Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE  
Europese Commissie, DG COMP MERGER REGISTRY, 1049 Brussel,   BELGIË  
 
Tel: +32 229 -91111. Fax: +32 229 -64301. E -mail: COMP -MERGER -REGISTRY@ec.europa.eu .  EUROPEAN COMMISSION  
Brussels, 5.2.2021  
C(2021 ) 886 final   
PUBLIC VERSION
 
To the notifying part ies 
Subject : Case M. 9857  – Volvo/Daimler/JV  
Commission decision pursuant to Article 6(1)(b) of Council Regulation 
No 139/20041 2 and Article 57 of the Agreement on the European 
Economic Area3 
Dear Sir or Madam,  
(1) On 23 December 2020, the Commission received notification of a proposed 
concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (the 
“Merger Regulation”) by wh ich Aktiebolaget Volvo (“Volvo”, Sweden) and D aimler  
Truck  AG, part of the Daimler group (“Daimler”, Germany) acquire within the 
meaning of Article 3(1)(b) and 3(4) of the Merger Regulation joint control of 
Daimler Truck Fuel Cell GmbH (the “JV”, Germany) (the “Transaction”).4 Volvo 
and Daimler are together referred to as the “ Notifying Parties”.  
                                                 
1  OJ L 24, 29.1.2004, p. 1 (the “Merger Regulation ”). With effect from 1 December 2009,  the Treaty on the 
Functioning of the European Union ( “TFEU ”) has introd uced certain changes, such as the replacement of  
“Community ” by “Union ” and “common market ” by “internal market ”. The terminology of the TFEU will 
be used throughout this decision.   
2  For the purposes of this Decision, although the United Kingdom withdrew  from the European Union as of 
1 February 2020, according to Article 92 of the Agreement on the withdrawal of the United Kingdom of 
Great Britain and Northern Ireland from the European Union and the European Atomic Energy 
Community (OJ L 29, 31.1.2020, p. 7), the Commission continues to be competent to apply Union law as 
regards the United Kingdom for administrative procedures which were initiated before the end of the 
transition period.  
3  OJ L 1, 3.1.1994, p. 3 (the “EEA Agreement”).  
4  Publication in the Official Journal of the European Union No C 8, 11.1.2021 , p. 16.  
In the published version of this decision, 
some information has been omitted 
pursuant to Article 17(2) of Council 
Regulation (EC) No 139/2004 concerning 
non-disclosure of business secrets and other  
... information. The omissions are shown 
thus […]. Where p ossible the information 
omitted has been replaced by ranges of 
figures or a general description.  
 
 
2 1. THE PARTIES  
(2) Volvo is a multinational manufacturing company globally active amongst other 
things in the manufacture and sale of on - and off -highway trucks, buses, construction 
equipment and marine, on -highway and industrial engines.  
(3) Through its 100% affiliate, Daimler  Trucks AG, Daimler is active in  the  
manufacturing  and sale of  trucks and buses. The Daimler group globally develops, 
manufactures and distributes aut omotive products, mainly passenger cars, trucks, 
vans and buses.   
(4) The JV is currently a 100% subsidiary of the Daimler group, incorporated in 
Germany, in which Daimler has transferred  its ongoing fuel cell activities. The JV 
will be active in the developme nt, production, sales and after sales of fuel cell 
systems (“FCS”) for heavy -duty trucks and , to a smaller extent,  for stationary 
applications.  
2. THE OPERATION  
(5) The Notifying Parties entered into an investment Agreement and Shareholder’s 
Agreement on 2 November 2020, according to which Volvo will obtain joint control 
of the JV, which is currently wholly owned by Daimler, by acquiring 50% of the 
JV’s shares.   
Joint  control  
(6) The Notifying Parties will have joint control over the JV, whereby they will each 
hold (directly or indirectly) 50% of the JV’s shares and have equal shareholder 
rights.5 
(7) […].6 
(8) […]. 
(9) […]. As a result, the Commission considers that the JV will be jo intly controlled by 
the Notifying Parties.  
 
