-0JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
5 October 2020 (*)(1)
(Competition – Concentrations – Market for grey cement in Croatia – Decision declaring the concentration incompatible with the internal market and the EEA Agreement – Undertakings concerned – Relevant market – Substantial part of the internal market – Assessment of the effects of the transaction on competition – Commitments – Rights of the defence – Partial referral to the national authorities)
In Case T‑380/17,
HeidelbergCement AG, established in Heidelberg (Germany),
Schwenk Zement KG, established in Ulm (Germany),
represented by U. Denzel, C. von Köckritz, P. Pichler, U. Soltész, M. Raible and G. Wecker, lawyers,
applicants,
supported by
Duna-Dráva Cement Kft., established in Vác (Hungary), represented by C. Bán and Á. Papp, lawyers,
intervener,
v
European Commission, represented by A. Dawes, H. Leupold and T. Vecchi, acting as Agents,
defendant,
APPLICATION based on Article 263 TFEU seeking annulment of Commission decision C(2017) 1650 final of 5 April 2017 declaring a concentration incompatible with the internal market and the EEA Agreement (Case M.7878 – HeidelbergCement/Schwenk/Cemex Hungary/Cemex Croatia),
THE GENERAL COURT (Eighth Chamber),
composed of A.M. Collins, President, R. Barents (Rapporteur) and J. Passer, Judges,
Registrar: E. Artemiou, Administrator,
having regard to the written part of the procedure and further to the hearing on 17 October 2019,
gives the following
Judgment
I.      Background to the dispute
A.      The entities concerned
1        The applicants, HeidelbergCement AG and Schwenk Zement KG (‘Schwenk’), are companies operating in the building materials sector.
2        HeidelbergCement is a German producer and distributor of building materials including cement, clinker, ready-mix concrete, aggregates and other related products. It carries out commercial activities globally and has several subsidiaries in the territory of the European Economic Area (EEA).
3        Schwenk is a family held limited partnership active in the production of cement, clinker, ready-mix concrete, concrete products and related services, as well as aggregates. It is active primarily in Germany, but also in other parts of Europe.
4        The intervener, Duna-Dráva Cement Kft. (‘DDC’), is a full-function joint venture company equally owned and jointly controlled by HeidelbergCement and Schwenk. It is active, inter alia, in Hungary, Croatia and Bosnia and Herzegovina, where it operates a cement plant located in Kakanj (Bosnia and Herzegovina).
5        Cemex Hungária Építöanyagok Kft. (‘Cemex Hungary’) is a limited liability company under Hungarian law which is mainly active in the production and sale of ready-mix concrete, paving stones and aggregates which are sold only in Hungary. Cemex Hungary is not active in the production and sale of cement.
6        Cemex Hrvatska d.d. (‘Cemex Croatia’) produces and distributes grey cement, ready-mix concrete, clinker and aggregates. It is present mainly in the Western Balkans region. The company operates seven ready-mix concrete plants – five in Croatia and two in Bosnia and Herzegovina – and two aggregates quarries in Croatia. It also owns three cement plants located in Split (Croatia) (together, ‘Cemex’s plant in Split’) and operates four sales terminals in Croatia.
7        Cemex S.A. B. de C.V (together with all the other entities of the group, ‘Cemex’) is a global player in the building materials market, with its headquarters in Mexico City (Mexico).
B.      Facts prior to the administrative procedure
8        In April 2015, Cemex initiated a process for the sale of (i) its subsidiary Cemex Austria AG, which held 100% of the shares in Cemex Hungary, and (ii) its subsidiary Cemex Croatia.
9        On 6 May 2015, the kick-off meeting was held for ‘project Cerberus’, which is the name given by the applicants and DDC to the proposed acquisition of the assets of Cemex Hungary and Cemex Croatia (together, ‘the target companies’).
10      On 8 June 2015, HeidelbergCement submitted the indicative offer for the acquisition of the target companies.
11      On 27 July 2015, Rohrdorfer Baustoffe Austria AG (‘Rohrdorfer’) and DDC concluded a framework agreement under which:
–        DDC and Cemex would enter into a share purchase agreement for the acquisition of Cemex Croatia;
–        Rohrdorfer and Cemex would enter into a share purchase agreement for the acquisition of Cemex Austria;
–        immediately after the closing of Rohrdorfer’s acquisition of Cemex Austria, DDC would enter into a share purchase agreement for the acquisition of Cemex Hungary.
12      On the same day, HeidelbergCement submitted to Cemex on behalf of DDC and Rohrdorfer a joint bid, which was retained as the preferred bid.
13      On 11 August 2015, DDC and Cemex entered into a share purchase agreement pursuant to which DDC would acquire 100% of the shares in Cemex Croatia. On the same day, Rohrdorfer entered into a similar agreement for the acquisition of Cemex Austria.
14      On 20 August 2015, DDC contacted the European Commission’s Directorate-General (DG) for Competition (‘DG Competition’) in order to obtain informal guidance relating to the ‘undertakings concerned’ by the acquisition of the target companies, for the purposes of Article 1 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1).
15      The acquisition of Cemex Austria and its subsidiary Cemex Hungary by Rohrdorfer was completed on 2 November 2015, after having been authorised by the Austrian Federal Competition Authority. On the same day and in accordance with the framework agreement between DDC and Rohrdorfer, DDC and Cemex Austria entered into a share purchase agreement for the acquisition of Cemex Hungary by DDC.
16      By letter dated 13 November 2015, DG Competition informed DDC and HeidelbergCement that it considered the acquisition of the target companies to constitute a concentration, within the meaning of Article 3 of Regulation No 139/2004, which had to be notified by the applicants as undertakings concerned. It was stated that this letter did not constitute a Commission decision. It reflected only the opinion of DG Competition’s merger control services, based on information that had been provided to them, and was not binding on the Commission.
17      Following a request made to that effect by the applicants, the Commission decided, by decision of 22 June 2016, to refer the assessment of the effects of the transaction on the relevant markets in Hungary to be examined by the Hungarian Competition Authority (‘the partial referral decision’).
C.      Administrative procedure
18      On 5 September 2016, the applicants notified the Commission, in accordance with Article 4(1) of Regulation No 139/2004, of a proposed concentration consisting of the acquisition, through DDC, of the joint control by the applicants of all of the target companies owned by Cemex by way of purchase of shares (‘the transaction’).
19      By decision of 10 October 2016, the Commission raised serious doubts as to the compatibility of the proposed concentration with the internal market and decided to initiate an in-depth investigation procedure, in accordance with Article 6(1)(c) of Regulation No 139/2004 (‘the decision to initiate an in-depth investigation procedure’).
20      On 12 December 2016, the Commission issued a statement of objections (‘the statement of objections’), in which it reached the preliminary conclusion that the transaction would significantly impede effective competition in a substantial part of the internal market.
21      On 21 and 22 December 2016, the applicants brought separate actions for annulment of the decision to initiate an in-depth investigation procedure, which were held to be inadmissible (orders of 27 November 2017, HeidelbergCement v Commission, T‑902/16, not published, EU:T:2017:846, and of 27 November 2017, Schwenk Zement v Commission, T‑907/16, not published, EU:T:2017:858).
22      On 25 January 2017, the Commission issued a letter of facts (‘the letter of facts’) informing the applicants of the presence of pre-existing evidence which had not been relied on in the statement of objections, but which, on further analysis, could be relevant to support the Commission’s preliminary conclusions. The Commission also informed the applicants of the existence of certain additional evidence brought to its attention after the adoption of the statement of objections.
23      A hearing took place on 11 January 2017.
24      On 26 January 2017, the applicants offered commitments to the Commission.
D.      Contested decision
25      By Decision C(2017) 1650 final of 5 April 2017 (Case M.7878 – HeidelbergCement/Schwenk/Cemex Hungary/Cemex Croatia) (‘the contested decision’), the Commission declared the transaction to be incompatible with the internal market and the EEA Agreement.
26      In the contested decision, the Commission set out considerations relating, inter alia, to the Community dimension of the transaction, the relevant market, the effects of the concentration in terms of competition and the commitments of the merging parties.
27      In that regard, for the purposes of the contested decision, HeidelbergCement, Schwenk, DDC, Cemex Hungary and Cemex Croatia are jointly referred to as ‘the Parties’.
1.      The Community dimension
28      The Commission considered, in recital 58 of the contested decision, that the applicants were, in view of their significant involvement in the initiation, organisation and financing of the transaction, the real players behind that transaction and thus the ‘undertakings concerned’.
29      In recital 116 of the contested decision, the Commission found that the concentration had a Community dimension since the turnover thresholds set out in Article 1(2) of Regulation No 139/2004 had been achieved. In particular, it is apparent from the contested decision that ‘at least two’ of the undertakings concerned, those being the applicants, had an individual turnover in the European Union of more than EUR 250 million, even if the target companies remained below those thresholds.
2.      The relevant markets
(a)    The product market
30      In recital 144 of the contested decision, the Commission considered that the exact sub-segmentation of the grey cement market (bagged versus bulk cement, different cement types and grades) could be left open since the transaction would lead to a significant impediment of effective competition under all product market definitions.
(b)    The geographic market
31      In recital 160 of the contested decision, the Commission reached the conclusion that it could be left open whether the relevant geographic market should be defined as circular catchment areas of 250 km around ‘the Parties’’ plants, or modified 250 km catchment areas around ‘the Parties’’ plants, given that the transaction would significantly impede effective competition regardless of the market definition used.
32      The Commission also concluded, in recital 161 of the contested decision, that it was not necessary to determine whether those two possible definitions of the geographic market should include countries outside the EEA (in particular Bosnia and Herzegovina), as, in any event, the competitive assessment focused only on the EEA.
3.      The effects of the concentration on competition
33      The Commission reached the conclusion, in recital 222 of the contested decision, that the transaction would significantly impede effective competition through non-coordinated effects, which could amount in particular to the creation of a dominant position in the grey cement market in the area around Cemex’s plant in Split. The two possible geographic market definitions included an overlap with the catchment area of 250 km around DDC’s plant in Kakanj.
34      According to recital 223 of the contested decision, that conclusion is based on the following elements:
–        the combined market shares of ‘the Parties’ and the market share increments in each alternative catchment area will be high [the combined market shares exceeding [confidential (2)]%, or even [confidential]% depending on the definition of the geographic market];
–        ‘the Parties’ are close competitors;
–        DDC and, to a more limited degree, Italcementi (‘ITC’), an Italian cement producer acquired by HeidelbergCement in 2015, is currently pursuing a [confidential] strategy for Croatia, and [confidential] whereas other producers, [confidential], are reducing output;
–        domestic suppliers and importers will not sufficiently constrain ‘the Parties’;
–        there are no potential competitors whose market entry would be sufficiently likely, timely and sufficient;
–        the transaction is likely to result in quantifiable price increases.
35      The Commission also found, in recital 480 of the contested decision, that that significant impediment to competition affected a substantial part of the internal market, according to the two possible definitions of the geographic market, because of its size in terms of cement demand, the population living in it and the exports from those markets into other EEA countries.
4.      The commitments
36      In recital 509 of the contested decision, the Commission concluded that the commitments did not eliminate the competition concerns entirely and were therefore insufficient to render the transaction compatible with the internal market.
II.    Procedure and forms of order sought
37      By application lodged at the Court Registry on 16 June 2017, the applicants brought the present action for annulment of the contested decision.
38      By document lodged at the Court Registry on 11 September 2017, DDC requested leave to intervene in the dispute in support of the form of order sought by the applicants.
39      By letters from the Court Registry of 12 September 2017, the applicants and the Commission were requested to submit their observations, by 5 October 2017 at the latest, on the application for leave to intervene.
40      The Commission lodged its defence on 25 September 2017.
41      The applicants submitted their observations on the application for leave to intervene on 4 October 2017.
42      By letter lodged at the Court Registry on the same day, the applicants, in response to the application for leave to intervene, proposed that both they and the representatives of DDC enter into confidentiality commitments concerning access to the pleadings lodged before the Court. In the event that the Court did not agree with that option, the applicants drew the Court’s attention to the fact that they intended to request the confidential treatment, vis-à-vis DDC, of certain data and information contained, in particular, in the annexes to the application.
43      The Commission lodged its observations on the request for leave to intervene on 5 October 2017.
44      By document lodged at the Court Registry on the same day, the Commission requested the confidential treatment, vis-à-vis DDC, of certain data and information contained in the defence and its annexes.
45      On 9 October 2017, the Court Registry set a deadline for the applicants to submit a request for confidential treatment of the information contained in the application and its annexes.
46      By letter of 13 November 2017, DDC informed the Court that it was waiving its right to receive the annexes to the application, either as a confidential or non-confidential version, since it had the information necessary to exercise its rights following the publication of the non-confidential version of the contested decision on the Commission’s website.
47      By document of 15 November 2017, the applicants lodged at the Court Registry a non-confidential version, vis-à-vis DDC, of the application and its annexes, including Annex A.1, namely the contested decision, without stating the reasons for the confidential nature of the annexes in respect of which protection was sought.
48      On 23 November 2017, the applicants lodged the reply.
49      By document of 11 December 2017, the Commission lodged a consolidated non-confidential version of the application and its annexes, by which it approved the request for confidentiality of the application and its annexes lodged by the applicants, and extended its scope to other information. It also lodged a non-confidential version of the reply and its annexes.
50      By letter lodged at the Court Registry on 2 January 2018, the applicants confirmed that the consolidated non-confidential version of the application lodged by the Commission also covered their request for confidentiality.
51      On 8 January 2018, the Commission lodged a rejoinder at the Court Registry and requested the confidential treatment, vis-à-vis DDC, of certain data and information contained in that pleading and its annexes.
52      By order of 7 February 2018, HeidelbergCement and Schwenk Zement v Commission (T‑380/17, not published), the President of the Eighth Chamber of the General Court (former composition) granted DDC leave to intervene in support of the form of order sought by the applicants, and reserved the decision on the merits of the request for confidentiality.
53      By document lodged at the Court Registry on 19 March 2018, DDC lodged its statement in intervention.
54      The Commission and the applicants submitted their observations on the statement in intervention on 26 and 27 April 2018, respectively.
55      On 13 June 2018, by way of measures of organisation of procedure provided for in Article 89(3)(d) of the Rules of Procedure of the General Court, the Court requested that the applicants produce a legible version of the confidential version of the contested decision. The applicants were also informed that that version of the contested decision would not be sent to DDC.
56      The applicants complied with that request within the period prescribed.
57      On 6 February 2019, pursuant to Article 89(3)(d) of the Rules of Procedure, the Court requested the Commission to produce the non-confidential version of the contested decision published on its website and referred to in DDC’s letter to the Court dated 13 November 2017.
58      The Commission produced the requested document within the period prescribed. It also informed the Court that it was in the final stages of preparing a more complete non-confidential version of the contested decision, which it would soon publish on its website, and that that document, once published, would be communicated to the Court.
59      On 8 March 2019, pursuant to Article 89(3)(a) of the Rules of Procedure, the Court requested that the parties reply to written questions. The parties complied with that request within the period prescribed. On that occasion, the Commission requested the confidential treatment, vis-à-vis DDC, of certain data and information contained in its replies and lodged non-confidential versions of those replies.
60      On 8 March 2019, pursuant to Article 89(3)(a) of the Rules of Procedure, the applicants were also asked to state whether they were maintaining their request for confidential treatment of the application and its annexes, vis-à-vis DDC, in the light, in particular, of the publication of a non-confidential version of the contested decision on the Commission’s website and, if so, to state in relation to each redacted element the reasons for their request for confidential treatment. The applicants were invited, as appropriate, to produce a new non-confidential version of the application and its annexes, drawn up by common agreement with the Commission.
61      On 22 March 2019, the Commission published on its website and forwarded to the Court the more complete non-confidential version of the contested decision (‘the public version of the contested decision’), in addition to its response to the measure of organisation of procedure referred to in paragraph 57 above.
62      On 2 April 2019, the applicants requested an initial extension of the time limit prescribed, in the context of the measure of organisation of procedure referred to in paragraph 60 above, for lodging the new, joint non-confidential version of the application and its annexes. On 4 April 2019, that request was granted.
63      By letter lodged at the Court Registry on 17 April 2019, the Commission confirmed the absence of confidential data, vis-à-vis DDC, in the applicants’ replies to the written questions put to them in the context of the measure of organisation of procedure referred to in paragraph 59 above.
64      On 2 May 2019, the applicants requested a second extension of the time limit prescribed, in the context of the measure of organisation of procedure referred to in paragraph 60 above, for lodging the new, joint non-confidential version of the application and its annexes. On 3 May 2019, that request was granted.
65      On 24 May 2019, the applicants complied with the measure of organisation of procedure referred to in paragraph 60 above. They thus stated, in relation to the information in the application and its annexes redacted at an earlier stage of the procedure, whether, on the basis of the non-confidential version of the contested decision published on 8 March 2019 on the Commission’s website, they were maintaining or withdrawing their requests for confidential treatment vis-à-vis DDC. The applicants also lodged a new, non-confidential version of the application and its annexes and confirmed that that version was common to the applicants and to the Commission.
66      The parties presented oral argument and replied to the Court’s oral questions at the hearing on 17 October 2019.
67      The applicants claim that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
68      The Commission contends that the Court should:
–        dismiss the action in its entirety;
–        order the applicants to pay the costs.
69      DDC claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
III. Law
70      In support of their action, the applicants put forward seven pleas in law. The first plea alleges a lack of jurisdiction on account of there being no Community dimension to the merger. The second plea alleges errors in law and manifest errors of assessment as regards the definition of the relevant geographic market. The third plea alleges that there was no impediment to competition in a substantial part of the internal market. The fourth plea alleges a manifest error of assessment as regards the competitive assessment of the effects of the transaction on the relevant markets. The fifth plea alleges manifest errors of assessment in respect of the proposed remedy. The sixth plea alleges infringement of essential procedural requirements and of the applicants’ fundamental rights. The seventh plea alleges that the Commission did not have jurisdiction to prohibit the part of the transaction relating to the acquisition of Cemex Hungary.
A.      Preliminary considerations
71      Before examining the first plea, it is necessary to revisit the requests for confidentiality submitted by the main parties and to adjudicate on a preliminary argument of DDC.
1.      The requests for confidentiality
72      The applicants and the Commission submitted requests for confidential treatment relating to certain information in the application, the defence, the reply and the rejoinder, as well as certain annexes attached to those procedural documents.
73      In reply to a measure of organisation of procedure, the Commission produced a public version of the contested decision and the main parties withdrew parts of their requests for confidential treatment concerning the application and its annexes.
74      However, although the confidentiality of the procedural documents has not been contested, it must be noted that the requests submitted by the main parties are repeatedly vitiated by material errors. Given the manifest nature of those material errors, it is necessary to refer not to the paragraphs as referred to in the requests but to the paragraphs of the file as identified in the non-confidential version (see, to that effect, order of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 14 and the case-law cited).
75      Next, it should be borne in mind that notwithstanding the absence of a challenge, the Court cannot be prevented from rejecting requests for confidential treatment in so far as they concern data whose public nature is manifestly obvious from the evidence in the file or whose confidential nature becomes manifestly obsolete by the publication of the contested decision or the disclosure of other information in the file (see, to that effect, order of 15 September 2016, Deutsche Telekom v Commission, T‑827/14, not published, EU:T:2016:545, paragraph 46).
76      Thus, in the light of the publication of a non-confidential version of the contested decision on the Commission’s website, certain of the requests for confidential treatment, limited to the data disclosed in the public version of the contested decision, now appear to be devoid of purpose (including that in paragraph 182 of the defence).
77      Moreover, it is not necessary to grant confidential treatment of any kind to the passages redacted in the public version of the contested decision in respect of which confidential treatment was not requested for other parts of the file (including that in footnote 76 of the application).
78      Lastly, certain information was not treated as confidential in the final non-confidential version of the file, with the result that the earlier requests for confidential treatment concerning that same information now appear to be devoid of purpose. The same is true as regards information in respect of which confidential treatment was requested for part of the file but not for other parts (including that in paragraph 268 of the defence and paragraph 82 of the reply).
2.      Preliminary argument of DDC
79      DDC claims that the contested decision infringes its freedom to conduct a business, guaranteed by Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
80      In that regard, it must be borne in mind that, under Article 142(1) of the Rules of Procedure, intervention is to be limited to supporting, in whole or in part, the form of order sought by one of the main parties. In addition, as Article 142(3) of the Rules of Procedure provides, the intervener must accept the case as he or she finds it at the time of his intervention.
81      In accordance with the case-law, those provisions give the intervener the right to set out arguments as well as pleas independently, in so far as they support the form of order sought by one of the main parties and are not entirely unconnected with the issues underlying the dispute, as established by the applicant and defendant, as that would otherwise change the subject matter of the dispute (judgments of 15 June 2005, Regione autonoma della Sardegna v Commission, T‑171/02, EU:T:2005:219, paragraph 152, and of 2 October 2009, Cyprus v Commission, T‑300/05 and T‑316/05, not published, EU:T:2009:380, paragraph 203; see also, to that effect, judgment of 23 February 1961, De Gezamenlijke Steenkolenmijnen in Limburg v High Authority, 30/59, EU:C:1961:2, p. 18).
82      In the present case, the subject matter of the dispute as it is constituted between the applicants and the Commission is the annulment of the contested decision. However, neither the application nor the defence contains arguments concerning a possible infringement of Article 16 of the Charter. The alleged infringement of that article of the Charter was raised for the first time in the statement in intervention.
83      It follows that the line of argument raised by DDC concerning infringement of the freedom to conduct a business is not connected with the subject matter of the dispute as defined by the main parties and alters the context of the present dispute. That line of argument must therefore be rejected as inadmissible.
B.      The first plea, alleging errors in law and manifest errors of assessment as regards the definition of the Community dimension of the merger
1.      Admissibility
(a)    Admissibility of the first plea
84      The Commission contends, in essence, that, if the Court were to declare the cases HeidelbergCement v Commission, T‑902/16, and Schwenk Zement v Commission, T‑907/16, which seek the annulment of the decision to initiate an in-depth investigation procedure, to be admissible, the first plea concerning the absence of a Community dimension to the transaction would have to be declared inadmissible.
85      In that regard, it is sufficient to state that, by the orders of 27 November 2017, HeidelbergCement v Commission (T‑902/16, not published, EU:T:2017:846), and of 27 November 2017, Schwenk Zement v Commission (T‑907/16, not published, EU:T:2017:858), the Court dismissed those actions as inadmissible. Therefore, the Commission’s objection concerning the admissibility of the first plea is devoid of purpose.
(b)    Admissibility of paragraphs 15 to 32 of the reply
86      The Commission claims that the belated challenge by the applicants, at the reply stage, of certain factual elements contained in the contested decision is inadmissible for not having been included in the application.
87      According to settled case-law concerning Article 84(1) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which have come to light in the course of the procedure. However, a plea which constitutes an amplification of a plea made previously, whether directly or by implication, in the original application, and which is closely connected therewith, will be declared admissible. To be regarded as an amplification of a plea or a head of claim previously advanced, a new line of argumentation must, in relation to the pleas or heads of claim initially set out in the application, present a sufficiently close connection with the pleas or heads of claim initially put forward in order to be considered as forming part of the normal evolution of debate in proceedings before the Court (see, to that effect, judgments of 16 November 2011, Groupe Gascogne v Commission, T‑72/06, not published, EU:T:2011:671, paragraphs 23 and 27; of 22 April 2016, Italy and Eurallumina v Commission, T‑60/06 RENV II and T‑62/06 RENV II, EU:T:2016:233, paragraphs 45 and 46; and of 20 November 2017, Petrov and Others v Parliament, T‑452/15, EU:T:2017:822, paragraph 46).
88      In that regard, it is sufficient to state that all the arguments put forward in paragraphs 15 to 32 of the reply seek to challenge the Commission’s conclusion that the parent companies, namely HeidelbergCement and Schwenk, rather than DDC, are the undertakings concerned. Therefore, those arguments build on the first plea and must be found to be admissible.
(c)    Admissibility of paragraphs 23 and 25 of the statement in intervention
89      In the first place, in paragraph 23 of its statement in intervention, DDC refers to various items of additional evidence which it considers demonstrate the following:
–        DDC’s management was deeply involved in the financing workstream (reference to Annexes I.2 to I.6 without further details);
–        DDC was involved in establishing the corporate structure for the transaction (reference to Annex I.7 without further details);
–        the Chief Executive of one of DDC’s subsidiaries participated in a meeting with Cemex on 21 May 2015, during which Cemex gave a presentation for the sale of its Croatian business (reference to Annex I.8 without further details);
–        DDC’s Hungarian top management and DDC’s legal advisors were closely involved in the negotiations with Cemex and Rohrdorfer regarding the Hungarian part of the transaction (general reference to Annexes I.9 to I.10, amounting to 16 pages in total) and the negotiation of the Transitional Services Agreement after the closing of the Cemex-Rohrdorfer deal (reference to Annexes I.11 to I.12 without further details);
–        DDC’s top management was closely involved in the negotiations with Rohrdorfer concerning the on-sale of Cemex Hungary to DDC (reference to Annexes I.13 to I.15 without further details).
90      Thus, DDC merely makes five general allegations referring globally to 14 different annexes, representing 608 pages in total.
91      It must be pointed out that, in the light of Article 145(2)(b) and (c) of the Rules of Procedure, the Court cannot take those annexes into consideration.
92      Indeed, it should be recalled that, pursuant to those provisions, the statement in intervention must, inter alia, contain the pleas in law and arguments relied on by the intervener. According to settled case-law in relation to an application initiating proceedings, which is applicable by analogy in relation to a statement in intervention (judgments of 15 June 2005, Regione autonoma della Sardegna v Commission, T‑171/02, EU:T:2005:219, paragraph 186, and of 9 September 2009, Diputación Foral de Álava and Others, T‑230/01 to T‑232/01 and T‑267/01 to T‑269/01, not published, EU:T:2009:316, paragraph 104; see, also, judgment of 11 July 2019, IPPT PAN v Commission and REA, T‑805/16, not published, EU:T:2019:496, paragraph 101 and the case-law cited), the statement of the pleas in law and complaints must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. In that regard, whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application. Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 94 and the case‑law cited).
93      In the second place, in paragraph 25 of its statement in intervention, DDC states that the Commission’s approach of regarding the applicants as the undertakings concerned has deprived it of the status of a notifying party and thus restricted its right to access the file and its ability to defend itself properly in full knowledge of all the evidence relied on by the Commission in order to prohibit the transaction.
94      It must be noted that the line of argument alleging infringement of DDC’s rights of defence was not raised by the applicants and is not connected with the subject matter of the dispute as defined by them. It must therefore be declared inadmissible, in accordance with paragraphs 80 and 81 above.
2.      The substance of the case
95      By their first plea in law, the applicants claim, in essence, that the Commission is not competent to review the transaction since that transaction does not have a Community dimension within the meaning of Article 1(2) of Regulation No 139/2004. That provision requires in particular that at least two undertakings concerned have, individually, a turnover in the European Union of more than EUR 250 million. On conclusion of the transaction, DDC would acquire its direct competitors, Cemex Croatia and Cemex Hungary. Therefore, the undertakings concerned are those two undertakings, as target companies, and DDC as the acquiring company. The turnover of HeidelbergCement and Schwenk therefore should not have been considered separately by the Commission, but should have been attributed to DDC. Since the turnover of the target companies was too low to meet the turnover thresholds stipulated in Regulation No 139/2004, only DDC reached the individual threshold and the transaction had no Community dimension.
96      The first plea in law comprises, in essence, three parts. The first part concerns the concept of undertakings concerned, for the purposes of Regulation No 139/2004. The second part concerns the evidence on the basis of which the Commission considered the applicants to be actively involved in the initiation, organisation and financing of the transaction. The third part concerns the irrelevance of the considerations set out and the evidence collected after the decision to initiate an in-depth investigation procedure.
(a)    The first part, concerning the concept of undertakings concerned
97      In the first part of the first plea, the applicants claim, in essence, that the interpretation made in the Commission Consolidated Jurisdictional Notice under Regulation No 139/2004 (OJ 2008 C 95, p. 1, and corrigendum OJ 2009 C 43, p. 10; ‘the Consolidated Jurisdictional Notice’), to the extent that it relates to the identification of the undertakings concerned in the context of acquisitions of control by a joint venture, is incorrect. The applicants, supported by DDC, put forward five complaints in support of that claim.
98      Before addressing the merits of those complaints, it is appropriate to reject the applicants’ argument that a full-function joint venture, such as DDC, should be regarded as an ‘undertaking concerned’ for the purposes of Article 1(2) of Regulation No 139/2004, in so far as the concept of undertaking in the context of competition law refers to an autonomous economic entity.
99      The principles of the legal and economic autonomy of companies cannot, in any event, mean that a company jointly owned and controlled by two other companies necessarily acts independently on the market merely because it has its own legal personality or its own economic means. Such an assumption would completely disregard the numerous possibilities which exist in practice for a parent company to influence the conduct of its subsidiary, whether formally or informally (see, to that effect, judgment of 17 May 2011, Elf Aquitaine v Commission, T‑299/08, EU:T:2011:217, paragraph 70).
(1)    Consideration of the economic reality for the purpose of identifying the undertakings concerned
100    The applicants claim that paragraphs 145 to 147 of the Consolidated Jurisdictional Notice, which concern acquisitions by a joint venture, do not allow the Commission to identify the undertakings concerned on a case-by-case basis by examining the economic reality in order to establish who are the real players behind the proposed concentration. Thus, the identification of the undertakings concerned cannot be the result of complex factual assessments made on a case-by-case basis. An exception is possible only where it is obvious for all the entities in question that the full-function joint venture is not an undertaking concerned. The Commission may look at the economic reality only in two cases. First, where an acquiring undertaking uses a ‘shell company’, that is to say a company set up specifically for acquisition purposes and, second, in obvious circumvention scenarios where a full-function joint venture company is used as a mere vehicle for a transaction which is of no relevance to it and if this is obvious for all players involved.
