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, 11.4.2022  
C(2022) 2468 final  
PUBLIC VERSION 
 
HeidelbergCement AG  
Berliner Stra ße 6 
69120, Heidelberg   
Germany 
 
Thoma Bravo, L.P. 150 N. Riverside Plaza  
Suite 2800 
IL 60606, Chicago  
United States  of America  
Subject : Case M. 10529 – HEIDELBERGCEMENT / THOMA BRAVO / 
COMMAND ALKON  
Commission decision pursuant to Article 6(1)(b) of Council Regulation 
No 139/20041 and Article 57 of the Agreement on the European Economic 
Area2 
Dear Sir or Madam,  
(1) On 7 March 2022, the European Commission received notification of a proposed 
concentration pursuant to Article 4 of the Merger Regulation by which 
                                                 
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 introduced 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  OJ L 1, 3.1.1994, p. 3 (the ‘EEA Agreement’).  
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  
confidential information. The omissions are shown thus […]
. Where possible the 
information omitted has been replaced by 
ranges of figures or a general description.  
 
2 HeidelbergCement  AG (‘Heidelberg Cement ’) and Thoma Bravo, L .P. (‘Thoma 
Bravo’) (HeidelbergCement  and Thoma Bravo are designated hereinafter as the 
‘notifying parties ’) will acquire  within the meaning of Article 3(1)(b) and 3(4) of the 
Merger Regulation joint control of Command Alkon Inc. (‘Command Alkon’) (the 
‘Transaction’).3 
1. THE PARTIES  
(2) Heidelberg Cement  is a manufac turer of building materials offering cement, clinker 
and other cement additives, aggregates, ready-mixed concrete and other concrete 
products, screed and asphalt. 
(3) Thoma Bravo is a private equity firm with a particular focus on application and 
infrastructure software and technology enabled services. Thoma Bravo solely 
controls Project Potter Parent, L.P. (‘ Potter ’), which holds 100% of the share capital 
of Command Alkon. As a result, Thoma Bravo solely controls Command Alkon 
before the Transaction.  
(4) Command Alkon consists of several software companies that deliver automation 
software solutions, in the U.S. and the EU. These automation solutions are used in 
the heavy-building materials ( ‘HBM’) industry and may be used for various 
purposes (e.g. pricing and quoting, order taking, scheduling and delivery, dispatching, batching, ticketing, truck tracking and truck management, quality 
control, recipes and production) and for the produc tion of various materials 
(e.g. ready-mixed or pre -cast concrete, cement, aggreg ates, asphalt, etc.).  
2. T
HE CONCENTRATION  
(5) The Transaction consists in the acquisition by Heidelberg Cement  of a 
45% shareholding from Thoma Bravo in Potter. Potter will be controlled by its 
General Partner ( ‘Potter Parent ’), which in turn will be co-controlle d by 
HeidelbergCement and Thoma Bravo.  
(6) Potter Parent will be managed by a board of managers , which will initially consist of 
ten members. Thoma Bravo will […]and HeidelbergCement  will […]4 The board of 
managers will act by simple majority vote, provided t hat […].5 In addition, 
Heidelberg Cement  and Thoma Bravo have various veto rights, […].6 As a result, 
Heidelberg Cement  will acquire joint control over Command Alkon, alongside 
Thoma Bravo.  
(7) Command Alkon is a pre -existing company that operates on a market and performs 
all the functions normally carried out by undertakings operating on the same market. Command Alkon has a management dedicated to its day -to-day operations and 
access to sufficient resources, including finance, staff, and assets (tangible and 
intangible), in order to conduct on a lasting basis its business activities. The 
                                                 
3  Publication in the Official Journal of the European Union No C 121, 16.3.2022, p. 4.  
4  Annex 5, section 7.2.  
5  Annex 5, section 7.3(b). 
6  Annex 6, section 5.2. […] . 
 
3 foregoing will not change following the implementation of the Transaction. 
Post-Transaction, Command Alkon will thus be a full-function joint venture within 
the meaning of Article 3(4) EUMR.  
3. UNION  DIMENSION  
(8) The Transaction has a Union Dimension pursuant to Article 1(2) of the Merger 
Regulation, because  in 20207 (i) the undertakings concerned ha d a combined 
aggregate worldwide turnover of more than EUR 5 000 million (HeidelbergCement : 
EUR 17 606 million; Thoma Bravo:8 EUR […]; Command  Alkon : EUR  […]); 
(ii) two of them ha d an individual EU -wide turnover in excess of EUR 250 million 
(HeidelbergCement : EUR […]; Thoma Bravo:9 EUR  […]) and 
(iii) HeidelbergCement  and Thoma Bravo did  not achieve more than two-thirds of 
their aggregate Union-Wide turnover within one and the same Member State.  
4. MARKET D EFINITIONS  
(9) There is no horizontal overlap between the Parties’ activities since 
HeidelbergCement  does not offer automation software solutions to third parties.10 
However, the Transaction gives rise to vertical relationships  between Command 
Alkon’s HBM automation software solutions (upstream ) and HeidelbergCement ’s 
activities for the production of HBM  (downstream).  
4.1. Automation software solutions used for the production of heavy building 
materials (upstream)  
4.1.1. Product markets  
4.1.1.1. The Commission’s precedents  
(10) The Commission has not yet defined a market for HBM automation software 
solutions. However, the Commission has previously defined a separate market for 
automation and control (‘A&C ’) solutions .11 This market includes a collection of 
real-world machinery and electronic process control that replace human operation in 
industrial production.12 Within A&C solutions, the Commission has left open further 
segmentations by functionality13 and industry.14  
                                                 
7  The turnover figures for 2021 are not yet available.  
8  Excluding Command Alkon’s turnover for 2020.  
9  Excluding Command Alkon’s turnover for 2020.  
10 HeidelbergCement  has developed internal automation software solutions but these are not available to 
third parties.  
11 Commission decision of 27 April 2007 in cas e M.4608 – Siemens / UGS , para. 7. 
12 Commission decision of 27 April 2007 in case M.4608 – Siemens / UGS , para. 13. 
13 Commission decision of 29 November 2013 in case COMP/M.7005 -  Schneider / Invensys , para. 7: the 
various components of process control systems can be grouped into different levels of the so -called 
‘automation hierarchy ’. Within each level, a further segmentation can be made between solutions used for 
different functionalities. See e.g.: MES which can be considered as a specific solution o f the management 
level (Commission decision of 27 April 2007 in case M.4608 – Siemens / UGS , para. 13) and as a sub-
segment of the market for product and lifecycle management (‘PLM’) solutions (Commission decision of 
27 February 2017 in case M.8315 – Sieme ns / Mentor Graphics , para. 10).  
 
