This transfer shall be subject to the prior approval of the trustee who shall consult the Commission.

(c) The divestiture of the Elf Antargaz shares, in addition to the assets and companies directly and entirely owned by Elf Antargaz, also includes the shareholdings held by Elf Antargaz in the following companies in France:

- GIE Norgal: 52,67 %

The notifying party, prior to the divestiture, shall put forward and vote in favour of an amendment to the articles of association of Norgal for the purpose of setting out in the articles the rules on the current allocation of capacity of Norgal, as described in Annex 2 to the present commitments.

The notifying party undertakes to continue the pooling contract established for the purpose of procurement with the other current shareholder in Norgal, for a period of [...] from the date of effective transfer of the depot, and if the transferee so requests and if the other Norgal shareholder is in agreement, to admit the transferee to the pool.

- Rhône Gaz SA: 50,62 %

- Sigap-Ouest SARL: 66,67 %

- Wogegal SA: 100 %

- Gaz Est Distribution SA: 100 %

- Nord GPL SA: 100 %

- Gie Floregaz: 90 %

- Midi Pyrénées Gaz SA: 75 %

- Cobogal SA: 15 %

The notifying party undertakes to carry out for a period of [...] from the date of the effective transfer of shares the common procurement contract with the other current shareholder in Cobogal.

The notifying party undertakes also to propose to the purchaser of the shares to become a party to the common procurement contract, if the latter so requests and if the other current shareholder in Cobogal agrees. The notifying party undertakes, if necessary, to propose to the purchaser of the shares, if the latter so requests, a supply contract for a term of [...] on the conditions of the TotalFina group.

- SP de Quéven: 50 %

- SP Bus Paris: 50 %

- GIE GPL Bus: 25 %

- GIE Groupement Technique Citerne: 20 %.

(d) In addition to the divestiture of the Elf Antargaz shares, Elf's shareholdings in the following companies, with respect to their LPG operation in the metropolitan areas of France, will be divested:

- Sobegal SA (the refilling centres of Lacq, Nérac, Rodez and the bulk depot of Domène): 78 % held by the Elf group

- Geogaz SA: 16,67 % held by the Elf group

- Geovexin SA: 44,9 % held by the Elf group.

(e) In addition, the notifying party undertakes to vacate the directors' seats held by the Elf group on the boards of the companies included in the scope of the present divestiture within the time limits foreseen for the effective transfer of the assets and in accordance with the conditions specified in the common procedures for the implementation of the commitments.

41. The notifying party undertakes not to solicit the customers of Elf Antargaz during a period starting from the date of receipt of the Decision approving the merger and expiring [...] after the date the divestiture of the Elf group's shareholding in Elf Antargaz becomes effective.

B. MEANS OF IMPLEMENTATION

42. As regards the implementation of the present commitment, the notifying party refers to the common procedures identified above and adds the following details:

(a) the name of the potential purchasers of all or part of the assets shall be subject to the approval of the Commission in accordance with the conditions set out in the common procedures;

(b) as soon as the notifying party receives the Decision approving the merger, it shall consult the various operators referred to in the common procedures, both outside and within France, that may be interested in the acquisition of all or part of the assets in question. The notifying party shall supply to operators that may be interested in purchasing the assets being divested, the commercial, technical and financial data and specifications necessary in order that they may draw up such offers;

(c) in the event that Vitogaz intends to acquire shares in Elf Antargaz, the notifying party undertakes not to oppose such acquisition. If Vitogaz is the transferee in respect of the shares in Elf Antargaz, the notifying party undertakes to divest its shareholding (34 %) in Vitogaz according to the conditions with respect to form and time limits set out in the agreements between the notifying party and the other shareholder in Vitogaz.

43. The notifying party points out that those assets related to intellectual and/or industrial property rights or know-how belonging to the notifying party shall be transferred with the shareholdings in question to the extent that they are used within the framework of the LPG activity of Elf Antargaz in metropolitan areas of France, with the exception of trade marks owned and/or utilised by the Elf group as well as all proprietary management software belonging to it.

The notifying party shall grant to the transferee a licence to use the trade marks employed by the Elf group in the LPG sector in metropolitan areas of France for a maximum period of [...] from the date the divestiture becomes effective.

In the event that rights relating to intellectual and/or industrial property, or know-how owned by the notifying party, transferred with the divested shareholdings, cover a geographic area outside the metropolitan areas of France, the divestiture of such rights shall be subject to the grant by the transferee to the notifying party of a royalty-free licence for the same term as the intellectual and/or industrial property right divested, allowing the notifying party to use such rights outside the metropolitan areas of France.

44. The notifying party shall ensure that for as long as the shareholdings in question have not been transferred to a purchaser, Elf Antargaz will be managed as a separate and saleable entity, with its own set of management accounts, and shall notify the management of Elf Antargaz that the company will be managed on an independent basis and under the supervision of the trustee, in order to guarantee the preservation of its profitability and of its market value.

45. The notifying party undertakes, after the divestiture of the shares in Elf Antargaz becomes effective, to inform the purchaser of the possibility of concluding with it, for a transitional period with a maximum [...], a non-exclusive supply agreement for the purpose of ensuring for the purchaser the necessary supplies during the period required for the establishment of alternative solutions.

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ANNEX 2

STRUCTURE OF NORGAL

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