Full-functionality  
(10) The JV will be equipped with sufficient resources to operate independently on a 
lasting basis. The Notifying Parties have committed to provide the necessary 
financing to the JV, according to th e approved business plan .7 Once the JV will enter 
into production phase, the income it will generate will enable it to operate 
independently on the market.  
                                                 
5  Form CO, para. 128.  
6  Form CO, Annex 02 – Term Sheet, point 9.  
7  Form CO, Annex 02 – Term Sheet, point 7, 12.  
 
 
3 (11) The JV will have a management b oard and management dedicated to its day -to-day 
business. The JV will  also hire its own staff, with the intention to have this staff on 
its own payroll .8 
(12) Until the FCS for heavy duty trucks are fully developed, the JV will ( […]) supply 
FCS to third-party manufacturers of stationary applications. Therefore, in the short 
term, the JV will have no captive sales and all sales will be to third -parties.9  
(13) Following th is development phase, […],10 […]. 
(14) Once the JV will enter into the mass production phase ( […]), the Notifying Parties 
expect […]. […].11 Sales to third parties will therefore allow the JV  to achieve scale 
effects and ren der the operation of the JV economically viable.  As a result, the 
Commission considers that the JV will be full -function.  
3. THE CONCENTRATION  
(15) The JV will constitute a full -functi on joint venture , performing on a lasting basis all 
the functions of an autonomous economic entity, and will be jointly controlled by the 
Notifying Parties within the meaning of Article 3(1)(b) and 3(4) of the EU Merger 
Regulation.  
4. EU DIMENSION  
(16) The undertakings concerned have a combined aggregate worldwide turnover of more 
than EUR 5 000 million .12 Each of them has a n EU-wide turnover in excess of EUR 
250 million, but they do not achieve more than two -thirds of their aggregate EU-
wide turnover within one and the same Member State. The notified operation 
therefore has an EU dimension.   
5. RELEVANT MARKETS  
(17) The JV will develop and manufacture FCS for heavy -duty trucks and for stationary 
applications.13 Although the JV cannot exclude to produce  this technology for other 
vehicles or applications  in the future, at present there are no concrete plans for the 
JV to do so.   
                                                 
8  Form CO, paragraph 133.  
9  Daimler has alre ady secu red a customer contract for the JV with Rolls -Royce and has a further pilot 
project with Hewlett Packard. The current assumption of the Notifying Parties is that up to […] may be 
rented out or leased out in 2021 to […].  
10  Form CO, paragraph 268.  
11  Supra, 7.  
12  Turnover calculated in accordance with Article 5 of the Merger Regulation.  
13  The use case of stationary applications allows for an earlier  market introduction of the FCS  compared to 
heavy -duty trucks, because of the various test phases the F CS will have to undergo, to meet the 
requirements of regulation in the  automotive industry. […] . A first customer contract with Rolls -Royce 
was secured.  
 
 
4 (18) Volvo supplies diesel engines to manufacturers  of stationary applications . However , 
even if the manufacture and sale of diesel engin es and FCS for stationary 
applications  were considered as part of the same product market, it would not be an 
affected market as the combined marke t share in the EEA14 would be [10-20]%. 
Therefore , this hypothetical horizontal overlap will not be further discussed in this 
decision.   
(19) As concerns the JV’s activity with regard to the development, production and sale of 
FCS for heavy -duty trucks, the Transaction will lead to one vertical link between the 
JV’s activities in the sale of FCS (upstream) and the Parties’ activities in the sale of 
heavy duty trucks (downstream) .15 
5.1. Manufacture and supply of FCS  
5.1.1.  Product  market definition  
(20) The Commission has previously  investigated the market for the manufacture and 
supply of FCS on ly in case M.9474  Faurecia/Michelin/Symbio/JV .16 In that 
decision, the Commission considered that the manufacture and supply of FCS 
constitutes a separate market from combustion and battery electric engines.17 The 
Commission has considered, but ultimately left open, whether this market should be 
further segmented according to the different end uses or applications  of such FCS 
(e.g. use as propulsion system for heavy -duty trucks or, more widely in the 
automotive  sector, in stationary applications, in construction equipment etc.).18  
(21) The Notifying Parties argue that the re is a single market for the development, 
production and sale of FCS .19 The JV, for instance,  […]. According to the Parties, 
the main  differentiatin g factor between the development of FCS for use in stationary 
applications in the one hand, and in heavy -duty trucks in the other hand, is the longer 
testing and validation  phases the latter have to undergo. Thus, the Parties argue that 
there is supply -side substitutability and that therefore the product market for the 
manufacture and supply of FCS should not be further segmented according to the 
end use or application  of such FCS.  
(22) In this regard, t he majority of FCS suppliers responding to the market inve stigation 
indicated  that they supply FCS and components to both automotive and non -
automotive sectors.20 Moreover, the majority of suppliers indicated that FCS and 
                                                 
