Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE  
Europese Commissie, DG COMP MERGER REGISTRY, 1049 Br ussel,   BELGIË  
 
Tel: +32 229 -91111. Fax: +32 229 -64301. E -mail: COMP -MERGER -REGISTRY@ec.europa.eu .  EUROPEAN COMMISSION  
Brussels, 31.7.2020  
C(2020 ) 5412 final  
PUBLIC VERSION  
 
To the notifying  party  
Subject : Case M. 9779 – Alstom /Bombardier Transportation  
Commission decision pursuant to Article 6(1)(b) in conjunction with 
Article 6(2)  of Council Regulation No  139/20041 and Article 57 of the 
Agreement on the European Economic Area2 
Dear Sir or Madam,  
(1) On 11 June 2020, the European Commission received a notification of a proposed 
concentration pursuant to Article 4 of the Merg er Regulation by which Alstom S.A. 
(France, hereinafter ‘Alstom ’ or the ‘Notifying Party ’) will acquire sole control of 
Bombardier Transportation (Investment) UK Limited (UK, hereinafter 
‘Bombardier ’), the rail solutions division of Bombardier Inc., by way  of acquisition 
of the entirety of the issued and o utstanding shares of Bombardier  (the 
‘Transaction ’). 3 Alstom and Bombardier are collectively referred to as the ‘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 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’).  
3  Publication in the Official Journal of the European Union No C 205, 19.6.2020 , p. 21. 
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information omitted has been replaced by 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 1. THE PARTIES  
(2) Alstom  is headquartered in France and listed on Euronext Paris Stock Exchange. It is 
active globally in the rail transport industry, offering a wide range of transport 
solutions, including activities in rolling stock and signalling.  
(3) Alstom’s  shares are currently  held by the Bouygues group (c. 15% and representing 
c. 2 5% of Alstom’s voting rights), institutional investors (77%), individual 
shareholders (7%) and by Alstom employees (1%). No shareholder holds an interest 
in its issued share capital that is sufficien t to confer control.  
(4) Bombardier, the global rail solutions division of Bombardier In c., is headquartered  
in Germany and offers a wide range of rail solutions, ranging from trains to sub -
systems and signalling. Bombardier has production, engineering and ser vice centers 
around the globe.  
(5) Bombardier’s shares are held by Bombardier Inc. (c. 64%) and by Caisse de dépôt et 
placement du Québec ( ‘CDPQ ’) (c. 36%).  
2. THE OPERATI ON 
(6) On February 17, 2020, Alstom, Bombardier  Inc. and CDPQ signed a memorandum 
of understandi ng, as further amended and restated on March 30, 2020 , in accordance 
to which, a fter the end of the information and consultation process of Alstom’s 
European Works Forum, which is expected to be completed by the end of the third 
quarter 2020, the Parties and CDPQ will formally sign a sales and purchase 
agreement. In addition, Alstom will formally sign investment agreements with both 
CDPQ and Bombardier  Inc. 
(7) Under the agreements to be signed pursuant to the memorandum of understanding , 
(i) Alstom will acquire the entirety of the issued and outstanding shares of  
Bombardier  and (ii) CDPQ and Bombardier Inc. will reinvest in Alstom the 
transaction proceeds they will receive from the sale of their stake in Bombardier, in 
return for non -controlling minority interest s in Alstom. Following the Transaction, 
Alstom’s share capital will be held by Bouygues (c. […]%), Bombardier Inc. (c. 
[…]%), CDPQ (c. […]%) and other shareholders ( […]%). N o shareholder will hold 
an interest in Alstom’s issued share capital that w ould be sufficient to confer control 
over Alstom.  
(8) The stated economic rationale for the Transaction is to create a more competitive and 
innovative global player in the rapidly transforming global mobility sector. The 
Notifying Party further explains that t he Transaction will reinforce Bombardier’s 
competitive and financial position which has recently been decreasing due to 
financial and project execution difficulties.  
3. CONCENTRATION  
(9) Following the Transaction, Alstom will hold the entirety of the issued and 
outstanding shares of, and sole control over, Bombardier.  
 