4 4.1.1.2. The Notifying Party’s views  
(11) According to the Parties, the market on which Command Alkon is active should be 
defined as the ‘market of digital solutions for the HBM industry ’ without any further 
segmentation.  
4.1.1.3. The Commission’s assessment  
(A) Distinction by industry 
(12) The results of the market investigation confirmed the relevance of a separate market for automation software solutions used for the production of heavy building 
materials.  
(13) First , from a demand-side perspective, automation software solutions used in 
industries other than the HBM industry are typically not substitutable with specific 
HBM automation software solutions due to the  specific features of  the HBM 
industry. As one of Command Alkon’s customers explains : ‘there is a series of 
operational process es that are specific to the HBM industry, e.g. for setting prices, 
taking orders, scheduling deliveries, etc. It is these industry specific processes where 
Command Alkon’s software solutions are targeted. For these tasks [Customer] 
cannot use generic software solutions like the ones offered by SAP and other ERP 
software suppliers ’.
15  
(14) This is also confirmed by a competitor of Command Alkon according to w hom: 
‘[s]pecific tailoring is required when it comes to interfacing with ERP syst ems 
(e.g. SAP). These interfaces are always tailored you could say ’.16 As another 
competitor explains:  ‘solutions are typically tailored to the specific business 
processes of t he industry, that the solutions are deployed for. [Competitor]’s solution 
for the HBM industry provides between 100 and 150 HBM specific use cases that can not be found in any other [Competitor] industry solution’.
17 
(15) Second , the Parties’ internal documents  confirm that automation software solutions 
for the HBM industry need to take into account a number of constraints that are specific to this industry. By way of illustration, the below extract from one of 
Command Alkon’s internal documents lists several co nstraints specific to the  HBM 
industry that need to be taken into account when designing automation software 
solutions for this industry : 
Figure 1 – Product market: distinction by industry  
[…] 
Source: Annex RFI4 Q2.6  
(16) Third , from a supply-side perspective, 88% of Command Alkon’s competitors who 
participated to the market investigation explained that they are specialized in the 
development and supply of automation software solutions dedicated to the HBM 
                                                                                                                                                      
14 Commission decision of 20 December 1995 in case IV/M.670 – Elsag Bailey / Hartmann & Braun AG , 
para. 9.  
15  Non-confidential minutes of a call with a customer held on 29 November 2021.  
16  Non-confidential response to quest ion 2. 1.1 from questionnaire Q1 (competitors) .  
17  Non-confidential response to question 2.1.1 from questionnaire Q1 (competitors) .  
 
5 industry.18 This is also the cas e of Command Alkon, which is specialized in the 
supply of automation software solutions for the HBM industry.  
(17) However, the question whether the market for automation software solut ions should 
be further segmented by type of industry can be left open as the  Transaction does not 
give rise to competition concerns on the HBM industry segment , which is the only 
segment on which Command Alkon is active . For the purpose of this case, the 
Commission will adopt a conservative approach and carry out its analysis under the 
segment for HBM automation software solutions.  
(B) Distinction by end-use application  
(18) The results of the market investigation confirmed the relevance of a distinction by 
end-use application (i.e. cement, aggregates, asphalt, ready -mix concrete, pre -cast 
concrete, contractors).  
(19) First , from a demand-side perspective, automation software solutions for different 
end-use applications cannot all be used across different end-use applications. In this 
respect, one customer of Command A lkon explained that ‘Command Alkon offers 
various software tools tailored to specific applications, such as ready -mix concrete, 
pumping, fleet tracking, BI, quarry automation and aggregates ’.19 
(20) Likewise, another customer explained that ‘[i] n terms of the va rious product lines 
(aggregates, ce ment, ready -mix concrete, asphalt), some of Command Alkon 
products can be used in multiple product lines, whereas others are product specific. 
CommandSeries for instance is fairly interchangeable across applications as it  
supports ticketing, batching, truck tracking, etc. It can thus be used in connection 
with aggregates, cement, ready -mix concrete and asphalt. Other products however 
are more specialized, tailor made to meet the specific requirements of that product 
(e.g. asphalt)’. In this respect, this customer stressed that ‘No other provider can 
offer [Customer] the same  […] product line coverage or customer scale ’.20 
(21) Second , the Parties’ internal documents confirm that the Parties make a distinction 
between end -use appl ications in their ordinary course of business. For instance, the 
figure below is an extract from one of Command Alkon’s internal documents in which Command Alkon explains that it holds a leading share in its core markets and distinguish in this respect, re ady-mix concrete and aggregates:  
Figure 2 – Product market: distinction by end -use application (Command 
Alkon)  
[…] 
Source: Annex RFI4 Q2.6  
(22) Third , from a supply-side perspective, the list of suppliers of HBM automation 
software solutions varies across end-use applications.21 This is also confirmed by the 
                                                 
18  Non-confidential response s to question 2.1 from questionnaire Q1 (competitors).  
19  Non-confidential minutes of a call with a customer held on 24 November 2021.  
20  Non-confidential minutes of a call with a customer held on 29 November 2021.  
21  Non-confi dential response to question 5 from questionnaire Q1 (competitors)  and non-confidential 
response to question 6 from questi onnaire Q2 (customers).  
 
6 Parties’ internal documents. In a market report provided by Thoma Bravo, for 
instance, a distinction is made  between different categories of competitors based on 
the end-use appli cations in which their automation software solutions can be used:  
Figure 3 – Product market: distinction by end-use application (Thoma Bravo)  
[…] 
Source:  Annex RFI 4 Q.2.11  
(23) However, the question whether the market for HBM automation software solutions  
should be further segmented by end-use application can be left open, as the 
Transaction does not give rise to competition concerns, even when such a distinction 
is made , which results in higher market shares for Command Alkon. For the purpose 
of this case, the Commission will carry out its analysis with a distinction between 
aggregates, asphalt, cement, ready -mix concrete, pre -cast concrete and contractors.  
(C) Distinction by functionality 
(24) The results of the market investigation confirmed the relevance of a distinction by 
functionality (i.e. batching, dispatching, quality control, ticketing, order taking, 
scheduling , recipe, truck tracking, pricing and quoting, business intelligence ). 
(25) First , from a demand-perspective, not all customers producing the same type of 
heavy building materials (e.g. ready-mix concrete) use the same automation software 
functionalities offered by Command Alkon. As one cus tomer of Command Alkon 
explains:  ‘Customers can choose the specific range of functionalities of Command 
Alkon’s software that best fit their needs. As a rule of thumb, big companies tend to rely on Command Alkon only for logistical and operational purposes (e.g. batching, 
quality, ticketing or tracking), while they continue to use ERP -based systems li ke 
SAP for the remainder of their operations (e.g. supply chain, ordering, customers 
project, invoicing and pricing)’.
22 
(26) In the same vein, another customer of Command Alkon stressed that: ‘Command 
Alkon’s additional functionalities not related to the produc tion and dispatching 
processes include pricing, maintenance, accounting or invoicing tools. Although [Customer] does not use these other functionalities, it is a choice and other players 
could decide to use Command Alkon’s software also for these purposes. In that case, 
Command Alkon’s software could be used as a substitute to other ERP software 
products ’.
23 
(27) Second , this is also consistent with the Parties’ internal documents , which 
distinguish different  set of functionalities. For instance , the below figure clearly 
distinguish es between end -use applications (i.e. ready-mix, asphalt, aggregates, 
cement and contractors) and groups of functionalities  (i.e. production, logistics, 
telematics and dispatch, business analytics, quality control and integrated c ore 
business systems):  
                                                 
22  Non-confidential minutes of a call with a customer held on 24 November 2021.  
23  Non-confidential minutes of a call with a customer held on 18 November 2021.  
 