101    The applicants add that it is clear from the wording of paragraph 147 of the Consolidated Jurisdictional Notice that significant involvement by the parent companies in the transaction may serve as an indication that they are using a joint venture as a mere vehicle for acquisition, but is not sufficient in itself for classifying the parent companies as the undertakings concerned.
102    Moreover, involvement by parent companies can be considered to be an indication of the use of a joint venture as a mere vehicle for acquisition only if together they were involved in the initiation, organisation and financing of the transaction and if all – or at least several – parent companies show such involvement.
103    Furthermore, the applicants claim that a full-function joint venture cannot be classified as a mere vehicle if it has its own strategic interest in the merger, even though the parent companies may also have a broader strategic interest of their own in that transaction. It is only where the acquisition does not concern the economic activity of the full-function joint venture, but serves only the interests of the parent companies, that the latter may be concerned by the transaction. DDC’s interest is established, in the present case, in particular by DDC’s earlier proposed acquisitions, by the fact that DDC is long established, by the fact that the transaction would indirectly strengthen its presence on the market, by the fact that DDC was the direct acquirer of Cemex Croatia and by the fact that DDC was participating in a transaction which directly concerned it.
104    According to DDC, the concept of undertakings concerned serves to identify the undertakings to be taken into account in order to assess whether or not a transaction is notifiable under Regulation No 139/2004. As such, the notion should be interpreted strictly and predictably. That is why it can depend neither on the way in which the acquisition process is initiated, organised or evolves, nor on the Commission’s assessment as to the alleged economic reality. Exceptions may be possible only if there is clear evidence that the target company’s conduct and competitive strategy will not be determined by the acquiring company after the transaction or where the transaction exclusively benefits a company other than the direct acquirer.
105    In that regard, it must be pointed out that Article 1(2) of Regulation No 139/2004 does not provide any definition of the concept of undertakings concerned. However, the interpretation of that concept in transactions where a joint venture acquires control of another company is covered by paragraphs 145 to 147 of the Consolidated Jurisdictional Notice.
106    Under paragraph 145 of the Consolidated Jurisdictional Notice, whereas, in principle, the undertaking concerned is the joint venture as the direct participant in the acquisition of control, there may be circumstances where companies set up ‘shell companies’ and the parent companies will individually be considered as undertakings concerned. In this type of situation, the Commission will look at the economic reality of the transaction to determine which are the undertakings concerned.
107    Against that background, paragraph 146 of the Consolidated Jurisdictional Notice states that, where the acquisition is carried out by a full-function joint venture, with the features set out above, and already operates on the same market, the Commission will normally consider the joint venture itself and the target undertaking to be the undertakings concerned (and not the joint venture’s parent companies).
108    Under paragraph 147 of the Consolidated Jurisdictional Notice:
‘Conversely, where the joint venture can be regarded as a mere vehicle for an acquisition by the parent companies, the Commission will consider each of the parent companies themselves to be the undertakings concerned, rather than the joint venture, together with the target company. This is the case in particular where the joint venture is set up especially for the purpose of acquiring the target company or has not yet started to operate, where an existing joint venture has no full-function character as referred to above or where the joint venture is an association of undertakings. The same applies where there are elements which demonstrate that the parent companies are in fact the real players behind the [transaction]. These elements may include a significant involvement by the parent companies themselves in the initiation, organisation and financing of the [transaction]. In those cases, the parent companies are regarded as undertakings concerned.’
109    It is in the light of those considerations that DDC’s and the applicants’ arguments must be assessed.
110    First, the interpretation proposed by the applicants and DDC, which denies the Commission the possibility of taking into consideration the economic reality except in the scenarios they identify, must be rejected.
111    To begin with, those interpretations amount to nothing more than a complete denial of the relevance, as regards the application of Regulation No 139/2004, of the links that may exist between a full-function joint venture and its parent companies, with the exception of the situations identified by the applicants and DDC. This cannot be the case.
112    Indeed, it must be recalled that it has been held that the fact that a joint venture is fully functioning and, therefore, from an operational point of view, economically autonomous, does not mean that it enjoys autonomy as regards the adoption of its strategic decisions. The opposite conclusion would lead to a situation in which there would never be joint control of a ‘joint venture’ as soon as it was economically autonomous (see, by analogy, judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 62).
113    Therefore, the crucial question that arises under paragraph 145 of the Consolidated Jurisdictional Notice, relating to determining in what circumstances a joint venture should be regarded as the undertaking concerned, cannot be reduced to the situations referred to by the applicants and DDC.
114    Next, DDC and the applicants’ interpretation also amounts to denying that indirect links between the parent companies and the joint venture can affect the competitive behaviour of the companies thus linked in certain markets.
115    In exercising joint control over a joint venture, the parent companies of that joint venture will necessarily have to agree on the commercial management of the venture and, to some extent, on their own positions in relation to the joint venture in certain markets. It follows that the existence of such financial and structural indirect links is a factor which must be taken into account in the assessment of a concentration under the merger regulation (judgment of 8 July 2003, Verband der freien Rohrwerke and Others v Commission, T‑374/00, EU:T:2003:188, paragraphs 173 and 174).
116    It follows from the foregoing that, in order to ensure the effectiveness of merger control, it is necessary to take into account the economic reality of the real players behind a concentration in accordance with the circumstances of fact and law specific to each case. Therefore, the identification of the undertakings concerned is necessarily connected to the way in which the acquisition process was initiated, organised and financed in each individual case.
117    Second, the interpretation of paragraph 147 of the Consolidated Jurisdictional Notice put forward by the applicants and DDC must also be rejected.
118    In the first place, it is clear from the wording of that paragraph that the use of a full-function joint venture as a mere vehicle for acquisition is not the only situation in which parent companies may be regarded as undertakings concerned.
119    Indeed, the second sentence of that paragraph cites various examples of situations in which a full-function joint venture can be considered a mere vehicle for acquisition. That is clear from the wording ‘this is the case in particular’. By contrast, the situation in which ‘there are elements which demonstrate that the parent companies are in fact the real players behind the [transaction]’ is cited separately in the following sentence. That latter case is therefore to be distinguished from situations in which a full-function joint venture can be considered a mere vehicle for acquisition.
120    Moreover, the English version of the last sentence of paragraph 147 of the Consolidated Jurisdictional Notice uses the phrase ‘in those cases’ in the plural, and not in the singular, to refer to the scenarios in which parent companies may be regarded as ‘undertakings concerned’ instead of their full-function joint venture. This confirms that there are several scenarios in which parent companies are regarded as ‘undertakings concerned’.
121    In the second place, it is clear from the wording of that provision that the ‘elements’ which ‘demonstrate’ that ‘the parent companies are in fact the real players behind the [transaction]’ and are listed as such, namely ‘a significant involvement by the parent companies themselves in the initiation, organisation and financing of the [transaction]’, do not constitute an exhaustive list of scenarios. This is apparent inter alia from the use of the expression ‘on citera ainsi’ in the French-language version of the notice, the expression ‘these elements may include’ in the English-language version and the expression ‘kan een factor zijn’ in the Dutch-language version.
122    Indeed, for the purposes of taking into account the economic reality, it is appropriate to take into consideration all the relevant elements which enable the real players behind the transaction to be determined. Thus, the significant involvement of the parent companies in the transaction may be deduced from a consistent body of evidence, even if none of that evidence, taken in isolation, is sufficient to reveal the reality of the transaction.
123    In other words, paragraph 147 of the Consolidated Jurisdictional Notice refers to two situations, namely the situation where the joint venture is used as a mere vehicle and the alternative situation where the parent companies are the real players behind the transaction. In that regard, that provision cites various non-exhaustive examples relating to each of those two situations.
124    Therefore, contrary to what the applicants and DDC claim, it is not only when the parent companies use a ‘shell company’ for the acquisition or in circumvention scenarios that it may be necessary to consider the parent companies to be the undertakings concerned, but also when they are the real players behind the transaction. It should be clarified that, in the present case, the Commission found that the transaction came within the second scenario, and not within the first, as the applicants seem to suggest at times in their written submissions.
125    Third, the argument that a full-function joint venture cannot be classified as a mere vehicle when it has its own interest in the transaction must be rejected as ineffective since, as has been noted in paragraph 124 above, the Commission found that the present transaction came within the second scenario set out in paragraph 147 of the Consolidated Jurisdictional Notice. In any event, the fact that a full-function joint venture may have its own strategic interest in a merger cannot prevent the parent companies being classified as undertakings concerned on account of being the real actors behind the transaction, in the light in particular of their significant involvement in the initiation, organisation and financing of the transaction.
126    The arguments of the applicants and of DDC must therefore be rejected.
(2)    The principle of legal certainty
127    The applicants claim that the Commission’s approach of taking into account the economic reality on a case-by-case basis infringes the principle of legal certainty. In their view, the notion of undertakings concerned has an immediate impact on the applicability of the obligation to suspend the concentration and on the risk of potential fines in the event of infringement of that obligation. Yet, on the acquiring side, a parent company of a full-function joint venture may not necessarily know about the extent of the involvement of the other parent company. Similarly, the target company and the vendor will generally not be able to identify the undertakings concerned, on the acquiring side, in so far as they may not necessarily be aware of the degree of involvement of the parent companies and of the full-function joint venture in the organisation and financing of the concentration. Even if they are, the undertakings in question cannot assess upfront whether that degree of participation is significant enough to conclude that the parent companies are undertakings concerned. The uncertainty created by that situation is unacceptable.
128    According to the applicants, the undertakings in question would have to consult the Commission before notification of every proposed concentration in order to obtain the latter’s point of view. However, even such a consultation does not offer legal certainty since DG Competition’s replies to consultation requests are not binding and since, in recent cases, the Commission has even refused to provide a written reply.
129    The complaint alleging infringement of the principle of legal certainty put forward by the applicants must be rejected.
130    The principle of legal certainty – which is one of the general principles of EU law – requires that rules of law be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by EU law (judgment of 8 December 2011, France Télécom v Commission, C‑81/10 P, EU:C:2011:811, paragraph 100). However, where a degree of uncertainty regarding the meaning and scope of a rule of law is inherent in the rule, it is necessary to examine whether the rule of law at issue displays such ambiguity as to prevent individuals from resolving with sufficient certainty any doubts as to the scope or meaning of that rule (see, to that effect, judgment of 14 April 2005, Belgium v Commission, C‑110/03, EU:C:2005:223, paragraphs 30 and 31). In that respect, those requirements cannot be regarded as requiring a norm that uses an abstract legal notion to refer to the various specific hypotheses in which it applies, given that all those hypotheses could not be determined in advance by the legislature (judgment of 20 July 2017, Marco Tronchetti Provera and Others, C‑206/16, EU:C:2017:572, paragraph 42).
131    In the present case, it is not possible to establish whether, by their claim that the Consolidated Jurisdictional Notice does not allow the Commission to ‘look at the economic reality’ whenever it so pleases and to ‘determine who the real players behind a [transaction] are’ in each and every individual case, the applicants seek to argue that paragraphs 145 to 147 of that notice lack clarity, precision or predictability, or that its application by the Commission in the present case lacks those characteristics. Therefore, it must be assessed whether the Consolidated Jurisdictional Notice itself or its implementation by the Commission has resulted in ambiguity that is contrary to the principle of legal certainty.
132    It is clear from paragraphs 1 and 4 thereof that the Consolidated Jurisdictional Notice was adopted with a view to ensuring that the action taken by the Commission is transparent, foreseeable and consistent with legal certainty (see, by analogy, judgments of 30 May 2013, Commission v Sweden, C‑270/11, EU:C:2013:339, paragraph 41, and of 12 February 2014, Beco v Commission, T‑81/12, EU:T:2014:71, paragraph 70).
133    Paragraphs 145 to 147 of the Consolidated Jurisdictional Notice were therefore adopted with the aim in particular of ensuring legal certainty. Furthermore, those provisions do not send out conflicting signals regarding the approach used by the Commission to determine the undertakings concerned by a concentration. They allow both the parent companies of a full-function joint venture and the vendor and target company to identify the undertakings concerned since, as the Commission maintains, those companies will necessarily be aware, from the negotiations surrounding the concentration, of the degree of involvement of the joint venture’s parent companies. In case of doubt, the parties to the concentration may always request information from the relevant company regarding its degree of involvement in the transaction.
134    In addition, as diligent economic operators and, in particular, as professionals who are used to having to proceed with a high degree of caution when pursuing their occupation, the parties to a concentration may also, if required, take expert advice to assess the consequences which may result from the application of paragraphs 145 to 147 of the Consolidated Jurisdictional Notice.
135    Moreover, the parties to the concentration may at any time contact the Commission services in order to obtain informal guidance on the undertakings concerned by the transaction. In that regard, the applicants do not specify in which recent cases the Commission refused, according to their statements, to provide such a reply.
136    The facts of the present case also contradict the applicants’ allegations since DDC requested, on 20 August 2015, and obtained, on 13 November 2015, such a reply, as is apparent from paragraphs 14 and 16 above. In addition, DG Competition’s position, set out in its letter dated 13 November 2015 identifying the applicants as undertakings concerned, is identical to the position ultimately adopted in the contested decision. Although that letter states that it does not constitute a Commission decision, the applicants have not established that consulting the Commission would have prevented them, as diligent economic operators, from removing any doubts they might have had as regards the notification obligation in the present case.
137    The applicants’ statement in footnote 33 of the application, in so far as it relates to recital 43 of the contested decision and to footnotes 21 and 22 thereof, must be rejected as inadmissible, in view of Article 76(d) of the Rules of Procedure, since it is not sufficiently precise.
(3)    Extension of the Commission’s powers
138    The applicants claim that the Commission’s interpretation of paragraph 147 of the Consolidated Jurisdictional Notice allows the Commission to extend its jurisdiction over cases which impact only a small part of a Member State and which have no relevance for cross-border trade in the internal market. That is contrary to the objective assigned to Regulation No 139/2004 by recital 8 thereof and is incompatible with the division of powers between the Commission and the Member States established by that regulation.
139    In their view, the concerns related to the effectiveness of merger control put forward by the Commission cannot justify the extension of the Commission’s powers contra legem. National merger control laws and the mechanism for referral by the Member States to the Commission, provided for in Article 22 of Regulation No 139/2004, ensure the effectiveness of merger control for ‘small’ concentrations that do not meet the thresholds referred to in Article 1 of that regulation. The Commission’s expansive interpretation interferes with the right of the Member States to decide themselves, under Article 22 of that regulation, whether they want to refer such ‘small’ concentrations to the Commission. The effectiveness of merger control could at most justify a look at the economic reality in clear circumvention cases, as is stated in paragraph 100 above.
140    It must be stated that the applicants’ reasoning, whereby the Commission’s interpretation allows it to include within its jurisdiction concentrations which impact a small part of a Member State and which have no relevance for cross-border trade in the internal market, is based on a misconceived premiss. Under the last clause of Article 1(2) of Regulation No 139/2004, a concentration does not have a Community dimension, even where the turnover thresholds are met, where each of the undertakings concerned achieves more than two-thirds of its aggregate EU-wide turnover within one and the same Member State. Moreover, the applicants seem to conflate the economic size of a concentration with its impact on a substantial part of the market, since whether the transaction significantly impedes effective competition in a substantial part of the market is a matter for the substantive competitive assessment (see paragraph 359 et seq. below).
141    Accordingly, the applicants’ argument must be rejected.
(4)    The intention of the parent companies
142    The applicants claim that the view put forward by the Commission in the contested decision concerning the Consolidated Jurisdictional Notice makes the applicability of Regulation No 139/2004 dependent on subjective elements, which runs counter to the Court’s case-law.
143    The applicants’ argument must be rejected.
144    In that regard, the applicants cannot derive any useful argument from paragraph 129 of the judgment of 21 September 2005, EDP v Commission (T‑87/05, EU:T:2005:333). While that paragraph does state that the applicability of the former merger regulation could not depend on the intention of the parties to a concentration, it does not pertain to the identification of the undertakings concerned, but merely establishes that the fact that the parties have notified a concentration does not in itself mean that the merger regulation should apply.
(5)    The aims and structure of Regulation No 139/2004
145    DDC claims that, although Regulation No 139/2004 does not define the notion of undertakings concerned, its aims as well as the structure of Article 5(4) thereof provide indications as to how the notion should be interpreted.
146    In the first place, in its view, it follows, in essence, from the objective assigned to the regulation by recital 8 thereof, that the undertakings concerned are the undertakings directly involved in the concentration. In order properly to assess the effects of a concentration, it must therefore be established which company will control the activities of the target companies, decide their competitive strategy and bear the economic consequences. It is, as a general rule, necessary for the undertakings concerned to stand on different sides of the transaction; otherwise, the Commission would have to assess every minor acquisition of target companies by joint ventures of large multinationals. Exceptions may be possible only where the target company’s conduct and competitive strategy are not determined by the acquiring company or where the transaction exclusively benefits a company other than the acquirer. The degree of involvement of the parent company of the acquirer in the initiation, organisation and financing of the transaction is irrelevant.
147    In the second place, it follows from the distinction made by Article 5(4)(a) and (c) of Regulation No 139/2004 between the undertaking concerned, on the one hand, and the undertakings that control an undertaking concerned, on the other hand, that that regulation does not envisage that the controlling shareholders of a company might be regarded as the undertakings concerned. Exceptions may be possible if there is clear evidence that a transaction does not directly concern the acquiring company. Otherwise, Article 5(4)(c) of that regulation would be superfluous.
148    DDC’s reasoning must be rejected.
149    In the first place, as the Commission correctly states, it is not necessary that the undertakings concerned whose turnover exceeds the thresholds provided stand on different sides of the transaction, since Article 1 of Regulation No 139/2004 does not refer to ‘the acquirer and the target company’, but to ‘at least two of the undertakings concerned’.
150    Furthermore, it should be recalled that, similarly, under paragraph 140 of the Consolidated Jurisdictional Notice, where two undertakings acquire joint control of a pre-existing undertaking, the undertakings concerned are each of the undertakings acquiring joint control and the target company.
151    In the second place, Article 5(4)(c) of Regulation No 139/2004 provides only that the aggregate turnover of an undertaking concerned must include the turnover of those undertakings which have in the undertaking concerned certain rights or powers, without preventing, in certain cases, the undertakings controlling other undertakings from being regarded as the undertakings concerned themselves.
152    It follows from all the foregoing that the first part of the first plea must be rejected.
(b)    The second part, concerning the evidence
153    In the second part of the first plea, the applicants challenge, in essence, the evidence used to identify the undertakings concerned as well as the assessment of that evidence in the contested decision.
154    They deny that they can be regarded as the real players behind the transaction on account of their significant involvement in the initiation, organisation and financing of the transaction. They maintain that DDC was the real player behind the transaction since it actively participated in it. In their view, despite its significant involvement in the transaction, HeidelbergCement cannot be regarded as a real player behind the transaction since it always acted on behalf of and in support of DDC. Furthermore, Schwenk cannot be a real player behind the transaction as it did not actively participate in it.
155    In that context, they put forward a series of arguments and propose measures of organisation of procedure.
(1)    The first argument
156    In paragraph 16 of the reply, the applicants claim that the transaction was initiated not by them, but by Cemex. Cemex approached HeidelbergCement, and HeidelbergCement contacted DDC to find out whether the acquisition of Cemex Croatia would be of interest to DDC. HeidelbergCement and DDC then discussed the transaction and decided jointly to proceed with it in April 2015. The assertion that DDC was not informed until 7 May 2015 of the decisions taken by HeidelbergCement is therefore incorrect. The same is true of the allegation that the applicants agreed, before the meeting of 6 May 2015, to proceed with the acquisition of the target companies through DDC. DDC had already signalled to HeidelbergCement beforehand that it was in favour of the transaction and was thus at least as involved in this decision-making process as Schwenk. The Commission was informed of those matters on 24 January 2017 at the latest. In support of their allegations, the applicants rely on the testimony of [confidential] and HeidelbergCement and DDC’s reply to the Commission’s request for information of 23 January 2017.
157    DDC maintains that it discussed investment possibilities with HeidelbergCement ‘already before the decision to pursue the transaction was taken’.
158    First, even if the arguments put forward in paragraphs 156 and 157 above could make a difference as regards the applicants’ significant involvement in the transaction, it is apparent from point 4 of the minutes of the kick-off meeting for ‘project Cerberus’ of 6 May 2015, which was attended exclusively by representatives of HeidelbergCement, that Schwenk indicated that it was in favour of the proposed concentration. Accordingly, Schwenk was necessarily informed prior to that meeting of the transaction, designated at that point in time as ‘project Cerberus’, as is apparent from paragraph 9 above.
159    It is apparent from footnote 41 of the contested decision – which is not disputed by the applicants – that those minutes were shared by email on 7 May 2015 by [confidential], participating in the meeting with, inter alia, [confidential], members of DDC’s top management. That email stated that ‘[confidential]’. In an email of the same date sent inter alia to [confidential] stated that ‘[confidential]’. It is therefore apparent from the foregoing that DDC was informed of the transaction on 7 May 2015 at the latest.
160    In order to determine whether DDC was informed of the transaction before the meeting of 6 May 2015, it is necessary to examine the evidence adduced to that end by the applicants, namely HeidelbergCement and DDC’s reply to the Commission’s request for information of 23 January 2017 (Annex C2) and the witness statement of [confidential] (Annex A5).
161    As regards HeidelbergCement and DDC’s reply to the Commission’s request for information of 23 January 2017, it must be noted that, pursuant to Article 85(2) of the Rules of Procedure, the main parties may offer further evidence in support of their arguments in the reply and rejoinder, but must give reasons for the delay in offering it.
162    However, according to the case-law, evidence in rebuttal and the amplification of the offers of evidence submitted in response to evidence in rebuttal from the opposite party in its defence are not covered by the time-bar laid down in that provision. That provision concerns offers of fresh evidence and must be read in the light of Article 92(7) of those rules, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified (judgments of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraphs 71 and 72, and of 5 December 2006, Westfalen Gassen Nederland v Commission, T‑303/02, EU:T:2006:374, paragraph 189).
163    In the case at hand, the applicants submit, in essence, that Annex C2 constitutes evidence rebutting the allegations made by the Commission in paragraph 118(c) of the defence.
164    Paragraph 118(c) of the defence picks up the idea of paragraph 112 of that defence, which itself picks up that of footnote 96 of the contested decision. Those three elements state the same point, namely that the witness statement of [confidential] is of limited probative value due to the absence of evidence dating from the launch of the transaction in support of that witness statement. The applicants thus produce Annex C2 in order to respond to the conclusion reached in the contested decision.
165    Annex C2, however, reached the Commission by email on 24 January 2017. It follows that both that document and the finding contained in footnote 96 of the contested decision pre-date the bringing of the present action. Consequently, there was nothing preventing the applicants from challenging, in the application, that footnote by producing Annex C2.
166    Therefore, irrespective of the relevance of the evidence in question, it must be held that the applicants have not justified, for the purposes of Article 85(3) of the Rules of Procedure, the late submission of that evidence, which is therefore inadmissible.
167    As for the witness statement of [confidential], it must be recalled that, according to the case-law, the reliability and, therefore, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and the reputed and reliable nature of its content (judgment of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraph 1053).
168    In the present case, it must be borne in mind that [confidential] is a member of DDC’s top management and that that document was drawn up on 30 January 2017, that is to say, after the applicants had received the statement of objections and the letter of facts, and in the course of the administrative procedure before the Commission, as the last sentence of the document attests. That statement therefore does not constitute contemporaneous evidence from the time of the launch of the transaction, which would have given it greater probative value (see, to that effect, judgments of 11 March 1999, Ensidesa v Commission, T‑157/94, EU:T:1999:54, paragraph 312; of 16 December 2003, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, T‑5/00 and T‑6/00, EU:T:2003:342, paragraph 181; and of 28 June 2016, Portugal Telecom v Commission, T‑208/13, EU:T:2016:368, paragraph 149).
169    In addition, although testimony provided by a direct witness of the circumstances which he or she has described must in principle be characterised as evidence with a high probative value (see, to that effect, judgment of 3 March 2011, Siemens v Commission, T‑110/07, EU:T:2011:68, paragraph 75), it is also necessary to take into account the fact that the statement at issue in the present case was made by a person who might have a direct interest in the case and who cannot be classified as independent of DDC and the applicants (see, to that effect, judgment of 3 March 2011, Siemens v Commission, EU:T:2011:68, paragraphs 69 and 70). That witness statement cannot be described as being different from, and independent of, the evidence of DDC and, more broadly, of the applicants, in so far as, not only is [confidential] a member of DDC’s top management, but, in his own words, he regards himself and DDC as being the ‘real drivers for the acquisition of the Croatian assets’.
170    Thus, the circumstances set out in that document must be supported by other evidence so as to exclude conclusively the existence of a conflict of interests (see, to that effect, judgments of 3 March 2011, Siemens v Commission, T‑110/07, EU:T:2011:68, paragraphs 69 and 70, and of 28 February 2018, Vakakis kai Synergates v Commission, T‑292/15, EU:T:2018:103, paragraph 138).
171    Consequently, in the absence of other evidence to corroborate that witness statement, that document cannot establish the reality of the circumstances described therein, in particular that DDC was informed before Schwenk, prior to the meeting of 6 May 2015, of the proposed concentration (see paragraph 156 above).
172    As regards DDC’s allegation that it had discussed investment possibilities with HeidelbergCement even before the decision to carry out the transaction was taken, it must be noted that it is supported by a reference to a reply to a request for information from the Commission, without further details. Assuming that DDC intended to refer to the reply of HeidelbergCement and DDC to the Commission’s request for information of 23 January 2017, reference should be made to the considerations already set out in paragraph 166 above concerning the inadmissibility of that annex.
173    Second, and further to the foregoing, the applicants’ allegation seeking to call into question recitals 65 and 73 of the contested decision, according to which Schwenk decided with HeidelbergCement to pursue the acquisition with DDC as ultimate purchaser, must also be rejected. Indeed, it is apparent from footnotes 38, 39 and 49 of the contested decision that the Commission relied on the minutes of the kick-off meeting for ‘project Cerberus’ of 6 May 2015 in order to reach its conclusions. According to that document, Schwenk stated that it was ‘in favor of the deal’. Contrary to what the applicants claim, that point of the minutes does not contradict the Commission’s conclusion. As regards the witness statement of [confidential] on which the applicants seek to rely, it cannot establish the reality of the circumstances set out therein without other evidence to corroborate it, as is apparent from paragraph 170 above. For the same reasons, the applicants’ assertion that it was DDC that was interested in acquiring the target companies – and not the applicants through DDC – must be rejected.
174    The applicants’ claim that the statements contained in recital 59 of the contested decision are not supported by any evidence must also be rejected. That recital is the general conclusion reached by the Commission as to the applicants’ significant involvement in the initiation of the transaction. That conclusion is based on the findings made in recitals 60 to 71 of the contested decision and is supported by the evidence listed in the corresponding footnotes. The applicants have not, however, systematically disputed those recitals of the contested decision and the evidence cited therein. As regards the contested evidence, the applicants have not succeeded in demonstrating that it is substantively inaccurate or that the Commission committed a manifest error in assessing it, as is apparent from paragraphs 171 and 173 above.
175    Third, it is necessary to address the applicants’ allegation, set out in footnote 11 of the reply, that the Commission was under an obligation to investigate if it did not consider itself sufficiently informed by HeidelbergCement and DDC’s reply to its request for information and by the witness statement of [confidential].
176    It should be noted that the need for speed that characterises the general scheme of Regulation No 139/2004 requires the Commission to comply with strict time limits for the adoption of the final decision. In that regard, it has already been held that the Commission was not required to carry out new market investigations following the notifying parties’ reply to the statement of objections. In particular, having regard to the time constraints which arise by virtue of the procedural time limits laid down by Regulation No 139/2004, the Commission cannot, in principle, be required, in every individual case, to send, following communication of the objections and after hearing the undertakings concerned, requests for ‘extensive’ information to ‘numerous economic operators’ shortly before transmitting its draft decision to the Advisory Committee on concentrations, pursuant to Article 19 of that regulation (see, to that effect, judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraphs 90 and 91).
177    In the case at hand, HeidelbergCement and DDC’s replies to the Commission’s request for information are dated 23 January 2017. The witness statement of [confidential], meanwhile, is dated 30 January 2017 and was communicated to the Commission on 8 March 2017. Those documents were thus sent after the communication of the statement of objections on 12 December 2016 and the hearing on 11 January 2017. Accordingly, it follows from the foregoing that the Commission cannot be criticised for not having investigated after they were received.
(2)    The second argument
178    In paragraph 17 of the reply, the applicants claim that DDC was represented in the steering committee and that two of the four members of that committee were members of DDC’s top management, as is stated in paragraph 77 of the defence, which reproduces recital 63 of the contested decision. That clearly shows that DDC was closely involved in ‘all’ decisions relating to the transaction, unlike Schwenk, which was not represented in it at all.
179    DDC, for its part, maintains that it was involved in all the decisions taken at the level of the steering committee, in which HeidelbergCement had neither a casting vote nor a veto right. Following on from that reasoning, it also contends that it did not ‘strictly adhere to all decisions taken by [HeidelbergCement]’, but that it was involved in adopting and executing those decisions, because it agreed with them.
180    It should be noted that, contrary to what the applicants assert, DDC’s participation in the steering committee does not show that DDC was closely involved in all the decisions relating to the transaction, but merely that DDC was involved in the decisions adopted by that committee. Neither the applicants nor DDC, however, provide evidence that DDC took part in HeidelbergCement’s subsequent decisions.
