Judgments nº T-282/02 of Court of First Instance of the European Communities, February 23, 2006

• Resolution Date: February 23, 2006
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-282/02

(Competition – Control of concentration of undertakings – Articles 2, 3 and 8 of Regulation (EEC) No 4064/89 − Concept of concentration – Creation of a dominant position − Authorisation subject to compliance with certain commitments – Principle of proportionality)

In Case T-282/02,

Cementbouw Handel & Industrie BV, established in Le Cruquius (Netherlands), represented by W. Knibbeler, O. Brouwer and P. Kreijger, lawyers,

applicant,

v

Commission of the European Communities, represented initially by A. Nijenhuis, K. Wiedner and W. Mölls, and subsequently by A. Nijenhuis, É. Gippini Fournier and A. Whelan, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for annulment of Commission Decision 2003/756/EC of 26 June 2002, relating to a procedure pursuant to Council Regulation (EEC) No 4064/89, declaring a merger to be compatible with the common market and the EEA Agreement (Case COMP/M.2650 − Haniel/Cementbouw/JV (CVK)) (OJ 2003 L 282, p. 1, corrigendum published in OJ 2003 L 285, p. 52),

THE COURT OF FIRST INSTANCEOF THE EUROPEAN COMMUNITIES (Fourth Chamber, Extended Composition),

composed of H. Legal, President, P. Lindh, P. Mengozzi, I. Wiszniewska-Białecka and V. Vadapalas, Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 6 July 2005,

gives the following

Judgment

Background

1 On 24 January 2002 Franz Haniel & Cie GmbH (‘Haniel’) and the applicant notified a concentration to the Commission pursuant to Article 4 of Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1, republished, after rectification, in OJ 1990 L 257, p. 13), as amended by Council Regulation (EC) No 1310/97 of 30 June 1997 (OJ 1997 L 180, p. 1). According to the notification, in 1999 Haniel and the applicant acquired joint control, for the purposes of Article 3(1)(b) of Regulation No 4064/89, of the Netherlands undertaking Coöperatieve Verkoop- en Produktievereniging van Kalkzandsteenproducenten (‘CVK’) and its 11 member undertakings by means of an agreement and the purchase of shares held by the German company RAG AG (‘RAG’).

2 Haniel is a diversified German holding company active in the building materials sector where it produces and sells wall-building materials, such as sand-lime bricks, aerated concrete and ready-mixed concrete. Its activities are mainly in Germany. As regards the Netherlands, before the concentration took place Haniel held shares in several other undertakings which produced sand-lime bricks and were members of CVK.

3 The applicant, which was previously part of the Netherlands group NBM Amstelland BV, is active in the Netherlands in the building materials market and, more generally, the construction, logistics and raw materials supply markets. At the date of adoption of Commission Decision 2003/756/EC of 26 June 2002, relating to a procedure pursuant to Council Regulation (EEC) No 4064/89, declaring a merger to be compatible with the common market and the EEA Agreement (Case COMP/M.2650 − Haniel/Cementbouw/JV (CVK)) (‘the contested decision’), the applicant was owned by CVC Capital Partners Group Ltd, an investment group.

4 CVK has been in existence since 1947 and was initially responsible for selling the output of its member undertakings, the Netherlands producers of sand-lime bricks. In 1989 it was transformed into a Netherlands-law cooperative in order to improve cooperation between its members.

5 Before the concentration, five of the eleven member undertakings of CVK – Kalkzandsteenfabriek De Hazelaar BV (‘De Hazelaar’), Kalkzandsteenindustrie Loevestein BV (‘Loevestein’), Steenabriek Boudewijn BV (‘Boudewijn’), Kalkzandsteenfabriek Hoogdonk BV (‘Hoogdonk’) and Kalkzandsteenfabriek Rijsbergen BV (‘Rijsbergen’) – were subsidiaries of Haniel. Three brickworks – Kalkzandsteenfabriek Harderwijk BV (‘Harderwijk’), Kalkzandsteenfabriek Roelfsema BV (‘Roelfsema’) and Kalkzandsteenfabriek Bergumermeer BV (‘Bergumermeer’) – were subsidiaries of the applicant, while two producers – Anker Kalkzandsteenfabriek BV (‘Anker’) and Vogelenzang Fabriek van Bouwmaterialen BV (‘Vogelenzang’) were subsidiaries of RAG. Finally, one producer, Van Herwaarden Hillegom BV (‘Van Herwaarden’), was owned jointly by Haniel ([confidential]%), (1) the applicant ([confidential]%) and RAG ([confidential]%).