7 Figure 4 – Product market: distinction by group of functionalities  
[…] 
Source: Annex RFI4 Q2.11  
(28) Third , from a supply-side perspective, not all HBM automation software suppliers 
provide the same functionalitie s. By way of example, the below extract from one of 
HeidelbergCement ’s internal document s lists the functionalities offered by 
competitors of Command Alkon with a distinction between batching, dispatching, 
quality control, quote -to-cash integration and tel ematics : 
Figure 5 – Product market: distinction by individual functionalities 
[…] 
Source: Annex RFI4 Q. 3.6 
(29) However , the question whether the market for HBM automation software solutions  
should be further segmented by individual functionalit y can be left open as the 
Transaction does not give rise to competition concerns , even when such a distinction 
is made, which results in higher market shares and market power for Command 
Alkon. For the purpose of this case, the Comm ission will carry out its analysis with a 
distinction between individual functionalities (ticketing, order taking, scheduling, 
recipe, truck tracking, pricing and quoting, business intelligence ). 
4.1.2. Geographic markets  
4.1.2.1. The Commission’s precedents  
(30) In previous decisions involving the automation and control software industry, the Commission considered these markets to be at least EEA -wide, while leaving the 
exact geographic market definition open.
24  
4.1.2.2. The Notifying Party’s views  
(31) According to the Parties , the market on which Command Alkon operates is  
EEA -wide because Command Alkon offers the same products at broadly similar 
prices to customers located in the EEA while it offers a broader selection of products 
at different prices to customers located outside the EEA, i n particular in the US.25  
4.1.2.3. The Commission’s assessment  
(32) On balance, the results from the market investigation suggest that the relevant 
geographic markets are national and possibly regional in sc ope. 
(33) First , several market participants confirmed the existence of national barriers to 
entry. According to one customer of Command Alkon for instance ‘the software 
used may vary across Member States because each Member State may have a 
specific set of norms applicable to the production of ready -mix concrete ’.26 
                                                 
24 Commission decision of 29 November 2013 in case COMP/M.7005 -  Schneide r / Invensys , paras. 25- 30; 
Commission decision of 27 April 2007 in case M.4608 – Siemens / UGS , paras. 12 and 19. 
25 Form CO, para. 170.  
26  Non-confidential minutes of a call with a customer held on 18 November 2021.  
 
8 Likewise, another customer explained that ‘There are significant differences between 
automation software solutions in terms of local characteristics and requirements ’. 
(34) This is also confirmed by competitors of Command Alkon. According to one of 
them, for instance:  ‘while there is a unified EU standard, EN 206 and EN12620, 
certain Member States have also introduced country -specific standards that apply on 
top of EU standards ’.27 Likewise, another competitor of Com mand Alkon explained 
that ‘[s]ervice availability and language are the main barriers ’.28 
(35) Second , the Parties’ internal documents confirm the existence of national barriers to 
entry. For instance, according to one of HeidelbergCement’s document […]:  
Figure 6 – Geographic market: national barriers to entry  
[…] 
Source: Annex RFI4 Q. 3.6 
(36) Third , internal documents also confirm the relevance  of national market shares. By 
way of illustration, the below extract from one of HeidelbergCement’s internal 
documents provide national market share estimates of Command Alkon and its 
competitors in France and Germany:  
Figure 7 – Geographic market: national market share estimates  
[…] 
Source: Annex RFI4 Q. 3.6. 
(37) However, the exact geographic market definition can be left open as the Transaction 
does not give rise to competition concerns under any plausible market definition. For 
the purpose of this case, the Commission will carry out its analysis under national 
markets , which is where Command Alkon’s market shares and market power are the 
highest . 
4.2. Heavy building materials (downstream)  
(38) In the EEA, Heidelberg Cement  offers  aggregates, cement and ready -mix concrete in 
all Member States  except Cyprus, Finland, Ireland, Luxembourg, Malta, Portugal 
and Slovenia. In addition, HeidelbergCement also offers pre -cast concrete in France 
and Germany.29 
4.2.1. Aggregates  
4.2.1.1. Product market  
(A) The Commission’s precedents  
(39) In past decisions, the Commission has cons idered aggregates as a separate product 
market. The Commission has also considered, but ultimately left open, a further 
segmentation between (i) primary aggregates (crushed rock, gravel and sand) and 
                                                 
27  Non-confidential minutes of a call with a competitor  on 5 January  2022.  
28  Non-confidential response to question 23.2 from questionnaire Q1 (competitors).  
29  Annex RFI 5 Q.1.1.  
 
9 (ii) secondary/ recycled aggregates (such as colliery and  china clay waste, slate, 
power station ash, slags and demolition/construction waste).  
(40) Within the primary aggregates category, the Commission has also considered, but 
ultimately left open, a further distinction between (i) sand and gravel and (ii) crushed  
rock.30 
(B) The Notifying Party’s views  
(41) The Notifying Party does not contest the product market definition set out by the 
Commission in its precedents.  
(C) The Commission’s assessment  
(42) In the case at hand, the market investigation confirmed the relevance of the 
Com mission’s decisional practice. In any event, plausible segmentations between 
primary and secondary aggregates, and within primary aggregates, between sand and gravel, on the one hand, and crushed rock, on the other hand, can be left open, as the 
Transactio n does not give rise to competition concerns under any of these segments . 
(43) For the purposes of this Decision, the analysis will be conducted on the narrowest plausible product segment, i.e. on the segments for primary aggregates and 
secondary aggregates, wi th a further segmentation within primary aggregates 
between sand and gravel , on the one hand, and crushed rock, on the other hand.  
4.2.1.2. Geographic market  
(A) The Commission’s precedents  
(44) From a geographic point of view, the Commission has considered the aggregates market to be local or at most national in scope and has retained a radius of 50 to 80  
km depending on the particularities of the areas concerned.
31  
(B) The Notifying Party’s views  
(45) The Notifying Party does not contest the geographic market definition set out by the 
Commission in its precedents.  
(C) The Commission’s assessment  
(46) In the case at hand, the market investigation confirmed the relevance of the 
Commission’s  decisional practice. In any event, the question whether the market is 
local or national in scope can be left open, as the Transaction does not give rise to 
any competition concerns under any of these market definitions . For the purposes of 
this Decision, as explained in further detail below, the Commission will carry out its 
analysis on national markets.32 
                                                 
30 Commission decision of 26 May 2016 in case M.7744 – Heidelber gCement / Italcementi , paras. 48 -49. 
31 Commission decision of 6 September 2006 in case M.4298 – Aggregate Industries / Foster Yeoman, 
para.  13; decision of 30 June 2006 in case M.4719 – Heidelberg Cement / Hanson; decision of 
26 May  2016 in case M.7744 – HeidelberCement / Italcementi , paras. 52- 54. 
32  See section 5.2.1.2.  
 