181    In the first place, before the meeting of 6 May 2015, HeidelbergCement took decisions concerning the implementation and composition of the steering committee, the timing, preparation and submission of an indicative offer, the structure of the due diligence and the related responsibilities (recital 74 of the contested decision).
182    In the second place, HeidelbergCement’s representatives on the steering committee attended negotiations with Cemex and prepared detailed documentation, deal valuation and other components of the business case for the decision of the HeidelbergCement management board and supervisory board to approve the acquisition (recital 75 of the contested decision).
183    In the third place, HeidelbergCement negotiated the non-disclosure agreements with Cemex, organised and conducted the due diligence and organised the implementation planning (recital 76 of the contested decision).
184    In the fourth place, prior to the signature of the written share purchase agreement, a verbal agreement on the main terms of the acquisition was concluded between a HeidelbergCement employee and Cemex (recital 77 of the contested decision).
185    In the fifth place, following that verbal agreement, the same HeidelbergCement employee negotiated certain open issues directly with Cemex (recital 78 of the contested decision).
186    Lastly, DDC has not produced any evidence in support of its assertion that HeidelbergCement had neither a casting vote nor a veto right in that committee or that it did not ‘strictly adhere to all decisions taken by [HeidelbergCement]’. Nor has it adduced evidence that it had voting rights or a casting vote in that committee. The fact that DDC was involved in the work of that committee does not mean that it had decision-making power or a casting vote.
(3)    The third argument
187    In paragraph 18 of the reply, the applicants claim that, when HeidelbergCement submitted the indicative offer, it was clear to Cemex that HeidelbergCement was doing so on behalf of DDC and Rohrdorfer. Moreover, prior to submitting that offer, HeidelbergCement had received approval not only from Schwenk, but also from DDC. That follows very clearly from footnote 43 of the contested decision and contrary to the incomplete and misleading statement in paragraph 82 of the defence, which reproduces recital 68 of the contested decision.
188    DDC maintains that it was clear from the indicative offer that HeidelbergCement was acting on behalf of DDC and Rohrdorfer. Thus, the indicative offer clearly and unequivocally stated that ‘[confidential]’. In addition, DDC approved the indicative offer prior to its submission.
189    As regards the claim that it was clear to Cemex that HeidelbergCement had submitted the indicative offer of 8 June 2015 on behalf of DDC and Rohrdorfer, it is sufficient to state that that claim is in no way substantiated. Likewise, it is not disputed that that indicative offer stipulated that ‘[confidential]’ and that HeidelbergCement referred to itself in it as ‘[confidential]’ (recital 68 and footnote 43 of the contested decision). Those circumstances are, in themselves, sufficient to find that, for HeidelbergCement, the oral approval of DDC to which the email of 2 June 2015, cited in footnote 43 of the contested decision, seems to refer, was not decisive. Moreover, the applicants have not disputed the conclusions of recitals 69 and 70 of the contested decision, according to which the indicative offer highlighted HeidelbergCement’s strategic interest in the transaction, and how the transaction was in line with HeidelbergCement’s broader corporate strategy.
190    Consequently, the applicants and DDC have failed to demonstrate that it was clear to Cemex that HeidelbergCement had submitted the indicative offer on behalf of DDC.
191    Furthermore, as the Commission notes in paragraph 27 of its observations on the statement in intervention, DDC has not submitted any evidence in support of its general claim that it gave its approval for the indicative offer before it was submitted.
(4)    The fourth argument
192    In paragraph 19 of the reply, the applicants dispute paragraphs 86 and 91 of the defence, which reproduce recitals 72 and 80 of the contested decision, respectively.
193    In their view, the Commission failed to mention the fact that Schwenk was kept informed by DDC. Moreover, the assertion that DDC strictly adhered to all decisions taken by HeidelbergCement is incorrect and is not based on any evidence.
194    DDC maintains that it was it that updated Schwenk about the transaction’s progress. Weekly updates are a standard market practice.
195    First of all, so far as concerns recital 72 of the contested decision, it should be noted that that provision is the conclusion reached by the Commission in the light of recitals 73 to 81 of that decision and that it provides the following:
‘HeidelbergCement organised the Transaction, including developing the business case and the transaction structure, preparing the deal valuation and leading the final negotiations with Cemex. Schwenk was kept informed regularly about the organisation of the Transaction by HeidelbergCement and never sought to oppose HeidelbergCement’s role in any way. DDC strictly adhered to all decisions taken by HeidelbergCement. That is confirmed by [the evidence set out in recitals 72 to 81 of the contested decision].’
196    It must be pointed out, however, that the applicants have not disputed recitals 74 to 79 and 81 of the contested decision, and the internal documents provided by the applicants and DDC on which those recitals are based, from which it is apparent that:
–        before the meeting of 6 May 2015, HeidelbergCement took decisions regarding the implementation and composition of the steering committee, the timing, preparation and submission of an indicative offer, the structure of the due diligence and the related responsibilities (recital 74 of the contested decision);
–        the HeidelbergCement members of the steering committee attended negotiations with Cemex and prepared detailed documentation, deal valuation and other components of the business case for the decision by the HeidelbergCement management board and supervisory board to approve the acquisition (recital 75 of the contested decision);
–        HeidelbergCement negotiated the non-disclosure agreements with Cemex, organised and conducted the due diligence and organised the implementation planning (recital 76 of the contested decision);
–        in June 2015, Schwenk discussed with HeidelbergCement the potential structure of the transaction (recital 81 of the contested decision);
–        on 31 July 2015, [confidential] (HeidelbergCement) and [confidential] (Cemex) concluded a verbal agreement on the main terms of the transaction (recital 77 of the contested decision);
–        following the conclusion of that verbal agreement, HeidelbergCement negotiated certain open terms directly with Cemex (recital 78 of the contested decision);
–        since June 2016, representatives of the applicants have been members of a steering committee responsible for integrating the transaction the role of which was to prepare ‘[confidential]’ in relation to ‘[confidential]’ (recital 79 of the contested decision).
197    Next, as regards recital 80 of the contested decision, the applicants and DDC do not dispute the fact that Schwenk did actually seek and receive on a weekly basis updates on the progress of the transaction.
198    Accordingly, the applicants and DDC have not adduced evidence that the assessments contained in recitals 72 and 80 of the contested decision are manifestly incorrect.
(5)    The fifth argument
199    In paragraph 20 of the reply, the applicants submit that there is no indication of any significant involvement on the part of Schwenk in the design of the financing and corporate structure ultimately adopted, contrary to what is stated in paragraph 96 of the defence, which reproduces recital 82 of the contested decision.
200    DDC submits that the fact that the financing structure was also discussed with HeidelbergCement and Schwenk and that there was some limited involvement by HeidelbergCement in the design of that structure does not change the fact that it conducted the due diligence, set up the financing of the transaction and negotiated with the banks.
201    In that regard, the applicants’ line of argument is unclear, in that it does not make it possible to determine whether they are maintaining that the financing and corporate structure of the transaction was designed by DDC exclusively or by HeidelbergCement, either exclusively or in collaboration with DDC. In any event, the following elements should be noted.
202    First, the applicants do not dispute the conclusions of the contested decision according to which HeidelbergCement was involved in various actions relating to the design of the financing structure of the transaction and of its related corporate structure, namely:
–        prior to the signature of the written share purchase agreement, a verbal agreement on the main terms of the acquisition was concluded between a member of HeidelbergCement and a member of Cemex (recital 77 of the contested decision);
–        one of the two HeidelbergCement representatives on the steering committee was responsible for keeping ‘the contact with Cemex and the banks’ (recital 83 of the contested decision);
–        HeidelbergCement initiated contacts with consultancy firms for the financial due diligence (recital 85 of the contested decision);
–        HeidelbergCement determined which entity should take loans, decided whether a new entity should be established for that purpose, identified which company should be the direct acquirer, selected the companies whose capital should be increased and considered whether it should inject more funding (recital 88 of the contested decision);
–        HeidelbergCement engaged with banks in July 2015, prepared an information memorandum for them, negotiated the non-disclosure agreements with them between July and October 2015 and attended meetings with them in November 2015 (recital 89 of the contested decision);
–        HeidelbergCement agreed with Cemex on the final purchase price (recital 90 of the contested decision);
–        a project team consisting mainly of HeidelbergCement representatives took decisions about a debt push-down strategy (recital 92 of the contested decision).
203    Second, it is apparent from recitals 99 and 100 of the contested decision that, in August 2015, Schwenk participated in important discussions concerning the financing structure of the transaction as well as that of its related commercial structure, in particular by approving the indicative offer and indicating its willingness to grant a [confidential] in order to avoid the applicants needing to issue guarantees to the banks. Assuming, in that regard, as the applicants maintain, that being involved in important strategic decisions concerning acquisition projects in respect of full-function joint ventures is ‘standard market practice’ and constitutes the very essence of joint control, those joint ventures do not demonstrate that involvement in important discussions concerning the financing structure of the transaction and the related corporate structure is apparent from such a ‘practice’ or from such an essence.
204    Third, DDC itself acknowledges, in paragraph 19 of its statement in intervention, that HeidelbergCement and Schwenk ‘discussed’ the financing structure and that HeidelbergCement was involved in its design. In that regard, it is apparent from paragraph 202 above that HeidelbergCement’s involvement in the design of the financing structure cannot be described as limited.
205    Moreover, that DDC might have participated in the transaction does not preclude the applicants from being significantly involved in the initiation, organisation and financing of the transaction. Such participation is, after all, an issue separate from whether the applicants were significantly involved in the initiation, organisation and financing of the transaction. Thus, the fact that DDC ‘conducted the due diligence, set up the financing of the transaction and negotiated with the banks’ does not detract from the role that the applicants played.
206    Consequently, the applicants have not shown that the financing and corporate structure of the transaction was designed by DDC exclusively, or by HeidelbergCement, either exclusively or in collaboration with DDC.
(6)    The sixth argument
207    In paragraph 21 of the reply, the applicants claim that HeidelbergCement’s statement reproduced in paragraph 105 of the defence – which itself reproduces recital 91 of the contested decision – clearly shows that DDC was responsible for securing financing and negotiating with the banks, and that HeidelbergCement was not prepared to be actively involved in the financing or exposed to the economic risks associated with the transaction.
208    DDC maintains that it is clear that that HeidelbergCement employee statement does not show that DDC strictly adhered to the decisions taken by HeidelbergCement regarding the financing of the transaction.
209    Recital 91 of the contested decision, reproduced in paragraph 105 of the defence, states as follows:
‘In August 2015, HeidelbergCement required DDC to secure the agreed financing according to HeidelbergCement’s guidelines with close involvement of HeidelbergCement’s CFO and/or HeidelbergCement’s Group Treasurer: “[confidential]”. Concerning HeidelbergCement’s hesitation to grant corporate guarantees, HeidelbergCement explained to DDC in this context: “[confidential]”.’
210    It follows from the first quote that DDC was actually responsible for securing the financing and negotiating with the banks. However, it is also apparent from that extract that that situation arose from an order given by HeidelbergCement to DDC, as the use of the wording ‘[confidential]’ attests, and that that requirement was motivated by the need for HeidelbergCement to avoid ‘[confidential]’ and not by the lack of willingness to participate in the financing of the transaction.
211    Next, the fact that HeidelbergCement had not wanted [confidential] for the transaction does not mean that it could not have been significantly involved in the transaction and, in particular, in its financing. In addition, as is apparent from paragraph 125 above, DDC’s exposure to economic risks and, more generally, to the advantages and disadvantages of the transaction, is not a decisive criterion for identifying the real players behind a transaction and, in particular, for assessing the involvement of the parent companies in that transaction. Lastly, it should be noted that it was HeidelbergCement – and not DDC – that took the initiative to engage with banks in July 2015, prepared an information memorandum for them, negotiated the non-disclosure agreements with them between July and October 2015 and attended meetings with them in November 2015 (recital 89 of the contested decision). Moreover, one of the HeidelbergCement representatives on the steering committee was responsible for keeping ‘the contact with Cemex and the banks’ (recital 83 of the contested decision).
212    Lastly, even if, as DDC maintains, the statement in recital 91 of the contested decision cannot be taken to mean that DDC strictly adhered to the decisions taken by HeidelbergCement regarding the financing of the transaction, DDC does not indicate to which decisions it did not adhere nor does it provide evidence that it opposed HeidelbergCement in any way.
(7)    The seventh argument
213    In paragraph 22 of the reply, the applicants claim that they were not significantly involved in the financing of the transaction. Thus, increasing capital by means of a shareholder contribution in order to allow a full-function joint venture to pay a part of the purchase price out of its own funds is ‘common market standard’. The same is true of the soft comfort letters provided by the parent companies. In addition, DDC negotiated with the banks and was a party to all relevant loan agreements, and the decision whether or not to use the funds from the capital increase to finance the purchase price fell to DDC. Lastly, HeidelbergCement’s involvement in the design of the financing structure of the transaction and of the related corporate structure does not amount to involvement in the financing.
214    First of all, as regards the capital increase and soft comfort letters provided by the applicants, it should be noted that the applicants refer once again to what they consider to be ‘common market standard’ without providing any evidence establishing that such a standard exists or explaining why such factors cannot be regarded as significant involvement in the transaction.
215    Next, as regards DDC and HeidelbergCement’s involvement in the negotiations with the banks, reference should be made to the considerations set out in paragraphs 210 and 211 above.
216    Moreover, the applicants have not provided evidence or, in any event, referred to a specific annex to the file showing that DDC was a party to all relevant loan agreements and that it had room for manoeuvre or took any decision on the use of the funds from the applicants’ capital increase to finance the purchase price.
217    Finally, it is appropriate to reject as ineffective the applicants’ restrictive interpretation whereby involvement in the design of the financing structure of the transaction and in the related corporate structure is not strictly apparent from the transaction’s financing. Even if it were, such involvement would still enable HeidelbergCement’s participation in the organisation of the transaction to be established. Furthermore, as is apparent from paragraphs 122 and 123 above, the elements set out in paragraph 147 of the Consolidated Jurisdictional Notice do not constitute an exhaustive list of scenarios, and account must be taken of all the relevant elements in order to assess the economic reality of the transaction.
(8)    The eighth argument
218    In paragraph 23 of the reply, the applicants claim that the fact that HeidelbergCement had evaluated different financing scenarios that never materialised is irrelevant to the assessment of the applicants’ involvement in the financing of the transaction. The same applies to Schwenk’s alleged willingness to provide a shareholder loan to DDC. What counts is the participation in the financing scheme that was ultimately adopted.
219    Following on from that idea, the applicants also claim that there was no attempt to circumvent the merger control regime, contrary to the implicit allegations in paragraph 98 of the defence, which reproduces recital 84 of the contested decision. HeidelbergCement could have simply acquired Cemex Croatia itself without triggering a notification obligation. The document relied on by the Commission contained a neutral analysis and does not show any intention to circumvent the notification obligation.
220    First of all, as the Commission maintains, the degree of the applicants’ participation in the ‘financing scheme which was ultimately adopted’ is certainly relevant, but it cannot be decisive for the purpose of assessing their involvement in the transaction since, in such a case, it would be impossible for the Commission to assess correctly the economic reality underlying the concentration.
221    Next, it should be noted that, according to recital 84 of the contested decision, the Commission found the following:
‘in May 2015, Heidelberg[Cement] envisaged scenarios for the financing of the Transaction where HeidelbergCement and Schwenk would pay [confidential] million out of a purchase price that was estimated at that time to be [confidential] million. The contribution of HeidelbergCement and Schwenk was, however, subsequently reduced to [confidential] million each, in which case an “EU filing” would not be required provided that the “[confidential]”.’
222    The Court finds that the Commission merely reproduced the comments made by the applicants during the administrative procedure – the authenticity of which is not disputed – and does not qualify the applicants’ conduct. Lastly, as the Commission contends, it is not for it to speculate as to whether HeidelbergCement could have acquired the target companies by itself or through one of its subsidiaries.
(9)    The ninth argument
223    In paragraph 24 of the reply, the applicants claim that the statement in paragraph 100 of the defence, which reproduces recital 86 of the contested decision and provides that ‘at the end of July 2015, “[confidential]” for Cemex Hungary and Cemex Croatia’, refers to the overall purchase price to be paid by DDC and not to [confidential], since DDC is usually treated as part of HeidelbergCement in the latter’s internal documents.
224    Following on from that idea, the applicants claim that, in HeidelbergCement’s internal terminology, any company that concludes a share transfer agreement in the context of a concentration is labelled an ‘acquisition vehicle’. Therefore, the assertion in recital 113 of the contested decision that DDC was regarded as a mere vehicle is incorrect and is not supported by the quotation in that recital.
225    Lastly, the applicants claim that DDC does not have a legal department and lacks the necessary manpower and experience required to negotiate a large merger and acquisition transaction, and that DDC is de facto operating within the HeidelbergCement group despite its corporate structure as a joint venture under joint control and is commonly perceived by market participants as forming part of HeidelbergCement. It is thus essentially HeidelbergCement that conducted the sales process and the negotiations with Cemex on behalf of and in support of DDC.
226    DDC submits, in essence, that recourse to third parties – whether group companies or external advisers – cannot be the decisive element for defining the undertakings concerned.
227    First of all, it must be observed that, by their claim that DDC does not have the capacity, on account of its lack of manpower and experience, to negotiate a large merger and acquisition transaction, the applicants acknowledge that HeidelbergCement’s involvement in the transaction was decisive. Furthermore, that claim contradicts DDC’s assertion that HeidelbergCement could not, and would not, have carried out the transaction without DDC’s support.
228    Next, recital 86 of the contested decision shows that HeidelbergCement had an essential role in the financing of the transaction, irrespective of the fact that an amount of [confidential] was to be paid by [confidential].
229    Lastly, the fact, as the applicants claim, that DDC is usually treated as being part of HeidelbergCement contradicts their assertion that HeidelbergCement neither initiated nor organised the transaction. In any event, as the Commission contends, even assuming that DDC is de facto operating within the HeidelbergCement group, that finding must be considered to support, rather than refute, the conclusion that DDC neither initiated nor organised the transaction.
230    In that context, the applicants draw attention to Case M.7252 Holcim/Lafarge, in which the Commission regarded DDC as being part of HeidelbergCement. In that regard, even though the Court is not bound by the Commission’s decision-making practice (judgment of 26 October 2017, Marine Harvest v Commission, T‑704/14, EU:T:2017:753, paragraph 78), suffice it to note that a finding made in a decision which does not concern the applicants is not capable of calling the foregoing considerations into question.
(10) The tenth argument
231    In paragraph 25 of the reply, the applicants claim that recital 107 of the contested decision in no way explains why DDC’s earlier plans to acquire Cemex Croatia’s legal predecessor are irrelevant. Those plans are, in their view, entirely relevant as circumstantial evidence of the fact that the transaction directly and primarily served the ‘strategic interest’ of DDC itself and not that of its shareholders (and that DDC was therefore not merely an ‘acquisition vehicle’). It is not incumbent on the applicants to provide any further evidence or arguments to call into question the Commission’s claim that those earlier plans are irrelevant.
232    DDC maintains that it already contemplated acquiring the target companies several years ago.
233    In the case at hand, assuming that recital 107 of the contested decision does not explain why DDC’s earlier acquisition plans are not relevant to the 2015 transaction, the applicants still have not shown how the past intentions of DDC are relevant to proving that that transaction directly and primarily served the interest of DDC and not that of its shareholders.
234    In any event, as is apparent from paragraph 125 above, the fact that a full-function joint venture might have a ‘strategic interest’ or ‘its own interest’ in a concentration cannot prevent the parent companies from being classified as undertakings concerned.
(11) The eleventh argument
235    In paragraph 25 of the application, the applicants claim, in essence, that DDC participated in ‘all’ discussions and decisions concerning the valuation, organisation and structuring of the transaction. They cite, inter alia, by way of example, the email quoted in recital 110 of the contested decision which, in their view, clearly shows that [confidential] was in charge of the acquisition team and participated in the structuring of the transaction and in the development of the business rationale for the acquisition of Cemex Croatia. It is clear from that quote that DDC provided input to HeidelbergCement on how best to structure the transaction. Contrary to what is stated in paragraph 111 of the defence, which reproduces recitals 109 to 111 of the contested decision, the quote shows DDC’s involvement in the initiation and organisation of the transaction.
236    Recital 110 of the contested decision states the following:
‘… the wording of the email indicates that DDC was simply providing “[confidential]” to HeidelbergCement as to how to best “[confidential]”. HeidelbergCement subsequently confirmed during the administrative procedure that it was [HeidelbergCement] that informed [DDC] about the sale of Cemex Croatia and not [DDC] that informed [HeidelbergCement].’
237    It is apparent from the preceding paragraph that DDC’s contribution to the ‘structuring’ of the transaction consisted of [confidential] with a view to ‘[confidential]’, without specific consideration for the situation in 2015. It is more akin to the use of old information than to a statement of position or an analysis of the situation in 2015. It is likewise not apparent from the wording used that the two parties were on equal footing or that [confidential] and DDC through it were ‘in charge’ of the acquisition team. The impression that emerges is rather that DDC [confidential] so that HeidelbergCement could establish its position or take a decision.
238    In any event, even if that email could be regarded as a consultation or an opinion, it would not prove that DDC participated in ‘all’ discussions and decisions concerning the transaction. The determination of DDC’s role and degree of involvement in the transaction cannot be based on a single factor in isolation.
239    Furthermore, as is apparent from paragraph 205 above, that DDC might have participated in the transaction does not preclude the applicants from having been significantly involved in it.
(12) The twelfth argument
240    In paragraph 28 of the reply, the applicants claim that no decision relating to the organisation, structuring and financing of the transaction would have been adopted without DDC’s involvement and consent, and they offer the witness statement of [confidential] in support of that claim.
241    DDC maintains that [confidential] provided input as to the reasons and rationale for the transaction. It was that individual who proposed the purchase prices in the initial offer and the binding offer. DDC also maintains that HeidelbergCement could not, and would not, have pursued the transaction without DDC’s support and approval.
242    DDC also contends that it was represented in the negotiation team. The fact that it was represented only by its external legal counsel does not change that. Moreover, DDC was directly involved in the negotiations for the Hungarian part of the transaction.
243    As is apparent from paragraph 171 above, without other evidence to corroborate the witness statement of [confidential], that document cannot establish the reality of the circumstances set out therein.
244    As far as DDC’s allegation is concerned, it is not supported by any evidence. Even if DDC intended to refer implicitly to the witness statement of [confidential], it must be noted that, for the same reasons as those set out in the preceding paragraph, that document cannot call into question the factual elements set out by the Commission in its decision. Assuming that DDC intended to refer to its email of 27 July 2015 containing the binding offer for the purchase of Cemex Croatia, submitted as an annex to the statement in intervention, it must be noted that it is not apparent from that email or from its attachments that the purchase price of the binding offer was proposed by [confidential], since he is not the sender or an addressee of that email, or even in copy.
245    Regarding the presence of DDC’s external legal counsel in the negotiation team, while that may – assuming it were established – prove relevant to the overall assessment of the body of evidence relied on by the Commission in order to establish the applicants’ significant involvement in the transaction, it cannot, alone, be decisive.
246    As regards the claim that DDC was allegedly directly involved in the negotiations for the Hungarian part of the transaction, assuming that that may be relevant to the assessment of significant involvement in the Croatian transaction, it indicates, on the contrary, that DDC was not as involved in the Croatian part of the transaction as it was in the Hungarian part.
(13) The thirteenth argument
247    In paragraph 29 of the reply, the applicants claim that DDC’s presence on the steering committee is ‘in itself’ evidence of DDC’s close involvement in all discussions and decisions relating to the acquisition process and in the valuation, organisation and structuring of the transaction.
248    That argument must be rejected in the present case. Indeed, as is apparent from paragraph 180 above, DDC’s participation in that committee merely shows that DDC was involved in the decisions adopted by that committee. Moreover, as is apparent from paragraph 186 above, the applicants have not adduced evidence that all decisions relating to the transaction had to be endorsed by that committee.
(14) The fourteenth argument
249    In paragraph 30 of the reply, the applicants claim that, given that DDC submitted the binding offer, was party to the final purchase agreements and financed 80% of the purchase price via bank loans and the remaining 20% out of its own funds, the Commission cannot seriously contest that DDC was responsible for paying and securing the financing of the lion’s share of the purchase price.
250    In the present case, it is apparent from Annex I.1 to the statement in intervention that DDC sent the binding purchase offer in respect of Cemex Croatia to banks, by email, on 27 July 2015. The binding offer and various supporting documents were attached to the email. It is thus clear from the decision of the shareholders attached to that email that the applicants authorised DDC to submit a final and binding offer to Cemex, in its own name, at the purchase price that was fixed in the decision. Therefore, while DDC does provide evidence that its offer was forwarded to banks, it does not provide evidence that it also submitted that offer, in accordance with the decision of its parent companies, to Cemex. The applicants, for their part, do not produce any evidence in support of their claims.
251    In any event, as the Commission notes, that purchase offer implemented the verbal agreement on the main terms of the transaction, including the agreement on the final purchase price, which had been concluded on 31 July 2015 between HeidelbergCement and Cemex (recitals 77 and 90 of the contested decision).
252    Furthermore, even if DDC did in fact pay 80% of the purchase price by means of bank loans and the remaining 20% from its own funds, it is apparent from paragraphs 13 and 22 of the reply that this was by using the funds from the increase in its capital granted by the applicants to finance that purchase price.
253    Lastly, the fact that DDC ‘was party to the final purchase agreements and financed 80% of the purchase price via bank loans and the remaining 20% out of its own funds’ in no way alters the fact that it was the applicants – and not DDC, as is apparent from paragraphs 202 to 205 above – that designed the financing structure of the transaction and the related corporate structure.
(15) The fifteenth argument
254    Contrary to what the applicants claim in paragraph 32 of the reply, taking into consideration the factors mentioned in paragraph 119 of the defence, which refers to Section 3.4.4 of the contested decision – itself pertaining to Schwenk’s involvement in the transaction – does not render the Commission’s identification of the undertakings concerned entirely unpredictable and arbitrary.
255    As regards the alleged unpredictability of the Commission’s approach, it is appropriate to refer to paragraph 129 et seq. above, from which it is apparent that the applicants have not established an infringement of the principle of legal certainty.
256    Regarding the alleged arbitrary nature of the Commission’s approach, it should be noted that Article 1(2) of Regulation No 139/2004 leaves the Commission a margin of discretion to identify the undertakings concerned, as follows from paragraphs 105 and 124 above. However, that discretion is limited by the rules of conduct which the Commission imposed on itself in the Consolidated Jurisdictional Notice.
257    Thus, at the end of paragraph 147 of the Consolidated Jurisdictional Notice, parent companies which are in fact the real players behind the transaction are regarded as undertakings concerned, in particular if their participation in the transaction amounts to significant involvement in its initiation, organisation and financing. Therefore, the fact that the Commission took into consideration, in its assessment, facts connected to Schwenk’s participation in the transaction cannot be regarded as arbitrary.
258    As for the specific arrangements of Schwenk’s participation in the transaction and the sufficiency of the indicia relied on by the Commission, they will be examined below.
(16) Schwenk’s participation in the transaction
259    According to the applicants, Schwenk was clearly not a real player behind the transaction and was not significantly involved in it. Its role did not go beyond that of a controlling shareholder in a project for the acquisition of a subsidiary. The fact that Schwenk was kept informed of the acquisition process by DDC, was involved in occasional discussions relating to the financing of the transaction and had to approve the initiation of the acquisition process is entirely normal and is standard practice. Moreover, Schwenk was involved neither in the steering committee responsible for the acquisition process nor in matters of general strategic importance. Furthermore, there is no evidence to support the Commission’s assertions that Schwenk designed the financing of the transaction or identified it as an attractive business opportunity. The fact that Schwenk never opposed HeidelbergCement’s active participation cannot constitute evidence of Schwenk’s significant involvement in the transaction.
260    It should be noted at the outset that, where two parent companies hold 50% of the shares and 50% of the voting rights in a joint venture, respectively, it does not appear to be manifestly incorrect to regard them both as exercising decisive influence over that joint venture and the joint venture’s conduct as being determined jointly by the parent companies.
261    Moreover, it is apparent from paragraph 147 of the Consolidated Jurisdictional Notice that the condition of significant involvement by the parent companies in the initiation, organisation and financing of the transaction is satisfied only if, were it not for certain decisions or certain actions of the parent companies, the joint venture could not have carried out the transaction in question.
262    First, as regards the initiation of the transaction, it is apparent from recitals 65, 73 and 96 of the contested decision that, before the meeting of 6 May 2015, HeidelbergCement and Schwenk decided to pursue the acquisition of the target companies with DDC as ultimate purchaser of Cemex Croatia. Those findings are supported by footnotes 38, 49 and 79 of the contested decision, all of which refer to the same document, namely the minutes of the kick-off meeting for ‘project Cerberus’ of 6 May 2015. In that regard, the applicants merely state without further explanation, in footnote 10 of the application, that ‘the evidence does not show’ what recitals 65 and 73 of the contested decision mention. That is not sufficient to call into question the findings already made in paragraph 173 above.
263    According to recitals 68 and 99 of the contested decision, HeidelbergCement submitted the indicative offer for the purchase of Cemex Austria and the target companies on 8 June 2015, after having received oral approval from Schwenk. That finding is based on an email of 2 June 2015 and on the indicative offer, both of which are referred to under the recitals in question, in footnotes 42, 43, 83 and 84 of the contested decision. It must be pointed out, however, that the applicants have not disputed recitals 68 and 99 of the contested decision or the evidence cited therein, and that they also acknowledged that circumstance in paragraph 18 of the reply.