 
3 (10) The Transaction therefore constitutes a concentration pursuant to Article 3(1)(b) of 
the Merger Regulation.  
4. UNION  DIMENSION  
(11) The undertakings concerned have a combined aggregate world -wide turnover of 
more than EUR 5 000 m illion4 (Alstom: EUR 8  201 million; Bombardier: EUR 
7 396 million) . Each of them  has a n EU-wide turnover in excess of EUR 250 million  
(Alstom: EUR […]; Bombardier: EUR […]), but each does not achieve more than 
two-thirds of its aggregate EU-wide turnover within one and the same Member 
State. The notified operation therefore has a Union  dimension.  
5. MARKET DEFINITION – ROLLING STOCK  
5.1. Introduction  
(12) The Partie s’ activities in the EEA overlap in very high -speed, mainline and urban 
rolling stock (metros and trams/LRVs) , as well as maintenance. The Parties’ 
activities create vertical links in rolling stock components  and spare parts.   
5.2. Relevant markets  
5.2.1.  Product mark et definition  
5.2.1.1.  Very high -speed rolling stock  
(A) The Notifying Party’s view  
(A.i) Distinction between high -speed and very high -speed trains  
(13) The Parties consider that there is a single overall  product market for high -speed 
trains operating a t speeds of 250 km/h and ab ove and that trains capable of speeds at 
or above 300 km/h (‘very’  high-speed rolling stock) do not constitute a separate 
market.  
(14) First, the Notifying Party states that the same regulations apply to all trains capable 
of speeds at or above 250 km/h. In tha t reg ard, it  indicates that EU legislation and 
policy documents only provide definition and specific technical requirements for 
trains capable of speeds at or above 250 km/h, without specific references to trains 
capable of speeds at or above 300 km/h.5  
(15) According to the Notifying Party, once requirements for speeds of 250 km/h are met, 
most technical requirements do not differ between high -speed and very high -speed 
                                                 
4  Turnover calculated in accord ance with Article 5(1) of the Merger Regulation and the Commission 
Consolidated Jurisdictional Notice (OJ C95, 16.4.2008, p. 1).  
5  For instance, t he 2008 Interoperability Directive provides that high -speed vehicles include those 
circulating ‘at speeds of at least 250 km/h on lines specially built for high speeds, while enabling 
operation at speeds exceeding 300 km/h in appropriate circumstances. ” In addition, no reference is made 
to the 300 km/h speed threshold in the 2016 Interoperability Directive which describes high -speed 
infrastructures as that ‘equipped for speeds generally equal to or greater than 250 km/h. ’ 
 
 
4 trains.6 Any additional technical requirements (and any related costs) for reaching 
speeds a bove 300 km/h are incremental and are obtained through an extension of the 
same technology.7  
(16) Second, the Notifying Party states that high -speed rolling stock suppliers can 
develop new platforms or adapt existing platforms to allow for higher speeds. High -
speed rolling stock suppliers can  thus rely on their technical know -how and capacity 
to develop trains operating at higher speeds.8  
(17) In that regard, the Notifying Party submits that the speed increase does not require 
significant technical modifications. Operating speed only impacts a few components 
and sub -components, requiring replacement or adaptation in line with the new 
speed,9 and which represent a negligible part of the total platform costs. In addition, 
the overall trainset architecture and the int erior do not need to be change d, saving 
rolling stock suppliers significant cost and time. Furthermore, the Notifying Party 
considers that R&D investment to convert a high -speed platform into a very high -
speed one is limited  and a supplier having developed  a 250 km/h solution may 
participate in a very high-speed tender with very little upfront investment.10  
(18) Third, the Notifying Party considers that tender specifications and infrastructure 
costs do not provide a basis for distinguishing between high -speed an d very  high-
speed trains.11  
(19) In particular , the Notifying Party  claims that trains with maximum speeds below 300 
km/h can compete in tenders for trains capable of speeds of 300 km/h or above.12 
Conversely, trains capable of running at speeds above 300 km/h m ay compete in 
tenders for trains operating between 250 -300 km/h.13 In that regard, the Notifying 
Party indicates that multiple suppliers use the same platform i n both high -speed and 
very high -speed tenders .14 
                                                 
6  The Notifying Party states that there is only one additional technical specifications for interoperability  
requirement applicable when the platform speed exceeds 280 km/h (the use of a magnetic braking system 
is required). Other Technical Standards of Interoperability  requirements already applying to 250 km/h 
platforms may also become slightly more stringent a s the operating speed increases. However, according 
to the Notifying Party, these requirements are secondary compared to the technical standards associated 
with the 250 km/h speed threshold (Form CO, Chapter B.1, paragraph 18).  
7  For instance, the Techni cal Standards of Interoperability  set out different maximum breaking distances at 
different speeds from 150 km/h upwards, and which increase with the speed. This would not be a relevant 
distinguishing factor, in particular because various speeds do not nec essarily require different braking 
solutions (e.g., increasing the number of braking discs required for a very high -speed train compared to a 
high-speed train may be sufficient) (Form CO, Chapter B.1, paragraph 19).  
8  Form CO, Chapter B.1, paragraph 22.  
9  According to the Notifying Party, these components include, for instance, anti -yaw dampers, gearboxes 
ratio, on -board signalling systems, and power -bogies.  
10  Form CO, Chapter B.1, paragraph 23.  
11  Form CO, Chapter B.1, paragraph 25.  
12  For instance, while [Information on Alstom’s business strategy ]. 
13  For example, Alstom won the 2016 tender by Amtrak, for the Northeastern corridor with its Liberty 
platform, designed for maximum speeds of up to 300 km/h. The Liberty trainsets ordered by Amtrak are 
manufactured for maximum speeds of 300 km/h, but remain upgradable to 350 km/h, in view of the 
expected upgrade of sections the network between Washington, D.C. and Boston.  
14  Form CO, Chapter B.1, paragraph 24.  
 