10 4.2.2. Cement  
4.2.2.1. Product market  
(A) The Commission’s precedents  
(47) In past decisions, the Commission has defined distinct product markets for white 
cement and grey cement.33  
(B) The Notifying Party’s views  
(48) The Notifying Party does not contest the product market definition set out by the 
Commission in its precedents.  
(C) The Commission’s assessment  
(49) In the case at hand, the market investigation confirmed the relevance of the Commission’s  decisional practice. For the purposes of this Decision, the analysis 
will be carried out  on the s egments for white cement and grey cement separately.  
4.2.2.2. Geographic market  
(A) The Commission’s precedents  
(50) From a geographic point of view, the Commission has considered that the geographic market for grey cement consists of a group of geographic markets 
centred o n different cement plants, overlapping with one another. The scope for the 
relevant geographic markets was determined by the distance from the plant at which cement may be sold. Generally, radii of 150 km or 250 km have been taken into 
account.
34  
(51) As for wh ite cement, the Commission has considered this market to be at least 
EEA -wide while leaving open the possibility to define national markets.35 
(B) The Notifying Party’s views  
(52) The Notifying Party does not contest the geographic market definition set out by the Commission in its precedents.  
(C) The Commission’s assessment  
(53) In the case at hand, the market investigation confirmed the relevance of the 
Commission’s  decisional practice. In any event, the market definition can be left 
open, as the Transaction does not give rise to competition concerns irrespective of 
the exact scope of the geographic market . For the purposes of this Decision, as 
explained in further detail below, the Commission will carry out its analysis on national markets.
36 
                                                 
33 Commission decision of 26 May 2016 in case M.7744 – Heidelber gCement / Italcementi , paras. 21 et seq.  
34 Commission decision of 26 May 2016 in case M.7744 – Heidelber gCement / Italcementi , paras. 34 -41. 
35 Commission decision of 26 May 2016 in case M.7744 – Heidelber gCement / Italcementi , paras. 44 -47. 
36  See section 5.2.1.2.  
 
11 4.2.3. Ready -mix concrete  
4.2.3.1. Product market  
(A) The Commission’s precedents  
(54) In past decisions, the Commission has consistently considered ready-mixed concrete 
as a single, distinct product market regardless of different ready-mixed concrete 
specifications and the facilities used (mobile or fixed plants).37 
(B) The Notifying Party’s views  
(55) The Notifying Party does not contest the product market definition set out by the Commission in its precedents.  
(C) The Commission’s assessment  
(56) In the case at hand, the Commission does not see any reason to depart from its  
previous decisional practice. For the purposes of this Decision, the analysis will thus be conducted on a single market for ready-mixed concrete.  
4.2.3.2. Geographic market  
(A) The Commission’s precedents  
(57) The Commission has considered that the geographic market for re ady-mixed 
concrete can be defined as catchment areas around ready -mix concrete plants with a 
radius of 25 km around production facilities according to the most recent decisions.
38 
(B) The Notifying Party’s views  
(58) The Notifying Party does not contest the geographic market definition set out by the Commission in its precedents.  
(C) The Commission’s assessment  
(59) In the case at hand, the market investigation confirmed the relevance of the 
Commission’s  decisional practice. In any event, the market definition can be left 
open, as the Transaction does not give rise to competition concerns irrespective of 
the exact scope of the geographic market . For the purposes of this Decision, as 
explained in further detail below, the Commission will carry out its analysis on 
national ma rkets.
39 
                                                 
37 Commission decision of 26 May 2016 in case M.7744 – Heidelber gCement / Italcementi , paras. 55 -57. 
38 Commission decision of 26 May 2016 in case M.7744 – Heidelber gCement / Italcementi , paras. 58 -59. 
39  See section 5.2.1.2.  
 
12 4.2.4. Pre-cast concrete  
4.2.4.1. Product market  
(A) The Commission’s precedents  
(60) Pre-cast concrete products are extremely diverse and comprise ready-made pillars, 
beams, joists, road barriers, containers, railway sleepers and blocks for house 
construction.40 The Commis sion has previously considered that these different 
concrete products form part of a single product market for pre -cast concrete 
products. 
(61) The Commission has also considered that there is a separate sub-market for concrete 
building blocks41 and has considered that paving materials made of concrete, pre -
cast floors and building materials for load-bearing walls (such as aerated concrete or 
pre-cast concrete walls) could each fall into separate product markets while 
ultimately leaving that question open.42  
(B) The Notifying Party’s views  
(62) The Notifying Party does not contest the product market definition set out by the 
Commission in its precedents.  
(C) The Commission’s assessment  
(63) In the case at hand, the market investigation confirmed the relevance of the 
Commission’s  decisional practice. In any event, plausible segmentations for concrete 
building blocks, paving materials made of concrete, pre -cast floors and building 
materials for load-bearing walls can be left open,  as the Transaction does not give 
rise to competition c oncerns under any plausible market definition.  
(64) For the purposes of this Decision, the analysis will be conducted on the narrowest plausible product segment s, i.e. concrete building blocks, paving materials made of 
concrete, pre -cast floors and building materials for load-bearing walls.  
4.2.4.2. Geographic market  
(A) The Commission’s precedents  
(65) Geographic -wise, the Commission has considered that the overall market for pre -cast 
concrete products was national in scope. For the sub-markets for concrete building 
blocks, however, while leaving the question open, the Commission has considered 
the definition of national or local markets.  
                                                 
40  M.2317 – Lafarge/Blue Circle (II) , 1 March 2001; M.3713 – Holcim/Aggregate Industries , 
14 March  2003, para. 10; M.1874 – Lafarge/Blue Circle , 7 April 2000, para. 11; M.4719 – 
HeidelbergCement/Hanson, 7 August 2007, para. 24. 
41  M.1779 – Anglo American/Tarmac , 13 January 2000, paras. 19 and 24; M.3713 – Holcim/Aggregate 
Industries , 14 March 2003; M.4719 – HeidelbergCement/Hanson, 7 August 2007, paras. 24 and 26.  
42  M.3267 -  CRH/Cementbouw , 29 September 2003, recitals 12 to 14; M.4719 – HeidelbergCement/Hanson, 
7 August 2007, paras. 25 and 26.  
 