264    Second, as regards the organisation of the transaction, it is apparent from recitals 72 and 105 of the contested decision that Schwenk was regularly informed about HeidelbergCement’s organisation of the transaction and never sought to oppose HeidelbergCement’s role in any way. In footnote 20 of the application, the applicants claim that the latter assertion is not supported by any evidence. However, they produce no evidence supporting the notion that Schwenk opposed in any way the role played by HeidelbergCement or its decisions. That is confirmed by DDC’s statutes, according to which the consent of the two parent companies was required for the transaction.
265    According to recitals 79 and 103 of the contested decision, HeidelbergCement and Schwenk’s representatives had, since June 2016, been members of a steering committee for the integration of the transaction. In footnote 24 of the application, the applicants claim that the fact that they joined that committee was completely irrelevant, since it had been established after the conclusion of the transaction. In that regard, it is sufficient to note that the applicants have not disputed recitals 81 and 98 of the contested decision, according to which, in June 2015, HeidelbergCement and Schwenk discussed the potential structure of the transaction.
266    Third, as regards the financing of the transaction, recitals 84 and 97 of the contested decision refer to HeidelbergCement’s envisaging, in May 2015, of scenarios for the financing of the transaction, where HeidelbergCement and Schwenk would pay EUR [confidential]-[confidential] million of the purchase price that was estimated at that time to be EUR [confidential]-[confidential] million. HeidelbergCement and Schwenk’s payments were subsequently reduced to EUR [confidential] million each. According to those recitals, notification of the transaction would not be required provided that [confidential]. In footnote 22 of the application, the applicants observe that those financing models were never implemented and that the Commission does not claim that Schwenk approved them. In footnote 31 of the application, the applicants describe the Commission’s insinuation of circumvention of the notification obligation as absurd. Suffice it to state that the applicants’ reference, in footnote 22 of the application, to Schwenk’s alleged lack of involvement in the matter amounts to nothing more than an assertion that HeidelbergCement could have unilaterally imposed a financing scenario on Schwenk, which, in view in particular of the fact that the applicants had discussions on the potential structure of the transaction, as is apparent from paragraph 204 above, is not credible.
267    According to recitals 87 and 100 of the contested decision, in August 2015, Schwenk indicated its willingness to grant a [confidential] in order to avoid having to issue guarantees towards the banks to secure the financing of the transaction by DDC. In footnote 22 of the application, the applicants submit that [confidential] was never granted. In that regard, it is sufficient to note that the applicants do not dispute that Schwenk acted in this way.
268    According to recitals 94 and 102 of the contested decision, Schwenk was willing to provide ‘soft comfort letters’ [confidential]. It must be pointed out, however, that those recitals have not been disputed by the applicants.
269    The Commission therefore did not make a manifest error of assessment in finding, on the basis of a body of consistent evidence, that Schwenk had been significantly involved in the transaction.
270    It follows from the foregoing that the applicants and DDC have failed to show that HeidelbergCement acted on behalf of and in support of DDC and that Schwenk was not significantly involved in the transaction. It is therefore without making a manifest error of assessment that the Commission was able to conclude that the applicants were significantly involved in the transaction and were the real players behind it.
(17) The measures of organisation of procedure proposed by the applicants and DDC
271    In the first place, the applicants have offered to provide, by means of six different witness statements, evidence of certain facts concerning, inter alia, their and DDC’s involvement in the transaction.
272    In that regard, it must be recalled that the Court is the sole judge of whether the information available to it concerning the cases before it needs to be supplemented (see judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 67 and the case-law cited).
273    In the present case, the Court has been able to rule on the basis of the forms of order sought, the pleas in law and the arguments put forward during the written and oral parts of the procedure. Consequently, the applicants’ request for the examination of witnesses must be rejected.
274    In the second place, DDC requests the Court to ‘order’ the Commission to disclose certain seized emails and to give it the opportunity to comment on them in order to demonstrate its significant involvement in the transaction, for the purposes of the first plea.
275    It follows from the wording of Article 88(1) of the Rules of Procedure, however, that only the main parties may apply for the adoption of measures of organisation of procedure and measures of inquiry. DDC’s request for a measure of organisation of procedure must therefore be rejected as inadmissible.
(c)    The third part, concerning the irrelevance of the considerations set out and the evidence collected after the initiation of the in-depth investigation phase
276    In the alternative, the applicants submit that the reasoning, the factual allegations and the evidence set out in recitals 37 to 115 of the contested decision are irrelevant for the purpose of assessing the undertakings concerned, for two reasons.
277    First, the Commission made a definitive finding on its competence in the decision to initiate the in-depth investigation procedure. The evidence and reasoning relating to those considerations in that decision, however, are clearly insufficient to justify the Commission’s assumption of jurisdiction.
278    Second, the applicants claim that all evidence gathered after the initiation of the in-depth investigation phase is unlawful and cannot be used against the parties. Since the issue of the Commission’s jurisdiction was resolved by the decision to initiate the in-depth investigation procedure, the Commission no longer had jurisdiction to send requests for information to obtain additional information on that issue.
279    Regarding those arguments, it should be recalled that Article 11(1) of Regulation No 139/2004 provides that the Commission may require undertakings to provide it with all information necessary in order to carry out the duties assigned to it by that regulation.
280    Therefore, the Commission may exercise the powers conferred on it by that article to the extent that it considers that it is not in possession of all the information necessary to enable it to decide on the compatibility of the concentration with the internal market (see, to that effect, judgment of 4 February 2009, Omya v Commission, T‑145/06, EU:T:2009:27, paragraph 28).
281    It follows that the texts cited do not enable a distinction to be drawn between the first phase of the investigation and the in-depth investigation phase as regards the subject matter of the requests for information. Moreover, the effect of the applicants’ interpretation would be to deprive the Commission of the power to apprise itself of any observations the parties might have on the decision to initiate the in-depth investigation procedure, concerning the Community dimension of their proposed concentration.
282    It follows from the foregoing that the third part of the first plea must be rejected and, accordingly, so must the first plea in its entirety.
C.      The second plea, alleging errors of law and manifest errors of assessment as regards the definition of the relevant geographic market
283    By their second plea, the applicants claim that the Commission’s reasoning concerning the definition of the relevant geographic market is legally and factually unsustainable, infringes the principles of geographic market definition as set out in the Commission Notice of 9 December 1997 on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5; ‘the market definition notice’) and does not comply with the case-law of the EU Courts.
284    That plea comprises, essentially, eleven arguments.
1.      The contested decision
285    The Commission defined, in recitals 160 to 207 of Section 6.3 of the contested decision, the relevant geographic market.
286    As has already been recalled in paragraph 31 above, the Commission reached the conclusion, in recital 160 of the contested decision, that it could be left open whether the relevant geographic market should be defined as circular catchment areas of 250 km around ‘the Parties’’ plants or modified 250 km catchment areas around ‘the Parties’’ plants, given that the transaction would significantly impede effective competition regardless of the market definition used.
287    In recital 162 of the contested decision, it stated that the competitive assessment nevertheless took into account the fact that, while the areas covered by those two alternative market definitions were sufficiently homogeneous and could be distinguished from neighbouring areas, there were variations in competitive conditions within each of those two alternative markets.
288    After having summarised its previous decision-making practice (Section 6.3.1) and the parties’ submissions (Section 6.3.2), the Commission gave an overview of the general principles for assessing geographically differentiated markets such as that for grey cement (Section 6.3.3.1). In recitals 174 and 175 of the contested decision, the Commission set out the reasons why it was apparent from the nature and characteristics of grey cement that competitive conditions in catchment areas changed gradually depending on the geographic location of each customer. In recital 176 of the contested decision, the Commission took those conditions to mean that, while competitive conditions within a certain circular catchment area might be sufficiently homogeneous and could be distinguished from neighbouring areas, competitive conditions might be more homogeneous between customers located close to one another and less homogeneous between customers located further away from each other.
289    In recital 178 of the contested decision (Section 6.3.3.2), the Commission found that the appropriate radius for the circular catchment areas around the plants of DDC and Cemex ought to be a geodesic distance of 250 km. In recitals 179 to 183 of the contested decision, the Commission set out the reasons why the appropriate radius for circular catchment areas ought to be 250 km. Those areas represent on average 90% of deliveries around the plants of DDC and Cemex.
290    After having outlined the situation in territories outside the EEA but within the circular catchment areas (Section 6.3.3.3), the Commission explained, in recital 190 of the contested decision, that there were arguments in favour of further refining the 250 km circular catchment area around ‘the Parties’’ plants to reflect the specific delivery distances to individual customers and the actual road network conditions in different parts of the circular catchment area (Section 6.3.3.4). In accordance with that modified approach and based on the calculations provided by the applicants, the Commission drew up a modified catchment area around Cemex’s plant in Split, defined as the area reached by travelling [confidential] km by road (recitals 196 and 197 of the contested decision).
291    Pursuant to recital 198 of the contested decision, the Commission found that such an approach was not necessary for the circular catchment area around DDC’s plant in Kakanj, since that plant was served by relatively straight road connections between Bosnia and Herzegovina and Croatia.
292    In recitals 199 to 207 of the contested decision, the Commission explained why it had rejected HeidelbergCement’s arguments contradicting its assumption that cement did not transit through Bosnia and Herzegovina.
2.      Preliminary observations
293    It should be recalled that a proper definition of the relevant market is a necessary precondition for any assessment of the effect of a concentration on competition (judgments of 31 March 1998, France and Others v Commission, C‑68/94 and C‑30/95, EU:C:1998:148, paragraph 143, and of 7 June 2013, Spar Österreichische Warenhandels v Commission, T‑405/08, not published, EU:T:2013:306, paragraph 116).
294    As follows both from Article 9(7) of Regulation No 139/2004 and from point 8 of the market definition notice, the relevant geographic market comprises the area in which the undertakings concerned are involved in the supply of the products or services in question, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas because the conditions of competition are appreciably different in those areas. For the purposes of defining the geographic market, account must be taken of a number of factors, such as the nature and characteristics of the products or services concerned, the existence of entry barriers, consumer preferences, and the existence, in the area concerned as compared with neighbouring areas, of appreciable differences in the market share of undertakings, or price differences (judgments of 30 September 2003, Cableuropa and Others v Commission, T‑346/02 and T‑347/02, EU:T:2003:256, paragraph 115, and of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 52).
295    Lastly, the Court reviews assessments by the Commission concerning the definition of relevant markets by reference to a test of whether there was a manifest error of assessment (see, to that effect, judgments of 6 June 2002, Airtours v Commission, T‑342/99, EU:T:2002:146, paragraphs 26 and 32, and of 30 September 2003, Cableuropa and Others v Commission, T‑346/02 and T‑347/02, EU:T:2003:256, paragraph 199).
296    It is in the light of those considerations that the second plea must be examined.
3.      Findings of the Court
297    First, in paragraph 62 of the application, as was stated at the hearing, the applicants argue that the assertion in recitals 162, 176, 191 and 229 of the contested decision, according to which competitive conditions in the ‘relevant catchment areas’ are sufficiently homogeneous and can be distinguished from neighbouring areas, is not sufficiently substantiated in the contested decision.
298    That argument must be rejected. The reasons why the catchment areas defined by the Commission are in fact sufficiently homogeneous and can be distinguished from neighbouring areas are set out in recitals 180, 181, 196 and 197 and in Tables 2 and 3 of the contested decision.
299    First of all, as regards the circular catchment area around Cemex’s plant in Split and the circular catchment area around DDC’s plant in Kakanj, it is apparent from recital 180 and Table 2 of the contested decision that 90% of Cemex and DDC’s sales are delivered, on average, at a geodesic distance of up to [confidential] km. Moreover, the parties have not disputed recital 181 or Tables 2 and 3 of the contested decision, according to which 90% of the sales of Cemex’s main competitors – LafargeHolcim, Titan, Asamer and Nexe – are also made within a 250 km circular catchment area from their plants.
300    Next, as regards the modified catchment area around Cemex’s plant in Split, it is apparent from recitals 180, 196 and 197 and Table 2 of the contested decision that [confidential]% of Cemex’s sales from its Split plant are delivered at an actual road distance of up to [confidential] km.
301    Those figures suggest that the competitive conditions in the catchment areas defined by the Commission are sufficiently distinguishable from the neighbouring areas where Cemex and DDC make only 10% of their sales.
302    That conclusion is not called into question by the claim, set out in footnote 41 of the application, that the alternative markets defined by the Commission on the basis of a circular and modified approach can be considered sufficiently homogeneous under one definition, but not under the other. Those two approaches are based on different premisses, namely geodesic distance for the circular catchment areas (recital 178) and actual road distances and actual road network conditions for the modified catchment areas (recital 189). Since the demarcation of those areas is based on different criteria, it is normal to end up with different area borders. That does not however mean that, within each of those areas, the conditions of competition are not sufficiently homogeneous.
303    Second, in paragraph 63 of the application, the applicants claim that, although the Commission states, in recital 191 of the contested decision, that there are variations in competitive conditions within ‘catchment area markets’, mainly due to topographical factors, and refers in that regard to the explanations in Section 7.4 of that decision, there is no mention of such a factor in that section.
304    That argument must be rejected.
305    Section 7.4 of the contested decision does in fact contain a list of factors explaining the geographical differentiation within the relevant catchment areas. While there may be some doubt as to whether those elements can be classified as ‘topographic factors’ in the strict sense, the fact remains that they could explain differences in competitive conditions.
306    Moreover, the applicants do not dispute any of the conclusions set out in recitals 188, 192 and 197 of Section 6.3.3 of the contested decision, to which recital 235 of Section 7.4 refers, and according to which, while deliveries of grey cement between Dalmatia (Croatia) and Slavonia (Croatia) follow a longer route through Croatia, that is due to the topography of Croatia and of its neighbouring countries.
307    In that context, it is also necessary to reject the applicants’ claims seeking to call into question the merits of recital 233, in Section 7.4 of the contested decision, according to which cement companies price discriminate across regions in Croatia. Indeed, as the Commission contends, [confidential]. Lastly, the applicants also adduce no evidence to support their assertion that there are numerous possible explanations for the price differences.
308    Third, in various passages of their submissions and, in particular, in paragraph 65 of the application and in paragraph 36 of the reply, the applicants claim, in essence, that the competitive assessment in Section 7 of the contested decision did not relate to the geographic market defined in Section 6.3. In their view, the Commission’s competitive assessment pertained to the circular and modified catchment area of Cemex’s plant in Split in isolation and not to the markets comprising the catchment areas of both Split and Kakanj.
309    It must be held that the alleged contradiction raised by the applicants is unfounded.
310    As the Commission explains, Section 6.3 of the contested decision concerns all the relevant geographic markets that are potentially affected by the transaction, that is to say, the circular catchment areas around DDC’s plant in Kakanj and Cemex’s plant in Split, as well as the modified catchment area around Cemex’s plant in Split. By contrast, Section 7 of the contested decision assesses only the relevant geographic markets in which the transaction would have given rise to a significant impediment to effective competition, that is to say, the circular and modified catchment areas around Cemex’s plant in Split and their respective overlap with the circular catchment area around DDC’s plant in Kakanj.
311    In that regard, it follows from reading recital 252 of the contested decision in conjunction with footnote 188 thereof – neither of which is disputed by the applicants – that the area of overlap between the Split and Kakanj plants accounts for a large majority of sales of grey cement in the circular and modified catchment areas around Cemex’s plant in Split and that the other parts of the circular catchment area around DDC’s plant in Kakanj either fall outside the Commission’s jurisdiction (for the non-EEA territory and Hungary) or are immaterial to the assessment (additional limited parts of Slavonia close to the Hungarian border).
312    Following on from that idea, it is also necessary to reject the applicants’ claim in paragraph 34 of the reply that the Commission contended, in its defence, that the significant impediment to effective competition found in the contested decision concerned a circular catchment area of [confidential] km around Cemex’s plant in Split. As the Commission clarified in paragraph 42 of the rejoinder, that is a clerical error and the contested decision unambiguously defines the modified [confidential] km catchment area around that plant as non-circular.
313    Since that mere clerical error did not affect the content of the contested decision, it must be deemed not to affect its validity (judgment of 2 October 2003, Aristrain v Commission, C‑196/99 P, EU:C:2003:529, paragraph 115).
314    Lastly, in footnote 13 of the reply, the applicants also submit that recital 196 of the contested decision, pursuant to which the applicants themselves calculated that the average distance of delivery by road to a customer in the region of Zagreb (Croatia) was [confidential] km, is incomplete since they were forced to communicate that data following a request for information from the Commission which did not even clearly explain the purpose of that calculation request.
315    In that regard, it is sufficient to note that the applicants do not dispute having carried out those calculations and that those calculations are correct.
316    Fourth, in paragraph 66 of the application, the applicants claim that it is unacceptable to leave open the definition of the relevant market explicitly. In a prohibition decision, the Commission must reach a definitive conclusion on that definition. Without a precise definition of the relevant market it is impossible to measure whether any reduction of competition as a result of a transaction is ‘significant’ enough to justify the finding of a significant impediment to effective competition in the relevant market.
317    DDC claims that the Commission cannot rely on paragraph 60 of the judgment of 26 October 2017, KPN v Commission (T‑394/15, not published, EU:T:2017:756) in support of its approach of leaving open the definition of the relevant markets.
318    It must be stated that those claims are based on a misreading of the contested decision and of the case-law.
319    As is apparent from paragraphs 31 and 32 above, the definition of the relevant geographic market given by the Commission in recital 160 of the contested decision was not left open, contrary to what the applicants assert. Rather, that definition, applied according to two distinct methods, appears to be definitive, as the use of the expression ‘the Commission concludes’ attests, but also sufficiently precise, since it enabled the Commission to calculate, inter alia, market shares for the two types of relevant markets, as is apparent from recital 271 of the contested decision, and to draw, more generally, a conclusion as to the proposed transaction’s effect on the market.
320    As for DDC, it cannot derive any useful argument from the judgment of 26 October 2017, KPN v Commission (T‑394/15, not published, EU:T:2017:756). Although, according to paragraph 60 of that judgment, the Commission could leave open the definition of the relevant market ‘to the extent that none of the possible market definitions could lead to a finding of a significant impediment to effective competition following the concentration’, there is nothing in that wording to limit that solution to cases in which the market is not impeded. In both cases, after all, the Commission arrives at a consistent solution as regards the existence of a significant impediment to effective competition following the concentration.
321    Fifth, in paragraph 67 of the application, the applicants criticise the Commission for not taking into account the factors set out in paragraph 52 of the judgment of 7 May 2009, NVV and Others v Commission (T‑151/05, EU:T:2009:144), reproduced in paragraph 294 above, which they claim are relevant to the definition of the market contained in the contested decision.
322    It must be stated, in that regard, that the applicants clearly disregard the content of the contested decision. In recitals 174 to 176 of the contested decision, the Commission explained that, due to the nature and characteristics of grey cement, competitive conditions changed gradually with the geographic location of each customer. It examined the existence of obstacles to delivery in recitals 188, 192 and 199 to 207, consumer preferences in recital 174, and the existence, between the area concerned and neighbouring areas, of considerable differences in the undertakings’ market shares in recitals 183, 231 and 232, or of substantial price differences in recitals 175 and 233.
323    As regards the applicants’ claim that the Commission did not explain why and to what extent the conditions of competition in the catchment areas around ‘the Parties’’ plants were significantly different from those in neighbouring areas, it is appropriate to refer to the reasoning set out in paragraphs 298 to 302 above.
324    As regards the allegation that the contested decision does not explain how the conditions of competition in a catchment area can be ‘sufficiently homogeneous’ when ‘prices and concentration levels are significantly higher in Dalmatia’, reference should be made to paragraph 325 below, which deals with the gradual change of competitive conditions which characterises geographically differentiated markets.
325    As regards the applicants’ claim that it is contradictory to assert that the conditions of competition within the ‘catchment area markets’ are ‘sufficiently homogeneous’ and at the same time ‘geographically differentiated’, it should be noted that, due to the characteristics associated with the sale of grey cement, namely the existence of transport costs and security of supply concerns, there will always be geographic differentiation within the relevant geographic markets, regardless of the way in which those markets are defined.
326    In that context, the reference to footnote 32 of the Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (OJ 2004 C 31, p. 5; ‘the Horizontal Merger Guidelines’) in recital 237 of the contested decision does not appear to be ‘misleading’. After all, according to its wording, that footnote concerns the ‘various ways’ in which products may be differentiated. It thus distinguishes between the differentiation which can exist on the basis of where the product is located and that which can be made on the basis of the product itself. Contrary to what the applicants assert, for the geographical differentiation of a product, both the distance to be travelled by the customer to obtain the product and the distance to be travelled by the product to reach the customer are relevant. In both cases, transport costs and security of supplies play an important role. Thus, contrary to the applicants’ arguments, cement is a geographically differentiated product.
327    Sixth, in paragraph 68 of the application, the applicants criticise the Commission for confusing, in recitals 174 to 177 of the contested decision, the definition of the relevant geographic market with the assessment of the competitive effects of a concentration. The Commission’s approach, taking into account the gradual change of competitive conditions for customers in different locations and the fact that the degree of homogeneity of those conditions may vary according to distance, is, in their view, true for any geographic market.
328    In that regard, it is sufficient to observe that the applicants have not contradicted the explanation set out in those recitals, namely that, in view of the characteristics of grey cement, in particular the proportion of the total variable costs of delivering cement which transport costs represent, the competitive pressure exerted by a supplier of that product in order to gain a customer depends on the distance between them. Those findings are not true for all geographic markets.
329    In addition, the line of argument in footnote 53 of the application, relating to the calculation of market shares based on production capacity (‘capacity market shares’) available to each customer, is misleading. As the Commission maintains, it did not, in the contested decision, treat ‘each customer as a distinct geographic market’, but illustrated how, within the relevant catchment areas, conditions of competition changed gradually depending on the geographic location of the competing suppliers. Furthermore, and in any event, as is explained in footnote 221 of the contested decision, calculations of capacity market shares merely complement the ‘more relevant’ market share calculations based on actual sales by grey cement suppliers to all of their customers in the relevant catchment areas.
330    Seventh, in paragraph 69 of the application, the applicants complain that the Commission failed to apply the ‘SSNIP test’, described in paragraph 17 of the market definition notice.
331    As the Commission rightly notes in paragraph 143 of the defence, the ‘SSNIP test’ is not the only method available to it when defining the relevant geographic markets. Moreover, the applicants have not even attempted to show that the application of that test would have made any difference to the conclusions reached by the Commission in the contested decision.
332    Eighth, in paragraph 70 of the application, the applicants claim that the Commission’s delineation of the market corresponding to the modified catchment area around Cemex’s plant in Split is entirely arbitrary, since the Commission’s assertions, made in recitals 193 to 196 of the contested decision, make it impossible to verify why ‘less linear road connections’ are not relevant in the region concerned. The ‘modified approach’ is no more reliable than the ‘circular approach’ in so far as the Commission did not take into account, as part of that first approach, the road conditions and journey times on the actual road network.
333    That argument disregards the fact that, in recitals 188 to 192 of the contested decision, the Commission provided an explanation of why the circular catchment area around Cemex’s plant in Split could not fully reflect the actual delivery distances to customers, owing in particular to topography. The applicants have likewise not disputed recital 196 of the contested decision, which states that it was they themselves that calculated that the average road distance to supply a customer around Zagreb was [confidential] km, or recital 197, from which it follows that [confidential]. Lastly, they have not disputed that, according to the latter recital, an analysis of their data suggests that the 250 km geodesic radius overstates the catchment area around Cemex’s plant in Split because [confidential]. In any event, the applicants do not explain why, in their view, that road distance of [confidential] km around Cemex’s plant in Split has nothing to do with assessing whether the competitive conditions are sufficiently homogeneous.
334    Ninth, in paragraph 71 of the application, the applicants claim that the ‘modified catchment area approach’ could at most provide useful results if the same modification had also been applied to the catchment areas of the plants of DDC and of all the relevant competitors. Moreover, the assertion contained in recital 198 of the contested decision, according to which a similar modification was not necessary because DDC’s plant in Kakanj could use relatively straight road links between Bosnia and Herzegovina and Croatia, is not substantiated.
335    DDC maintains that the claim in recital 198 of the contested decision that a modification was not necessary for the circular catchment area around Kakanj as the plant can use relatively straight road connections between Bosnia and Herzegovina and Croatia is wrong.
336    In that regard, it must be observed that the applicants have not shown that the explanation provided by the Commission in recital 198 of the contested decision as to why it was not necessary to define a modified catchment area for DDC’s plant in Kakanj is manifestly incorrect. It is apparent from that recital that the Kakanj plant can use relatively straight road connections between Bosnia and Herzegovina and Croatia so that applying the modified approach to that plant should not change the results of the Commission’s assessment. However, although Cemex has the possibility of using the same road connections as DDC when delivering cement in Croatia, in reality, it uses only road connections within Croatia for its deliveries. It thereby avoids having to cross the border with Bosnia and Herzegovina twice for an equivalent driving time. That is apparent from recitals 206 and 342 of the contested decision, which are not disputed.
337    Furthermore, as follows from recitals 188, 327, 339, 358, 359, 368, 372, 379, 385 and 568 of the contested decision, the Commission took into account the road network and road conditions for Cemex, DDC and other competitors. In that regard, contrary to what the applicants assert, it is not apparent from recitals 188, 372 and 568 that roads in Bosnia and Herzegovina are generally in poor condition, but only that, for Asamer and Titan, some of them affect compliance with delivery deadlines in the Dalmatia region.
338    In any event, the applicants and DDC have not shown that the establishment of a modified catchment area for DDC’s plant in Kakanj and for the plants of the competitors concerned would have led to a different assessment of the competitive effects of the transaction.
339    Tenth, in paragraph 72 of the application, the applicants claim that the delineation of the modified catchment area of Cemex’s plant in Split merely serves to reduce arbitrarily the size of the relevant geographic market and thus to increase ‘the Parties’’ combined market shares.
340    Even if that allegation were well founded, quod non, the fact remains that the concentration would have significantly impeded effective competition in the 250 km circular catchment area around Cemex’s plant in Split, as is apparent from recitals 160 and 222 of the contested decision.
341    Eleventh, in paragraph 41 of the reply, the applicants claim that the considerations in the contested decision relating to the security of supply concerns and their relevance for geographic differentiation, set out inter alia in recital 174 of the contested decision, are not supported by evidence, but are also unfounded in so far as they have no impact on the actual ability of suppliers to deliver or ship economically into a certain area.
342    Irrespective of whether that argument is inadmissible, as the Commission maintains, it must be held, in any event, that, read as a whole, the contested decision sets out appropriately the relevance of the security of supply concerns to the definition of the relevant geographic markets. Customers attach importance to security of supply (recital 318), with the result that, the greater the distance, the less competitive deliveries are (recital 174).
343    It follows from the foregoing that the second plea in law must be rejected in its entirety.
D.      The third plea, alleging that there was no impediment to competition in a substantial part of the internal market
344    By their third plea, the applicants claim that the Commission failed to establish the existence of an impediment to competition in a substantial part of the internal market.
345    First, the applicants claim, in essence, that it is not sufficient that the relevant geographic market actually constitutes a substantial part of the internal market. It is necessary that the part within that market which is affected by the competition problem also constitute a substantial part of the internal market. In the present case, the transaction may, at most, have created a significant impediment to effective competition in Dalmatia. However, neither Dalmatia nor southern Croatia constitutes a substantial part of the internal market. Furthermore, the Commission has not shown that a significant impediment to effective competition would affect the entire ‘Split catchment area markets’ referred to in Section 7, and still less the relevant markets defined in Section 6.3 of the contested decision.
346    It is necessary to reject that argument of the applicants.
347    As is apparent from paragraph 366 below, the concept of significant impediment to effective competition does not mean that all parts of the circular and modified catchment area around Cemex’s plant in Split must be equally affected by that impediment. As the Commission notes, although, on account of variations in the competitive conditions in the catchment areas, the significant impediment to effective competition was more extensive in the part of those areas corresponding to the Dalmatia region, that impediment nevertheless affected the entire territory of those areas.
348    Moreover, as the Commission also claims in paragraph 158 of the defence, the applicants’ allegation that Dalmatia cannot be considered a substantial part of the internal market is irrelevant, since that is not what was held in the contested decision. The Commission held, in recital 160 of the contested decision, that the relevant geographic market could be defined as circular catchment areas of 250 km around ‘the Parties’’ plants or modified 250 km catchment areas around ‘the Parties’’ plants and also held, in recital 222 of the contested decision, that the transaction would significantly impede effective competition in the relevant geographic market around Cemex’s plant in Split, taking into account the overlap with the catchment area around DDC’s plant in Kakanj.
349    Second, the applicants claim that, in any event, the Commission also fails to show that the ‘Split catchment area markets’ are a significant part of the internal market. In that regard they note, in the first place, that the sources for the figures adduced in recital 479 of the contested decision are unclear, that those figures cannot be verified and that, even if they were correct, they would still be insignificant compared to the corresponding figures for the internal market in its entirety. The ‘Split catchment area markets’ are less populous than the areas that have in the past been considered a substantial part of the internal market. In addition, the ‘30 000 km2 surface area’ relied on by the Commission is not clearly defined. In the second place, the comparison of regional and national cement consumption is not relevant for ascertaining whether a substantial part of the internal market is affected. The question whether an area affected by a significant impediment to effective competition constitutes a substantial part of the internal market requires a comparison with the internal market as a whole and not a comparison with individual Member States. In the third place, the Commission never claimed that imports or exports might be affected by the alleged significant impediment to effective competition.
350    In the present case, it is apparent from recital 479 of the contested decision that the Commission relied on four factors, namely surface area, population, consumption and imports and exports, in order to conclude that each of the alternative relevant geographic markets constituted a substantial part of the internal market.
351    It is therefore necessary to assess whether each of the alternative relevant geographic markets is capable of constituting a substantial part of the internal market.