14  For the purposes of this Decision, the EEA is understood to cover the 27 Member States of the Europe an 
Union (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, 
Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, 
Portugal, Romania, Slovakia, Slovenia, Spain and Sweden) and the United Kingdom, as well as Iceland, 
Liechtenstein and Norway. Accordingly, any references made to the EEA in this Decision are meant to 
also include the United Kingdom (UK).  
15  This vertical link will however not materialize before […], when, according to the Notifying Parties’ 
estimations, the JV will start marketing its FCS to heavy -duty truck manufacturers. There is no horizontal 
overlap, since Daimler’s activities in FCS deve lopment have been transferred to the JV and […].  
16  Case M.9474 - Faurecia/Michelin/Symbio/JV of 12.11.2019.  
17  Case M.9474 – Faurecia/Michelin/Symbio/JV of 12.11.2019, para. 30.  
18  Idem.  
19  Form CO, para. 191 – 204.  
20  See responses to questionnaire Q1 to FCS suppliers, question 7. 
 
 
5 components for the automotive sector could be used for other applications.21 
Furthermore, the vast majority of respondents to the market investigation confirmed 
that FCS and components for heavy -duty trucks can in general  be used in other types 
of vehicles . However,  several respondents  indicate d that this would require 
application -specific modifica tion of the FCS and FCS components, depending on the 
intended  use.22  
(23) In light of the above, for the purposes of the present decision , it can be left open 
whether the market for the  manufacture and  supply of FCS may be further 
segmented according to the application  in which FCS may be used since the 
Transaction does not raise serious doubts as to its compatibility with the internal 
market or the functioning of the EEA Agreement, under any plausible product 
market definition  and, in any case, the Parties h ave no concrete plans to develop and 
manufacture FCS for purposes different than stationary applications and heavy -duty 
trucks . 
5.1.2.  Geographic market definition  
(24) The market investigation in case M.9474  Faurecia/Michelin/Symbio/JV23 had 
suggested that the geograp hic scope of the market for the manufacture and supply of 
FCS was worldwide.24 However, it was left open whether the geographic market was 
worldwide  or EEA -wide  in scope  as it was not necessary to close the market 
definition for the competitive assessment in that decision .25  
(25) The Notifying P arties agree with the  view  that the geographic scope of the market is 
wider than the EEA . They expect that there will be worldwide  supply and demand 
for FCS, and point to the fact that undertakings in the EEA are increasingly 
partnering with undertakings outside the EEA to jointly develop viable FCS 
technology and increase their ability to sell the product outside their usual 
geographic markets.26 Furthermore, the Notifying Parties are of the view tha t cost 
and time of transportation will not play a si gnificant role in this respect. They expect 
relative transportation costs to be low and that the difference in transportation time 
within and outside the EEA will not prevent purchasers from sourcing FCS outside 
the EEA.27  
                                                 
21  See responses to questionnaire Q1 to FCS suppliers, question 8. 
22  See responses to questionnaire Q1 to FCS suppliers, question 11, 12.1. Regarding the ease of switching 
between the assembly and supply process of FCS / FCS components for the automotive sector and other 
sectors, one respondent indicated that “ The adaption of hardware, e.g. housings for [Fuel Cell Control 
Units] , hoses or connectors for sensors and actuators will need a lead time of 6 -12 months to develop and 
validate the necessary changes. Investment of single digit million -€ necessary. The development, change 
and bugfix of software modules will lead to a time frame of 12 -24 months. Investment of double digit 
million -€ necessary ” (see responses to questionnair e Q1 to FCS suppliers, question 9.1.)   
23  Case M.9474 - Faurecia/Michelin/Symbio/JV of 12.11.2019.  
24  Case M. 9474 – Faurecia/Michelin/Symbio/JV, responses to questionnaire Q2 to FCPU and FCS suppliers, 
questions 9 and 10; respondents indicated that FCS su ppliers operate, and FCS customers mainly 
purchase, at a worldwide level.  
25  Idem, para. 33.  
26  Form CO, para 221.  
27  IdeM. 
 
