2003/292/EC: Commission Decision of 9 April 2002 declaring a concentration to be compatible with the common market and the EEA Agreement (Case COMP/M.2568 — Haniel/Ytong) (notified under document number C(2002) 1396) (Text with EEA relevance)

• Articles: 5

Article 1

The notified concentration by which Haniel Bau-Industrie Porenbeton Holding GmbH acquires sole control within the meaning of Article 3(1)(b) of the Merger Regulation of Ytong Holding AG is declared compatible with the common market and the EEA Agreement.

Article 2

Article 1 shall apply subject to the condition that the commitments entered into by Haniel Bau-Industrie Porenbeton Holding GmbH and set out in points 1, 2, 9 and 17 of the Annex are complied with in full.

Article 3

The obligation is attached to this decision that the other commitments entered into by Haniel Bau-Industrie Porenbeton Holding GmbH and set out in the Annex must be complied with in full.

Article 4

This decision is addressed to:Haniel Bau-Industrie Porenbeton Holding GmbH

D-47119 Duisburg-Ruhrort

Done at Brussels, 9 April 2002.

For the Commission

Mario Monti

Member of the Commission

(1) OJ L 395, 30.12.1989, p. 1; corrigendum OJ L 257, 21.9.1990, p. 13.

(2) OJ L 180, 9.7.1997, p. 1.

(3) OJ C 107, 6.5.2003.

(4) OJ C 107, 6.5.2003.

(5) Turnover calculated in accordance with Article 5(1) of the Merger Regulation and with the Commission notice on calculation of turnover (OJ C 66, 2.3.1998, p. 25). Turnover achieved before 1 January 1999 has been calculated in accordance with the average ECU exchange rate and converted into euro at a rate of 1:1.

(6) Maximum size - 240 mm x 175 mm x 113 mm.

(7) Decision of 29 March 2000 in Case COMP/M.1866 - Preussag/Hebel (OJ C 142, 20.5.2000, p. 36); see also the decision of 21 February 2002 in Case COMP/M.2495 - Haniel/Fels (not yet published).

(8) NMa, decision of 20 October 1998 in Case 124/CVK Kalkzandsteen.

(9) NMa, decision of 29 February 2000 in Case 2427/NCD - Fernhout.

(10) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.

(11) According to the information provided by the parties, in-situ concrete accounts for 40 % of the materials used in tunnel-forming; the market investigation suggested that the proportion might be even higher than that.

(12) In particular for elements cut for a specific use or for specific deliveries; see recital 32. Haniel has also indicated that, generally, it must be assumed that, above a given wall strength, the product is used for load-bearing walls.

(13) In many cases CVK knows the destination of its products, because it is itself responsible for the delivery of its products to a specific building site; for products which account for half of its turnover CVK has access to the architect's plans. The Commission therefore takes the view that CVK is in a position to differentiate its prices depending on the competition it observes. By means of discounts for volume and uniform transport prices it would be able to effect an implicit differentiation between large and small building projects. CVK has indicated that it grants dealers in building materials discounts which are specific to the project and the builder.

(14) See, for example, the Court's judgment of 19 September 2000 in Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraphs 89 et seq.

(15) On the assumption that 40 % of the in-situ concrete used in the Netherlands is cast using the tunnel-forming method; see footnote 10.

(16) The calculation is based on estimates made by the parties on the shares of the various building materials in the consumption of wall-building materials as a whole and broken down as between load-bearing and non-load-bearing walls. Inasmuch as wall-building materials are used in load-bearing and non-load-bearing walls (e.g. sand-lime bricks, aerated concrete), only that part of such building materials which is estimated to be used in load-bearing walls was taken into account. On the basis of its market investigation, the Commission considers these estimates to be basically accurate; however, precise statistical data are not available.

(17) Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 39; see also Case T-102/96 Gencor v Commission [1999] ECR II-753, paragraphs 201 and 202.

(18) Until mid-2001, Cementbouw was a subsidiary of the Dutch building group NBM Amstelland NV. At the beginning of the year, the Cementbouw group was sold to CVC Capital Inc., a venture capital firm.

(19) Inasmuch as wall-building materials are used in load-bearing and non-load-bearing walls (e.g. sand-lime bricks, aerated concrete), only that part of such building materials which is used in non-load-bearing walls was taken into account.

(20) In so far as in-situ concrete cast by the tunnel-forming method or in-situ concrete not cast by the tunnel-forming method are not included in the market definition, the market shares of Haniel (CVK) increase accordingly; see table in paragraph 95.

(21) See the Commission notice on remedies acceptable under Regulation (EEC) No 4064/89 and under Commission Regulation (EC) No 447/98 (OJ C 68, 2.3.2001, p. 3, point 12).

(22) Annex, points 1, 2, 9 and 17.

Schedules & Appendices

ANNEX

The full original text of the conditions and obligations referred to in Articles 2 and 3 may be consulted on the following Commission website:

http://europa.eu.int/comm/ competition/index_en.html