352    First of all, as regards the surface area and the population of the areas in question, recital 479 of the contested decision identifies a surface area of more than 30 000 km2 and a population of more than two million inhabitants. Those figures are comparable to those of the Land of Rhineland-Palatinate (Germany), which was considered to be a substantial part of the internal market, with a surface area of almost 20 000 km2 and a population of approximately four million inhabitants (see, to that effect, judgment of 25 October 2001, Ambulanz Glöckner, C‑475/99, EU:C:2001:577, paragraph 38). In any event, as the Commission notes, a population of more than two million inhabitants is a substantial part of the internal market, regardless of whether or not that number of inhabitants is similar, in the case in question, to a number of inhabitants which has been held to constitute a substantial part of the internal market in earlier cases, since that population is comparable with, or even greater than, that of some Member States (see, to that effect, Opinion of Advocate General Jacobs in Ambulanz Glöckner, C‑475/99, EU:C:2001:284, point 129).
353    Next, as regards the consumption of grey cement in the areas in question, according to recital 479 of the contested decision, that consumption in 2015 was between [confidential] kt and [confidential] kt, namely between [confidential]% of the total consumption in Croatia, which is a level comparable to that of several Member States and higher than several other Member States, according to the figures supplied to the Commission by the applicants themselves during the administrative procedure.
354    In that regard, it must be pointed out that the Commission admitted to having made a clerical error in footnote 523 of the contested decision by indicating that the consumption levels had been communicated by the applicants in the Form CO when they had, in fact, been communicated in various replies to requests for information, as confirmed in Annexes B2 and B3 to the defence.
355    In accordance with the case-law cited in paragraph 313 above, since that simple clerical error does not affect the content of the contested decision, it must be deemed not to affect its validity.
356    Moreover, as the Commission states, without being challenged on that point by the applicants, it is clear from the contested decision, read as a whole, that the 30 000 km2 surface area of the region underlying the circular and modified catchment areas around Cemex’s plant in Split, referred to in recital 479 of the contested decision, does not encompass the parts of those areas lying outside the EEA.
357    Lastly, as regards imports and exports, in the context of whether the relevant market constitutes a substantial part of the internal market, it is irrelevant whether the significant impediment to effective competition in the catchment areas around Cemex’s plant in Split might have affected the imports or exports (see, to that effect, judgment of 10 December 1991, Merci convenzionali Porto di Genova, C‑179/90, EU:C:1991:464, paragraph 15).
358    Accordingly, it follows from the foregoing that the alternative relevant geographic markets at issue constitute a substantial part of the internal market and that the third plea in law must be rejected in its entirety.
E.      The fourth plea in law, alleging manifest errors in the assessment of the transaction’s effects on competition
359    By their fourth plea in law, the applicants claim that the assessment of the effects of the transaction on competition, made in Section 7 of the contested decision, is vitiated by manifest errors.
360    According to the Court, this plea comprises five parts.
1.      The first part, alleging that the investigation and competitive assessment do not concern the relevant markets
361    In the first part of the fourth plea in law, the applicants claim, in essence, that the Commission’s competitive assessment did not relate to the relevant geographic market. This part is centred around two arguments.
362    In the first place, the applicants claim that the considerations relating to the ‘Split catchment area markets’ in the contested decision are manifestly insufficient to establish a significant impediment to effective competition in the relevant markets, since, of the 266 recitals relating to the competitive assessment in Section 7 of the contested decision, only recitals 208 to 228, 239 and 271 to 288 are directly concerned with that area.
363    That argument cannot be accepted. The lawfulness of a decision for the purposes of Article 288 TFEU cannot depend, after all, on the number of recitals of that decision or the proportion of certain of its arguments to the size of the rest of the decision.
364    In the second place, at various points in their submissions and, in particular, in paragraphs 85 and 87 of the application, the applicants claim, in essence, that the largest part of the assessment does not concern the ‘Split catchment area markets’ but focuses on Croatian regions and on Dalmatia in particular.
365    In this regard, the applicants’ reasoning is difficult to understand, in so far as it seems to be based on the incorrect premiss that the circular and modified catchment areas around Cemex’s plant in Split do not include Croatian regions.
366    In any event, the concept of a significant impediment to effective competition does not mean that all parts of the catchment areas around Cemex’s plant in Split must be affected by that impediment equally. Contrary to what the applicants implicitly seem to claim in paragraph 46 of the reply, the Commission did not find that there was a significant impediment to effective competition in only one part of a geographically differentiated market, in other parts of which there were no effects, or only insignificant effects, on competition. As the Commission explained, due to variations in the conditions in the catchment areas around Cemex’s plant in Split, the significant impediment to effective competition was more extensive in the part of those areas corresponding to the Dalmatia region, but it nevertheless affected the entire territory of those areas.
367    In that regard, the applicants have not disputed the fact that, according to their own calculations, referred to in recital 288 and Table 9 of the contested decision, in 2015, in Dalmatia, market shares based on sales amounted to [confidential]% for Cemex and [confidential]% for the combined market shares of the merged entity, while, at national level, they were [confidential]% for Cemex and [confidential]% for the merged entity. It must also be borne in mind that, according to recital 231 of the contested decision, Cemex refers to Dalmatia as its ‘[confidential]’.
368    As a result, the first part of the fourth plea must be rejected.
2.      The second part, alleging that market shares are not valid indicators of competition problems in the present case
369    In the second part, the applicants claim, in essence, that the market shares in recitals 271 to 288 of the contested decision are not, in the present case, valid indicators of competition problems.
(a)    The contested decision
370    Before examining the arguments put forward by the parties to the dispute, the Court considers it useful to summarise the main findings in Section 7.5 of the contested decision, headed ‘Market shares’, in which the Commission found, in recital 240, that, following the transaction, ‘the Parties’ would have high market shares in the circular and modified catchment areas around Cemex’s plant in Split and their respective overlaps with the circular catchment area around DDC’s plant in Kakanj.
371    In recital 243 (Section 7.5.1), the Commission found that the market shares were a useful indicator of the competitive importance of ‘the Parties’ and their competitors in ‘the relevant markets’ (Section 7.5.1.1), unlike the number of alternative suppliers, which was not, for its part, a useful indicator (Section 7.5.1.2).
372    In Section 7.5.2 and, more specifically, in Sections 7.5.2.1 and 7.5.2.2, the Commission analysed the two methods used by ‘the Parties’ to calculate their market shares, namely (i) their sales market shares and (ii) their capacity market shares. It found, in recital 270 (Section 7.5.2.3), that the market shares for the modified catchment area around Cemex’s plant in Split were best suited for the assessment of the transaction.
373    Following its analysis (Sections 7.5.3 and 7.5.4), the Commission found that, in the modified catchment area around Cemex’s plant in Split, ‘the Parties’’ combined market share was more than [confidential]% as regards sales and [confidential]% as regards capacity. Regarding the circular catchment area around Cemex’s plant in Split, ‘the Parties’’ combined market share was more than [confidential]% as regards sales and [confidential]% as regards capacity.
374    It is clear from footnote 188 thereof that the contested decision does not assess the market shares in the 250 km circular catchment area around Kakanj as that catchment area was already covered in the assessment for the overlaps with the Split circular catchment area and for the remainder fell outside the Commission’s jurisdiction (for the non-EEA territory and Hungary) or was immaterial to the assessment (additional limited parts of Slavonia close to the Hungarian border).
375    Lastly, in recital 287 (Section 7.5.5), the Commission concluded that, because of geographic differentiation within the ‘relevant catchment areas’, the market share of the merged entity was higher in Dalmatia, namely [confidential]% of the sales in 2015, according to recital 288.
(b)    Findings of the Court
376    First, in paragraph 89 of the application, the applicants claim that the market shares as defined in the contested decision are not suitable for providing a reliable picture of the merged entity’s market power and refer, in that regard, to their observations under the second plea in law, concerning the definition of the relevant market.
377    Since that plea has been rejected in its entirety, as follows from paragraph 343 above, this argument must be rejected on the same grounds.
378    Second, in paragraph 90 of the application, the applicants criticise the Commission for noting, in recitals 268 and 269 of the contested decision, that their market share estimates suffered from several shortcomings, and for nevertheless using those figures instead of collecting accurate sales and capacity data of competitors.
379    In the first place, the applicants do not demonstrate that the Commission committed a manifest error of assessment by using the data which they provided as a basis for its work.
380    In the second place, the applicants’ argument is also based on an incomplete reading of the contested decision.
381    It is apparent from recital 268 of the contested decision that the Commission supplemented those calculations by (i) reconstructing the actual sales shares for four regions in Croatia, (ii) calculating customer-centred capacity shares based on the average and individual sales radii of the competing plants and terminals, and (iii) assessing other available evidence, such as the qualitative results of its investigation.
382    Moreover, as is apparent from recital 269 of the contested decision, ‘the Parties’’ estimates are favourable to them in so far as they underestimate the combined market share of the merged entity. Contrary to what the applicants claim, this is clear from recital 269(d) and (f), according to which ‘the Parties’ overstate their competitors’ capacity and the geographic reach of some terminals.
383    Lastly, according to recital 270 of the contested decision, the market shares of the modified catchment area around Cemex’s plant in Split were best suited for the assessment of the transaction.
384    Third, in paragraph 91 of the application, the applicants claim that the market share levels for an entire geographically differentiated market are of no use as an indicator of market power in that overall market. The applicants put forward, in paragraphs 92 to 97 of the application, six specific arguments in support of that claim.
385    In the first place, the applicants claim, contrary to what is stated in recital 245 of the contested decision, that none of their internal documents uses market shares for the relevant markets as identified in Section 6.3 or Section 7 of the contested decision. In paragraph 61 of the reply, they add that those market shares do not allow any inferences to be drawn as regards the competitive importance of suppliers in differently delineated markets and in no way confirm that the number of different grey cement suppliers in the relevant catchment area markets is not an appropriate indicator of the competitive constraints exercised by competing suppliers with smaller market shares.
386    This argument is misconceived, since it is apparent from recital 245 that DDC (Figure 11) and Cemex (Figure 12) used market shares [confidential] and not for the markets as defined in Sections 6.3 or 7 of the contested decision and since the Commission did not draw any conclusion regarding the competitive importance of suppliers.
387    In the second place, the applicants claim that the fact that market shares were analysed in other Commission decisions – to which the Commission refers in recital 246 of the contested decision – is not a valid argument for the relevance of market shares in the present case.
388    However, the applicants have not contradicted the Commission’s assertion that in none of the three cases mentioned by the applicants was the number of suppliers decisive.
389    In the third place, the applicants claim that the assertion in recitals 248 and 256 of the contested decision that geographic differentiation will be reflected in sales market shares is clearly wrong as far as overall market shares are concerned. An estimate of the market shares for an entire catchment area makes it impossible to identify whether the relevant supplier possesses market power in the entire catchment area or only in geographically differentiated parts of it. In the reply, they add that the reasoning in paragraph 179 of the defence, according to which higher market shares in certain areas indicate that a given grey cement supplier is likely to be closer to customers in those areas and thus able to compete more effectively to supply them, is incomprehensible and irreconcilable with the Commission’s argument that competitive conditions shift gradually. Lastly, they claim that, according to Tables 9 and 10 of the contested decision, Dalmatia was the only region where a finding of a significant impediment to effective competition might have been possible.
390    That argument distorts recital 248. The Commission did not, after all, distinguish between those parts of the market that are geographically differentiated and those parts that are not, but explained that, given the limitations on competition on account of the nature and characteristics of grey cement, the closer a given supplier is to customers – and thus the more effectively it is able to compete to supply them – the higher the sales market shares will be in the catchment areas around Cemex’s plant in Split.
391    As regards the claim that, had the Commission actually regarded cement as a differentiated good, it would have used the sales market shares rather than volume market shares, it is sufficient to note that this is a hypothesis which has not been substantiated by the applicants.
392    As regards the claim that, according to Tables 9 and 10 of the contested decision, Dalmatia was the only region where a finding of a significant impediment to effective competition may have been possible, it is necessary to refer to paragraphs 366 and 368 above.
393    In the fourth place, in paragraph 95 of the application, the applicants claim that the reasoning in recital 249 of the contested decision, according to which market shares are supposed to reflect competitive advantages or weaknesses, could apply only if a supplier consistently holds a low or high market share over a long period. Yet the contested decision contains only a snapshot of market shares for a single year. Moreover, the Commission disregarded the fact that a supplier may exercise an effective competitive constraint despite a very low or no market share, since delivery contracts typically do not last longer than one year.
394    In that regard, it is sufficient to note that the applicants have not contradicted the assertions made, first, in footnote 187 of the contested decision, according to which there was no reason to believe that market shares were materially different in 2013 and 2014 and, second, in recital 249, according to which, on account of a large number of competitive opportunities, irrespective of the length of the delivery contracts, the fact that a supplier has a low market share indicates that that supplier is not a credible alternative for customers.
395    In the fifth place, in paragraph 96 of the application, the applicants claim that ‘it is unclear how’ recitals 251 to 254 of the contested decision ‘could be of any relevance for assessing the importance of market shares for the Split catchment area markets as a whole’.
396    Those considerations set out in the application do not fulfil the minimum requirements of clarity, precision and coherence of pleas in law put forward, as are provided for in Article 76(d) of the Rules of Procedure and that argument must therefore be rejected as inadmissible.
397    In the sixth place, in paragraph 97 of the application, the applicants claim that the market shares calculated in recital 274 et seq. of the contested decision are inaccurate, since the Commission incorrectly attributed the sales [confidential] to ITC, acquired by HeidelbergCement in 2015, and therefore to the merged entity. In footnote 76 of the application, that recital’s reasoning is considered to be ‘clearly insufficient and unsustainable’ and, in footnote 7, ‘false and unsustainable’.
398    In that respect, DDC also claims [confidential] does not belong to the ITC group or to HeidelbergCement.
399    In the present case, it is apparent from recital 127 of the contested decision that ITC is an Italian cement producer which imports grey cement into Croatia. [Confidential].
400    It must also be noted that the Commission made three observations in recital 274 of the contested decision.
401    First of all, the Commission noted that its attribution of the sales [confidential] reflected the way that DDC [confidential]. The applicants’ argument, set out in footnote 76 of the application, that ‘internal documents of DDC are certainly not a valid reason for attributing the sales [confidential] to ITC’, is insufficient to contradict the observation, cited in recital 312 of the contested decision, by which DDC confirmed that ‘[confidential]’.
402    Next, the Commission noted that ITC could control the sales of Armacom in Croatia by reducing or discontinuing its supplies to that distributor. The applicants’ argument set out in footnote 76 of the application, according to which that reasoning applies to every customer relationship of every cement producer, is insufficient to contradict that statement.
403    Lastly, the Commission noted that ITC [confidential] to overcome Cemex Croatia’s attempt to block imports of ITC’s cement into Croatia, including by initiating legal action against Cemex. The applicants’ argument set out in footnote 76 of the application, that [confidential], is insufficient to contradict the reference in recital 440(b) of the contested decision to a judgment of a national court dated 21 December 2015, from which it is apparent that Cemex attempted to prevent ITC from operating in Croatia through the registration of trade marks.
404    It follows that the applicants have not demonstrated that the three reasons relied on by the Commission in recital 274 of the contested decision for attributing the sales [confidential] to ITC are manifestly incorrect.
405    In any event, even if the Commission should not have attributed the sales [confidential] to ITC, it must be pointed out that the combined market shares of the applicants, Cemex and DDC in 2015 would have been greater than [confidential]% (as regards both sales and capacity) in the circular catchment area around Cemex’s plant in Split, as is apparent from Tables 5, 6 and 8 of the contested decision. As regards the market shares in the modified catchment area around Cemex’s plant in Split, they would have been greater than [confidential]% as regards sales and [confidential]% as regards capacity, as is apparent from Tables 4 and 7 of the contested decision. Those market shares coupled with other factors, summarised in recital 223 of the contested decision, cited in paragraph 34 above, confirm, in Section 7 of that decision, the existence a significant impediment to effective competition.
406    As regards the argument in footnotes 7 and 76 of the application contesting the Commission’s assessment, in recitals 293 and 312 of the contested decision, that ITC is ‘an important competitive force in western Croatia’, it must be noted that that argument is based on a misreading of the contested decision. Tables 4 to 8, relied on by the applicants in order to highlight the small market shares held by ITC, relate not to western Croatia but to the circular and modified catchment areas around Cemex’s plant in Split and their respective overlaps with the circular catchment area around DDC’s plant in Kakanj. It is Tables 9 and 10 of the contested decision, drawn up by the Commission on the basis of information provided by ‘the Parties’ and competitors, respectively, that relate to Croatia and divide the country into regions. It is apparent from the latter two tables, however, that, in the region of Istria and Kvarner, located in western Croatia, ITC has a market share of [confidential]% in the first table and between 10% and 20% in the second. Even supposing, as the applicants claim, that ITC’s market share in Istria and Kvarner, in those two tables, stemmed solely from the fact that [confidential] is situated in that region, it must be pointed out that the applicants have not demonstrated that the attribution of the sales [confidential] to ITC was manifestly incorrect, as follows from paragraph 404 above. In any event, that claim is ineffective, as follows from paragraph 405 above.
407    Even if DDC’s observation in recital 312 of the contested decision, reproduced in paragraph 401 above, does not prove that ITC is an important competitor, it must be noted that that conclusion must be drawn also in the light of the figures contained in Tables 9 and 10 of the contested decision.
408    As regards the argument set out in paragraph 40 of the statement in intervention, it must be noted that DDC does not state in which recital of the contested decision the Commission concluded that ITC is a ‘dominant’ competitor in the relevant markets. Therefore, the argument that it is apparent from Table 9 of the contested decision that the region of Istria and Kvarner is dominated by LafargeHolcim and not by ITC must be deemed inadmissible in the light of the requirements of Article 145(2)(b) of the Rules of Procedure.
409    As regards DDC’s claim set out in the same paragraph that there are numerous other competitors that can easily serve all Croatian regions at competitive prices and terms, it must be noted that these considerations are unsubstantiated and must, accordingly, be rejected.
410    Lastly, DDC invites the Court to ‘order’, pursuant to Article 88 and Article 89(3)(d) of the Rules of Procedure, the Commission to disclose the customer replies it collected in the course of the market investigation.
411    For the same reason as that set out in paragraph 275 above, DDC’s request for a measure of organisation of procedure must be rejected as inadmissible.
412    The second part of the fourth plea in law must therefore be rejected.
3.      Third part, alleging that ‘other considerations’ related to the ‘Split catchment area markets’ in the contested decision are insufficient
413    In the third part of the fourth plea in law, the applicants contest, in essence, recitals 208 to 221 (Section 7.1), 222 to 224 (Section 7.2), 225 to 227 (Section 7.3) and 239 (Section 7.4) of the contested decision.
414    First, in paragraph 98 of the application, the applicants criticise the Commission (i) for misquoting, in recital 218 of the contested decision, paragraph 33 of the Horizontal Merger Guidelines, and (ii) for engaging in general considerations on potential competition that are manifestly wrong.
415    As regards the first part of that argument, as the Commission has explained, the second sentence of recital 218 of the contested decision was merely a reformulation of paragraph 33 of the Horizontal Merger Guidelines, which is itself reproduced in the first sentence of that same recital, as is attested by the use of the expression ‘in other words’ in the second sentence.
416    Moreover, the applicants’ claim that there are clear incentives for competitors to expand output ‘sufficiently’ to prevent a permanent post-merger price increase in the present case does not appear to be substantiated by any data or reference to other documents in the file.
417    In any event, the applicants do not sufficiently explain the specific reasons why that so-called error would be relevant to the legality of the contested decision.
418    As regards the second part of the argument, it must be noted that the Commission has admitted to making a clerical error in omitting the words ‘the elimination of’ from the beginning of the second sentence of recital 220 of the contested decision, evidenced by the remainder of recital 220, which mirrors the wording of paragraph 60 of the Horizontal Merger Guidelines.
419    In accordance with the case-law cited in paragraph 313 above, since that simple clerical error does not affect the content of the contested decision, it must be deemed not to affect its validity.
420    Second, in paragraph 99 of the application, the applicants criticise the Commission for not having analysed, in Sections 7.5 to 7.12, the ‘Split catchment area markets’ referred to in recital 222 of the contested decision and for having focused almost entirely on Dalmatia.
421    As far as that argument is concerned, it is sufficient to refer to paragraphs 308 to 311 and 366 to 367 above.
422    Lastly, the assessment of the ability of the actual and potential competitors of the merged entity to expand in, or enter, the market, as well as their incentive to do so, is analysed in recitals 316 to 324, 325 to 403, 405 to 419, 420 to 430 and 435 to 445 of the contested decision.
423    Third, in paragraph 100 of the application, the applicants claim that the fact that the actual and potential competitors have significant overcapacities should have been sufficient to rule out competition concerns in the relevant markets. However, in recital 228 of the contested decision, it is stated that none of the actual and potential competitors would have the ability and incentives to expand to constrain the merged entity sufficiently. According to the applicants, the conclusion set out in recital 228 is thus not sufficient for a finding of a significant impediment to effective competition and Section 7.7 again deals almost exclusively with Dalmatia.
424    That argument must be rejected. The applicants do not explain why the conclusion in recital 228 and the analyses to which it refers, namely recitals 314 to 405 of the contested decision (Section 7.7) and recitals 406 to 419 (Section 7.8) by subsequent referral from recital 405 itself, do not justify that conclusion.
425    As regards the claim that the competitive assessment was in essence limited to Dalmatia in Section 7.7, it is sufficient to refer to paragraphs 308 to 311 and 366 and 367 above.
426    As regards footnote 79 of the application, it must be noted that the applicants merely refer to paragraph 56 et seq. of Annex 1 to HeidelbergCement’s reply to the statement of objections (Annex A3 to the application) in order to support the claim in paragraph 100 of the application that the number of competitors and their significant overcapacities should have been sufficient to rule out any competition concerns. They also state in that footnote that the ‘competitor counts’ are not based on a flawed methodology and refer to paragraph 158 et seq. of the same document. Those claims referring to Annex A3 to the application must be rejected as inadmissible in the light of the provisions of Article 76(d) of the Rules of Procedure.
427    It is also necessary to note that the claim, in footnote 80 of the application, that the Commission did not take into account the constraints cumulatively exercised on the merged entity by competitors, is contradicted by the wording of recital 405 of the contested decision, according to which, ‘even taken cumulatively’, competitors would not be able to constrain the merged entity sufficiently.
428    Fourth, in paragraphs 101 and 102 of the application, the applicants submit that the Commission merely claimed, in recital 239 of the contested decision, that ‘in the entire relevant markets … competition would be lost after the [transaction]’. Thus, the Commission’s competitive assessment of the ‘Split catchment area markets’ consisted in looking at concentration levels and market shares.
429    In that regard, it must be noted, as the Commission states, that the applicants artificially isolate two of the five arguments used by the Commission, not to support its finding relating to the existence of a significant impediment to effective competition, but to reject the applicants’ claim set out in recital 234 of the contested decision according to which the Commission’s competitive assessment leading to the finding of geographic differentiation is inconsistent with its market definition.
430    Fifth, in paragraph 103 of the application, the applicants claim, in essence, that the Commission’s finding relating to the existence of a significant impediment to effective competition is based solely on the high combined market shares of DDC and Cemex Croatia in the ‘Split catchment area markets’.
431    In that regard, it must be noted, as the Commission rightly submits, that its finding is not based solely on a high combined market share. As is apparent from recital 223 of the contested decision, reproduced in paragraph 34 above, the high combined market share is only one of the six factors on which the Commission based its finding relating to the existence of a significant impediment to effective competition.
432    Therefore, it is not necessary to respond to footnote 82 of the application since, even if the applicants’ argument were founded, the applicants do not set out why the five other factors on which the Commission based its finding relating to the existence of a significant impediment are manifestly incorrect.
433    Sixth, in paragraph 104 of the application, the applicants claim that the Commission fails to explain conclusively why actual or potential competitors in the ‘Split catchment area markets’ would not have the ability jointly to constrain the merged entity sufficiently and why they would not have the incentive to do so.
434    In that regard, it must be noted that recital 228 of the contested decision, which the applicants dispute, refers to recitals 315 to 405 of Section 7.7 of that decision, and that recital 405 itself refers to recitals 406 to 419 of Section 7.8 of the decision. It is also apparent from the first and last sentences of recital 405 that the conclusions ‘of that section’ apply equally to a cumulative response of those competitors.
435    In that connection, as the Commission claims in paragraph 190(a) of the defence, which is not contested by the applicants, it is apparent from Sections 7.7 and 7.8 of the contested decision that competitors would have been unable to constrain the merged entity sufficiently because any spare capacity is located in plants that are considerably further away from Cemex’s plant in Split than DDC’s plant in Kakanj (recital 409). This would have resulted in permanent competitive disadvantages due to higher transport costs, issues of security of supply and other disadvantages (recitals 316 to 324) and the merged entity’s potential to curb market expansion or entry (recitals 435 to 445).
436    Furthermore, it is clear from recitals 410 to 419 of the contested decision that competitors would have had no incentive to constrain the merged entity sufficiently because it is likely that, in the event of a price increase by the merged entity, they would rather increase their prices to benefit in turn from higher volumes sold at higher prices. To the extent that the applicants contest the merits of that conclusion, it is necessary to refer to paragraphs 452 to 482 below.
437    Consequently, the third part of the fourth plea must be rejected.
4.      The fourth part, alleging that the cumulative constraints of competitors ‘in and around the relevant region’ should be sufficient to rule out a significant impediment to effective competition
438    In the fourth part of the fourth plea in law, the applicants claim that the constraints cumulatively exercised by competitors ‘in and around the relevant region’ should be sufficient to rule out a significant impediment to effective competition. They criticise, in essence, the reasoning in recital 405 and in Section 7.8 of the contested decision. This part of the plea can be broken down into three grounds of complaint, concerning constraints from spare capacity, incentives of competing suppliers to expand their sales and the retaliation theory, respectively.
439    Before examining the arguments of the parties, it is necessary to rule, as a preliminary issue, on a request made by the applicants for a measure of inquiry.
440    The applicants observe that, during the administrative procedure, HeidelbergCement’s economic advisers showed, on the basis of information made available in the quantitative data room, that a number of competitors with sufficient overcapacities would already be able to increase [confidential] in Dalmatia even at current pricing levels and, therefore, a fortiori also in the case of a price increase post-transaction. In their view, the market conditions in this case exactly match the situation referred to in paragraph 33 of the Horizontal Merger Guidelines. For this reason, they request that the Court order the Commission to produce HeidelbergCement’s economic advisers’ confidential report, pursuant to Article 91(b) of the Rules of Procedure. It follows, in their view, that the conclusion in recital 405 of the contested decision is ‘legally and economically unsustainable’.
441    That request for a measure of inquiry must be rejected.
442    The applicants’ assertion that the market conditions in the relevant markets ‘exactly match’ the requirements of paragraph 33 of the Horizontal Mergers Guidelines is incorrect. According to that paragraph, when market conditions are such that rival firms have enough capacity and find it profitable to expand output sufficiently, the Commission is unlikely to find that the merger will create or strengthen a dominant position or otherwise significantly impede effective competition. As has already been stated in paragraph 436 above, and as will be set out in paragraphs 452 to 482 below, it is likely that, in the event of a price increase by the merged entity, competitors would rather increase their prices in turn to benefit from higher volumes sold at higher prices.
(a)    Constraints from spare capacity
443    The applicants raise two arguments in support of this complaint.
444    First, in paragraph 109 of the application, the applicants claim that the Commission merely states that competitors’ plants are further away from Cemex’s plant in Split than DDC’s plant in Kakanj, and that this would result in higher transport costs, issues of security of supply and other disadvantages, and then refers to Sections 7.7.1 and 7.11 of the contested decision. They claim that the reasoning in recital 409 of the contested decision is entirely inadequate for ruling out the exercise of sufficient competitive constraint on account of spare capacity.
445    It must be held that the applicants base their arguments on a selective reading of recital 409 of the contested decision.
446    Thus, while it is true, as the applicants maintain, that the Commission stated that competitors’ plants were further from Cemex’s plant in Split than DDC’s plant in Kakanj and that that situation would result in ‘higher transport costs, issues of security of supply and other disadvantages’, it also referred, in the next sentence, to Sections 7.7.1 and 7.11 of the contested decision, as the applicants also note. It is apparent from recitals 316 to 318 of Section 7.7.1 of the contested decision and, in particular, from recital 317, that what would have prevented competitors being able to constrain the merged entity collectively was the fact that ‘their production facilities are located at a considerable distance from many customers in the overlap area’.
447    Contrary to what the applicants state in paragraph 65 of the reply, recitals 409 and 316 to 318 of the contested decision do deal with the competitors’ ‘ability to expand’ in the relevant markets, even if that expression is not expressly cited there. What matters is the substance of the assessment made and not the verbatim reproduction of certain words or expressions.
448    As regards the claim in paragraph 65 of the reply that recitals 409 and 316 to 318 of the contested decision do not deal with the relevant markets, but with Dalmatia or the overlap area, it is necessary to refer to paragraphs 308 to 311 as well as to paragraphs 366 and 367 above.
449    Second, in paragraph 110 of the application, the applicants claim that the Commission has not shown that competitors would face transport costs or other disadvantages for every customer location in Dalmatia, let alone the relevant markets. Furthermore, higher transport costs and other alleged disadvantages due to greater distance are not in themselves sufficient to allow the conclusion that a competitor is not able to compete effectively or constrain the merged entity sufficiently to counter price increases.
450    As regards the first claim, it must be rejected in so far as it implies that serious impediment to effective competition should affect each client in the geographic market. That is not the case, however, as is apparent from paragraph 366 above.
451    As regards the second claim, it is sufficient to note that the applicants have not indicated the passage or passages of the contested decision in which the Commission allegedly reached such a conclusion.