13 (B) The Notifying Party’s views  
(66) The Notifying Party does not contest the geographic market definition set out by the 
Commission in its precedents.  
(C) The Commission’s assessment  
(67) In the case at hand, the market investigation confirmed the relevance of the Commission’s  decisional practice. In any event, the market definition can be left 
open, as the Transaction does not give rise to competition concerns irrespective of 
the exact scope of the geographic market . For the purposes of this Decision, as 
explained in further detail below, the Commission will carry out its analysis on 
national markets.
43 
5. COMPETITIVE A SSESSMENT  
(68) As explained above , the Transaction gives rise to vertical relationships between  
Command Alkon’s HBM automation software solutions (upstream ) and 
HeidelbergCement ’s activities for the production of HBM (downstream):  
(a) Command Alkon offers automation software solutions for the production of 
heavy building materials such as  (i) concrete (i.e. ready-mix and pre -cast 
concrete), (ii) asphalt , (iii) aggregates and (iv) cement.44 Command Alkon  
also sells automation software solutions to contractors who may resell them 
as part of broader projects . From a geographic point of view , Command 
Alkon is mainly active in the U.S. but also in Europe, where it generate d 
most of its turnover for 2020 in the Netherlands (EUR […]), France 
(EUR  […]) and Belgium (EUR […]).45 
(b) In the EEA, HeidelbergCement  mainly produces aggregates, cement, ready-
mix concrete and to a lesser extent pre -cast concrete.46 From a geographic 
point of view , HeidelbergCement  is active in almost all Member States.47 
                                                 
43  See section 5.2.1.2.  
44 Form CO, para. 90. Command Alkon’s products can be classified into six broad categories: (i) product ion 
(i.e. solutions to manage processes and equipment that produce the end material); (ii)  telematics and 
dispatch (i.e. solutions to digitally track, manage and optimize truck dispatching, monitor real -time in -
transit location, and track delivery status a nd driver performance); (iii) quality control (i.e. solutions to 
monitor, test and report on concrete product quality during production, in -transit to job sites and on -site 
prior to placement), (iv) business systems (i.e. solutions used for ‘quote to cash’  m anagem ent with 
connectivity through sales / ordering to accounts receivable); (v) business analytics (i.e. solutions for 
reporting and insights driven by integrated operational and financial data from across the business); (vi) the CONNEX platform (i.e. a cloud -based data and software platform that increases collaboration 
between contractors and project owners on one side, and their heavy material producers, suppliers and haulers on the other hand). The CONNEX platform is not yet available in the EEA but Command Alkon […] (Form CO, para. 288). 
45 Command Alkon also has activities in Finland (EUR […] ), Ireland (EUR […]), Romania  (EUR […]), 
Italy (EUR […]), Luxembourg (EUR […]), Germany  (EUR  […] ) and Greece (EUR […] ). 
46  Heidelb ergCement does not sell asphalt  in the EEA.  
47 With the exception of Cyprus, Finland, Ireland, Luxembourg, Malta, Portugal and Slovenia. 
 
14 5.1. Legal framework  
(69) Pursuant to Article 2(2) and (3) of the Merger Regulation, the Commission must 
assess whether a concentration would significantly impede effective competition in 
the internal market or in a substantial part of it, in particular through the creation or 
strengthening of a dominant position.48 In this respect, a merger can entail horizontal 
and/or non-horizontal effects. 
(70) With particular regard to non-horizontal effects, a merger can entail such effects when it involves companies operating at different levels of the same value chain or 
in closely related markets . 
(71) In assessing potential vertical effects of a merger, the Commission analyses, among 
others, whether the merger results in foreclosure so that actual or potential rivals’ 
access to supplies or markets is hampered or eliminated as a result of the merger, 
thereby reducing those companies’ ability and/or incentive to compete.
49 Such 
foreclosure may discourage entry or expansion of rivals or encourage their exit. 
Foreclosure thus can be found even if the foreclosed rivals are not forced to exit the 
market. It i s sufficient that the rivals are disadvantaged and consequently led to 
compete less effectively. Such foreclosure is regarded as anti -competitive where the 
merging companies — and, possibly, some of their competitors as well — are as a 
result able to profi tably increase the price charged to consumers. 
(72) The Non-Horizontal Merger Guidelines distinguish between two forms of foreclosure: (i) input foreclosure, when access of downstream rivals to supplies is 
hampered;
50 and (ii) customer foreclosure, when access of upstream rivals to a 
sufficient customer base is hampered.51 
(73) In assessing both types of foreclosure, the Commission assesses whether the merged 
entity (i) would have the ability to engage in foreclosure, (ii) whether it would have the incentive to do so, and (iii) what would be the overall impact on effective 
competition in the affected markets.  
(74) The present Section 5 assesses whether the Transaction is likely to raise vertical non-
coordinated effects on the markets examined in Section 4. 
5.2. Assess ment  
5.2.1. Market shares  
5.2.1.1. Command Alkon (upstream)  
(75) Command Alkon’s products may serve different functionalities (e.g. batching, fleet 
tracking, pricing and quoting, dispatching, etc.) which may be grouped into macro-
categories (i.e. production, telematics and dispatch, busi ness systems, quality control 
and business analytics). Within these macro -categories, Command Alkon’s market 
share exceeds 30% only with respect to ready-mix concrete applications, for 
                                                 
48  For specific rules concerning the EEA, see Annex XIV to the EEA Agreement.  
49  Non-Horizontal Merger Guidelines, paras. 20- 29. 
50  Non-Horizontal Merger Guidelines, para. 31. 
51  Non-Horizontal Merger Guidelines, para. 58. 

 
16 5.2.1.2. HeidelbergCement  (downstream)  
(76) The Parties were not able to provide market share estimates at catchment area level 
but explained that HeidelbergCement’s market shares at national level reflect those  
at catchment area level.55 In any event, all catchment areas are vertically affected due 
to Command Alkon’s upstream market shares and HeidelbergCement’s market shares at catchment area level would not affect the outcome of the assessment.  
(77) Indeed, with respect to customer foreclosure, Command Alkon’s competitors are 
active nationally in the Member States where they operate
56, so HeidelbergCement’s 
market shares at national level better reflect the ability of the merged entity to 
engage in customer foreclosure.  
(78) As for input foreclosure, HeidelbergCement’s downstream market shares are 
relevant for the assessment of  the incentive to engage in input foreclosure57, which 
must also take account of the closeness of competition between the merged entity 
and its downstream rivals .58  
(79) In the case at hand, the market investigation confirmed that HeidelbergCement’s closest competitors are multinational companies active across a number of catchment 
areas in the Member States where they operate.
59 If HeidelbergCement were to 
foreclose these  downstream competitors, the latter could retaliate across catchment 
areas (i.e. at national level). Accordingly, national market shares better reflect 
HeidelbergCement’s incentive to engage in input foreclosure.60  
(80) Against this background, t he table below provides HeidelbergCement ’s market 
shares on downstream markets for aggregates, cement, ready-mix and pre -cast 
concrete at EEA and national level s (in Member States where Command Alkon is 
active ): 
                                                 
55  Form CO, para. 262.  
56  Annex RFI 4 Q.3.6.  
57  Non-Horizontal Guidelines, para. 43. 
58  i.e., the extent to which downstream demand is likely to be diverted away from foreclosed rivals and the 
share of that diverted demand that the downstream division of the integrated firm can capture (Non -Horizontal Guidelines, para. 42).  
59  These are the competitors that HeidelbergCement would have a strong interest to foreclose since they compete with HeidelbergCement across several catchment areas, so their exit would entail higher demand diversion within the meaning of para. 42 of the Non -Horizontal Guidelines.  
60  This is consistent with the market investigation which confirmed that HeidelbergCement would have little 
incentive to forecl ose local players (Non -confidential minutes of a call with a customer held on 
24 November 2021) and that switching costs are higher for customers with broader geographic footprints 
(Non -confidential response to question 21.1 from questionnaire Q2 (customer s)). 