 
5 (20) The Notifying Party further states that customers  for high -speed trains do not use 
300 km/h as a relevant threshold. In that regard, it indicates that maximum speed is 
often not the  main factor of choice for high -speed operators and that customers 
sometimes express their requirement in journey time rathe r than in terms of 
maximum speed. In addition, certain customers are interested in flexible rolling 
stock solutions with platforms capable of high -speed and very high -speed.15  
(21) In terms of  infrastructure, the Notifying Party considers that the Commission’s 
findings in its decision in case M.8677 - Siemens/Alstom  (hereinafter 
‘Siemens/Alstom ’) regarding the specific characteristics of tracks allowing for very 
high-speed travel16 and having higher construction costs17 are insufficient to warrant  
a distinction between high -speed and very high -speed trains. In that regard, it states 
that there is no general difference in construction costs between high -speed and very 
high-speed dedicated tracks, because each line has specific geographic and other 
considerations that may have an important impact on construction costs. Moreover, 
it states that there is a certain level of substitutability between  tracks dedicated to  
high and very high -speed s, since several trains that are not capable of speeds of 
300 km/h or above are operating on very high -speed tracks across the EEA.18  
(22) Based on the above, according to the Notifying Party, the question of a speed 
threshold within the high -speed market is not a decisive issue  from both supplier and 
customer perspectives .19  
(23) In any event, the Notifying Party considers that the question of a potential 
segmentation of the market between high -speed and very high -speed trains can be 
left open as the competitive conditions do not change materially regardless of the 
market defin ition.  
(A.ii) Distinctions in relation to the number of floors and to the traction system or 
architecture  
(24) The Notifying Party states that segmentations of high -speed rolling stock  based on 
the number of floors (single - or double -decker) and the traction system (d istributed 
traction or concentrated traction) or architecture (articulated or non -articulated) are 
not warranted.  
(25) With respect to traction system and architecture, the Notifying Party indicates not 
having determined any particular traction system or archi tecture type requirement in 
the high-speed and very high -speed rolling stock tenders in the past 10 years  at 
global level . In addition, it states that while many suppliers may only offer one type 
of traction and/or architecture, this does not prevent them from competing in tenders 
against suppliers whose offerings are based on different traction systems or 
architecture.20  
                                                 
15  Form CO, Chapter B.1, paragraph 30.  
16  Curve radius, cant deficiency/tilt, catenary construction, etc.  
17  9% more than a conventional railway.  
18  Form CO, Chapter B.1, paragraph 28.  
19  Form CO, Chapter B.1, paragraph 31.  
20  Form CO, Chapter B.1, paragraph 34.  
 
 
6 (26) With respect to number of floors, the Notifying Party indicates that most tenders do 
not include  any spec ifications related to single - or double -deck high -speed trains . 
Therefore , the Notifying Party considers that single -deck and double -deck platforms 
are typically perceived as substitutable from a customer standpoint and compete 
closely in most tenders.21 Finally, it submit s that the exact  market definition can be 
left open . 
(B) The Commission’s decisional practice  
(27) In Siemens/Alstom22, the Commission considered that, based on both supply and 
demand -side considerations, tender specifications and technical requirements show 
that high -speed rolling stock (trains capable of speed between 250 km/h and 299 
km/h) is not substitutable for very high -speed rolling stock  (trains capable of speed 
equal to and above 300 km/h) . It ultimately left the quest ion open  as the transaction 
raised competition issues under both conceivable definitions . 
(28) From a customer perspective, the Commission noted the existence of a specific 
demand for very high -speed rolling stock. In that regard, customers running train 
capabl e of speed at or above 300 km/h operate trains on dedicated tracks for very 
high-speed travels and require, in their  tender  specifications,  trains capable of very 
high-speeds.  
(29) From a supply -side perspective, the Commission notes that most suppliers have 
different platforms for high -speed and very high -speeds and that converting high -
speed platforms into very high -speed platforms23 takes several years and entails 
significant investment in R&D, engineering and development.  
(C) Results of the market investigation and the Commission's assessment  
(C.i) Distinction between high -speed and very high -speed trains  
(30) The Commission considers that the findings in relation to a possible segmentation of 
the high-speed rolling stock  market distinguishing very high -speed trains as 
explained in Siemens/Alstom  remain applicable  for the purpose of the present 
decision.  
(31) The results of the market investigation conducted in the present case thus confirmed  
that high -speed trains (capable of a speed equal to or higher than 250 km/h) are not 
substitutable with very high -speed trains (capable of a speed eq ual to or higher than 
300 km/h). The majority24 of respondents consider that  very h igh-speed  rolling stock 
belong to  a separate market, mainly because of  (i) their operational speed capacity 
and performance, which allow for travel at 300 km/h and above, (ii) dedicated lines 
                                                 