 
6 (26) The Commission considers that there is evidence pointing to the geographic scope of 
the market being  worldwide  for the manufacture and supply of FCS  for the 
following reasons .  
(27) First , it should be noted that FCS technology is still at an  early stage, with further 
development being needed for wide commercialization of the product. Developme nt 
of the technology is occurring  at a worldwide level, whereas currently the most 
advanced FCS developers are located outside the EEA.28 Narrowing the g eographic  
market down to the EEA level would leave a number of significant FCS developers , 
which are located outside the EEA,  out of consideration with regard to the 
development of FCS technology.  
(28) Second , while FCS technology is still largely in developmen t phase, undertakings in 
the EEA are partnering in the development of FCS with undertakings outside the 
EEA, in order to  later expand their customer base outside their usual geographic 
markets  and secure their market position at a worldwide  level .29 
(29) Third , there is already a number of FCS suppliers  which are currently developing the 
technology and selling some units on a prototype basis , which are active both 
worldwide and in the EEA.30 In this regard, all the FCS suppliers who replied to the 
market investiga tion indicated that they (intend to) supply FCS at worldwide level.31 
Moreover, the majority of FCS suppliers submitted that their (prospective) 
customers (will) purchase FCS and components at worldwide level.32 
(30) Finally , the market investigation suggests  that transportation costs and time is not a 
deterring factor for FCS customers to source the product on a worldwide level .33 
(31) Despite the results of the market investigation, the Commission considers that it 
cannot be concluded whether the geographic market is EEA -wide or worldwide  
because it is a new market subject to uncertainties.  
(32) In light of the above, for the purposes of the present decision, the Commission 
considers that the geographic market is at least EEA -wide and  it can be left open 
whether the geogra phic market is worldwide  or EEA -wide, as the Transaction does 
not give rise to serious doubts as to its compatibility with the internal market or the 
functioning of the EEA Agreement . 
5.2. Manufacture and supply of heavy -duty trucks  
5.2.1.  Product market definition  
(33) Volvo and Daimler manufacture and supply heavy -duty trucks . 
                                                 
28  […] Toyota, Hyundai and Weichai/Ballard Power Systems, which are all seated outside the EEA, are 
considered by many as the current leaders in FCS technology (Form CO, para. 401).  
29  For instance, Iveco, an Italy based undertaking, entered into a partnersh ip with Nikola, a US -based 
undertaking, to jointly develop fuel cell trucks. Similarly, South -Korea based Hyundai partnered with 
Swiss H2 Energy (Form CO, para. 221).  
30  Case M.9474 – Faurecia/Michelin/Symbio/JV , Fn. 23.  
31  See responses to questionnaire  Q1 to FCS suppliers, question 13. 
32  See responses to questionnaire Q1 to FCS suppliers, question 14. 
33  See responses to questionnaire Q 1 to FCS suppliers , question  17. 
 
 
7 (34) In previous cases, the Commission has  categorized trucks into three different product 
markets depending on the truck’s weight. It has thus  defined a separate market for 
the manufacture and supply of heavy -duty trucks, in which it has categorized trucks 
with a gross weight of more than 16 tonnes , as opposed to light -duty trucks (gross 
weigh below 5 tonnes) and medium -duty trucks (5 -16 tonnes) .34 
(35) The Notifying Parties agree with  the previous decision practice of the Commission .35 
(36) The Commission takes the view that its previous decision practice with regard to the 
categorization of trucks is still relevant.  
(37) In this regard, and for the purposes of this decision, the Commission considers that 
the relevant product market is the market for  heavy -duty trucks, comprising trucks of 
a gross weight of over 16 tonnes.  
5.2.2.  Geographic market definition  
(38) While in Volvo/Scania36 and Volvo/Renault37 the Commission deci ded that the 
geographic scope of the heavy truck market was national, the Commission has in 
other cases subsequently left open the question whether the market is national, 
regional or EEA wide38.  
(39) In Volkswagen/MAN39 the Commission had found that, even thoug h technical 
requirements appear ed to be largely u niform across the EEA, there were  a number of 
elem ents suggesting that the markets for heavy trucks were  probably still national in 
scope. For instance, prices, rebates and the brand reputation of the different 
producers still differ ed per country in various instances, the majority of customers 
still procure d at national level, and the structure of the marke t in the individual 
Member States differ ed considerably.  
(40) Although the Notifying Parties argue that there is a number of elements pointing to a 
regional or EEA -wide market, they ultimately do not oppose the previous decision 
practice of the Commission .40 
(41) In light of the above, for the purposes of this decision , it can be left open whether the 
market for the manufacture and supply of heavy -duty trucks is national, regional or 
EEA -wide, as the transaction does not give rise to serious doubts as to its 
compatib ility with the internal market or the functioning of the EEA Agreement , 
even in the case that a national market were to be assumed.  
                                                 