 
18 (83) Second , Command Alkon’s solutions are  critical for current customers of Command 
Alkon67 who appear to be  locked-in as a result of  (i) the high level of integration of 
Command Alkon’s solutions in their production proces s and (ii) the high switching 
costs that they face . Consequently, if Command Alkon were to restrict the access of 
these customers to its automation solutions68, the latter  would have to stop 
production for a long period of time and to make significant inves tments in order to 
change supplier.  
(84) In the first place , the market investigation confirmed that Command Alkon’s 
solutions are critical because of their high level of integration in the production 
process of customers. As one customer explains: ‘Les centrales ne peuvent pas 
fonctionner sans un logiciel d’automation et un automate ’.69 Likewise, another 
customer expressly confirmed that ‘Command Alkon […] is a critical software 
supplier ’.70  
(85) This is  also confirmed by the Parties’  internal documents. For i nstance, a ccording to 
a market report made at the request of HeidelbergCement, Command Alkon’s software solutions are ‘[…]’ and customers are ‘[…]’, because this would entail : 
‘[…]’. 
Figure 8 – Input foreclosure: mission-critical software  
[…] 
Source: Annex RFI4 Q.3.6  
(86) According to the same document, “ […]” offered by Command Alkon are critical 
[…]:  
Figure 9 – Input foreclosure: expected dis-synergies  
[…] 
Source: Annex RFI 4 Q.3.6  
(87) This is consistent with another market report made at the request of Thoma Bravo 
when it acquired Command Alkon in 2019 and according to which […] are the most 
‘[…]’ functionalities offered by Command Alkon:  
Figure 10 – Input foreclosure: mission critical functionalities 
[…] 
Source: Annex RFI4 Q2.11  
                                                                                                                                                      
25-30% as dispatching system in the Netherlands (incl. those of  [Customer], Heidelberg and Cementbow). 
In terms of volum es of ready -mix concrete produced using Command Alkon’s software, however, this 
market share could reach up to 40 -50%’ (Non -confidential minutes of a call with a customer held on 24 
November 2021). 
66  Non-Horizontal Guidelines, para. 34 ( ‘For an input foreclosure to be a concern, the vertically integrated 
firm resulting from the merger must have a significant degree of market power ’). 
67  Non-Horizontal Guidelines, para. 34. 
68  e.g. by refusing to renew their licenses, to give them access to updates or b y increasing the price of 
ancillary services for installation or maintenance 
69  Non-confidential response to question 15.1 from questionnaire Q2 (customers).  
70  Non-confidential minutes of a call with a customer held on 29 November 2021.  
 
19 (88) This critical nature of Command Alkon’s solutions is further confirmed by the fact 
that a majority of customers consider these solutions necessary to compete 
effectively downstream.71 
(89) In the second place , the market investigation also confirmed the existence of 
particularly high switching costs for current customers of Command Alkon.72 
According to one  customer : ‘HeidelbergCement’s involvement in Command Alkon, 
may lead to [Customer] having to migrate away from Command’s products, 
something which would be very costly and would ultimat ely affect their 
competitiveness. This could be for a variety of reasons including restricting access to products or new developments, increas ing prices or accessing [Customer]’s 
information’.
73 
(90) In the same vein, another customer explained that if it were to switch supplier ‘[p]roduction would completely stop. Direct cost due to production stop estimated at 
one year of profit loss and one year of  fixed costs, investment cost and serious 
reputation damage ’.
74 
(91) Command Alkon’s competitors also confirmed that switching costs are high, 
especially for large customers that generally mix and match between the products of 
HBM automation software suppliers a nd other Enterprise Resource Planning 
(‘ERP’) software solutions. According to one competitor, for example: ‘so me 
customers have an ERP software already installed (e.g. an SAP -like invoicing 
system) and do not want to change it. Therefore, the Company has to integrate its 
software into the existing ERP system, which can be very time- consuming. This is 
usually the case with large customers like HeidelbergCement, who need SAP for 
their business ’.75 
(92) This is also confirmed by the Parties’ internal documents. By way of illustration, the below extract from one of Command Alkon’s internal documents confirms that [a 
majority]  of its customers are ‘unlikely to switch solutions ’: 
Figure 11 – High switching costs ( Command Alkon’ s internal docume nt) 
[…] 
Source: Annex RFI4 Q2.6  
(93) Likewise, the market report made at the request of HeidelbergCement quotes one 
customer of Command Alkon according to which: ‘[…]’.  
                                                 
71  63% of Command  Alkon’s customers explained that Command Alkon’s automation software solutions are 
necessary for their companies to compete effectively ( non-confidential responses to question 15 from 
questionnaire Q2 (customers)). As one customer explains: ‘ We think that  the Command Alkon automation 
software helps us to produce and deliver our products efficiently ’ (Non -confidential response to 
question 15.1 from questionnaire Q2 (customers)). 
72  Non-Horizontal Guidelines, para. 34 ( ‘Irrespective of its cost, an input may  also be sufficiently important 
for other reasons. For instance […]  it may […] be that the cost of switching to alternative inputs is 
relatively high ’). 
73  Non-confidential minutes of a call with a customer held on 29 November 2021.  
74  Non-confidential res ponse to question 23 from questionnaire Q2 (customers). 
75  Non-confidential minutes of a call with a competitor  held on 5 January 2022.  
 