21  Form CO, Chapter B.1, paragrap h 36.  
22  Commission decision of 8 February 2018 in Case M.8677 – Siemens/Alstom , paras. 88 and 89.  
23  In Siemens/Alstom , the Commission assessed the technical and financial conditions surrounding the 
[Information on Alstom’s bidding strategy ] (recitals 83 to 87).  
24  Throughout this decision, when the Commission refers to the (number of) respondents in relation to a 
given question of the market investigation this excludes all respondents that have not provided an answer 
to that question or repl ied ‘I do not know’, unless stated otherwise. For  example, ‘a majority of 
respondents’ means a majority of respondents having replied to a given question and not having ticked ‘I 
do not know’.  
 
 
7 used to operate them , and (iii) specific technical requirements, price and inve stment  
needed to develop such rolling stock .25  
(32) From the  demand -side, major high -speed and very high -speed lines operators such as 
Ferrovie dello Stato  Italiane  (‘FSI’, Italy) and SNCF (France) confirm ed that very 
high-speed rolling stock constitute a separate relevant market.26 SNCF explained  in 
that regard tha t the condition of exploitation of high -speed and very high -speed 
rolling stock differ, and that trains running at speed below 300 km/h cannot be 
operated on very high -speed dedicated track without disturbing th e service. SNCF 
further explained  that the European Technical Standards of Interoperability ( ‘TSI’) 
specifications  for very high -speed rolling stock do differ and are more demanding 
than high -speed rolling stock (requiring, for example , that  mechanical parts  be of 
greater strength  for a very high-speed train than for a high-speed trains ). 
(33) On the other hand, s ome customers, including Deutsche Bahn (Germany), Nuovo 
Trasporto Viaggiatori  (‘NTV ’, Italy) and High Speed Two  (‘HS2’, United 
Kingdom), consider that a distinction between high -speed and very high -speed 
rolling stock may not be warranted .27 They indicate d that they operat e both kinds of 
fleets  and consider that technical requirements for running  high-speed and very high -
speed  do not significantly differ .  
(34) However, these customers  also recog nised that they  have a specific demand for very 
high-speed rolling stock  and that t hey would not procure a high -speed train to be 
operated on very high -speed  track s.28 This is because th e procurement of a very 
high-speed train aims at maximising the performance allowed by the railway 
infrastructure, which would not be possible with a high -speed train. For instance, 
HS2 indicate d that investments in very high -speed dedicated tracks aim to ‘HS2 Ltd 
is procuring very high -speed rolling stock capable of 3 60km/h operation on 
infrastructure designed for 360km/h operation. This is to maximise the capacity 
benefits of the  [very] high-speed infrastructure and achieve HS2 Ltd’s Sponsor 
Requirements (set by the UK Department for Transport). ’29 This is consistent w ith 
the Commission’s findings in Siemens/Alstom , where investments in very high -speed 
dedicated tracks were found to rely on major policy decisions and to involve 
substantial public spending in order to specifically achieve speeds that only very 
high-speed  trains can achieve.30  
(35) From the supply -side, a large majority of  rolling stock  suppliers agree that  multiple 
factors justify distin guishing  high-speed and very high -speed rolling stock markets .31  
(36) First, h igh-speed and very high -speed trains differ in perfo rmance. As stated in 
Siemens/Alstom , very high -speed trains are designed to travel long distances at 
speeds over 300 km/h  (other  high-speed trains are designed to travel at speeds 
between  250 km/h and cannot reach 300 km/h) . In order to achieve speeds above 300 
km/h, suppliers explained that very high -speed trains need  specific technological 
                                                 
25  Commission decision in Case M.8677 – Siemens/Alstom  (2018),  recital 61.  
26  Questionnaire 2  addressed to customers  in very high -speed rolling stock  (‘Q2”) , replies to question 5.  
27  Q2, replies to ques tion 5.  
28  Q2, replies to question 6.1.  
29  Q2, reply to question 6.1.  
30  Commission decision in Case M.8677 – Siemens/Alstom  (2018), recitals 66 -67.  
31  Questionnaire 1  addressed to competitors  in very high -speed rolling stock  (‘Q1”) , replies to question 4.  
 