34  Case M.6267 – Volkswagen/MAN of 26.09.2010, para. 8 – 14; Case M.5157 – Volkswagen /Scania of 
13.06.2008, para. 12.  
35  Form CO, para. 163 – 172. 
36  Case M.1672 – Volvo/Scania of 15.03.2000, para 31 et seq.  
37  Case M.1980 – Volvo/Renault V.I. of 01.09.2000, para. 20 et seq . 
38  Case M.6267 – Volkswagen/MAN of 26.09.2010, para 19; Case M. 4336 – MAN/Scania of 20.12.2006, 
para 20 et seq .; Case M. 5157 – VW/Scania of 13.06.2008, para 24.  
39  Case M.6267 – Volkswagen/MAN of 26.09.2010, para. 18.  
40  Form CO, para. 177, 178.  


 
 
10 to switch to alternative solutions, second, that customer foreclosure would frustrate 
the JV’s interest to foster the belief in the fuel cell technology  and investment in the 
necessary infrastructure, and third, that the JV will supply FCS to Volvo and 
Daimle r on a non -exclusive basis and that both companies will not develop and 
manufacture cell systems outside the JV.44 
6.3. The Commission’s assessment  
(47) Vertical non -coordinated effects may principally arise when non -horizontal 
concentrat ions give rise to foreclosure .45  
6.3.1.  Assessment  of input foreclosure  
(48) Input foreclosure arises where, post -merger, the new entity is likely to raise the costs 
of downstream rivals by restricting their  access to an important input.46 However, as 
a potential new entrant  in the market for the manufacture and sale of FCS expected 
to supply third parties , the JV currently has a  market share of 0% and will be a new 
source of supply  in a nascent market . Therefore, in principle, the JV’s activity in this 
field will be pro -comp etitive. If heavy -duty truck manufacturers other than  the 
Parties  were to purchase FCS from the JV in the future, this would mean that they 
would benefit from the existence of an additional source of FCS supply, extending 
rather than limiting their choice of FCS supplier s. 
(49) Moreover, several OEMs and other third parties, including Tier 1 suppliers, are 
currently engaged in R&D work related to FCS, including  for the application in 
heavy -duty trucks. There is no conclusive evidence that these third parties w ould be 
less efficient or likely less suc cessful than the Parties.47 It is therefore not possible to 
conclude that the Parties could have the ability to foreclose inputs to competitors, let 
alone have the incentive to do so. Therefore , the Commission conside rs that the 
present case does not raise any inp ut foreclosure concerns.48  
6.3.2.  Assessment of customer foreclosure  
(50) The Commission’s investigation therefore focused on potential customer foreclosure 
concerns, assessed in the following section.   
(51) Customer foreclos ure may occur where a supplier integrates with an important 
customer in the downstream market, thereby restricting upstream rivals’ access to a 
sufficiently large customer base.49 For customer foreclosure to be a concern, a 
vertical merger must involve an important customer with a significant degree of 
                                                 
44  Form CO, paragraphs 554 and following.  
45  Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings, OJ C 265, 18.10.2008 (“Non -Horizontal Merger Guidelines”), 
paragraph 18.  
46  Non-Horizontal Merger Guidelines, paragraph 30.  
47  On the contrary, some FCS suppliers have already secured contracts and cooperation agreements with 
some heavy truck manufacturers (see Form CO, Annex 14 ). One FCS supplier noted that some of these 
players are technologically more advanced, and will be quicker than the JV in int roducing FCS for heavy -
duty trucks to the market (see minutes of a conference call with a FCS supplier, 19 November 2020).  
48  Indeed, for input foreclosure to be a concern, the merged entity must have a significant degree of market 
power in the upstream m arket. Non-Horizontal Merger Guidelines, paragraph 5.  
49  Non-Horizontal Merger Guidelines, paragraphs 30 and 58.  
 