20 (94) In light of these high switching costs, current customers of Command Alkon are 
locked-in  and competing automation software solutions do not constitute credible 
alternatives. As a result, the new entity will have the ability to foreclose 
HeidelbergCement’s competitors that are current customers of Command Alkon.  
(95) This conclusion is not put into que stion by the arguments of the Parties , according to 
which  (i) HeidelbergCement  will only acquire joint control over Command Alkon, 
(ii) Command Alkon’s software is not a critical component or a significant source of 
product differentiation for HBM producti on and (iii) Command Alkon’s software 
represents a negligible cost factor relative to the price of HBM.76  
(96) As for the first argument, the ownership structure of Command Alkon is irrelevant for the purposes of determin ing whether the merged entity will have the ability to 
engage in input foreclosure. However, as set out in  the Non-Horizontal Guidelines 
and as explained in further detail below, the ownership structure of Command Alkon 
may be relevant for assessing the incentive of Command Alkon to foreclose 
HeidelbergCement ’s downstream competitors post -Transaction. 
(97) As for the other arguments , as explained in the Non-Horizontal Guidelines , 
irrespective of its cost, an input may also be sufficiently important for other reasons. 
For instance, the input may be a critical component without which the downstream 
product could not be manufactured or effectively sold on the market .
77 Accordingly, 
there is no need for Command Alkon’s software to represent a significant cost factor 
or a significant source of product diffe rentiation for this software to be a critical 
component. As explained above, it is because Command Alkon’s customers could 
not longer produce HBM materials without Command Alkon’s software that this product can be regarded as a critical input. 
(98) The Commission thus takes the view that the new entity will have the ability to 
engage in input foreclosure, which makes it necessary to examine the incentive of 
the new entity to engage in such strategy post -Transaction.  
5.2.2.2. Incentive  
(99) According to the Parties, Command Alkon would have no incentive to foreclose 
HeidelbergCement ’s compet itors post -Transaction because : (i) an increase in the 
price of Command Alkon’s software would not induce a material increase of the 
costs incurred by down stream  rivals, (ii) Command Alkon’s customers are 
multinational customers which, in response to an increase in price in one Member States (e.g. the Netherlands), would be able to retaliate in other Member States  and 
(iii) one of the key rationales of HeidelbergCement’s investment  in Command Alkon 
is the plan to accelerate Command Alkon’s  expansion in Europe […].
78  
(100) These arguments do not  rule out the existence of an incentive , on the part of 
Comman d Alkon  and at HeidelbergCement’s push, to foreclose HeidelbergCement ’s 
competitors. Indeed, the costs that Command Alkon’s software solutions represent 
for HeidelbergCement ’s competitors are relevant for assessing the ability to 
foreclose downstream rivals, not Command Alkon’s incentive to do so. In any event, 
                                                 
76  Form CO, para. 193.  
77  Non-Horizontal Guidelines, para. 34. 
78  Form CO, para. 194.  
 
21 the fact that Command Alkon’ s software solutions represent a small proportion of 
the costs of downstream  rivals is insufficient to conclude that these products do not 
constitute an important input.79 
(101) Besides,  the results of the market investigation confirmed that Command Alkon’s 
custo mers  include purely national players that rely on Command Alkon’s software 
solutions. If Command Alkon were to increase the price of its software solutions in 
national markets where it has significant market shares, these customers  would not 
be able to ret aliate  in other Member States .80 In addition, given the critical nature of 
Command Alkon’s software solutions and the high switching costs that downstream 
rivals face, including in Member States where Command Alkon’s market share is limited, the risk of ret aliation by multinational customers in other national markets is 
unlikely.  
(102) Finally, the alleged intent of HeidelbergCement to accelerate Com mand Alkon’s  
overall expansion in Europe is of limited relevance if it ha d the incentive to engage 
locally in input foreclosure. 
(103) Notwithstanding the above, Command Alkon’s ownership structure  must be taken 
into account and the fact that HeidelbergCement  will only acquire a co-controlling 
minority shareholding in Command Alkon limits the latter’s incentive to foreclose 
Heidelberg Cement’s rivals.
81 Indeed, Thoma Bravo will keep a co- controlling 
interest in Command Alkon and is not active in the production of heavy-building 
materials. Overall, this point was confirmed by the results of the market 
investigation.  
(104) First , the da ta collected in the course of the market investigation show s that the 
closest com petitors of HeidelbergCement (i.e. large competitors active across several 
Member States) together represent at least  [30-40]% of Command Alkon’s EEA 
revenues.82 If Command Alkon were to foreclose these downstream rivals, any 
retaliation from the latter could entail a l oss of [30-40]% of Command Alkon’s 
turnover upstream . This would significantly jeopardize Command Alkon’s activities 
to the detriment of Thoma Bravo.  
(105) Second , the only customer who expressed input foreclosure concerns in the course 
of the market investigation stressed that this was because , among other things:  
‘HeidelbergCement may further increase its interest in Command Alkon’.83 This is 
consistent with the fact that a joint control may not be sufficient to give Command 
Alkon an incentive to foreclose HeidelbergCement’s rivals. If HeidelbergCement 
acquires sole control over Command Alkon in the future, this would be a different concentration, which would be subject to a subsequent assessment.  
                                                 
79  Non-Horizontal Guidelines, para. 34. 
80  Unlike customers active across several Member States who could, in principle, respond by switching 
supplier (or turning to an in -house solution), not only for the markets where Command Alkon has a high 
market share, but across all locations where they use Command Alkon’s solutions.  
81  Non-Horizontal Guidelines, para. 45. 
82  Annex RFI 8.6.  
83  Non-confidential minutes of a call with a customer held on 29 November 2021.  
 
22 (106) Third , the majority of customers of Command Alkon also did not express any input 
foreclosure concerns with respect to the Transaction.84 
(107) Fourth, the Parties’ internal documents show that Command Alkon’s strategy 
focuses on the […]85.86 They also confirm HeidelbergCement’s intention to limit 
potential dis -synergies arising from the Transaction.87 For the reasons above, such a 
strategy  would be significantly affected and is thus incompatible with an input 
foreclosure strategy post -Transaction. 
(108) On balance, the Commission thus concludes that Command Alkon will lack the 
incentive to foreclose HeidelbergCement ’s downstream rivals post -Transaction.  
5.2.2.3. Impact  
(109) According to the Parties, if Command Alkon were to engage in an input foreclosure 
strategy post -Transaction, such strategy would not cause anticompetitive effects 
because: (i) Command Alkon’s software represent a small part of customers downstream, (ii) credible alternative software suppliers will remain active on the 
market, (iii)  HeidelbergCement’s most important rivals are multinational players 
active across several segments downstream and (iv) downstream rivals would keep 
the possibility to develop internal in-house solutions.  
(110) The market investigation elicited mixed results as t o the impact of a  potential input 
foreclosure strategy on the market. On the one hand, the majority of customers 
explained that the development of alternative in-house solutions would require time, 
significant investments and know -how, so this would not co nstitute a credible 
alternative.
88 Furthermore, as explained above, Command Alkon’s software is a 
critical input for customers and switching costs are significant, so alternative 
software suppliers do not constitute credible alternatives for current custome rs.89 
(111) On the other hand, a number of downstream rivals are unlikely to be affected if Command Alkon were to engage in input foreclosure.
90 For instance, downstream 
rivals that do not currently use Command Alkon’s solutions could continue to use 
alternative solutions . Likewise, Command Alkon’s customers that are active across 
several Member States would be able to retaliate in response to an input foreclosure strategy  and are thus unlikely to be foreclosed.  
(112) However, for the reasons explained above, the questi on of the impact can be left 
open as Command Alkon will lack the incentive to engage in input foreclosure post -
Transaction. 
                                                 
84  Non-confidential response to question 8.1 from questionnaire Q2 (customers). See also: non -confidential 
minutes of a call with a customer held on 18 November 2021; non -confidential minutes of a call with a 
customer held on 24 November 2021. 
85  See e.g. Annex RFI 4 Q2.6 (p.28). 
86  See e.g. Annex RFI 4 Q.3.6 (p.46) and A nnex RFI 4 Q.2.11 (p.62). 
87  Annex RFI 4 Q3.6.  
88  Non-confidential replies to question 7.1 from questionnaire Q2 (customers ). See also: non -confidential 
minutes of a call with a customer held on 29 November 2021; Non -confidential minutes of a call with a 
competitor held on 5 January 2022.  
89  See section 5.2.2.1.  
90  Non-Horizontal Guidelines, para. 50. 
 