(b)    Incentives of competing suppliers to expand their sales
452    The applicants claim, in essence, that recital 410 et seq. of the contested decision, according to which competing suppliers have insufficient incentive to expand their sales to counter a price increase, are merely unsustainable speculations which are not borne out by the evidence and are thus manifestly erroneous.
453    The applicants raise seven arguments in support of this complaint.
454    First, in paragraph 112 of the application, the applicants claim that, in recitals 412 to 419 of the contested decision, the Commission engages in unsubstantiated calculations and assertions as to competitors’ presence, costs and margins in various regions of Bosnia and Herzegovina, and thus in regions outside the EEA. Those assessments are irrelevant, inasmuch as the Commission’s competitive assessment should be limited to the ‘relevant markets’ in the EEA.
455    That argument disregards the fact that, although, in recitals 412 to 419 of the contested decision, the Commission explains that Asamer, Nexe and Titan have no presence or only a limited presence in the regions of Sarajevo (Bosnia and Herzegovina) and Mostar (Bosnia and Herzegovina), that is only one of a number of arguments seeking to refute ‘the Parties’’ claim, referred to in recital 406 of the contested decision, that spare capacity of grey cement will exercise an important competitive constraint on the merged entity.
456    Moreover, the applicants’ observation in footnote 87 of the application that the Commission provides no evidence in support of its claim regarding the different costs of delivering grey cement in the Mostar region and in Dalmatia is not correct, since it is apparent from recital 414(b) of the contested decision that that difference results from the comparison between the estimates of the additional transport costs for Asamer, Nexe and Titan, submitted by the applicants, and the additional transport costs for DDC.
457    Second, in paragraph 113 of the application and in paragraphs 67 and 68 of the reply, the applicants claim that recitals 412 to 419 of the contested decision are all based on one single internal document of HeidelbergCement containing internal market share estimates for 2014. That document is outdated and was not specifically prepared for the purpose of assessing the effects of the transaction. In their view, that single document is insufficient to support the far-reaching allegations regarding competitors’ costs, margins and incentives to compete in the various regions of Bosnia and Herzegovina. The applicants add that the Commission never asked competitors about such matters.
458    First of all, as regards the alleged outdated nature of the document, it is sufficient to note that the applicants have not contradicted the Commission’s claim that that document contained both the actual figures for 2014 and the forecasts for 2015.
459    Next, the argument that that document was not specifically prepared for the purpose of assessing the effects of the transaction is irrelevant. What matters in that regard is the document’s probative value.
460    Lastly, the argument that the claims in the abovementioned recitals are based on only one document must also be rejected. In that regard, it must be borne in mind that there is no principle of EU law which precludes the Commission from relying on a single item of documentary evidence provided that its probative value is undoubted (see, by analogy, judgment of 16 June 2011, FMC Foret v Commission, T‑191/06, EU:T:2011:277, paragraph 122). In that respect, the analogy which DDC attempts to draw with paragraphs 71 and 76 of the judgment of 20 September 2017, Commission v Frucona Košice (C‑300/16 P, EU:C:2017:706) is misplaced in so far as, even if that approach were applicable in the present case, the Commission has assembled sufficient evidence to support its conclusion that in the event that the merged entity increased prices, competitors would not have the incentive to increase their sales. In any event, as the Commission has noted in paragraph 197 of its defence, the information which it allegedly should have requested from competitors appears to be irrelevant. The applicants’ claim that the relative level of competitors’ margins in different regions cannot be validly assessed and compared without verifying the underlying cost and margin information appears vague and is not capable of rebutting that conclusion.
461    Third, in paragraph 114 of the application, the applicants claim that the Commission concedes in recital 418 of the contested decision that, in the event of a post-transaction price increase, competing suppliers will have an incentive to expand their output ‘even if only “to a limited extent in order to benefit from increased demand at higher prices”’. In their view, the Commission thus assumes that competitors would not constrain the merged entity because they would rather follow a price increase than compete with the merged entity. In the absence of co-ordination between the cement companies, that theory is flawed. In paragraph 64 of the reply, the applicants add that recitals 410 to 419 of the contested decision are not sustainable, are mere speculation and lack explanation. In particular, the Commission does not explain how such a strategy pursued in parallel by several suppliers could be sustainable and would not lead to price decreases in the absence of coordination.
462    That argument is based on a distortion of recital 418. The Commission noted in that recital that the elimination of competition between Cemex and DDC ‘is unlikely to be offset by the presence of more distant suppliers of grey cement that are at a competitive disadvantage’ and that ‘rather, competing suppliers of grey cement will have an incentive to expand their output only to a limited extent in order to benefit from increased demand at higher prices’.
463    Moreover, as the Commission claims, it is apparent from recital 409 of the contested decision, which refers to recitals 316 to 318 and, in particular, recital 317, that competitors would be unable to constrain the merged entity collectively since their production facilities are located at a considerable distance from many customers in the overlap area.
464    As regards DDC and the applicants’ insinuation regarding the use of assertions based on a theory of coordination, it is necessary to refer to paragraph 480 below.
465    As regards the claim in footnote 90 of the application that the contested decision does not justify the change of competitors’ incentives allegedly mentioned in recital 419(b) of the contested decision, it must be noted that this is based on an unsupported assumption which the applicants have attributed to the Commission, as is attested by the use of the expression ‘the Commission appears to assume’.
466    Fourth, in paragraph 115 of the application, the applicants claim that the fact that competitors are not present in Dalmatia before the transaction does not support the conclusion that they would have no incentive to supply customers in the relevant region after the transaction. In that regard, they rely on three specific arguments.
467    In the first place, the applicants claim that suppliers which have low or even no market shares in the relevant region are decisive to limiting prices to the level at which they are and, therefore, exert competitive pressure. That argument must be rejected.
468    First of all, it must be noted that that argument is directly contradicted by recital 419(b) of the contested decision, which states that the reasoning of recital 418, namely that ‘competing suppliers of grey cement will have an incentive to expand their output only to a ‘limited’ extent in order to benefit from increased demand at higher prices’, also applies (see paragraph 462 above).
469    Next, in recital 249 of the contested decision, the Commission explains that, on account of the large number of competitive opportunities, irrespective of the length of the delivery contracts, a low market share of a supplier indicates that the supplier holding that share is not a credible alternative for customers.
470    Lastly, the claim made by the applicants in paragraph 69 of the reply, that the very fact that a customer asks for quotes from multiple suppliers shows that the customer considers them to be credible suppliers, is unfounded, since such a consideration depends above all on the quote and on the conditions attached to it.
471    In the second place, the applicants claim that the contested decision fails to acknowledge that, post-transaction, competitors would anticipate an increased probability of winning contracts with customers that have relied on competition between the parties pre-merger. It must be held that this argument is merely an unsubstantiated hypothesis. There is therefore no need to address it.
472    In the third place, the applicants claim that the Commission’s reasoning is based on the unrealistic expectation that customers would not react to the transaction, whereas, on the contrary, suppliers currently not active in the region concerned would have the incentive to compete to supply those customers. That argument cannot succeed.
473    As has been explained by the Commission in paragraphs 192 and 198(b) of its defence, and as is apparent from paragraph 446 above, what would have prevented all competitors being able to constrain the merged entity collectively is the fact that their production facilities are located at a considerable distance from many customers in the overlap area and that it is therefore irrelevant whether those suppliers were likely to have been invited to make an offer.
474    Moreover, in paragraph 69 of the reply, the applicants do not explain why the observation made in paragraph 198(b) of the defence, according to which, ‘if anything, the increased possibility of winning contracts may have encouraged those competitors to bid less aggressively against the merged entity’, is counterintuitive and incomprehensible.
475    Lastly, the applicants’ observation, made in the same paragraph, that less aggressive competition would not automatically mean that a post-transaction price increase would be sustainable or high enough to constitute a significant impediment to effective competition, disregards the fact that recital 419 of the contested decision is merely one of four arguments on which the conclusion in recital 410 of that decision – that there would be insufficient incentives for suppliers to reduce their prices after the transaction – is based.
476    In that regard, the applicants’ assertion that the maximum effects analysis has shown that any merger-specific price effect would have been minimal, even in a worst-case scenario, is an unsubstantiated speculation, since neither in the application nor in the reply do they contest the conclusion that that analysis did not provide a reliable measure of the likely effect the transaction would have on price increases (recitals 458 to 467) and the fact that, after the Commission adjusted that analysis, the average transport cost disadvantages of the geographically next closest supplier were estimated at [confidential]% (recital 468).
477    Fifth, in paragraph 116 of the application, the applicants claim that the Commission failed to investigate whether, after the transaction, competitors could engage in ‘hit and run’ sales, that is to say, increase their supply at short notice in the case of a price increase and reduce it again just as quickly without significant exit costs as soon as prices decrease and sales are no longer profitable.
478    Aside from the fact that this is a mere assertion without any explanation being given as to why the suppliers in question would have the incentive to engage in such sales, it must be noted that the applicants contradict themselves on this point. In the first indent of paragraph 115 of the application, they acknowledge that customers negotiate with suppliers before entering into a contract and, in paragraph 95 of the application they admit that those contracts may last up to a year.
479    Sixth, in various passages of their pleadings and, in particular, in paragraphs 6, 117, 120 and 131 of the application, paragraphs 56 and 64 of the reply, and paragraph 44 of the statement in intervention, the applicants and DDC claim that some of the speculations made by the Commission in various parts of the contested decision suggest that the latter’s real concern in the present case appears to be the suspicion of the existence of tacit coordination or collective dominance in Bosnia and Herzegovina.
480    The Court takes the view that that accusation is in no way supported and is ineffective.
481    Seventh, in paragraph 119 of the application, the applicants claim that recitals 410 to 419 of the contested decision, dealing with the limited incentives of competitors to increase supply sufficiently in the relevant markets, should be disregarded since they are new objections that were not contained in the statement of objections.
482    Since the argument referred to above comes within the sixth plea, it will be dealt with in paragraphs 633 to 640 below.
(c)    The retaliation theory
483    The applicants claim, in essence, that what they refer to as the ‘retaliation theory’, set out in Section 7.11 of the contested decision, is unfounded and that the claims relating to it are unsupported and completely unfounded.
484    The applicants raise eight arguments in support of this complaint.
(1)    The contested decision
485    Before examining the arguments put forward by the parties, the Court considers it useful to summarise the main findings of Section 7.11 of the contested decision, in which the Commission concluded, in recital 435, that the incentives of competing suppliers to operate in ‘the relevant markets’ was curbed by the threat of retaliatory actions by the merged entity.
486    In recital 436 of the contested decision, the Commission stated that the merged entity would be able quickly to detect potential entry or expansion because the relevant markets are characterised by a degree of transparency. In recital 437 of the contested decision, it noted that past behaviour of Cemex Croatia and DDC would suggest that, either as a matter of general commercial strategy, or as a specific reaction to certain conduct of competitors, both have resorted to actual or potential retaliatory actions to deter the threat of entry. In recital 438 of the contested decision, it gave five examples of DDC’s behaviour in respect of Cemex, Nexe and W&P in order to protect its market position in Bosnia and Herzegovina. In recital 439 of the contested decision, it gave three examples of Cemex’s behaviour in respect of LafargeHolcim, Titan and DDC in order to protect its market position in Croatia. Recital 440 of the contested decision concerns Cemex Croatia’s legal proceedings against ITC in an attempt to curb sales of grey cement imported by the latter and its distributor Armacom. In recital 441 of the contested decision, the Commission gave three examples to demonstrate that suppliers of grey cement in the ‘relevant markets’ take into account the fact that sales in the traditional strongholds of competitors may result in actual or potential retaliatory actions. Recital 442 of the contested decision states that the ability of the merged entity to undertake retaliatory actions would be even stronger. In recitals 443 to 445 of the contested decision, the Commission rejected HeidelbergCement’s claim that the behaviour described in recitals 436 to 442 of the contested decision is nothing more than vigorous competition.
(2)    Findings of the Court
487    First, in paragraph 121 of the application, the applicants claim that the conclusion in recital 436 of the contested decision, relating to the degree of transparency of the ‘relevant markets’, is based only on a single customer statement and three other factors which are common standards for any company active in any competitive market.
488    In that regard, it is sufficient to point out that the applicants do not dispute, as such, the Commission’s conclusion regarding the degree of market transparency and have adduced no evidence to refute it. They do not contest the accuracy of the facts admitted by the Commission and, in particular, the accuracy of the observation made in recital 436(b) of the contested decision, that [confidential]. In any event, even if, as the applicants maintain, [confidential] was a common standard for any company active in a competitive market, that fact cannot call into question the Commission’s assessment on the degree of market transparency.
489    As far as DDC is concerned, it does not explain why [confidential] is ‘by no means’ accurate, reliable or available on a customer-by-customer basis.
490    Second, in paragraph 123 of the application, the applicants claim that, in the absence of a coordinated effects theory, retaliation is nothing other than healthy competition and that, therefore, the assertion in recital 445 of the contested decision that the expectation of vigorous competition would curb the incentives of competing suppliers to enter or expand their sales in the ‘relevant markets’ is untenable.
491    That argument disregards the fact that, in the internal documents of ‘the Parties’, to which recital 444 and footnote 476 of the contested decision refer, Cemex acknowledges that the objective of retaliatory actions is not to ensure vigorous competition, but rather to protect the prevailing price levels. Even if, as the applicants claim, the documents cited do not contain [confidential], it must be noted that the applicants have not produced the documents in question nor do they explain why they are unable to produce them voluntarily.
492    In any event, it is of little importance whether the behaviour of the merged entity should be classified as vigorous competition or as a retaliatory measure. What matters is the fact that the applicants fail to demonstrate that the conclusion in recital 445 of the contested decision, that ‘in any event’ the expectation of vigorous competition would also curb the incentives of competing suppliers to operate in the ‘relevant markets’, is based on a manifestly incorrect assessment.
493    Third, in paragraphs 124 and 125 of the application, the applicants claim that none of the instances cited in recitals 437 to 440 of the contested decision concerned entry or retaliatory actions in the ‘relevant markets’ and the statements in the internal documents cited in those recitals show only that Cemex Croatia and DDC compete vigorously. In particular, there is no evidence that Cemex Croatia ever took retaliatory measures against DDC.
494    That argument must be rejected. It follows unambiguously from the details indicated in recitals 438 and 439 of the contested decision that, in the past, the actions of DDC and Cemex, however they were classified, always related to the areas closest to competitors’ plants and never consisted in price reductions in the areas where those two operators were attacked, that is, in the areas closest to DDC’s plant in Bosnia and Cemex’s plant in Split. It also follows that the applicants’ observation in paragraph 70 of the reply, that that behaviour was not mentioned in the contested decision, is unfounded.
495    It must also be noted that the applicants themselves acknowledge, in paragraph 134 of the application, that DDC could have been subject to retaliatory measures taken by Cemex, in so far as they claim that DDC, just like other competitors, would have been exposed to retaliatory actions by Cemex Croatia.
496    Fourth, in paragraph 126 of the application, the applicants assert that the Commission does not even claim that any of Cemex Croatia or DDC’s actions reported in recitals 437 to 440 of the contested decision actually did deter any entry or succeed in driving the ‘victims’ out of the market again.
497    In that regard, it is sufficient to refer to the examples provided in recital 441 of the contested decision, which establish that suppliers of grey cement in the relevant markets take into account the fact that sales in the traditional strongholds of competitors may result in actual or potential retaliatory actions. Whether the measures in question had any effect are thus irrelevant.
498    Fifth, in paragraph 127 of the application and in paragraph 71 of the reply, the applicants claim that the Commission does not explain why the actions and intentions of Cemex Croatia before the transaction should be relevant for assessing the behaviour of the merged entity and does not adduce any evidence suggesting that, after the transaction, DDC would act in the same way as Cemex Croatia did before the transaction.
499    In that regard, it must be borne in mind, in particular, that in a situation in which it is obvious that the commercial interests of an undertaking militate predominantly in favour of a given course of conduct, such as making use of an opportunity to disrupt a competitor’s business, the Commission does not commit a manifest error of assessment in holding that it is likely that the merged entity will actually engage in the conduct foreseen. In such a case, the simple economic and commercial realities of the particular case may constitute the convincing evidence required by the case-law (judgment of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 297).
500    Accordingly, it is apparent in particular from the statements of an importer, quoted in recital 441(b) of the contested decision, that potential suppliers of grey cement were generally unwilling to support imports into Croatia for fear of retaliation by Cemex. In that regard, it is of little importance whether DDC would have continued Cemex’s strategy post-transaction. It is sufficient that, after the transaction, the merged entity would be able to take retaliatory measures against Titan in Montenegro and eastern Bosnia using DDC’s plant in Bosnia and Herzegovina whereas, before the transaction, it was difficult for Cemex to take such measures.
501    Thus, it must be found that the applicants have not demonstrated that, in the light of the examples given, the Commission made a manifest error of assessment in not ruling out the possibility that the merged entity could take retaliatory measures in order to protect prevailing price levels, as DDC and Cemex have done in the past.
502    Sixth, in paragraph 128 of the application, the applicants note that they have already contested, in paragraph 164 of HeidelbergCement’s reply to the statement of objections, the reliability and conclusive nature of the statement in recital 441(b) of the contested decision.
503    As the Commission has pointed out, without being contradicted by the applicants, the explanation given by HeidelbergCement in that regard is speculative, as is apparent from the expression ‘it might be the case that’, and is not corroborated by any evidence.
504    Seventh, in paragraph 129 of the application, the applicants claim that the Commission’s assertion in recital 441(c) of the contested decision as to Asamer’s alleged reluctance to enter the traditional markets of Cemex and DDC in southern Bosnia and Herzegovina is pure speculation. Far from being reluctant, Asamer has – during the administrative procedure – clearly shown its eagerness to enter Cemex Croatia’s core market in Dalmatia by entering into an agreement with the port of Ploče (Croatia) which would have given Asamer access to a cement terminal in Dalmatia.
505    It must be noted that the case of Asamer is not one of the three examples to which recital 441 of the contested decision refers, and that that recital is only one of six arguments put forward by the Commission to support its conclusion, set out in recital 435 of that decision, that the incentives of competitors to enter, or expand in the relevant markets is curbed by possible retaliatory actions by the merged entity. Thus, even if that example cited in recital 441(c) of the contested decision were irrelevant, it in no way follows that the Commission’s conclusion, based in part on the past behaviour of Cemex Croatia and DDC, is vitiated by a manifest error of assessment.
506    Eighth, in paragraph 130 of the application, the applicants contest recital 442 of the contested decision, according to which the ‘retaliation potential’ of the merged entity would be stronger. In their view, if that theory were correct, then DDC would have already been able to retaliate against Titan’s sales in Dalmatia with its Kakanj plant. Similarly, there is no indication that ITC’s grinding station was ever used to deter importers into Croatia from Italy and Slovenia. The Commission also does not specify which importers could be affected by such actions and why HeidelbergCement would have such an incentive.
507    As the Commission has noted and as is apparent from paragraph 494 above, the reason why DDC never took retaliatory actions against Titan in the Dalmatia region is because that area is not the closest to DDC’s plant in Kakanj in Bosnia and Herzegovina. In that regard, the applicants do not dispute recital 438 of the contested decision regarding DDC’s efforts to protect its market position in Bosnia and Herzegovina, which is the area closest to its plant, by actions in Montenegro, Slavonia, Dalmatia and Slovenia.
508    Equally, the applicants make an incorrect reading of recital 442(b) of the contested decision, which does not indicate that, before the transaction, ITC’s grinding station was used to deter importers into Croatia from Italy and Slovenia, but only that, after the transaction, the merged entity could use that grinding station for such actions.
509    Lastly, it is not necessary that the contested decision specify which importers would be affected by retaliation measures and why the merged entity would have an incentive to engage in such measures. It is apparent from the contested decision that their past behaviour suggests that Cemex and DDC have resorted to actual or potential retaliatory action to deter the threat of entry (recitals 437 to 439), that suppliers of grey cement in the relevant markets take into account the fact that sales in the traditional strongholds of competitors may result in actual or potential retaliatory actions (recital 441) and that, after the transaction, the ability of the merged entity to undertake such actions would be even stronger (recital 442).
510    In the context of a provisional conclusion, the applicants, in paragraph 132 and footnote 98 of the application, refer to the documents cited by the Commission in Section 7.12.1 of the contested decision, which according to the applicants were prepared by ‘sales personnel’ of DDC in order to ‘sell’ the transaction to HeidelbergCement’s top management. In their view, the Commission places too much weight on less than a handful of documents out of several thousand emails and documents collected in the course of the proceedings, especially since the Commission does not take into account the status, origin and purpose of those documents. Whether, and to what extent, a price increase could materialise post-merger objectively depends on the competitive situation post-merger and not on internal subjective intentions of individuals within the sales organisation of DDC.
511    In that regard, it must be noted that Section 7.12.1 of the contested decision is one of the three subsections of Section 7.12 of the contested decision, headed ‘Impact of the Transaction’, at the end of which the Commission concluded that the transaction would lead to quantifiable price increases for grey cement and ready-mix concrete. Section 7.12.1 focuses on DDC’s internal projections. It is apparent from that section that, in recital 447 of the contested decision, the Commission refers to documents prepared in tempore non suspecto indicating that the transaction would lead to price increases. In recitals 448 to 450 the Commission explains that the conclusion on the expected price increases post-transaction is not altered by the fact that, in documents from after the initiation of the transaction, the revenues from the expected price increase were referred to as savings from logistics optimisation. In recitals 451 to 456 of the contested decision, the Commission set out five arguments detailing why ‘the Parties’ had failed to put forward any convincing evidence to explain the multiple indications of price increases in the contemporaneous documents prepared by DDC’s top management, as referred to in recitals 447 to 449.
512    It must be pointed out that the applicants have not disputed the contents of those documents or the five arguments set out by the Commission. Even if the projections in those documents do not constitute economic analyses, the applicants do not demonstrate why they cannot constitute sufficient evidence supporting the possibility of price increases post-transaction. The argument that the documents in question had been prepared by ‘sales personnel’ in order to ‘sell’ the transaction to top management is irrelevant since it cannot reasonably be assumed that the authors of those documents, even if they are ‘sales personnel’, wished to present unfounded projections.
513    Consequently, the fourth part of the fourth plea must be rejected.
5.      The fifth part, alleging manifest errors in the assessment of the competitive constraints individually exercised by competitors
514    In the fifth part of the fourth plea in law, the applicants raise two grounds of complaint, alleging, first, manifest errors in the assessment of the general factors limiting the constraints exerted by competing suppliers (Section 7.7.1) and, second, manifest errors in the assessment of the constraints exerted by individual suppliers (Section 7.7.2).
(a)    Manifest errors in the assessment of the general factors limiting the constraints exerted by competing suppliers
515    In paragraph 134 of the application, the applicants criticise the finding, in Section 7.7.1 of the contested decision, that the importers’ ability to compete ‘in the overlap area between the Parties’ plants in Split and Kakanj’ is limited by several factors. The applicants criticise the Commission for failing to mention that most of those factors should also apply to DDC as an importer of cement in the ‘relevant markets’. In support of that ground of complaint, the applicants rely on four arguments.
516    First, the applicants claim that, just like the other competitors, DDC’s plant in Kakanj is further than Cemex Croatia from Dalmatia and the remainder of the Croatian parts of the ‘catchment area of the Split plant’. It thus faces higher transport costs than Cemex Croatia to reach customers in the ‘Split catchment area’.
517    That argument disregards the fact that recital 317 of the contested decision, which the applicants dispute, concerns specifically the area of overlap between the Split and Kakanj plants and not the catchment areas around Cemex’s plant in Split. Contrary to what is argued in footnote 99 of the application, that approach follows the course of action set out in paragraphs 309 and 311 above.
518    Furthermore, as is noted in recital 301 of the contested decision, DDC’s plant in Kakanj is geographically the closest cement plant to Cemex’s plant in Split.
519    Second, the applicants claim that, just like other competitors, DDC’s plant in Kakanj should have been affected by the security of supply, quality and reputation issues described in recitals 318 and 320 of the contested decision.
520    In that regard, it must be pointed out that the applicants have not disputed the competitors’ statements set out in recital 318 of the contested decision from which it is apparent that, on account of the geographic location of its plant in Kakanj, DDC is less concerned by issues of security of supply which concern other land-based and seaborne suppliers.
521    In addition, the applicants have not disputed the Commission’s finding, in recitals 320 and 321 of the contested decision, that, on account of the ‘brand recognition on the Croatian market’, DDC’s imports do not face the same issues of quality and recognition as imports from suppliers established in Albania, Serbia or Turkey.
522    As a result, recitals 318, 320 and 321 of the contested decision, in so far as they state that, on account of the geographic location of its plant in Kakanj, DDC is less concerned by issues of security of supply, quality and reputation than other suppliers, are not vitiated by a manifest error of assessment.
523    Third, the applicants claim that, just like other competitors, DDC’s plant in Kakanj would have been exposed to the retaliatory actions by Cemex Croatia referred to in recital 319 of the contested decision.
524    In that regard, it is sufficient to refer to paragraphs 487 to 513 above, from which it is apparent that the applicants have not demonstrated that the retaliation theory put forward in Section 7.11 of the contested decision is unfounded.
525    Moreover, the applicants seem to contradict themselves in that regard in so far as they claim, in paragraph 124 of the application, that none of the evidence indicates that Cemex Croatia ever retaliated against DDC.
526    Fourth, the applicants claim that, just like other competitors, DDC’s plant in Kakanj would have had reduced ability to engage in barter trading and to assess the creditworthiness of customers.
527    In that regard, it is sufficient to note that that argument is insufficient to warrant the conclusion that the competitors’ statements reproduced in recital 322 of the contested decision, and the conclusion that the Commission draws from them, are manifestly incorrect.
528    It follows from the foregoing that the applicants have not demonstrated that the factors limiting the competitive constraints exerted on the merged entity by competing grey cement suppliers would have applied equally to DDC and, therefore, have failed to establish that the Commission committed a manifest error of assessment. Accordingly, this first ground of complaint must be rejected.
(b)    Manifest errors in the assessment of the constraints exerted by individual suppliers
529    The applicants claim, in paragraph 135 of the application, that the Commission’s assessment, in Section 7.7.2 of the contested decision, of the individual competitors and their ability to compete effectively with the merged entity, is flawed and insufficient to justify the finding that none of those competitors could effectively constrain that entity in the relevant markets or in Dalmatia.
(1)    LafargeHolcim
530    The applicants criticise recitals 328 to 335 of Section 7.7.2.1 of the contested decision, which encompasses recitals 325 to 336.
531    First, the applicants claim, in paragraph 136 of the application, that LafargeHolcim competes with Cemex Croatia everywhere in the relevant markets. Nevertheless, without disputing it as such, they note that the Commission stated, in recital 327 of the contested decision, that LafargeHolcim would exert competitive constraints only in the north of the ‘market around the Split plant’. Moreover, in their view, the reasoning in recitals 328 to 335 is untenable and the reasoning in paragraphs 329 and 333 is insufficient, in so far as the Commission offers no valid explanation as to why LafargeHolcim would not be able and willing to modify the usage of the Zadar (Croatia) terminal in case of a post-transaction price increase by increasing direct sales from its Koromačno (Croatia) plant to customers situated in the ‘north of the Split catchment area’ and thus effectively increasing the Zadar terminal capacity available for sales to southern Dalmatia.
532    It must be held that the applicants base their arguments on a partial and incorrect reading of recital 327 of the contested decision. Indeed, that recital does not relate to the general constraints exerted by LafargeHolcim on the merged entity, but to the specific constraints exerted by its Koromačno plant, located in the north of the catchment areas of Cemex’s plant in Split.
533    In addition, it must be held that the applicants have not substantiated their claim that the Commission offers ‘no valid explanation’ as to why LafargeHolcim would not have the ability or the incentive to supplement sales from its terminal in Zadar by increasing sales directly from its plant in Koromačno. After all, that mere assertion in no way addresses the detailed explanation, backed up by figures, provided in particular in recitals 329, 333 and 334 of the contested decision. It is clear from those recitals that the Commission set out in sufficient detail all the considerations which led it to adopt that position. Moreover, that reasoning was sufficient to enable the applicants to ascertain the reasons for the decision in order to defend their rights and appears sufficient to enable the Court to exercise its power of review, and it is for the applicants to demonstrate that that reasoning is manifestly incorrect. However, that is not the case here.
534    Second, the applicants claim, in paragraph 137 of the application, that the assertion in recital 329 of the contested decision that LafargeHolcim would not effectively increase the available capacity of its Zadar terminal by ‘reallocating’ customers to be served directly from the Koromačno plant, since that would ‘negatively impact LafargeHolcim’s position around the Zadar terminal in terms of profitability’, is neither credible nor conclusive. In particular, LafargeHolcim’s reasoning concerning the profitability of a reallocation of sales appears to disregard LafargeHolcim’s costs to supply the Zadar terminal with cement from the Koromačno plant, when, in its assessment of the proposed remedies, the Commission takes those costs into account. The Commission does not explain the differential treatment between its assessment of the costs and profitability of LafargeHolcim’s terminal sales and its assessment of the costs and profitability of terminal sales of a potential new lessee of the Metković (Croatia) cement terminal (‘the Metković terminal’). Next, in paragraph 73 of the reply, they assert that they were unable to verify whether the Commission’s claim that it had taken into account the transport costs between the Koromačno plant and the Zadar terminal when assessing a possible ‘reallocation’ of LafargeHolcim’s customers was correct. Lastly, in paragraph 139 of the application, they criticise the Commission for taking the statements of LafargeHolcim at ‘face value’.
535    First of all, as the Commission has noted, the applicants’ claim is in fact a hypothesis. If LafargeHolcim were able to reduce its costs by selling grey cement directly from its Koromačno plant, it would already make such direct sales and would not sell grey cement from its Zadar terminal, since that involves incurring additional costs connected with transport from its Koromačno plant or another plant to the Zadar terminal.