 
11 market power in the downstream market. If, on the contrary, there is a sufficiently 
large customer base, at present or in the futur e, that is likely to turn to independent 
suppliers, the Commission is unlikely to raise compet ition concerns on that ground.50 
Although s everal respondents to the  market investigation expressed their concerns as 
regards the merged entity’s potential to enga ge in customer foreclosure behaviour ,51 
the Commission considers that the Transaction does not raise customer foreclosure 
concerns for the following reasons.  
6.3.2.1.  Ability to foreclose upstream rivals  
(52) First , FCS is a technology w hich is only at development stage.  Currently , heavy -
duty trucks are mostly equipped with combustion engines, with a very small 
minority of electric heavy -duty trucks.52 The number of fuel cell  heavy -duty trucks is 
even more limited and those are only prototypes. T he Notifying Parties do not  
currently manufacture or supply any fuel cell  heavy -duty trucks. As a result,  the 
Notifying Parties could still not be deemed to constitute important customers of FCS 
within the meaning of the Non -Horizontal Merger Guidelines with a significant 
degree of market power given its current lack of activity in fuel cell  heavy -duty 
trucks.  
(53) The Parties currently do not have contracts with third parties for the supply of FCS. 
Although it could be assumed that Volvo and Daimler are likely to be purchasers of 
FCS in the future, the information provided by the Notifying Parties53 and the results 
of the market investigation indicate that Volvo and Daimler are not expected to 
become important customers of FCSs in the EEA from third parties in the 
foreseeable future in a way that would result in any customer foreclosure  when they 
would start predominantly sourcing from the JV .  
(54) In any event, a s indicated by market participants , the development of a FCS is a 
complex  technological development, which will take years to comp lete.54 Therefore , 
at this stage , it is also highly uncertain whether  the JV will be successful in the 
development and production of FCS and thus whether the Notifying Parties will be 
able to rely to a large extent on the JV . In this regard, the JV has no s ales of FCS  yet 
and is expected to develop its presence  in the heavy -duty trucks market  only 
gradually as from […]. Therefore, any potential ability to foreclose the market could 
only be expected to materialise in the long term and only gradually, adding 
significant uncertainty to any assessment of foreclosure effects. This also provides 
third party FCS manufacturers with time to adjust to the new competitive 
environment and improve their offering.  
(55) Second , even if FCS were to become a successful technology  and the JV were to  be 
successful in developing FCS,  the Commission cannot at the present stage determine 
with a reasonable degree of certainty whether  they will  have a “ significant degree of 
                                                 
50  Non-Horizontal Merger Guidelines, paragraph 61.  
51  See confidential replies to Questionnaire Q1 to FCS suppliers, question 21.1.  
52  Electri c heavy -duty trucks represent today a symbolic portion of the market, according to the estimates of 
an international  FCS s upplier (around 5 000 globally). The same supplier indicated that, by 2030, electric 
heavy -duty trucks will represent 20% of all heavy -duty trucks globally. See minutes of a conference call 
with a FCS supplier, 19 November 2020.  
53  […]. See reply to RFI 7.  
54  See replies to questionnai re Q1 to FCS suppliers, question 19.2.  
 