 
8 development , such as sophisticated aerodynamic s, and strict safety requirement, such 
crash tests. In addition, r espondents  explain ed that the design and manufacture of a 
very high -speed train require  a specific combination of special pre -calculations and 
laboratory tests prior to performing track tests.32 
(37) Second , respondents to the market investigation  indicated  that customers generally 
speci fy the speed required ( i.e., at least 300 km/h in a v ery high-speed tender). In 
certain cases, customers request bidders to have a certified very high -speed platform 
in order to be capable to participate in the tender.33  
(38) Third , as a results of the above, t he technical and commercial development of a very 
high-speed platform with certified technology require more than 10 years and very 
significant investments , significantly higher than those needed to develop a high -
speed platform.  
(39) It follows  from the above  that very high -speed rolling stock appear to constitute a 
distinct relevant market. However,  it is not necessary to conclude on the precise 
delineation of the relevant product market for the assessment of the effects of the 
Transaction for the purpose of the present decision . For the reasons set out at 
paragraphs (281) , the Commission will focus  its competitive assessment  on the 
market for very high -speed (including a ll trains capable of a speed equal to or higher 
than 300 km/h).  
(C.ii)  Distinction in relation to traction system or architecture  and the number of 
floors  
(40) With respect to traction system or architecture, customers generally do not 
distinguish between traction sy stem or architecture type , allowing suppliers to 
compete in tenders with one or the other traction system. For example [Information 
on Alstom’s bidding strategy ] while Siemen s’ (ultimately winning) bid was based on 
a non -articulated solution (Velaro e320).   
(41) With respect to the number of floor, the Commission notes that Alstom is currently 
the only supplier offering double -decker platforms. Given that most tenders do not 
distinguish between the number of floors in their specification, [Information on 
Alstom’ s bidding strategy ].  
(42) As a result, the Commission considers that no segmentation on the basis of (i) the 
type of traction of train architecture and (ii) the number of floors is warranted for the 
purpose of defining the relevant market  in the present case .  
5.2.1.2.  Mainline  rolling stock  
(43) Mainline  rolling stock  comprise trainsets used for a variety of distances, including 
around and between cities, across country borders, and running on large networks of 
conventional tracks typically shared between several railway operators (i.e. , the 
mainline rail network). The defining feature of mainline trains is their self -propelled 
nature, meaning that power is distributed through several motors along the train.  As 
a result, mainline trains can accommodate passengers in all ca rs and do not have 
                                                 
32  Q1, replies to question 4.1.  
33  Q1, reply to question 4.1.  
 
 
9 dedicated vehicles with no passenger access (such as locomotives) at the front and 
end of the train that provide the pull.  The traction can be powered through different 
sources, including, among others, by drawing power from overhead cat enaries to 
power electrical multiple units ( ‘EMUs ’) or by on -board diesel -engines (diesel 
multiple units ( ‘DMUs ’)).34  
(44) Mainline trains are distinct from high -speed trains (running at speeds at or above 250 
km/h) and urban trains running on urban networks an d covering mass transit within 
cities.   
(A) The Notifying Party’s view  
(45) The Notifying Party indicates that , as established by the Commission in 
Siemens/Alstom,35 mainline trains differ from high -speed trains on the basis of 
regulatory and technical differences r elated to maximum speed.36 It explains that 
trains travelling at or above 250 km/h must respect additional technical 
specifications under the TSI. Nevertheless, in the Notifying Party’s view, it cannot 
be excluded that future intercity tenders will not be c onstrained by competition from 
250 km/h high -speed trains . The Notifying Party argues that a lthough high -speed 
and intercity trains are not part of the same market, high -speed trains can be offered 
for intercity tenders as long as they meet the customer’s tender requirements 
(including those related to price) and that h igh-speed trains can be authorised , and 
therefore operated, at speeds below 250 km/h.37 
(46) The Notifying Party submits that mainline trains differ from metros due to the 
network on which they ope rate. While metros operate on closed urban mass transit 
networks, mainline trains operate on mainline networks covering transport between 
city centers and suburban areas, different cities, regions, and countries. Moreover, 
mainline trains are characterized  by higher speeds, less frequent stops, lower 
passenger capacity, and higher comfort level compared to metros .38 
(47) The Notifying Party considers that there is no clear segmentation between regional 
and intercity trains based on supply -side characteristics but  that there may be certain 
differences from a demand -side perspective.39  
(48) The Notifying Party puts forward a number of arguments against distinguishing  
regional from  intercity trains , including the  absence  of an y commonly  accepted 
industry definition and the substitutability of product lines between regional and 
intercity trains from a supply -side perspective . In particular, the Notifying Party 
asserts that a ll major players are already active in both markets . The r emaining 
                                                 
34  Form CO, Chapter B.2, paragraph 11.  
35  Commission decision in Case M.8677 – Siemens/Alstom  (2018) , recitals  57-59. 
36  Form CO, Chapter B.2, paragraph 15.  
37  Form CO, Chapter B.2, paragraph 15. The Notifying Party refers to the following examples: [Information 
on Alstom’s bidding data ], the Parties understand that [Information on the Parties ’ bidding data ]. Alstom 
has also [Information on Alstom’s bidding strategy ]. 
38  Form CO, Chapter B.2, paragraph 15.  
39  Form CO, Chapter B.2, paragraph 19.  
 
