# C_2011189EN.01003101.xml

| 29.6.2011 | EN | Official Journal of the European Union | C 189/31 |
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29.6.2011

EN

Official Journal of the European Union

C 189/31

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Summary of Commission Decision

of 3 May 2011

waiving certain commitments in Decision 98/526/EC in Case IV/M.950 — Hoffmann-La Roche/Boehringer Mannheim with respect to the DNA probes market

(Case IV/M.950 — Hoffmann-La Roche/Boehringer Mannheim)

(notified under document C(2011) 2981 final)

(Only the English version is authentic)

(Text with EEA relevance)

2011/C 189/11

On 3 May 2011, the Commission adopted a Decision in a merger case under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings
   (1), and in particular Article 8(2) of that Regulation. A non-confidential version of the full Decision can be found in the authentic language of the case and in the working languages of the Commission on the website of the Directorate-General for Competition, at the following address:

On 3 May 2011, the Commission adopted a Decision in a merger case under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings

1

and in particular Article 8(2) of that Regulation. A non-confidential version of the full Decision can be found in the authentic language of the case and in the working languages of the Commission on the website of the Directorate-General for Competition, at the following address:

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

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

I.   EXPLANATORY MEMORANDUM

EXPLANATORY MEMORANDUM

| (1) | On 4 February 1998, the Commission adopted a Decision in Case IV/M.950 Hoffmann-La Roche/Boehringer Mannheim (‘the Decision’) declaring the operation by which the undertaking Hoffmann-La Roche Ltd (‘Roche’, Switzerland) acquired, within the meaning of Article 3(1)(b) of Council Regulation (EEC) No 4064/89, control of the undertaking Boehringer Mannheim (‘BM’, Germany) compatible with the common market, subject to conditions and obligations. |
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(1)

On 4 February 1998, the Commission adopted a Decision in Case IV/M.950 Hoffmann-La Roche/Boehringer Mannheim (‘the Decision’) declaring the operation by which the undertaking Hoffmann-La Roche Ltd (‘Roche’, Switzerland) acquired, within the meaning of Article 3(1)(b) of Council Regulation (EEC) No 4064/89, control of the undertaking Boehringer Mannheim (‘BM’, Germany) compatible with the common market, subject to conditions and obligations.

| (2) | The Decision stated that Roche had a dominant position in the EEA-wide market for DNA probes that could be strengthened as a result of the acquisition of control over BM given that BM was a potential entrant having invested substantial efforts in positioning itself on the DNA probes market. Roche submitted commitments made binding in the Decision. |
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(2)

The Decision stated that Roche had a dominant position in the EEA-wide market for DNA probes that could be strengthened as a result of the acquisition of control over BM given that BM was a potential entrant having invested substantial efforts in positioning itself on the DNA probes market. Roche submitted commitments made binding in the Decision.

| (3) | Part of these commitments consisted in Roche granting access to its polymerase chain reaction (‘PCR’) technology to all interested market participants on a non-discriminatory basis under the terms of ‘broad’ and ‘targeted’ licences. |
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(3)

Part of these commitments consisted in Roche granting access to its polymerase chain reaction (‘PCR’) technology to all interested market participants on a non-discriminatory basis under the terms of ‘broad’ and ‘targeted’ licences.

| (4) | The commitments in the Decision did not include any time framework, deadline or review clause. |
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(4)

The commitments in the Decision did not include any time framework, deadline or review clause.

| (5) | On 24 September 2008, Roche addressed to DG COMP a request for the waiver of the commitments. |
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(5)

On 24 September 2008, Roche addressed to DG COMP a request for the waiver of the commitments.

| (6) | DG COMP's investigation shows that since the adoption of the Decision Roche has granted 35 PCR licences under the scope of the commitments, including ‘broad licences’ granted to some of its main competitors. This has led to the increase in the number of significant players active on the EEA DNA probes market. In addition, most of the 119 PCR-related patents, to which Roche undertook to grant access on the basis of the commitments (including the foundational patents), have expired. |
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(6)

DG COMP's investigation shows that since the adoption of the Decision Roche has granted 35 PCR licences under the scope of the commitments, including ‘broad licences’ granted to some of its main competitors. This has led to the increase in the number of significant players active on the EEA DNA probes market. In addition, most of the 119 PCR-related patents, to which Roche undertook to grant access on the basis of the commitments (including the foundational patents), have expired.

| (7) | Interested third parties have been consulted. The results of the consultation show that the waiver of the commitments cannot affect their effectiveness as they have fulfilled their role (i.e. compensate the lost of potential competition resulting from the acquisition of BM by Roche), they do not longer reflect the market needs and their waiver has a neutral effect on the rights of third parties. |
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(7)

Interested third parties have been consulted. The results of the consultation show that the waiver of the commitments cannot affect their effectiveness as they have fulfilled their role (i.e. compensate the lost of potential competition resulting from the acquisition of BM by Roche), they do not longer reflect the market needs and their waiver has a neutral effect on the rights of third parties.

| (8) | Furthermore, Roche has recently granted a number of licences outside the commitments and has thereby demonstrated that it is prepared to grant licences absent the obligation to do so. |
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(8)

Furthermore, Roche has recently granted a number of licences outside the commitments and has thereby demonstrated that it is prepared to grant licences absent the obligation to do so.

II.   CONCLUSION

CONCLUSION

In view of the above the draft decision waives the commitments relating to DNA probes set out in Part VI-B of Decision 98/526/EC with effect from the date of the adoption of the Decision.

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(1)  OJ L 24, 29.1.2004, p. 1.

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