 
12 market power in the downstream market ”, as set out by the Non-Horizontal Merger 
Guidelines. Rather the contrary,  as there are currently several collaboratio ns between 
heavy -duty truck OEMs and FCS developers ongoing, which aim to introduce FCS -
powered heavy -duty trucks to the market within the course of the next years.55 In the 
same context, s ome FCS suppliers  noted that they expect a number of other 
companies – including some which do not currently manufacture combustion engine 
heavy duty trucks – to enter the market for the  purchase of FCS / FCS components  
for he avy-duty trucks  in the next years .56   
(56) Third , even considering the current market shares of Volvo and Daimler in the 
overall market for the manufacture and supply of heavy -duty truck s as a proxy for 
the market power  that they may have […] in relation to the purchase of FCS for 
heavy -duty truck s, there are a number of other truck manufacturers active both in the 
EEA and at national level  which account for a substantial proportion of the market . 
OEMs accounting for approximately [60-70]% of the EEA -wide mar ket of FCS -
sourced hea vy-duty trucks would remain available as potential customers. Moreover, 
as explained in section ( 5.1.1 ), even if conditions of competition differ between 
different regions of the world (and so an EEA wide market may be appropriate), 
manufacturers of FCS are expected to be active globally including areas  where the 
Notifying Parties ’ market shares are significantly lower and hence even more 
potential is still accessible.  This is confirmed by the market investigation , where a 
100% of the FCS suppliers replied that they (intend to) supply FCS worldwide. 
Several respondents replied that they already deliver FCS for different use cases to 
customers located around the world. Another respondent noted that “ hydrogen and 
its utilization in FCSs w ill be desired globally ”.57 
(57) Fourth, even if the customer base available represented by manufacturers of FCS -
sourced heavy -duty trucks was considered insufficient, competing suppliers of FCS 
will have sufficient access to manufacturers of other vehicles/applications to whom 
they can sell their FCS, such as stationary , buses /coaches , marine , railway, ships, 
aeronautics,  construction , etc.  in some of which Volvo and Daimler are not even 
present  in the downstream market s. This is evidenced by the fact that (i) a majority 
of market respondents have confirmed that , with some adaptations,  FCS/components 
for heavy -duty trucks c ould be used in other types of vehicles  and for other non-
automotive  appli cations ,58 and that (ii) that the vast majority of players are indeed 
already developing F CS for several applications at the same time.59 Therefore, any 
hypothetical higher variable production costs that competing upstream firms might 
encounter due to a limited reduced customer base in FCS -sourced heavy -duty trucks, 
would be likely to be compensated by potential customers which manufacture other 
vehicles/applications.  
6.3.2.2.  Incentive to foreclose upstream rivals  
(58) As concerns the JV’s incentive to engage in customer foreclosure, […]. Hence, there 
is no risk that the JV will have an incentive to reduce its purchases of FCS from 
                                                 
55  See Form CO, Annex 14.  
56  See confidential replies to questionnaire Q 1 to FCS suppliers , question  24. 
57  See replies to questionnaire Q1 to FCS suppliers, question 13.1.  
58  See replies to Questionnaire Q1 to FCS suppliers, questions 9.  
59  See replies to Questionnaire Q1 to FCS suppliers, question 7.  
 
 
13 competing suppliers, as the Notifying Parties currently do not purchase these FCS 
for use in their heavy -duty trucks.  
(59) Moreover, it is apparent from the Notifying Parties’ submissions that the success of 
the JV will depend on the general market belief in fuel cell technology  and the roll -
out of the necessary infrastructure . This objective would be frustrated if the JV 
foreclosed competing FCS manufacturers. In addition to this, it is very likely that the 
future of the market for the development, production and sale of FCS will s trongly 
depend on an overall hydrogen infrastructure, including hydrogen refuelling stations 
within the EEA and outside. Without this infrastructure, possible customers will 
probably not purchase any FCS (or fuel -cell equipped heavy -duty trucks) as these 
vehicles would not be able to be used in these countries. To make such infrastructure 
financially interesting, companies providing such infrastructure will need a strong 
market penetration with fuel -cell equipped heavy -duty trucks, which is something 
that t he JV will not be able to achieve without other competitors.   
(60) In addition, FCS will likely  constitute a key aspect of competition between heavy -
duty truck OEMs, as it will be an important part of a  FCS heavy -duty truck  in terms 
of value and efficiency . As the technology is rapidly developing, the  Notifying 
Parties are likely to need to install appropriate  technology in their heavy -duty trucks, 
whether produced by the JV or by a third party. The success of the JV , like its 
competitors in the FCS market,  is therefore likely to depend much more on its 
technological skills than on a possible customer base.  
(61) Furthermore, although during the market investigation some respondents were 
concerned that the JV would be the exclusive supplier of Volvo and Daimler, the 
Notifying Parties have confirmed that the JV will sell its FCS to the Parties on a non -
exclusive and arm’s length basis. The Notifying Parties remain open to purchase 
FCS for incorporation in their heavy -duty trucks from third party FCS suppliers.60 
6.3.2.3.  Effects on competition  
(62) As regards the effects on competition, t he results of the market investigation indicate 
that, in the future, the JV will be an additional credible supplier of FCS whose 
market activity may rather have  neutral or  positive effects in term s of market 
competitiveness.61  One FCS and FCS components supplier indicated  in the market 
investigation  that “ Due to expected increased sales volume for our FCS components, 
the serial introduction will become more cost effective and attractive for usage i n 
zero emission vehicles. ” Another respondent argued that “A positive effect of the 
envisaged joint venture will probably be that it can significantly support the 
development and setting of industry standards. This is very important regarding the 
further d evelopment of new technologies” .62 On a similar  note, a third respondent 
replied that the Transaction “…will accelerate adoption of fuel cell technical by 
other HD truck OEMs ”.63  
                                                 