 
10 regional -only suppliers can easily  expand into the intercity market  in view of the 
limited technical and regulatory differences between regional and intercity trains.40  
(49) Furthermore, the Notifying Party argues that suppliers can upgrade regional trains 
for operation at intercity speeds with  limited costs .41 The Notifying Party explains 
that intercity speeds are often already incorporated into the pre -design of regional 
trains .42   
(50) In relation to the distinction between EMUs and DMUs, the Notifying Party 
recogni ses that they may constitute sepa rate product markets.43 The Notifying Party 
also explains that new technologies are emerging, including bimode trains which 
operate on routes consisting of both electrified and non -electrified lines within a 
single journey without stops or changes by switch ing between electrical traction and 
diesel engine power.44 Other technologies are hydrogen fuel -cell trains that provide 
an emission -free alternative t o DMUs on non -electrified lines, and BEMUs on the 
other hand, provide emission -free alternatives to bimode  trains which operate on 
both electrified and non -electrified lines to avoid interchanges on a route.45 
(51)  In any event, the Notifying Party explains that the Parties’ activities only overlap in 
EMUs as Bombardier has not supplied any DMU trains in the past 1 0 years and does 
not have a DMU train in its portfolio.46 
(52) In the Notifying Party’s view, single -decker and double -decker trains are not likely 
to constitute separate markets .  
(53) From the demand -side perspective, customers’ requests for tenders typically do no t 
contain specific architecture requirements as customers tender projects based on 
capacity requirements and are willing to consider both single - and double -decker 
architectures. The Notifying Party explains that suppliers decide on the architecture 
of the ir offer taking into account customers’ capacity and length requirements and 
infrastructural constraints (e.g., platform length), and their existing portfolio . 
According to the Notifying Party, on a limited number of occasions, suppliers 
offered different architectures in the same project.47  
(54) From the supply -side perspective, the Notifying Party submits that all major 
suppliers have single - and double -decker platforms in their portfolio.48 Furthermore, 
the Notifying Party considers that the recent trend for m ixed train configuration 
                                                 
40  Form CO, Chapter B.2, paragraphs 21 -23. According to the Notifying Party, intercity and regional trains 
are generally subject to the same technical and regulatory standards, evidenced by mainline platforms, 
capable of addressing both speeds (such as Stadler’s FLIRT and CAF’s Civity solutions).  
41  The Notifying Party estimates that [Information on Bombardier’s business strategy ]. See Form CO, 
Chapter B.2, paragraph 23.  
42  Form CO, Chapter B.2, paragraph 23.  
43  Form CO, Chapter B.2, paragraph 27.  
44  Form CO, Chapter B.2, footnote 61.  
45  Form CO, Cha pter B.2, footnote 62.  
46  Form, CO, Chapter B.2, paragraph 28.  
47  Form CO, Chapter B.2, paragraph 31. The Notifying Party refers to the following examples of suppliers 
offering different architecture in the context of the same project: [Information on Bombardier’s and its 
competitors’ bidding strategy and bidding data ]. 
48  The Notifying Party lists the following competitors that offer both single - and double -decker platforms: 
Stadler, Siemens, CAF, Hitachi , and Skoda .  
 
 
11 platforms (i.e., platforms that combine both single - and double -decker cars) further 
blurs the distinction between single - and double -decker trains49. 
(55) The Notifying Party submits that the competitive assessment should be carried out  
by combining speed (intercity/regional) and propulsion (EMU/DMU) in order to 
reflect commercial reality in tenders. In the Notifying Party’s view, customers 
always specify both the maximum operating speed and power supply requirements 
in their tender spec ifications50.  
(56) The Notifying Party indicates, nonetheless, that the market definition can be left 
open as the Transaction does not give rise to any competition concerns regardless of 
the precise delineation of the relevant market.  
(B) The Commission’s decisional practice  
(57) In previous decisions, the Commission distinguished between self -propelled trains 
and locomotive -hauled trains (so -called push -pull trains) and considered separate 
product markets for self -propelled trains, locomotives, and passenger co aches.  
(58) The Commission also distinguished self -propelled mainline trains from high -speed 
trains designed to travel long distances at speeds of more than 250 km/h  on 
conventional tracks.51 
(59) The Commission considered additional segmentations within mainline rol ling stock. 
In case Bombardier/AdTranz , the Commission drew a distinction between intercity 
and regional trains in light of differentiating features and separate requirements from 
the demand -side.52 Within the intercity and regional rolling stock markets, t he 
Commission examined but left open further sub -segmentations according to the type 
of traction (EMUs / DMUs ) and number of decks ( single / double -deckers) .53 
(C) Results of the market investigation and the Commission's assessment  
(C.i) On segmentations of the relev ant market  
(60) First, with regard to the cut -off point between mainline and high -speed trains, the 
results of the market investigation confirm the Notifying Party's view that the 
definition of intercity rolling stock  should exclude trains capable of travellin g at a 
maximum speed of exactly 250 km/h. Therefore, for the purpose of the present 
decision, only trains capable of a maximum speed below 250 km/h will fall in the 
mainline rolling stock category.54 
                                                 
