2004/304/EC: Commission decision of 17 April 2002 declaring a concentration to be compatible with the common market and the EEA Agreement (Case COMP/M.2547 — Bayer/Aventis Crop Science) (Text with EEA relevance) (notified under document number C(2002) 1462)

• Articles: 5

Article 1

The notified operation whereby Bayer would acquire sole control of Aventis Crop Science Holding SA within the meaning of Article 3(1)(b) of the Merger Regulation is, as modified according to the Annex to this Decision, hereby declared compatible with the common market and the functioning of the EEA Agreement.

Article 2

Article 1 is subject to full compliance with the conditions set out in paragraphs 35 to 186 of the Annex to this decision, except that the provisions of paragraph 41 and 184 of the Annex to this decision shall apply as condition during the transitional period between the acquisition of ACS by Bayer and the divestment of the Fipronil business. Article 1 is also subject to full compliance with the conditions set out in paragraphs 189, 190 and 224 of the Annex to this Decision.

Article 3

Article 1 is subject to full compliance with the obligations set out in paragraphs 187 to 241 of the Annex to this Decision, except for paragraphs 189, 190 and 224 of the Annex to this decision which shall apply as conditions pursuant to Article 2.

Article 4

This decision is addressed to:

Bayer AG D - 51386 Leverkusen

Done at Brussels, 17 April 2002.

For the Commission

Mario Monti

Member of the Commission

(1) OJ L 395, 30.12.1989, p. 1; corrected version in OJ L 257, 21.9.1990, p. 13.

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

(3) OJ C 91, 15.4.2004.

(4) OJ C 91, 15.4.2004.

(5) Turnover calculated in accordance with Article 5(1) of the Merger Regulation and the Commission notice on the calculation of turnover (OJ C 66, 2.3.1998, p. 25). To the extent that figures include turnover for the period before 1 January 1999, they are calculated on the basis of average ECU exchange rates and translated into euro on a one-for-one basis.

(6) OJ L 230, 19.8.1991, p. 1.

(7) OJ L 122, 16.5.2003, p. 1.

(8) Cases IV/M.737 - Ciba Geigy/Sandoz (Novartis) (OJ L 201, 29.7.1997, p. 1), IV/M.1378 - Hoechst/Rhône-Poulenc (Aventis) (OJ C 254, 7.9.1999, p. 5), IV/M.1806 - AstraZeneca/Novartis (Syngenta) and M.1932 - BASF/American Cyanamid (OJ C 354, 9.12.2000, p. 38).

(9) The only exception is broadcast spray application of a soil insecticide and foliar application to low growing crop, i.e. one to six leaf cereals.

(10) Also referred to as chloronicotinyls.

(11) Also referred to as phenylpyrazoles.

(12) Reference volume of the Agrochemical Service - Key agrochemical product groups, Agrochemical Service, update of the products section, November 2001.

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

(14) Confidential information concerning Clothianidin.

(15) Guidelines for the efficacy evaluation of plant protection, PP 1/213(1) - Resistance risk analysis.

(16) Confidential information of ACS.

(17) Knockdown agents generally have effect in seconds.

(18) The parties provided on 18 January 2002 corrected sales figures for ACS. These figures show that ACS sales in this market in 1999 were EUR [...] instead of EUR [...], as indicated in the market share information submitted in the notification. The parties have not, however, adjusted their estimate of the total market size, which would explain the very high ACS market share in 1999.

(19) In this respect, the Commission notes that [...].

(20) [...].

(21) [...].

(22) Source: Parties' estimation.

(23) Phillips McDougall - AgriService, Products section 2000, p. 53.

(24) Wood Mackenzie, Agrochemical service, Market studies: Crops, 2001, p. 156.

(25) Phillips McDougall - AgriService, Products section 2000, p. 83.

(26) [...].

(27) [...].

(28) Flufenacet in cereals in Europe, chart 7 submission by Bayer dated 10 January 2002 in response to the Commission questionnaire of 14 December 2001.

(29) MaisTer, Technisches Produktprofil, Aventis Crop Science Deutschland, 2001, p. 15.

(30) Phillips McDougall - AgriService, Products section 2000, pp. 51, 75 and 103.

(31) Business secrets: deleted confidential information based on competitors' sales data.

(32) However, on the other hand, it does seem that Syngenta's strobilurin product Amistar (Axozystrobin) is registered for use on cereals, as well as for rice and sugar beet. [Business secrets: Deleted confidential Syngenta information.]

(33) Business secrets: deleted confidential information based on competitors' sales data.

(34) This number was, however, given before the correction of Scala sales referred to above.

(35) [Business secrets: Deleted confidential information about competitors' product introductions.]

(36) Business secrets: deleted confidential information based on competitors' sales data.

(37) [Business secrets: Deleted confidential information about competitors' product introductions.]

(38) Business secrets: deleted confidential information based on competitors' sales data.

(39) [Business secrets: Deleted confidential information about competitors' product introductions.]

(40) Business secrets: deleted confidential information based on competitors' sales data.

(41) [Business secrets: Deleted confidential information about competitors' product introductions.]

(42) [Business secrets: Deleted confidential information about competitors' product introductions.]

(43) Business secrets: deleted confidential information based on competitors' sales data.

(44) Business secrets: deleted confidential information based on competitors' sales data.

(45) Business secrets: deleted confidential information based on competitors' sales data.

(46) Business secrets: deleted confidential information based on competitors' sales data.

(47) Business secrets: deleted confidential information based on competitors' sales data.

(48) Business secrets: deleted confidential information based on competitors' sales data.

(49) [Business secrets: Deleted confidential information about competitors' product introductions.]

(50) Business secrets: deleted confidential information based on competitors' sales data.

(51) [Business secrets: Deleted confidential information about competitors' product introductions.]

(52) [Business secrets: Deleted confidential information about competitors' product introductions.]

(53) [Business secrets: Deleted confidential information about competitors' product introductions.]

(54) The parties argue that they have no triazole named BAY 14120 under development and that the statement probably refers to JAU 6476.

(55) Business secrets: Deleted confidential information based on competitors' sales data.

(56) Business secrets: deleted confidential information based on competitors' sales data.

(57) Business secrets: deleted confidential information based on competitors' sales data.

(58) Business secrets: deleted confidential information based on competitors' sales data.

(59) Business secrets: deleted confidential information based on competitors' sales data.

(60) Business secrets: deleted confidential information based on competitors' sales data.

(61) Business secrets: deleted confidential information based on competitors' sales data.

(62) Confidential information concerning the product properties of Thiamethoxam.

(63) The allocation of the sales derived from the exports of Fipronil from the Netherlands to France would not materially affect the sales and market share figures provided by the parties in the French market.

(64) Market data submitted by the parties suggests that Bayer sells also Methiocarb under the brand Mesurol FS 500 in France. The parties have argued, however, that Bayer's sales of Mesurol are exclusively derived from the export of this product since it is not registered in France for corn seed treatment.

(65) Business secrets: Deleted confidential information about competitors' product introductions.

(66) Commission decision of 17 July 1996 in Case IV/M.737 - Ciba-Geigy/Sandoz (OJ L 201, 29.7.1997, p. 1) paragraph 229.

(67) Business secrets: deleted confidential information based on competitors' sales data.

(68) Business secrets: deleted confidential information based on competitors' sales data.

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