60  See Fo rm CO, para. 565.  
61  See replies to Questionnaire Q1 to FCS suppliers, questions 19  and 28.  
62  See replies to Questionnaire Q1 to FCS suppliers, question 28.  
63  See replies to Questionnaire Q1 to FCS suppliers, question 30.1.  
 
 
14 (63) In conclusion, the Commission considers that the  Parties will lack the ability and the 
incentive to engage in any customer foreclosure strategies with regards to suppliers 
of FCS competing with the JV, and that any potential foreclosure strategy would not 
have a significant effect on competition.  
6.4. Spill over effects  
(64) Although  FCS will be a key component for heavy -duty trucks, t he Commission 
considers that the JV is unlikely to lead to spill over  effects in the downstream 
heavy -duty truck manufacturing market  as the Parties will not have the incentives to 
coordinate in this market .64 In the first place , the cost of FCS is expected to represent 
a relatively limited proportion of the overall final cost of the fuel -cell powered truck 
(approximately […]%, according to the Parties, which could even be lower as the  
technology is rolled out).65 In the second place , the manufacture and supply of heavy 
duty trucks is a differentiated product market in which manufacturers offer 
heterogeneous products, the (end) prices of which are dependant on many factors, 
some of which  (e.g. technical characteristics of the truck, design, comfort, after -sales 
service, warranty) are unrelated to the scope of the cooperation while others 
(discounts to importers and dealers and to final customers) are not even under the 
control of the manu facturer but depend on the competition structure of the 
downstream distribution and retail markets. In the third place , the JV neither requires 
nor incentivises any limitation of the production of Daimler and Volvo and does not 
in any way limit or conditio ns the freedom of these two undertakings to freely set 
their commercial policies. To the contrary, it is to the JV’s interest to increase sales 
in order to achieve scale effects and thus lower the cost of production, which is key 
to the market uptake of FC S. In the fourth place , not a single market respondent in 
the market investigation has pointed out to the risk or likelihood of any collusion or 
coordination in the downstream market.  
(65) In conclusion, the Commission considers that the Transaction is unlikely to lead to 
anticompetitive coordinated effects between the Notifying Pa rties.  
6.5.  Conclusion  
(66) The Commission therefore considers that the Transaction does not give rise to 
serious doubts as to its compatibility with the internal market or the f unctioning of 
the EEA Agreement .   
  
                                                 
64  The Commission notes that certain minority shareholders are present in both Volvo and Daimler. 
However, these minority shareholders do not exercise control over any of the Notifying Parties within the 
meaning Art. 3 (2) of the Merger Regulation.  
65  See Fo rm CO, para. 528.  
 
 
15  
7. CONCLUSION  
(67) For the above reasons, the European Commission has decided not to oppose the 
notified operation and to declare it compatible with the internal  market and with the 
EEA Agreement. This decision is adopted in application of Article 6(1)(b) of the 
Merger Regulation and Article 57 of the EEA Agreement .  
For the Commission  
 
 
(Signed)  
Margrethe VESTAGER  
Executive Vice-President