49  According to the Notifying Part y, examples of mixed train configuration platforms include the Siemens’ 
Desiro HC, Bombardier’s Omneo, and […]. See Form CO, Chapter B.2, paragraph 32.  
50  Form CO, Chapter B.2, paragraph 36.  
51 The Notifying Party considers that trains travelling at exactly  250 km/h should be categorised as high -
speed trains and excluded from the market for mainline trains.  
52 Commission Decision in Case M.2139 – Bombardier/ADtranz  (2001), recital 11.  
53  Commission Decision in Case M.580 – ABB/Daimler -Benz  (1995) ; Commission Decision in Case M.2139 
– Bombardier/ADtranz  (2001), recitals 7 -12. 
54  Q1, replies to question 3; Q2, replies to question 4.  
 
 
12 (61) Second , with regard to the distinction between self -propelled and locomotive -hauled 
trains, a large majority of respondents confirms  that distinction.55 This is due to the 
fact that locomotive -hauled trains consist of essentially two products, wagons and a 
locomo tive, whereas self -propelled trains consist of a single trainset involving 
inherently different  and more sophisticated  technology. Accordingly, from the 
demand -side, self -propelled and locomotive -hauled trains are used for different 
services and involve di fferent exploitation and maintenance facilities and 
management.56 
(C.ii)  On market segmentations in mainline rolling stock  
(C.ii.a)  Regional and intercity trains  
(62) As regards the possible segmentation of the market for mainline rolling stock into 
regional and intercity trains, a majority of respondents to the market investigation 
(both customers and competitors ) considered  that regional and intercity trains are not 
substitutable.57 Respondents note that  intercity and regional trains hav e distinct 
features and answering to different customer needs in terms of speed, number of 
stops, distance operated, passenger capacity, passenger comfort and accessibility .58  
(63) When procurin g mainline trains, customers typically distinguish in tender 
specifications between regional and intercity trains in view of requested speed and 
other characteristics .59 Despite a certain degree of overlap between products in each 
market in terms of maximum  speeds (certain regional trains being capable/operating 
above 160 km/h), customers consider that the distinction remains valid due to their 
different features (interior layout and amenities) and technical charac teristics, 
predominantly speed but also capa city, length, number of doo rs, and other features.60 
Arriva Tog AS explains that ‘although there is some cross -over, in general the 
characteristics of an intercity train (high speed, few passenger doors, large seat 
spacing, kitchen provision etc.) are diffe rent to those of a regional train (lower 
speed, more doors to facilitate rapid boarding, closer seat spacing) ’.61 This view is 
also supported by competitors.62 
(64) With regard to speed, even in the absence of an industry definition or a technical 
segmentation at  the 160 km/h speed mark, the results of the market investigation 
largely confirm  that a distinction between trains capable of operating at speeds above 
and below 160 km/h is valid.63  
(65) Nevertheless, customers also confirm that trains initially designed for 
regional/commuter traffic but with intercity configurations built into their pre -design 
may be competitive in intercity tenders if the other r equirements listed at paragraph 
                                                 
55  Q3 – Questionnaire to co mpetitors – Mainline Rolling Stock (“Q3”), replies to question 3.1; Q4 – 
Questionnaire to customers – Mainline Rolling Stock (“Q4”), replies to question 4.1 and 4.1.1.  
56  Q4, replies to questions 4.1 and 4.1.1  
57  Q3, replies to question 3.4.; Q4, replies to question 4.3 . 
58  Q3, replies to question 3.3.1.1; Q4, replies to question 4.3.1.  
59  Q4, replies to que stions 5, 5.1, 6, and 6.1.  
60  Q3, replies to questions 3.3, 3.3.1, 5.1; Q4, replies to questions 4.3, 4.3.1 and 4.3.1.1.  
61  Q4, Arriva Tog’s reply to question 4.3.1.  
62  Q3, replies to question 3.3.1.  
63  Q3, replies to question 4.1.  Q4, replies to questions 6, 6.1, 8. 
 
