2003/754/EC: Commission Decision of 26 June 2002 declaring a merger to be compatible with the common market and the EEA Agreement (Case COMP/M.2650 — Haniel/Cementbouw/JV (CVK)) (Text with EEA relevance.) (notified under document number C(2002) 2315)

• Articles: 5

Article 1

The notified concentration by which Franz Haniel & Cie. GmbH and Cementbouw Handel & Industrie BV have, within the meaning of Article 3(1)(b) of the Merger Regulation, acquired joint control of the undertaking Coöperatieve Verkoop- en Produktievereniging van Kalkzandsteenproducenten and its member undertakings is hereby 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 Franz Haniel & Cie. GmbH and Cementbouw Handel & Industrie BV and set out in points 27, 28, 32 to 35 and 40 of the Annex are complied with in full.

Article 3

The obligation is attached to this Decision that the other commitments entered into by Franz Haniel & Cie. GmbH and Cementbouw Handel & Industrie BV and set out in the Annex must be complied with in full.

Article 4

This Decision is addressed to:

Franz Haniel & Cie. GmbH Franz-Haniel-Platz 1 D - 47119 Duisburg

Cementbouw Handel & Industrie BV Bennebroekerdijk 244 2142 LE Cruquius The Netherlands

Coöperatieve Verkoop- en Produktievereniging van Kalkzandsteenproducenten Utrechtseweg 38 1213 TV Hilversum The Netherlands

Brussels, 26 June 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 261, 30.10.2003.

(4) OJ C 261, 30.10.2003.

(5) See Commission Decisions of 21 February 2002 in Case COMP/M.2495 - Haniel/Fels and of 9 April 2002 in Case COMP/M.2568 - Haniel/Ytong.

(6) NBM Amstelland sold Cementbouw to CVC at the beginning of 2001.

(7) Case 124/CVK Kalkzandsteen.

(8) Commission Notice on the concept of concentration under Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings (OJ C 66, 2.3.1998, p. 5, recitals 19 and 20).

(9) The planned closure of the Bergumermeer, Boudewijn and Vogelenzang works is mentioned in various internal documents of Haniel's as a basis for carrying out the CVK operation [details of the said documents]*.

(10) [Reference to internal documents of Haniel]*.

(11) See the letter from CVK's legal adviser to the NMa dated 13 April 1999 and the NMa's letter to the legal adviser dated 28 April 1999.

(12) Turnover was calculated in accordance with Article 5(1) of the Merger Regulation and the Commission Notice on calculation of turnover (OJ C 66, 2.3.1998, p. 25). Turnovers achieved before 1 January 1999 were calculated using the average ECU exchange rate and converted into euros in the ratio of 1:1.

(13) Maximum size: 240 × 175 × 113 mm.

(14) Case COMP/M.1866 - Preussag/Hebel, 29.3.2000; but compare the Decision of 21 February 2002 on Case COMP/M.2495 - Haniel/Fels and the Decision of 9 April 2002 on Case COMP/M.2568 - Haniel/Ytong.

(15) NMa, Decision of 20 October 1998 in Case 124/CVK - Kalkzandsteen.

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

(17) The construction industry association VOBN claims that the tunnel method can be a viable option where there are more than about 15 residential units. However, this depends on local circumstances, and in particular on the design of the houses and the degree of variation. Most market participants questioned regard the tunnel method as economically viable only where more than 30 to 50 residential units are involved.

(18) According to the information provided by the parties, in-situ concrete accounts for [30 to 40]* % of the materials used in tunnel forming; the market investigation suggested that the proportion might be even higher than that.

(19) In particular for elements cut for a specific use or for specific deliveries; see paragraph 56.

(20) It should be noted in this context that in many cases CVK knows the site where its products are to be used, (see recital 75).

(21) 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.

(22) Assuming that [20 to 40]* % of the in-situ concrete used in the Netherlands is cast using the tunnel-forming method; see footnote 18.

(23) 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 between load-bearing and non-load-bearing walls. In as much 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.

(24) See, for example, the 2000 Annual Report of NBM Amstelland (at that time Cementbouw's parent company).

(25) According to figures presented to the supervisory board of Franz Haniel & Cie GmbH on 12 March 1999, the market shares of the Haniel works and the Cementbouw works in the Netherlands before the merger each stood at [40 to 50]* %, with that of the RAG works at [15 to 20]* %. Assuming that CVK's share of the relevant market was [50 to 60]* %, Haniel and Cementbouw would each have had a market share of [20 to 30]* % and RAG [5 to 10]* %.

(26) In this case, for example, it was decided after conclusion of the pooling agreement to close three of the eleven existing sand-lime brick works (Bergumermeer, Boudewijn and Vogelenzang) with the consequence that, were CVK to be broken up, three of its eleven members would no longer have their own business operations.

(27) Abbreviation for basiswaalformaat (basic wall format), the standard unit of size for wall-building materials.

(28) See paragraph 14 of the Commission notice on remedies acceptable under Council Regulation (EEC) No 4064/89 and under Commission Regulation (EC) No 447/ 98 (OJ C 68, 2.3.2001, p. 3).

(29) See paragraph 14 of the Commission notice on remedies acceptable under Council Regulation (EEC) No 4064/89 and under Commission Regulation (EC) No 447/ 98 (OJ C 68, 2.3.2001, p. 3, recital 12).

(30) Points 27, 28, 32 to 35 and 40 of the Annex.

Schedules & Appendices

ANNEX

The full wording of the conditions and obligations referred to in Articles 2 and 3, in the original German, can be consulted on the following Commission website:

http://europa.eu.int/comm/ competition/mergers/cases/ decisions/m2650_de.pdf