536    Next, as is apparent from Annex D3 to the rejoinder, and as is cited in part by the Commission in recital 329, LafargeHolcim declared that reallocating sales and freeing up capacity at the Zadar terminal ‘from a commercial viewpoint … [was] therefore not a possible alternative’ because ‘it would effectively reduce margins by [a significant amount] (by increasing transport and logistics costs) as well as resulting in a slower response time (i.e. from order to delivery) for those customers who are closer to Zadar’. As the Commission notes, that statement only makes sense if, during its assessment of the profitability of any ‘reallocation’ of its clients post-transaction, LafargeHolcim had taken into consideration the costs associated with the fact that it would sell from its Zadar terminal grey cement transported to the terminal from the Koromačno plant. Without that, the comparison of LafargeHolcim’s margins and the conclusion it drew from it (namely ‘from a commercial viewpoint it is therefore not a possible alternative’) would be incorrect.
537    Lastly, as regards the fact that the Commission took into consideration LafargeHolcim’s statements, in particular in recital 329 of the contested decision, it must be noted that the applicants’ assertion that those statements concerning its commercial policy would be driven by a ‘strategic interest’ is not sufficient to establish that the Commission made a manifest error of assessment in taking them into consideration. The fact that those statements were not prepared by LafargeHolcim directly but by lawyers specialised in competition law is not capable of calling into question their reliability, especially since, as the Commission has observed, those statements were provided in response to requests for information under Article 11(2) of Regulation No 139/2004, and, in accordance with Article 14(1)(b) of the same regulation, fines may be imposed in the event of incorrect or misleading information being supplied in response to such a request.
538    Third, the applicants claim that, in any event, as long as positive contribution margins can be achieved, there should be an incentive to increase sales in that area.
539    That argument is irrelevant if LafargeHolcim sells grey cement directly from Koromačno. In that regard, as is apparent from paragraphs 444 to 451 and 454 to 482 above, LafargeHolcim would not have the incentive to make such additional sales in the event of a price increase by the merged entity, in so far as it is likely that LafargeHolcim would rather increase its current prices in order to benefit in turn from higher volumes sold at higher prices.
(2)    Nexe
540    The applicants criticise recitals 339, 341, 343 to 344 and 354 of Section 7.7.2.2 of the contested decision, which encompasses recitals 337 to 354.
541    First, in paragraph 140 of the application, the applicants claim that the Commission provides no evidence to support the ‘insinuation’ in recital 339 of the contested decision that the transport costs for Nexe’s sales in western Croatia and Dalmatia lead to uncompetitive prices or make an expansion of sales in Dalmatia unprofitable.
542    In that regard, it is sufficient to note that recital 339 of the contested decision is substantiated by footnote 313, which refers to three different documents containing Nexe’s replies to different questions asked by the Commission.
543    Second, in paragraphs 141 to 143 of the application, the applicants claim, in essence, that it would be possible for Nexe to transport cement from Slavonia in northern Croatia through Bosnia and Herzegovina to Dalmatia, in so far as (i) transit through Bosnia and Herzegovina is possible and would not create significant obstacles, (ii) changing drivers at the Bosnian border would be feasible and economically viable, (iii) the additional costs associated with importing cement into Bosnia and Herzegovina in order to export it to Croatia would be financially viable and, (iv) transport costs for supply distances of more than 350 km would not be prohibitively high.
544    In that regard, it must be observed that the applicants have not contradicted the detailed explanations – at times backed up by figures – given in the contested decision on (i) the waiting times at the Bosnian border in recital 342, (ii) the Croatian legislation on cabotage in recital 343, (iii) obstacles to avoiding cabotage restrictions in recital 344, (iv) additional reasons why transit through Bosnia and Herzegovina would not be feasible in recitals 345 to 347 and, (v) other explanations in recitals 348 to 354.
545    It follows that the applicants do not demonstrate by their general assertions that the reasons why, according to the Commission, Nexe would have neither the ability nor the incentive to increase its sales are based on a manifest error of assessment.
(3)    Titan
546    The applicants criticise recitals 358, 363 and 364 of Section 7.7.2.3 of the contested decision, which encompasses recitals 335 to 365.
547    First, in paragraph 145 of the application, the applicants claim that the assertion that Titan has to use two-way transport ‘where possible’ ‘in order to ensure competitive transport costs’ cannot be inferred from the quote in recital 358 of the contested decision. According to the applicants, the reasons why two-way transport would increase the complexity of logistics are not clear or substantiated by evidence, since two-way transport is very common in the cement industry.
548    Those claims must be rejected, given that the Commission’s observations can be deduced from the evidence cited. It is apparent from footnote 338 of the contested decision that those observations are based on a request for information, made under Article 11(2) of Regulation No 139/2004, and, in accordance with Article 14(1)(b) of the same regulation, fines may be imposed in the event of incorrect or misleading information being supplied in response to such a request.
549    Moreover, it is logical and obvious that two-way transport is logistically more difficult to charter than one-way transport returning empty.
550    In any event, the applicants provide no evidence in support of their assertion that two-way transport is very common in the cement industry.
551    Second, in paragraph 146 of the application, the applicants claim that the assertion in recital 363 of the contested decision that Titan lacks brand reputation is unsubstantiated.
552    Even if the applicants’ claim were correct, it must be noted that they do not contest recitals 357, 359 to 362 and 365 of Section 7.7.2.3 of the contested decision, which also concern Titan and equally form the basis of the Commission’s assessment as regards the pressure exerted by Titan.
553    Third, in paragraph 147 of the application, the applicants claim that the finding in recital 364 of the contested decision, according to which Titan currently sees no scope for expansion of its imports into Croatia, is not borne out by the evidence cited, since Titan could at least engage in ‘hit and run’ competition.
554    Once again, this is a mere allegation by the applicants without any explanation being provided as to why Titan would have the incentive to engage in ‘hit and run’ competition. It is not apparent from the statement made by Titan, quoted in recital 358 of the contested decision, that it would have such an incentive.
555    In any event, it must be noted, as is apparent from paragraph 478 above, that the applicants again contradict themselves on this point in so far as Titan would have been unable to do that. In the first indent of paragraph 115 of the application, they acknowledge that customers negotiate with suppliers before entering into a contract and, at the end of paragraph 95 of the application they acknowledge that those contracts may last up to a year.
(4)    Asamer
556    The applicants dispute the whole of Section 7.7.2.4 of the contested decision, which encompasses recitals 366 to 376.
557    In their view, the Commission’s analysis of the potential competitive constraint exerted by Asamer does not take into account a decisive fact communicated to the Commission in March 2017, namely that Asamer had signed a five-year lease agreement with the port of Ploče for a cement terminal in Metković in Dalmatia with a road and railway connection to its plant in Bosnia and Herzegovina. At the same time, Cemex Croatia and the port of Ploče had put an end to their existing lease agreement for that same terminal. Both agreements were conditional on the Commission’s clearance of the transaction. The applicants take the view that those developments have rendered the Commission’s analysis in recital 368 et seq. of the contested decision incomplete, unsustainable, manifestly erroneous and obsolete.
558    First, in paragraph 75 of the reply and footnote 104 of the application, the applicants claim that the evidence shows that Asamer competes aggressively in all areas where it is present.
559    However, the applicants have in no way substantiated that claim, which also contradicts the detailed explanations provided in recitals 370 and 371 of the contested decision and the conclusion which the Commission drew from them, that DDC and Cemex do not consider Asamer to be an aggressive competitor.
560    In that regard, it is not apparent from recitals 370 and 371 of the contested decision that the Commission misinterpreted the evidence relied on here. It is apparent from that evidence that, between March 2013 and December 2015 at least, Asamer focused its sales on the region closest to its plant in northern Bosnia. In addition, the passages highlighted by the applicants in the evidence submitted on 28 February 2017 concern only Asamer’s incentive to compete in areas closest to its plant in northern and eastern Bosnia.
561    Second, in paragraph 72 of the reply, the applicants claim that, contrary to what is stated in paragraph 208 of the defence, during the market test of the commitments offered, Asamer did not state that its expansion was conditional on the clearance of the transaction. They add, in paragraph 77 of the reply, that the fact that the lease agreement for the Metković terminal, concluded between Asamer and the port of Ploče, is conditional on the Commission’s clearance of the transaction does not mean that Asamer’s willingness to expand in Dalmatia or to enter into that agreement is also conditional on that clearance. The conditionality of the lease agreement was necessary only to protect the port of Ploče.
562    In that regard, it must be noted, first of all, that the applicants have provided no evidence to support their allegations. On the contrary, it is apparent from Article 16 of the lease agreement concluded between Asamer and the port of Ploče that the Commission’s clearance of the transaction is a suspensory condition. It follows that the applicants cannot complain that the Commission made a manifest error of assessment in concluding that the willingness of Asamer to expand its business in Dalmatia was conditional on the clearance of the transaction. It is also apparent from recitals 3 and 24 of the minutes of the conference call of 15 February 2017 between the Commission and Asamer, which was part of the market test of the commitments offered, that the conclusion of the lease agreement was the only option that would enable Asamer to develop its activity in Croatia.
563    As the Commission noted and the applicants acknowledged, since Cemex’s willingness to terminate its lease on the Metković terminal and Asamer’s willingness to enter into a five-year lease for the same terminal were conditional on the clearance of the transaction, the Commission assessed those facts in the context of whether the commitments were sufficient to render the transaction compatible with the internal market and not in the context of the competitive assessment of the transaction.
564    The applicants disputed that method of assessing the facts with reference to recital 30 of Regulation No 139/2004.
565    That recital is worded as follows:
‘Where the undertakings concerned modify a notified concentration, in particular by offering commitments with a view to rendering the concentration compatible with the [internal] market, the Commission should be able to declare the concentration, as modified, compatible with the [internal] market.’
566    There being no need to adjudicate on whether the leasing of the Metković terminal by Asamer may be considered a modification of the concentration, it must be noted that that recital does not oblige the Commission to take it into account when assessing the competitive situation. In any event, that provision does not justify the applicants’ conclusion that the fact that the Commission took that lease into account as part of the assessment of the commitments is manifestly flawed.
567    Third, in paragraphs 58 to 59 and 77 of the reply, the applicants criticise paragraph 229 of the defence, according to which the lease agreement could not be considered part of the competitive assessment because it could not have reasonably been predicted to occur, within the meaning of paragraph 9 of the Horizontal Merger Guidelines, in the absence of the transaction, since DDC’s internal documents seem to indicate that Cemex would have extended its lease in that case. According to the applicants, the competitive assessment cannot be carried out solely on the basis of the factual and legal situation existing at the time of the notification. The Commission’s claim that such an approach applies only to changes that can reasonably be predicted at the time of the merger is untenable and is not supported by paragraph 9 of those guidelines.
568    Paragraph 9 of the Horizontal Merger Guidelines is worded as follows:
‘In assessing the competitive effects of a merger, the Commission compares the competitive conditions that would result from the notified merger with the conditions that would have prevailed without the merger. In most cases the competitive conditions existing at the time of the merger constitute the relevant comparison for evaluating the effects of a merger. However, in some circumstances the Commission may take into account future changes to the market that can reasonably be predicted. It may, in particular, take account of the likely entry or exit of firms if the merger did not take place when considering what constitutes the relevant comparison.’
569    It is apparent from the second sentence of that paragraph that the most relevant time for evaluating the anti-competitive effects of a merger is the time of the merger. It is only at that point that, according to the third sentence of paragraph 9 of the Horizontal Merger Guidelines, the Commission may take into account future changes to the market that can reasonably be predicted. It follows that the applicants’ argument is not well founded.
570    Fourth, it follows from paragraphs 559 and 569 above that the applicants’ claim that Asamer’s lease of the Metković terminal shows that it is not reluctant to enter Cemex Croatia’s traditional markets must be rejected, in so far as that interest is linked to the conclusion of that lease agreement, which is itself conditional on clearance of the transaction. Accordingly, the fact that competitors would reassess their strategy in the light of the transaction cannot be a factor that should be taken into consideration when assessing competitive effects given that that reassessment is conditional, in the present case, on the implementation of the transaction.
571    Fifth, as regards the applicants’ observation in paragraph 78 of the reply that ‘while it is true that Asamer’s conclusion of the lease agreement could not have been considered as part of the counterfactual situation …, it nevertheless would have had to be considered as part of the likely market development after implementation of the transaction’, it must be stated that this is contradictory.
572    Lastly, the Court finds that the applicants’ arguments concerning LafargeHolcim, Nexe and Titan are unfounded and that the Commission’s analysis concerning Wietersdorfer & Peggauer, Cementizillo, Grigolin, but also concerning the competitive constraints exerted by other potential land-based importers (recitals 392 to 394) and sea-borne suppliers (recitals 395 to 403) has not been contested. Therefore, even if Asamer’s access to the Metković terminal could have improved its competitiveness post-transaction, the applicants have not demonstrated that, if that were the case, the Commission’s conclusions based on the analysis of the pressure exerted by individual competitors and their ability to compete effectively with the merged entity are based on a manifest error of assessment. The applicants have also not challenged the assessment that even larger customers will have insufficient countervailing buyer power to exert such pressure (recitals 431 to 434 of the contested decision).
573    As a result, the fifth part of the fourth plea in law and, therefore, the fourth plea in its entirety, must be rejected.
F.      The fifth plea, alleging manifest errors in the assessment of the proposed remedy
574    By their fifth plea in law, the applicants claim that the Commission’s assessment and rejection of the proposed remedy are vitiated by several manifest errors of assessment.
1.      The contested decision
575    In recitals 500 to 508 of the contested decision, the Commission presented the commitments proposed by the applicants and, in recitals 509 to 611, its negative assessment of those commitments, in so far as:
–        the commitments suffered from a number of structural deficiencies (recitals 511 to 526);
–        the likelihood of finding a suitable lessee for the Metković terminal belonging to the port of Ploče and currently leased by Cemex Croatia was low (recitals 527 to 578);
–        the capacity of the Metković terminal would have been insufficient for such a suitable lessee to develop into a viable competitive force capable of competing effectively with the merged entity and on a lasting basis (recitals 579 to 606);
–        the commitments suffered from a number of defects as regards their implementation modalities (recitals 607 to 611).
2.      Findings of the Court
576    The fifth plea in law comprises two parts.
(a)    The first part, concerning the fact that the Commission’s assessment of the commitments is based on a false and overly strict standard
577    The applicants claim, in essence, in paragraphs 161 to 166 of the application, that the Commission’s assessment of the commitments is based on a misinterpretation of recital 30 of Regulation No 139/2004 and of paragraph 63 of the Commission Notice on remedies acceptable under Council Regulation No 139/2004 and under Commission Regulation (EC) No 802/2004 (OJ 2008 C 267, p. 1; ‘the Remedies Notice’).
578    In their view, the Commission essentially maintains that a suitable remedy must consist of a divestiture of a viable business comprising a production plant, brands, customer relationships and staff, must entirely eliminate, or at least substantially reduce, the overlap between the merging parties and must replicate the competitive constraint exercised by one of the merging parties on the other before the transaction. In addition, the Commission postulates that a beneficiary of the commitments would have to be as similarly cost-competitive as at least one of the merging parties. However, those requirements do not comply with the principle of proportionality, referred to in recital 30 of Regulation No 139/2004, from which it follows that a remedy should be proportionate to the competition problem identified.
579    They add that it follows from paragraph 63 of the Remedies Notice that, in the case of an access remedy, it is not relevant whether a viable business is divested or whether the parties weaken their own market position. Nor is it required that the commitment package itself be comparable to the divestiture of an existing standalone business. What matters is that the effect of an access commitment on the market be comparable to the effect of a divestment. In the present case, the proposed remedy would have ensured Asamer’s entry into Dalmatia, the only potentially problematic region affected by the transaction, and would have made it possible to replace DDC’s sales fully in that region within a very short timeframe.
580    According to paragraph 63 of the Remedies Notice:
‘Commitments granting access to infrastructure and networks may be submitted in order to facilitate market entry by competitors. They may be acceptable to the Commission in circumstances where it is sufficiently clear that there will be actual entry of new competitors that would eliminate any significant impediment to effective competition. Other examples of access commitments are commitments granting access to pay-TV platforms and to energy via gas release programs. Often, a sufficient reduction of entry barriers is not achieved by individual measures, but by a package comprising a combination of divestiture remedies and access commitments or a commitments package aimed at overall facilitating entry of competitors by a whole range of different measures. If those commitments actually make the entry of sufficient new competitors timely and likely, they can be considered to have a similar effect on competition in the market as a divestiture. If it cannot be concluded that the lowering of the entry barriers by the proposed commitments will likely lead to the entry of new competitors in the market, the Commission will reject such a remedies packages.’
581    The applicants’ presentation of the Commission’s position as set out in recitals 513 to 515, 517 to 522, 531, 594, 597 and footnote 632 of the contested decision, according to which, in essence, a suitable remedy must, as a matter of principle, consist in the divestiture of a viable business containing, inter alia, a production plant, elimination of the entire overlap – or a substantial reduction thereof – between the parties to the concentration and ensure that ‘the “commitment package” itself’ be comparable to the divestiture of an existing standalone business, is incorrect.
582    It is apparent from those recitals – in respect of which the applicants have not developed the substance of their criticisms – that the Commission does not advocate such an interpretation of the concept of commitment or of the requirement of proportionality set out in recital 30 of Regulation No 139/2004, but that it found, in the case at hand, that the proposed commitments would not have had an effect comparable to the divestiture of an existing standalone business in the relevant markets and that, therefore, they could not be accepted.
583    Indeed, it simply concluded, in recital 522 of the contested decision, that the commitments offered a mere, uncertain business opportunity for a new lessee to start selling, or to expand sales of, grey cement in the relevant markets, ‘which [wa]s not comparable’ to the divestiture of an existing standalone business.
584    The applicants’ claim, in paragraph 164 and footnote 112 of the application, according to which, first, it is not relevant whether a viable business is divested or whether the notifying parties weaken their own marketing position and, second, the structural deficiencies mentioned in recitals 511 and 513 et seq. of the contested decision ‘are therefore irrelevant’, is inadmissible in the light of Article 76(d) of the Rules of Procedure, for not having been sufficiently elaborated.
585    Contrary to what the applicants suggest in that same footnote, it is irrelevant that recital 515 of the contested decision does not contain a comparison of the situation with and without the commitments. It follows from that recital that implementing the commitments would have had a limited effect on capacity concentration levels in the circular and modified catchment areas around Cemex’s plant in Split. Figure 27 of the contested decision shows that the merged entity’s joint capacity shares would have remained high and Figure 28 shows that capacity share increments would have remained sizeable.
586    Accordingly, the first part of the fifth plea must be rejected.
(b)    The second part, relating to the manifest errors of assessment of the commitments offered
587    In the second part, the applicants claim that the Commission ignored several features of the commitments offered and failed to investigate all relevant information for the assessment of those commitments and the assessment of Asamer as a suitable lessee.
588    That part comprises 11 arguments.
589    First, in paragraph 168 of the application, the applicants claim that recital 519 of the contested decision, according to which the commitments do not include any access to grey cement supplies from other sources, is manifestly wrong since the commitments explicitly include a back-up facility at the Split plant.
590    In that regard, it is sufficient to point out that the applicants have not disputed the Commission’s explanation that the facility in question belonged to Cemex and the fact that, in any event, that facility would not remedy the concerns regarding the insufficient capacity at the Metković terminal.
591    Second, in paragraph 169 of the application, the applicants claim that the Commission made a manifest error in finding, in recitals 526 and 537 of the contested decision, that there was uncertainty as to the interpretation of certain clauses of the lease agreement between Cemex and the port of Ploče. The same is true for recital 569 et seq. of the contested decision concerning the alleged uncertainties relating to investment in the terminal’s rail connection. They therefore request the Court to order the Commission, pursuant to Article 91(b) of the Rules of Procedure, to produce the agreement concluded between Asamer and the port of Ploče, since the details of that agreement are not known to them.
592    Recital 526 of the contested decision provides the following:
‘While the new lessee would have to enter into a contract with the port of Ploče on substantially the same terms as the existing contract between Cemex and the port of Ploče, this would create uncertainty for any new lessee due to the lack of clarity regarding the interpretation of certain clauses of the existing contract, including the clauses concerning the variable costs of handling volumes over [confidential] kt of grey cement. While the port of Ploče considers that above [confidential] kt, such variable costs are [confidential] EUR per ton, Cemex considers, that such variable costs should, like below [confidential] kt of grey cement, remain at [confidential] EUR per ton even for volumes of grey cement above [confidential] kt.’
593    Thus, it is clear from that recital that, contrary to what the applicants claim, the existing uncertainties were not dispelled, since it would not have been certain that a new lessee would be able to conclude a contract wherein the matter of the variable costs of handling of grey cement volumes of more than [confidential] kt would have been clarified. Even if, as the applicants assert, the agreement concluded between Asamer and the port of Ploče clarifies those uncertainties, the Commission would not have been certain that that matter would have been settled in the same way for another lessee if Asamer had terminated the lease agreement concluded by mutual consent with the port of Ploče. The applicants’ argument, in paragraph 82 of the reply, that that ‘claim’ did not appear in the contested decision is contradicted by the actual content of that recital.
594    It also follows that there is no need to order the production, requested by the applicants under Article 91(b) of the Rules of Procedure, of the agreement concluded between Asamer and the port of Ploče.
595    Moreover, as is apparent from recital 570 of the contested decision, which is not disputed by the applicants, even if Asamer and the port of Ploče had committed to make the investments necessary to make the rail connection linking the Metković terminal to the public rail network operational, there would be no certainty that those investments would take place. Furthermore, those two parties could have jointly decided to waive such an investment at any point in the future.
596    Third, in paragraph 170 of the application, the applicants dispute the observations in recitals 607 and 611 of the contested decision on the ‘defects’ regarding the implementation modalities of the proposed commitments. They claim that those ‘defects’ in the commitments are either non-existent or irrelevant and could have been easily addressed had the Commission asked the applicants to do so.
597    In that regard, it should be noted that the applicants have not contradicted the explanation provided by the Commission in paragraphs 246 to 249 of the defence. It is apparent from that explanation, first of all, that the defects in the implementation modalities of the commitments could have materialised at any time had Asamer and the port of Ploče decided to terminate the lease agreement by mutual consent. Next, the Commission discussed the defects with the applicants during the state-of-play meeting of 23 February 2017 and they chose not to remedy the implementation modalities of the commitments, despite now claiming that they could have done so easily. Lastly, and in any event, it was incumbent on the applicants to offer commitments not affected by such defects and not for the Commission to ask the applicants to remedy them.
598    Fourth, in paragraph 171 of the application, the applicants claim that the Commission relied, in recitals 572 to 574 of the contested decision, on outdated information regarding the status of the Bosnian railway system, despite additional submissions by the parties with up-to-date statements from the Bosnian railway operator.
599    In that regard, it should be noted that the applicants have not contradicted the explanation provided by the Commission in paragraph 250 of the defence. According to that explanation, it took into account the information from the railway operator in Bosnia and Herzegovina, submitted by the applicants on 27 March 2017, and nothing among that information would have enabled the Commission to conclude with certainty that the rail network in Bosnia and Herzegovina was not in a poor condition overall and that a sufficient number of wagons would have been available for the regular rail transport of grey cement to the Metković terminal (recitals 572 and 573 of the contested decision). That is also apparent from the statements of the Bosnian railway operator, referred to in footnote 612 of the contested decision and placed on the file as Annex A26 to the application and, in particular, from the comments made in the email of 22 March 2017.
600    Fifth, in paragraph 172 of the application, the applicants criticise the Commission for having stated on several occasions in the contested decision that certain aspects of the commitments or of Asamer’s suitability as a new lessee were uncertain, whereas it would have had sufficient time to remove those alleged uncertainties by further investigating the relevant issues during the proceedings.
601    In that regard, it is sufficient to state, as the Commission observes without being contradicted by the applicants, that, in the first place, uncertainty remained regarding the sales levels that a new lessee would have achieved (recital 513). In the second place, the applicants and Asamer provided no explanation as to how Asamer would have overcome the uncertainties described in recitals 560 to 574 and 606(e) and (f) of the contested decision (recitals 577 and 578 of the contested decision). In the third place, the applicants did not provide any information on the actual capacity of the Metković terminal in the event of resupply by rail or the bottlenecks affecting the capacity of that terminal in the event of resupply by rail (recitals 580, 582 and 606(h) of the contested decision). In the fourth place, the applicants did not provide any information about when and how the investments necessary to make the connection linking the Metković terminal to the public rail network in Croatia operational would be made, or about the acquisition of the equipment necessary for unloading cement transported by trains at that terminal (recitals 569, 584 and 606(c) of the contested decision). In the fifth place, the applicants provided inconsistent information as to the exact level of those investments (recital 585 and footnote 622 of the contested decision).
602    Sixth, in paragraph 173 of the application, the applicants claim that the Commission ignored the fact that the proposed remedy would have put Asamer in a much more favourable position than DDC for competing in Dalmatia and southern Croatia in so far as Asamer would have had a supply base in the very heart of Dalmatia whereas DDC is currently operating only with truck imports without any terminal or other supply base in Dalmatia.
603    In that regard, it should be noted, as the Commission submits, that Asamer would have been unable to ensure the same level of security of supply from the Metković terminal as DDC from its plant in Bosnia and Herzegovina and as Cemex from its plant in Split. The applicants do not explain why security of supply is dependent on the distance of delivery – without it being necessary to take into account, as in recital 553 of the contested decision, whether deliveries are made to an established or new customer base, using established or new logistics routes, from plants or terminals operating at low or high capacity utilisation rates and with a low or high storage capacity – in respect of which the Metković terminal is at a disadvantage compared to DDC and Cemex’s plants.
604    Seventh, in paragraph 174 of the application, the applicants submit, in essence, that the Commission should have taken into account the large spare capacity at Asamer’s plant in Lukavac (Bosnia and Herzegovina).
605    First of all, it should be noted that the applicants have not contradicted the three explanations provided by the Commission in paragraphs 262 to 264 of the defence.
606    In the first place, Asamer would have been unlikely to use any spare capacity at the Lukavac plant to ‘supplement the sales from the terminal’ in Dalmatia because it would have been unable to provide its customers with the requisite level of security of supply (recitals 374, 547(b) and 596 of the contested decision).
607    In the second place, Asamer would have been unlikely to use any spare capacity at the Lukavac plant to ‘directly supply customers in Montenegro and Bosnia [and Herzegovina]’. After all, on the one hand, due the vicinity of the Metković terminal to Bosnia and Herzegovina and Montenegro, Asamer would have been unlikely to sell the entire capacity of the terminal to customers located in southern Croatia. Rather, sales from the Metković terminal would have been split among the neighbouring regions (recital 592 of the contested decision). That is confirmed by point 6 of the minutes of the conference call between Asamer and the Commission of 15 February 2017, from which it is apparent that, through that terminal, Asamer would become a reliable supplier for the ‘area around Metković, that is to say Dalmatia, southern Bosnia [and Herzegovina] and Montenegro’. On the other hand, even if Asamer could have supplemented the sales in the part of the catchment area of Metković terminal situated in Bosnia and Herzegovina with direct deliveries from Lukavac, security of supply issues would have limited the amount of those sales (recitals 547(b) and 596 of the contested decision).
608    In the third place, the Commission was right to base its capacity calculations on a maximum capacity of [confidential] kt in the event of resupply by rail of the Metković terminal. Thus, while the applicants claimed for the first time on 20 February 2017 that the Metković terminal’s capacity in the event of resupply by rail could be increased to [confidential] kt if investments were made to purchase an [confidential], they provided no evidence in support of their claim (recital 583 of the contested decision). Moreover, there remained uncertainty as to whether and when such investments would be made, and as to the exact level of investment required (recitals 584 and 585 of the contested decision). Lastly, contrary to what the applicants asserted during the administrative procedure, Asamer had estimated that, even if it had invested in compressors, the maximum capacity of the Metković terminal would have been ‘only up to 150 kt’ and not [confidential] kt (recital 586 of the contested decision).
609    Next, contrary to what is stated in footnote 123 of the application, the capacity of [confidential] kt available to Asamer in the event of resupply by rail of the Metković terminal could not be increased by means of truck deliveries.
610    Thus, as the Commission contends, Asamer would have had a variable cost-to-market disadvantage for truck deliveries compared to DDC from [confidential] to [confidential]% for quantities of grey cement below [confidential] kt and from [confidential] to [confidential]% for quantities of grey cement above [confidential] kt (recitals 543 to 547 of the contested decision). Asamer would also have encountered logistical issues when regularly resupplying the terminal by truck (recital 318(c) and recitals 374, 567 and 605 of the contested decision). Moreover, adverse weather conditions in the winter and poor road conditions have prevented Asamer from selling cement in southern Croatia in the past (recital 568 of the contested decision).
611    In that context, as the Commission notes, the applicants do not explain how the contested decision does not support the conclusion that the capacity of [confidential] kt available to Asamer if the Metković terminal were to be resupplied by rail could not be increased by means of truck deliveries.
612    Lastly, as the Commission observes, the applicants’ claim in footnote 122 of the application, according to which, given that Cemex has a production site and further terminals ‘close by’ the Metković terminal, the current catchment area of the Metković terminal for Cemex is not a suitable proxy for the catchment area of the Metković terminal for Asamer, is in no way substantiated.
613    Eighth, in paragraph 176 of the application, the applicants claim that the percentage cost-to-market differences between potential new lessees and DDC, shown in Tables 11 to 14 of the contested decision, are incorrect and lead to an overstatement of those costs.
