Article 2
This Decision is addressed to the Federal Republic of Germany. Done at Brussels, 8 May 2001. For the Commission Mario Monti Member of the Commission (1) OJ L 83, 27.3.1999, p. 1. (2) OJ C 110, 15.4.2000, p. 2. (3) See footnote 2. (4) Part of core business according to Holzmann's definition. (5) There were no European or Community-wide figures available on competitors' construction activities or turnover; however, Holzmann claims that it is much lower in the rankings if European or Community-wide construction activities or turnover are taken. (6) Judgment in Joined Cases C-278 to 280/92 Spain v Commission [1994] ECR I-4103. (7) OJ C 288, 9.10.1999, p. 2. (8) Letters from Germany of 2 February 2001 and 14 March 2001. (9) Letter from Germany of 4 April 2001. (10) Letter from Germany of 4 April 2001. (11) These indications are based on analyses in the field of merger control. Germany referred to the decision (1995) of the Federal Cartel Office concerning the merger once planned between Holzmann and Hochtief, see Wirtschaft und Wettbewerb 1995, p. 515; see also merger Case Bank Austria/Creditanstalt (OJ C 160, 27.5.1997, p. 4, points 84, 85 and 86). (12) The estimate included certain risk probabilities for different categories of subcontractor, depending on their turnover with Holzmann (in absolute figures and as a proportion). (13) According to recent information submitted on 15 March 2001, the consortium credit I was finally to be reimbursed on 16 March 2001 owing to further delays in the sale of the assets. (14) Commission communication to the Member States (OJ C 307, 13.11.1993, p. 3, point 41). (15) Commission notice on the application of Articles 87 and 88 of the EC Treaty to State aid in the form of guarantees (OJ C 71, 11.3.2000, p. 14). (16) Cf. point 21 and footnote 7. (17) Statistical results for 2000 were not yet available, but no one doubts that there was a serious decline in investment in 2000 (according to an estimate in weekly report 01/2001 of the German Business Institute (DIW), Table 7, investment fell by 3 %). (18) See, for example, estimates of 0,2 % in the DIW weekly report 43/1999 (Table 2.2). (19) Holzmann itself announced on 14 March 2001 that the group had an estimated deficit of roughly EUR 50 million for 2000, caused mainly by the continuing recession in the German construction industry, delays in the sale of assets and unexpected costs arising from the restructuring of some German subsidiaries. (20) The Commission had to base its assessment on the business plan and the monthly reports drawn up for the creditor banks. The data included in those documents seem to derive from several sources within the group and therefore need to be treated with some caution. The resources of the Commission even with the help of consultants did not allow for a proper audit to be carried out. The audited annual figures for 2000 were not yet available and even if they had been, the real operational results depending on the level of created reserves and on the accounting methods might not have been known. (21) The market shares may be underestimated, in particular as regards large-scale projects, owing to the broad definition of the core business. However, no better data or estimates were available. In an earlier submission, Germany referred to the decision of the Federal Cartel Office (see footnote 8), according to which Holzmann's market share in the large-scale projects segment in the early 1990s was estimated as being significantly higher (around 20 %), but declared that, even taking that calculation as a basis, its share had meanwhile dropped to below 15 %, if not less. However, in that context it should be noted that the Federal Cartel Office included a rather small number of suppliers when calculating market shares, which was one of the reasons for the annulment of the decision by the Court of Appeals (Kammergericht) in 1998 (Kart 3/95, Wirtschaft und Wettbewerb 5/1998).