6 In 1998 the Nederlandse Mededingingsautoriteit, the Netherlands competition authority (‘the NMa’), was notified of a proposed concentration whereby CVK was to acquire control of its member undertakings. Control was to be transferred in the context of a pooling agreement and by amending CVK’s articles. On 23 April 1998 the NMa decided to open the ‘second phase’ procedure. By decision of 20 October 1998, the NMa closed the second phase procedure and authorised the proposed concentration.

7 Before the transaction was carried out, RAG decided to sell its shares in the member undertakings of CVK to Haniel and the applicant. In March 1999 the parties informed the NMa of their intentions. By letter of 26 March 1999 the NMa informed the parties that the proposed transfer would not constitute a concentration within the meaning of Article 27 of the wet van 22 mei 1997 houdende nieuwe regels omtrent de economische mededinging (Medingingswet) (Law of 22 May 1997 laying down new rules on economic competition) (Stb. 1997, No 242), provided that the transaction authorised by the decision of 20 October 1998 was completed no later than the time of the transfer.

8 On 9 August 1999 CVK and its member undertakings concluded the pooling agreement referred to in paragraph 6 above. CVK’s articles were amended on the same date to take account of the provisions of the pooling agreement (these two transactions are designated below as constituting ‘the first group of transactions’). Also on the same date, RAG transferred its shares in three of the member undertakings of CVK (Anker, Vogelenzang and Van Herwaarden) to Haniel and the applicant (‘the RAG transaction’), and Haniel and the applicant concluded a cooperation agreement governing their cooperation within CVK (these two transactions, taken together, are designated below as ‘the second group of transactions’).

9 The Commission became aware of the concentration of 9 August 1999 when it examined two other concentrations notified by Haniel (Cases COMP/M.2495 – Haniel/Fels and COMP/M.2568 – Haniel/Ytong) and, by letter of 22 October 2001, it informed the applicant and the other participating undertakings that the transaction must be notified to it pursuant to Article 4 of Regulation No 4064/89.

10 As indicated in paragraph 1 above, Haniel and the applicant notified the concentration pursuant to Article 4 of Regulation No 4064/89 on 24 January 2002.

11 On 25 February 2002 the Commission adopted a decision under Article 6(1)(c) of Regulation No 4064/89, in which it found that the notified concentration raised serious doubts as to its compatibility with the common market and with the Agreement on the European Economic Area (‘the EEA Agreement’).

12 On 25 April 2002 the Commission sent a statement of objections to the notifying parties. The applicant responded by letter of 13 May 2002.

13 On 16 May 2002 the Commission heard the parties concerned.

14 Following the submission of a first set of draft commitments on 28 May 2002, which the Commission regarded as insufficient to resolve the competition problem which it had identified, Haniel and the applicant submitted final commitments on 5 June 2002.

15 On 26 June 2002 the Commission adopted the contested decision, whereby it considered that the notified concentration was compatible with the common market and the EEA Agreement (Article 1 of the contested decision), subject to the condition that the commitments set out in points 27, 28, 32 to 35 and 40 of the annex to the contested decision were complied with in full by Haniel and the applicant (Article 2 of the contested decision) and that the other commitments set out in the Annex were complied with in full (Article 3 of the contested decision). The commitments referred to in Article 2 of the contested decision include, in particular, the dissolution of CVK within a period of [confidential] of the adoption of the contested decision. The contested decision, omitting the confidential data, was published in the Official Journal of the European Union of 30 October 2003 (OJ 2003 L 282, p. 1, corrigendum published in OJ 2003 L 285, p. 52).

Procedure and forms of order sought by the parties

16 By application lodged at the Registry of the Court of First Instance on 11 September 2002, the applicant brought the present action under Article 230 EC.

17 In application of Article 14 of the Rules of Procedure of the Court of First Instance, the Court, after hearing the parties in accordance with Article 51 of the Rules of Procedure, decided to refer the case to a Chamber of extended composition.

18 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Fourth Chamber, Extended Composition) decided to open the oral procedure and, by way of measures of organisation of procedure, requested the parties to answer a number of questions in writing and to produce certain documents. The parties complied with those requests within the prescribed period.

19 The parties presented oral argument and their answers to the questions put by the Court at the hearing on 6 July 2005.

20 The applicant claims that the Court should:

– annul the contested decision;

– order the Commission to pay the costs.

21 The Commission contends that the Court should:

– dismiss the application;

– order the applicant to pay the costs.

Law

22 In essence, the applicant raises three pleas in support of its application. The first plea alleges that the Commission was not competent to examine the transactions in question under Article 3 of Regulation No 4064/89. The second plea alleges...