614    In that regard, it should be borne in mind that the Commission has acknowledged in its written submissions that, in the contested decision, it did overstate competitors’ cost disadvantages. As it explains, that overstatement results from the fact that it rounded down DDC’s cost-to-market to EUR [confidential]/t instead of using the EUR [confidential]/t figure indicated in recital 534 of the contested decision. That rounding down leads to an overestimate of competitors’ cost disadvantages. However, that calculation error, linked to the likelihood of finding a suitable lessee for the Metković terminal, is ineffective, in so far as it cannot call into question the other shortcomings identified in the contested decision in relation to the proposed commitments, namely their structural deficiencies, their insufficiency in terms of scale (linked to the capacity of the Metković terminal) and the shortcomings in how to implement them.
615    Ninth, in paragraph 177 of the application, the applicants submit that the transport costs of reaching DDC’s customers in southern Croatia from Metković are inaccurate.
616    In that regard, it should be noted that the applicants have not contradicted the explanation provided by the Commission, whereby it acknowledged that it had made a clerical error in footnote 573 of the contested decision. Thus, the estimated transport costs per road km were EUR [confidential]/km and not EUR [confidential]/km. However, that error did not affect the decision’s findings, given that the resulting average cost of EUR [confidential]/t to reach DDC’s customers in southern Croatia from the Metković terminal was calculated based on the correct figure of EUR [confidential]/km. Moreover, the applicants do not challenge the EUR [confidential]/t figure. That figure is obtained by multiplying the EUR [confidential]/km cost by 119 km, the average distance between the Metković terminal and DDC’s customers in southern Croatia, and not 12 km as submitted by the applicants.
617    According to the case-law cited in paragraph 313 above, since that mere clerical error did not affect the content of the contested decision, it must be deemed not to affect its validity (judgment of 2 October 2003, Aristrain v Commission, C‑196/99 P, EU:C:2003:529, paragraph 115).
618    Tenth, in paragraph 178 of the application, the applicants claim that the ‘seasonality calculations’ are seriously flawed.
619    In that regard, it should be noted that the applicants have not contradicted the explanation provided by the Commission in paragraphs 270 to 273 of its defence.
620    In the first place, the conclusion in recital 589 of the contested decision, according to which the Metković terminal would face an annual demand equal to its maximum capacity of [confidential] kt if supplied by sea, is not, as the applicants assert, an ‘assumption’ which is ‘highly unrealistic’, but is based, as is apparent from footnote 625 of that decision, on the information provided by the applicants during the administrative procedure.
621    In the second place, the applicants do not explain what ‘more realistic assumption regarding total yearly demand’ the Commission ought to have set out in the contested decision.
622    In the third place, as is apparent from paragraph 612 above, the applicants have not substantiated their claim that the current catchment area of the Metković terminal for Cemex was not a suitable proxy for the catchment area of the Metković terminal for Asamer. On the contrary, as is apparent from recitals 592 to 596 of the contested decision and from paragraph 607 above, due the proximity of the Metković terminal to Bosnia and Herzegovina and Montenegro, Asamer would probably not have sold the entire capacity of the terminal to customers in southern Croatia. Rather, sales from the Metković terminal would have been split among the neighbouring regions.
623    In the fourth place, as is apparent from paragraph 607 above, it is unlikely that Asamer would have used the spare capacities of the Lukavac plant to supply customers in Bosnia and Herzegovina directly.
624    Eleventh, in paragraph 179 of the application, the applicants claim, in any event, that the considerations set out in Sections 9.5.2.1 and 9.5.3 of the contested decision cannot be used against them, since the underlying calculations were not communicated to them during the proceedings. They also submit, in footnote 112 of the application, that the figures contained in recital 515 of the contested decision were never accessible.
625    Since the argument referred to above comes within the sixth plea, it will be dealt with in paragraphs 641 to 646 below.
626    It follows from the foregoing that the fifth plea must be rejected in its entirety.
G.      The sixth plea, alleging infringement of essential procedural requirements and of the applicants’ fundamental rights
627    By their sixth plea in law, the applicants complain that the Commission infringed essential procedural requirements as well as their fundamental rights.
628    That plea comprises, essentially, five parts.
1.      The first part, relating to the refusal to organise a second oral hearing
629    In the first part of the sixth plea in law, the applicants submit that, in denying them a second oral hearing, the Commission infringed Article 14 of Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Regulation No 139/2004 (OJ 2004 L 133, p. 1) as well as their rights of defence.
630    According to the applicants, in order to give full effect to the rights of the defence, the notifying parties must be able to present their views and arguments in front of a wider audience consisting not only of the case team and some members of DG Competition’s hierarchy, but also of the cabinet of the Commissioner responsible, national competition authorities, the Commission’s Legal Service and other Commission services involved in the decision-making process, in full knowledge of all of the Commission’s objections and all the evidence on which the Commission intends to rely. Consequently, a second oral hearing is necessary in each case in which the Commission intends to continue on its course towards a prohibition decision after the oral hearing, but intends to base this prohibition on different or additional objections or evidence than in the statement of objections.
631    In any event, according to the applicants, the letter of facts in the case not only contained additional facts and evidence, but also new objections which were not contained in the statement of objections, relating to competing suppliers’ limited incentives to expand their sales in the relevant markets and the implicit allegation of coordination in Bosnia and Herzegovina. Thus, in paragraph 280 of that statement, the Commission argued that there was ‘insufficient spare capacity in the broader area … to constrain sufficiently the merged entity’. However, in the letter of facts, the Commission no longer contests the availability of that capacity, but claims that competitors have no incentive to use it, without that point having been mentioned in the statement of objections. A change in reasoning from a ‘lack of ability’ to a ‘lack of incentive’ constitutes a new objection and denying the applicants a second oral hearing deprived them of their right to defend themselves adequately.
632    Those arguments must be rejected.
633    First, as regards the opportunity to present their views before a wider audience, it should be noted that the applicants have failed to demonstrate that the relevant legislation and proper observance of the right to be heard and of the rights of the defence require them to be heard orally on the letter of facts.
634    The right to be heard does not mean that the person concerned must be given the opportunity to express his or her views orally. Thus, the exercise of the right to be heard does not necessarily require the person concerned to be given an oral hearing, since the opportunity to provide comments in writing also allows that right to be observed (see judgment of 29 November 2017, Bilde v Parliament, T‑633/16, not published, EU:T:2017:849, paragraphs 100 and 101 and the case-law cited).
635    Furthermore, it is common ground that the replies to the letter of facts by the applicants, DDC and Cemex were formally transmitted, on 2 February 2017, to the cabinet of the Commissionner responsible, to DG Competition’s hierarchy, to other Commission services and to the competent authorities of the Member States, that the applicants sent a letter, on 16 March 2017, to several competent authorities of the Member States ahead of the meeting of the Advisory Committee on concentrations of 21 March 2017 and that, on 30 March 2017, representatives of HeidelbergCement and DDC met with a Croatian Member of the European Parliament and members of the cabinet of the Commissioner responsible for competition.
636    Second, as regards the claim that the submission of a letter of facts cannot be used by the Commission to improve its reasoning or to remedy a lack of sufficient evidence for the objections contained in the statement of objections after the oral hearing, it must be pointed out that the applicants have not shown that the Commission could not use the letter of facts to inform them of the existence of additional evidence which was already available at the time of the statement of objections but which had not been included in it. In that regard, it must be recalled that, where a document has not been mentioned in the statement of objections, it may nevertheless constitute admissible evidence provided that it was communicated in sufficient time to allow the addressee to prepare its observations before the adoption of the contested decision (see, to that effect, judgment of 25 October 1983, AEG-Telefunken v Commission, 107/82, EU:C:1983:293, paragraph 29).
637    Third, as regards the alleged new objections contained in the letter of facts, it should be noted, first of all, that, in Section 7.9 of the statement of objections, the Commission specifically assessed the incentive of competing suppliers to start supplying grey cement in Croatia.
638    Next, it is clear beyond any possible doubt from HeidelbergCement and DDC’s reply to that statement that the applicants understood that aspect of the objections raised against them. In that regard, it is sufficient to refer to paragraphs 91, 95, 106, 115, 122 and 132 of that reply, in which HeidelbergCement and DDC refer to the fact that ‘no other cement supplier has the incentive to “start supplying grey cement in Croatia”’ and to the ‘incentive’ for LafargeHolcim, Nexe, Titan, Asamer and other ‘potential oversea suppliers’ to increase their sales and to constrain sufficiently the post-merger entity. It follows that the applicants’ observation that those replies do not prove that they were aware of, or replied to, a corresponding allegation by the Commission is unfounded.
639    Finally, in any event, as the Commission contends, the applicants have neither explained what additional qualitative or additional economic analyses they could have submitted during the administrative procedure nor annexed any such additional evidence to the application or the reply. What is more, the applicants never asked for renewed access to the data room during the administrative procedure.
640    It follows that the first part of the sixth plea in law must be rejected.
2.      The second part, alleging that there was no opportunity to comment on all the relevant facts and economic analyses used in the contested decision
641    In the second part of the sixth plea in law, the applicants claim that they did not have the opportunity to comment on all the relevant facts and economic analyses used in the contested decision, in particular as regards the calculations in Sections 9.5.2.1 and 9.5.3. Communication of that information in good time would have made it possible to challenge it, to reassess the Commission’s comments in those sections and to remove the concerns referred to therein.
642    In that regard, as the Commission points out, without being contradicted by the applicants, it is apparent from Annexes B8 to B11, which are reproduced under numbers ID 3077, ID 3847, ID 3543 and ID 3566 in the contested decision, respectively, that, on 20 and 28 February and on 22 March 2017, the Commission provided the applicants with the information underlying the calculations of the cost disadvantages of potential lessees. The applicants were thus sent non-confidential data from Cimko, W&P, Titan and Asamer, reproduced in Tables 11 to 14 of Section 9.5.2.1 of the contested decision.
643    Furthermore, during the telephone conversation of 17 February 2017 and at the state-of-play meeting of 23 February 2017, the Commission states that it provided detailed explanations regarding the methodology applied to compare the marketing costs of potential lessees with those of DDC and on the methodology applied to compute the effective capacity of the Metković terminal, the availability of that capacity and the required spare capacity. The Commission also states that, at that meeting, it informed the applicants of the conclusions it intended to draw from those various calculations. Those statements have not been contradicted by the applicants.
644    It follows from the foregoing that the applicants did have the opportunity to make known their views on those conclusions.
645    The applicants’ criticism, in paragraphs 90 and 91 of the reply, that that information should have been provided in writing, cannot alter that conclusion, particularly since the applicants never made a request to that effect during the administrative procedure.
646    It follows that the second part of the sixth plea must be rejected.
3.      The third part, alleging an impediment to the effective exercise of the rights of the defence due to the drafting of meeting and telephone call minutes in languages other than the language of the case
647    In the third part of the sixth plea in law, the applicants claim that the Commission infringed their rights of defence by drafting minutes of meetings and telephone calls in Italian and Croatian, and not in the language of the case. In that regard, the applicants refer, in footnote 131 of the application, to six documents cited in various footnotes of the contested decision. Given the tight deadlines for replying to the statement of objections, imposing on the applicants the burden of translating the minutes from Croatian into the language of the case made the exercise of their rights of defence more difficult.
648    It is appropriate, as a preliminary matter, to define the content of that claim. Since the Commission has stated in paragraph 289 of its defence, without being contradicted by the applicants, that it never conducted any meetings with customers and competitors, the applicants’ argument pertains only to the minutes of the Commission’s telephone calls with customers and competitors.
649    In support of their claim, the applicants rely on four specific arguments.
650    First, in paragraph 92 of the reply, the applicants argue that the minutes of the Commission’s telephone interviews with customers or competitors are not supporting evidence, but documents which emanate from the Commission, for the purposes of Article 3 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958, p. 59).
651    That argument must be rejected.
652    It must be borne in mind that there is no general duty on the part of the Commission to draw up minutes of discussions in meetings or telephone interviews with customers or competitors which take place in the course of the application of the rules on the control of concentrations. However, the absence of such an obligation does not mean that the Commission is relieved of the obligations incumbent on it as regards access to the file. The practice of using information provided orally by third parties cannot be allowed to infringe the rights of the defence. Thus, if the Commission intends to use in its decision inculpatory evidence provided orally by customers or competitors it must make it available to the undertaking concerned so as to enable the latter to comment effectively on the conclusions reached by the Commission on the basis of that evidence. Where necessary, it must create a written document to be placed in the file (see judgment of 25 October 2005, Groupe Danone v Commission, T‑38/02, EU:T:2005:367, paragraphs 66 and 67 and the case-law cited).
653    Furthermore, it is common ground that the documents to which the applicants refer were cited in the contested decision by the Commission in support of its conclusions. The information contained in those documents does not emanate from the Commission but, as the applicants themselves acknowledge, from competitors and customers. Those documents thus constitute supporting evidence and must be brought to the attention of the addressees of the statement of objections as they are, so that the addressees can apprise themselves of the interpretation of them which the Commission has adopted (see, to that effect, judgment of 6 April 1995, Trefilunion v Commission, T‑148/89, EU:T:1995:68, paragraph 21). Any translation which the Commission might possibly make of such documents could never be regarded as an authentic version constituting good evidence (judgment of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraph 633).
654    Second, in paragraphs 93 and 94 of the reply, the applicants submit that the minutes of the telephone interviews can be deemed to have evidentiary value only to the extent that they were approved by the interviewees.
655    In that regard, it is sufficient to note that the Commission has stated that the minutes of the telephone conversations were always approved by the interviewees.
656    In any event, the argument that the evidentiary value of the minutes stems from their being approved by the interviewees must be rejected as ineffective, since it has no bearing on the finding of any infringement by the Commission of the applicants’ rights of defence due to the drafting of its minutes in a language other than that of the case.
657    Third, in paragraph 95 of the reply, the applicants claim that, while it is correct that they themselves provided a number of documents in Italian and Croatian, those documents constituted evidence, unlike the minutes of the Commission’s telephone interviews.
658    That argument must be rejected in so far as it is based on an incorrect premiss. As is apparent from paragraph 653 above, the information contained in the minutes of the Commission’s telephone interviews does not emanate from that institution and constitutes supporting evidence.
659    Moreover, the fact that the applicants themselves provided documents in Italian and Croatian further contributes to rendering unfounded the claim that the applicants were unable to acquaint themselves properly with the content of the minutes in Italian and in Croatian from the Commission (see, by analogy, judgments of 16 September 2013, PROAS v Commission, T‑495/07, not published, EU:T:2013:452, paragraph 105, and of 16 September 2013, CEPSA v Commission, T‑497/07, not published, EU:T:2013:438, paragraph 114).
660    Fourth, in paragraph 96 of the reply, the applicants claim that the fact that HeidelbergCement was able to engage a Croatian lawyer in order to be able to make effective use of the limited access to the data room is irrelevant, since it can be expected that the case team within the Commission will document its own telephone conversations in the language of the case.
661    As is apparent from paragraphs 652 and 653 above, observance of the rights of the defence therefore requires that addressees of the statement of objections should have access during the administrative procedure to all the incriminating documents in their original versions. That principle does not however require the Commission to translate documents cited in the statement of objections, or used in support of it, into the language of the case. It follows that the applicants’ argument must be rejected (see, to that effect, judgment of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraph 635).
662    Moreover, the fact that the applicants were able to engage a Croatian lawyer confirms that they were able to acquaint themselves properly with the content of the Croatian-language documents.
663    Lastly, as the Commission submits, if the applicants had required more time to make submissions during the administrative procedure because of the need to translate the minutes of certain telephone conversations, it was for them to exercise their right to request an extension from the case team and subsequently the hearing officer, in accordance with Article 9(1), read in conjunction with recital 17, of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29). However, they never made any request to that effect.
664    It follows that the third part of the sixth plea must be rejected.
4.      The fourth part, alleging that the Commission impeded the exercise by Schwenk of its rights of defence by not involving it in state-of-play meetings and other discussions with HeidelbergCement prior to the opening of the formal investigation procedure
665    In the fourth part of the sixth plea, the applicants, supported by DDC, claim that the Commission infringed Schwenk’s rights of defence and its right to participate in all major steps of the procedure by not involving it in any discussion or state-of-play meeting before the opening of the in-depth investigation.
666    The proper observance of the rights of defence requires that the undertaking concerned be afforded the opportunity, from the stage of the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents relied on by the Commission in support of its position. Article 18(1) of Regulation No 139/2004 reflects that principle in so far as it provides that the parties are to be sent a statement of objections which must clearly set out all the essential matters on which the Commission relies at that stage of the procedure to enable the addressees to defend themselves properly before the Commission adopts a final decision (see, by analogy, judgment of 24 May 2012, MasterCard and Others v Commission, T‑111/08, EU:T:2012:260, paragraph 266 and the case-law cited).
667    Thus, it is not until the beginning of the administrative inter partes stage that the undertaking concerned is informed, via the statement of objections, of all the essential elements on which the Commission is relying at that stage of the procedure and that that undertaking has a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, it is only after the statement of objections has been issued that the undertaking concerned can rely in full on its rights of defence (see, by analogy, judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 115).
668    As a result, the applicants have not shown that the Commission was obliged to involve Schwenk in the procedure before adopting the decision under Article 6(1)(c) of Regulation No 139/2004.
669    It follows that the fourth part of the sixth plea must be rejected.
5.      The fifth part, alleging breach of the principle of sound administration and of the duty of care
670    In the fifth part of the sixth plea, the applicants claim that the Commission breached the principle of sound administration and the duty of care.
671    In support of their claim, the applicants rely on four specific arguments.
672    First, in paragraph 203 of the application, the applicants claim that the Commission did not properly analyse and weigh up the feedback from customers and competitors affected by the transaction. The contested decision devotes only two paragraphs of the competitive assessment to that feedback and quotes only negative comments which did not refer to the relevant markets, but were focused on Dalmatia.
673    In that regard, it is sufficient to note that whether or not the Commission, following its own analysis of the market, endorsed the view of customers and competitors does not mean that it failed to take that feedback into account. In any event, while the opinions of customers and third parties may constitute an important source of information on the foreseeable impact of a concentration on the market, they cannot bind the Commission when it makes its own assessment of the impact of a concentration (judgment of 25 March 1999, Gencor v Commission, T‑102/96, EU:T:1999:65, paragraphs 290 and 291).
674    Second, in paragraph 204 and in footnotes 139 and 140 of the application, the applicants claim that the Commission distorted or completely ignored a large part of the factual and legal statements and arguments contained in their reply to the decision adopted under Article 6(1)(c), to the statement of objections and to the letter of facts.
675    As regards footnote 139 of the application, it should be noted that the applicants merely refer, by way of example, to two recitals of the contested decision, claiming that the Commission diverged from the comments which they had actually made. However, the applicants do not indicate on what occasion or in which document they had made such comments. Accordingly, that allegation, formulated in a footnote of the application and in no way elaborated by the applicants, does not satisfy the conditions of Article 76(d) of the Rules of Procedure and is, therefore, inadmissible (see, to that effect, judgment of 13 July 2011, General Technic-Otis and Others v Commission, T‑141/07, T‑142/07, T‑145/07 and T‑146/07, EU:T:2011:363, paragraph 338).
676    As regards footnote 140 of the application, it should be noted that the applicants merely refer, by way of example, to different paragraphs in various annexes, complaining that the Commission failed to take into account the facts and information which they provided on that occasion, without stating precisely which facts or information relevant to the case at hand it failed to assess with the necessary care and impartiality. Therefore, that allegation, formulated in a footnote of the application and in no way elaborated by the applicants, does not satisfy the conditions of Article 76(d) of the Rules of Procedure and is, therefore, inadmissible (see, to that effect, judgment of 13 July 2011, General Technic-Otis and Others v Commission, T‑141/07, T‑142/07, T‑145/07 and T‑146/07, EU:T:2011:363, paragraph 338).
677    Third, in paragraph 205 of the application, the applicants claim that, on numerous occasions in the contested decision, the Commission dismissed factual statements as unsubstantiated, insufficiently detailed or unsupported by evidence. In their view, it is unacceptable and contrary to the spirit of trust and mutual cooperation which should characterise the Commission’s merger control proceedings for the Commission to reject statements for lack of substantiation or evidence if it never asked for substantiation or evidence. By way of example, the applicants refer to recitals 112, 115, 455, 501, 503, 562, 563, 578, 582 and 583 of the contested decision.
678    Even if it were admissible, the argument put forward by the applicants must be rejected on the merits for the reasons set out below.
679    In that regard, it is sufficient to point out that, without being contradicted by the applicants, the Commission reproduced, in paragraphs 303 to 306 of its defence, the information in the contested decision which enabled it to reject the applicants’ claims in recitals 112, 115, 455, 501, 503, 562, 563, 578, 582 and 583 of the contested decision, without requesting further information, the applicants’ claims being clearly contradicted by insufficient or belated evidence.
680    Fourth, in paragraph 206 of the application, the applicants claim that the Commission relied on several documents which are mere drafts or outdated without providing any explanation as to why those documents are reliable or still relevant.
681    That argument must be rejected since the applicants have in no way shown how the content or the date of those documents could have undermined their probative value.
682    It follows that the fifth part of the sixth plea and, as a result, the sixth plea in its entirety, must be rejected.
H.      The seventh plea, alleging that the Commission lacked competence to prohibit the part of the transaction relating to the acquisition of Cemex Hungary
683    By their seventh plea in law, the applicants submit that, owing to the partial referral decision, the Commission lacked competence to prohibit the acquisition of Cemex Hungary.
684    It must be recalled that, by adopting a referral decision, the Commission terminates the procedure applying Regulation No 139/2004 to those aspects of the concentration which are the subject of the referral and transfers exclusive competence to the national competition authorities to assess those aspects on the basis of national law. It thus loses any power to deal with those aspects (see, to that effect and by analogy, judgment of 3 April 2003, Royal Philips Electronics v Commission, T‑119/02, EU:T:2003:101, paragraph 372).
685    In that regard, the applicants cannot derive any useful argument from the fact that the judgment of 3 April 2003, Royal Philips Electronics v Commission (T‑119/02, EU:T:2003:101) concerned facts different from those of the present case. Those circumstances are not sufficient to rule out the relevance of the legal solution adopted in paragraph 372 of that judgment, relating to the effects of the Commission’s referral of the assessment of a concentration transaction to the competent authorities of a Member State.
686    In the case at hand, according to recital 48 of the partial referral decision, adopted pursuant to Article 4(4) of Regulation No 139/2004, the Commission referred ‘the assessment of the effects of the Transaction on the relevant markets in Hungary’ to the competent national authorities.
687    It is also apparent from recitals 15 and 16 of that same decision that DDC’s acquisition of the target companies should be considered as a single concentration within the meaning of Regulation No 139/2004, since the acquisition of those companies was pursued at the same time and is linked through the share purchase agreements between Rohrdorfer and DDC.
688    In that regard, it is apparent from the wording of recital 48 of the partial referral decision that the Commission did not refer the ‘case’, the ‘merger’ or the ‘transaction’, but only the assessment of its effects, to the competent Hungarian authorities. Moreover, the acquisition of Cemex Hungary from Rohrdorfer appears to be economically inseparable from the acquisition of Cemex Croatia from Cemex, since the acquisition of one of the target companies would not have been concluded without the other.
689    It follows from the foregoing that the Commission was not competent to assess the effects of the transaction on the relevant markets in Hungary, but remained competent to rule on the acquisition of Cemex Hungary.
690    That conclusion is not affected by the other arguments of the applicants and of DDC.
691    First, the fact that Cemex Hungary was active only in Hungary is irrelevant. In any event, Cemex Hungary was not active only in Hungary, since it is apparent from an annex to the Form RS that it achieved a turnover in Austria in 2015.
692    Second, as regards the applicants’ claim, in paragraph 99 of the reply, according to which, in any event, the Commission never examined the effects of the acquisition of Cemex Hungary by DDC in Croatia or in any other country, it is sufficient to state that it follows from paragraph 689 above that the Commission was not competent to assess the effects of the transaction on the relevant markets in Hungary.
693    Third, contrary to what the applicants assert in paragraph 100 of the reply, the Commission was not required to verify with them or with DDC, before prohibiting the transaction, whether the acquisition of Cemex Hungary by DDC would continue to be pursued on a standalone basis if the acquisition of Cemex Croatia were prohibited. The right to be heard extends to all the factual and legal material which forms the basis for the decision, but not to the final position which the authority intends to adopt (see judgment of 9 March 2015, Deutsche Börse v Commission, T‑175/12, not published, EU:T:2015:148, paragraph 344 and the case-law cited).
694    Fourth, in paragraphs 29 and 30 of its statement in intervention, DDC claims that the Commission’s formalistic approach and its obstruction of the ongoing Hungarian concentration control proceedings are irreconcilable with the principle of sound administration.
695    The Commission contends that that claim is inadmissible.
696    It must be held that the line of argument alleging infringement of the principle of sound administration in the context of the issue of the referral of the transaction to the competent authorities of Hungary was not raised by the applicants and is not connected with the subject matter of the dispute as defined by them. It must therefore be declared inadmissible, in accordance with the case-law cited in paragraph 81 above.
697    It follows from the foregoing that the seventh plea must be rejected in its entirety.
698    In view of all the foregoing considerations, the action must be dismissed in its entirety.
Costs
699    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful and the Commission has applied for costs, the applicants must be ordered to bear their own costs and to pay those incurred by the Commission.
700    Furthermore, under Article 138(3) of the Rules of Procedure, the Court may order that an intervener other than those referred to in paragraphs 1 and 2 of that article is to bear its own costs. In the present case, DDC, which intervened in support of the form of order sought by the applicants, must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders HeidelbergCement AG and Schwenk Zement KG to bear their own costs and to pay those incurred by the European Commission;
3.      Orders Duna-Dráva Cement Kft. to bear its own costs relating to the application to intervene.
Collins
Barents
Passer
Delivered in open court in Luxembourg on 5 October 2020.
E. Coulon
S. Papasavvas
Registrar
President
Table of contents
I. Background to the dispute
A. The entities concerned
B. Facts prior to the administrative procedure
C. Administrative procedure
D. Contested decision
1. The Community dimension
2. The relevant markets
(a) The product market
(b) The geographic market
3. The effects of the concentration on competition
4. The commitments
II. Procedure and forms of order sought
III. Law
A. Preliminary considerations
1. The requests for confidentiality
2. Preliminary argument of DDC
B. The first plea, alleging errors in law and manifest errors of assessment as regards the definition of the Community dimension of the merger
1. Admissibility
(a) Admissibility of the first plea
(b) Admissibility of paragraphs 15 to 32 of the reply
(c) Admissibility of paragraphs 23 and 25 of the statement in intervention
2. The substance of the case
(a) The first part, concerning the concept of undertakings concerned
(1) Consideration of the economic reality for the purpose of identifying the undertakings concerned
(2) The principle of legal certainty
(3) Extension of the Commission’s powers
(4) The intention of the parent companies
(5) The aims and structure of Regulation No 139/2004
(b) The second part, concerning the evidence
(1) The first argument
(2) The second argument
(3) The third argument
(4) The fourth argument
(5) The fifth argument
(6) The sixth argument
(7) The seventh argument
(8) The eighth argument
(9) The ninth argument
(10) The tenth argument
(11) The eleventh argument
(12) The twelfth argument
(13) The thirteenth argument
(14) The fourteenth argument
(15) The fifteenth argument
(16) Schwenk’s participation in the transaction
(17) The measures of organisation of procedure proposed by the applicants and DDC
(c) The third part, concerning the irrelevance of the considerations set out and the evidence collected after the initiation of the in-depth investigation phase
C. The second plea, alleging errors of law and manifest errors of assessment as regards the definition of the relevant geographic market
1. The contested decision
2. Preliminary observations
3. Findings of the Court
D. The third plea, alleging that there was no impediment to competition in a substantial part of the internal market
E. The fourth plea in law, alleging manifest errors in the assessment of the transaction’s effects on competition
1. The first part, alleging that the investigation and competitive assessment do not concern the relevant markets
2. The second part, alleging that market shares are not valid indicators of competition problems in the present case
(a) The contested decision
(b) Findings of the Court
3. Third part, alleging that ‘other considerations’ related to the ‘Split catchment area markets’ in the contested decision are insufficient
4. The fourth part, alleging that the cumulative constraints of competitors ‘in and around the relevant region’ should be sufficient to rule out a significant impediment to effective competition
(a) Constraints from spare capacity
(b) Incentives of competing suppliers to expand their sales
(c) The retaliation theory
(1) The contested decision
(2) Findings of the Court
5. The fifth part, alleging manifest errors in the assessment of the competitive constraints individually exercised by competitors
(a) Manifest errors in the assessment of the general factors limiting the constraints exerted by competing suppliers
(b) Manifest errors in the assessment of the constraints exerted by individual suppliers
(1) LafargeHolcim
(2) Nexe
(3) Titan
(4) Asamer
F. The fifth plea, alleging manifest errors in the assessment of the proposed remedy
1. The contested decision
2. Findings of the Court
(a) The first part, concerning the fact that the Commission’s assessment of the commitments is based on a false and overly strict standard
(b) The second part, relating to the manifest errors of assessment of the commitments offered
G. The sixth plea, alleging infringement of essential procedural requirements and of the applicants’ fundamental rights
1. The first part, relating to the refusal to organise a second oral hearing
2. The second part, alleging that there was no opportunity to comment on all the relevant facts and economic analyses used in the contested decision
3. The third part, alleging an impediment to the effective exercise of the rights of the defence due to the drafting of meeting and telephone call minutes in languages other than the language of the case
4. The fourth part, alleging that the Commission impeded the exercise by Schwenk of its rights of defence by not involving it in state-of-play meetings and other discussions with HeidelbergCement prior to the opening of the formal investigation procedure
5. The fifth part, alleging breach of the principle of sound administration and of the duty of care
H. The seventh plea, alleging that the Commission lacked competence to prohibit the part of the transaction relating to the acquisition of Cemex Hungary
Costs
*      Language of the case: English.
1 This judgment is published in extract form.
2 Confidential information redacted.