23 5.2.3. Customer foreclosure  
5.2.3.1. Ability  
(113) The Parties argue that the new entity will not have the ability to foreclose Command 
Alkon’s competitors since HeidelbergCement  is not an essential customer. Overall, 
the results of the market investigation confirmed this point.  
(114) First , in accordance with the Non-Horizontal Guidelines, for customer foreclosure to 
be a concern, it must be the case that the ve rtical merger involves a company, which 
is an important customer with a significant degree of market power in the 
downstream market.91 
(115) In the case at hand, HeidelbergCement ’s downstream market share at national level 
exceed s 30% only on the  segment for cement in Belgium (30-40%) and the 
Netherlands (40-50%). Such levels of market shares leave sufficient room for 
Command Alkon’s upstream competitors to compete for a considerable part of the 
market. Since there are no other indications pointing at the exis tence of market 
power, it can be concluded that HeidelbergCement will not have sufficient market 
power downstream for customer foreclosure to be a concern.  
(116) Second , all the competitors  of Command Alkon who participated in the market 
investigation confirmed that HeidelbergCement  represents less than 30% of their 
EEA  revenues.92  
(117) In view of the foregoing, the Commission thus concludes that Command Alkon will lack the ability to foreclose Command Alkon’s upstream competitors.  
5.2.3.2. Incentive  
(118) The Commission also considers that  the merged entity will lack the incentive to 
engage in cust omer foreclosure , as HeidelbergCement  will only acquire a minority 
co-controlling shareholding in Command Alkon. This  will limit its incentive to 
foreclose competitors upstream , as HeidelbergCement  would bear all of the 
associated costs but would be entitle d to only part of the gains.
93 
(119) Accordingly, the Commission finds that the new entity will lack the ability and 
incentive to engage in customer foreclosure so there is no need to cons ider the effect 
of any such strategy. 
5.2.4. Information exchange  
(120) Some  respondents to the market investigation expressed concerns that 
HeidelbergCement  may get access to commercially strategic information on its 
competitors via Command Alkon post -Transaction. By way of illustration, one 
                                                 
91  Non-Horizontal Guidelines, para. 61. 
92  Non-confidential replies to question 8.1 from questionnaire Q1 (competitors). This figure may for 
Command Alkon’s c ompetitors that are active across several segments, depending on the segment 
concerned. For these competitors, however, this figure confirms that HeidelbergCement is not a critical 
customer, either because it is not a significant customer on any of the seg ments on which they operate or 
because these competitors are active on different markets where HeidelbergCement is not a customer and to which their access will remain unchanged (Non -Horizontal Guidelines, para. 66).  
93  See above, para. 104.  
 
24 customer explained that ‘HeidelbergCement could gain access to [Company X]’s 
data, without their knowledge and consent, especially when the information 
contained within Command Alkon’s solutions contains [Company]’s most sensiti ve 
commercial information including customers, sites, prices, product mixes, 
volumes,  etc.’.94 
(121) However, the information gathered by the Commission in the course of the market 
investigation confirms that HeidelbergCement will lack the ability and incentive t o 
access competitively sensitive data on its competitors via Command Alkon.  
(122) First , the transaction documents expressly prohibit such access to competitively 
sensitive information that Command Alkon may have on HeidelbergCement’s 
competitors. Indeed, the Li mited Partnership Agreement prevents HeidelbergCement 
from accessing its competitors’ commercially strategic information via Command 
Alkon.95 Any such access would give rise to possible remedies, including injunctive 
relief, to the benefit of Thoma Bravo.96  
(123) Likewise, according to the Limited Liability Company (‘LLC’) Agreement: […].97 
(124) Second , Command Alkon’s customers are contractually protected against the 
improper use of their data by Command Alkon. By way of illustration, the contracts 
entered into between  Command Alkon and its customers provide in clause 15(iii) 
that such confidential information will be disclosed only to Command Alkon’s employees or other representatives who are subject to a duty of confidentiality to 
Command Alkon and have a need to know , and only to the extent necessary for 
Command Alkon to exercise its rights or obligations under the contract.
98 
(125) In this respect, the Parties expressly confirmed that ‘[n]o commercially strategic 
information will be technically accessible to HeidelbergCemen t following the 
Proposed Transaction’ and that ‘Command Alkon’s shareholders or investors 
(including HeidelbergCement post -transaction) do not have access to Command 
Alkon’s customer data. This includes (i) customer data stored in Command Alkon’s 
products (which can include information such as pricing data, sales volumes, 
concrete mix designs, and order history); and (ii) data regarding the customers’ 
commercial relationship with Command Alkon’.99  
(126) In these circumstances, Thoma Bravo would be aware if HeidelbergCement would 
get access to such competitively strategic information. Yet, Thoma Bravo would 
have no incentive to give HeidelbergCement access to such information, as this 
could be detrimental to Command Alkon’s reputation and thus to the value of 
Thoma Bravo’s investment.  
                                                 
94  Non-confidential minutes of a call with a customer held on 29 November 2021. See also: non -confidential 
response to question 30 from questionnaire Q2 (customers).  
95  Form CO, Annex 3.1.4 (section 13.4). 
96  Ibid. 
97  Form CO, Annex 3.1.3.  
98  Form CO, Annex RFI 1 28.4.  
99  Response to the (phase 1) request for information No. 7, question 1.  
 
25 (127) Third, this is consistent with the fact that the vast majority of customers who 
participated in the market investigation did not express concerns in this respect .100 
Likewise, a competitor of Command Alkon explained that “[it] considers unlikely 
that HeidelbergCement would want access to confidential information of its 
competitors via Command Alkon products. This would be technically possible, but unthinkable for the image of Command Alkon. Command Alkon customers outside 
Heidelber gCement will most likely also protect themselves contractually”.
101 This is 
also consistent with the Parties’ internal documents.102 
(128) Accordingly, the Commission takes the view that HeidelbergCement will lack the 
ability and incentive to access to competitively  sensitive information via Command 
Alkon post -Transaction. 
6. CONCLUSION  
(129) For the above reasons, the European Commission has decided not to oppose the 
notified concentration 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  
 
 
                                                 
100  According to 80% of the non-confidential opini ons expressed by customers, HeidelbergCement will not 
get access to competitively strategic information on its competitors post- Transaction (Non-confidential 
response to question 28 from questionnaire Q2 (customers)).  
101  Non-confidential minutes of a call with a competitor held on 5 January 2022.  
102  Annex RFI 4 Q.3.6 (slides 27- 28).