 
13 63 are fulfilled.64 Several competitors also sh are this view .65 Hitachi Rail (“Hitachi”)  
thus considers that ‘trains designed for regional/commuter service may be 
competitively proposed in a tender for intercity/long -distance trains (and vice -versa) 
if they have been conceived, at a pre -design level, fo r operation on both kinds of 
routes ’.66 
(66) From the supply -side perspective, the results of the market investigation indicate that 
several competitors already provide platforms capable of operating as both regional 
and intercity trains (e.g., Stadler , Hitachi,  CRRC ).67 Respondents to the market 
investigation generally  consider ed that, unless intercity configurations are pre -
designed,  upgrading existing platforms intended for regional/commuter traffic to 
travel above 160 km/h  is a lengthy and costly process which  can take around 3 -4 
years. In addition, such an upgrade would require re -homologation68 and obtaining 
regulatory approvals.69 Nevertheless, the results of the market investigation 
confirm ed that some of the Parties’ competitors have already carried out such an 
upgrade (e.g., Stadler and Construcciones y Auxiliar de Ferrocarriles, S.A  
(“CAF ”).70  
(67) In contrast , adapting a regional train with built -in intercity configurations to travel at  
interci ty speeds can be carried out with more limited cost and within a shorter 
timeframe as compared to the upgrade of a regional train without such 
configurations.71 Siemens explains that ‘the inclusion of higher speeds in a train pre -
design phase means that a s peed upgrade can be achieved more quickly and at lower 
costs (e.g. adapting traction power and gearbox) compared to a pre -design that does 
not foresee a speed upgrade ’.72 Furthermore, several  suppliers offer regional  trains 
with intercity  configurations  in pre-design ( e.g., Siemens, CAF , Hitachi and Stadler). 
Hitachi explains that ‘the existing train platforms intended for regional/commuter 
traffic with intercity configurations built in their pre -design can be easily adapted in 
terms of time and cost to be o perated in intercity traffic if a clause -by-clause 
analysis of the subsystems requirements and the eventual adaptive redesign and 
homologation -related activities are carried out ’.73 
(68) Competitors that responded to the market investigation indicate d that any upgrade of 
an existing platform designed for regional traffic (irrespective of additional 
configurations included in their pre -design) maybe limited to a maximum speed of 
200 km/h, beyond which more substantial modifications would be required.74 
                                                 
64  Q4, replies to questions 5.1 and 6 . 
65  Q3, replies to questions 6 and 6.1.  
66  Hitachi’s response to Q3, question 5.1.  
67  Q3, replies to question 7. Based on the Notifying Party’s submission, Bombardier’s Omneo platfo rm is 
also capable of operating at regional and intercity speed.  
68  “Homologation” of a platform is the term commonly used in the railway. In this decision, the Commission 
indifferently uses the terms “homologation” and “authorisation”.  
69  Q3, replies to  questions 8.1.1 -8.1.5.  
70  Q3, replies to question 8, 8.1.6.  
71  Q3, replies to question 9.1.1.  
72  Siemens’ response to Q3, question 9.1.1.  
73  Hitachi’s response to Q3, question 9.1.1.  
74  Q3, replies to questions 8.1.1 and 9.1.1.  
 
 
14 (69) Furthermore, several competitors indicate d that intercity trains can be operated at 
lower speed and used for regional/commuter traffic.75 
(70) Therefore, t he Commission is of the view that regional rolling stock that include  
intercity  configurations  in pre -design  may constitute a competitive constrain when 
customers demand intercity trains and vice -versa.  For the purpose of this decision, 
the Commission considers that  the exact product market definition (i.e., whether 
overall market for mainline rolling stock or s egmented into regional and intercity 
trains ) can be left open . The Commission carries out the competitive assessment in 
section 6.3 of this decision in all plausible markets.  
(C.ii.b)  EMUs and DMUs  
(71) The Commission notes that a large majority of respondents agree th at EMUs should 
be distinguished from DMUs.76 EMUs have distinctive technical features and answer 
to different customer needs, DMUs being more expensive and only operated where 
tracks are not electrified. Environmental impact and fuel economy are cited as 
differentiating aspects.  
(72) Several  respondents also indicate that other technologies are emerging such as bi -
mode and hybrid (electric -diesel) as well as alte rnative self -propelled power sources 
(battery, fuel -cells, other) multiple units .77 The Commission considers that the new 
technologies blur the dis tinction between EMUs and DMUs. For example, bimode 
trains operate on routes including both electrified and no n-electrified lines without 
switching between electrical traction and diesel engine power and they thus compete 
with both EMUs and DMUs. Therefore, a distinction between EMUs used for 
electrified lines and DMUs required when the lines are not electrified i s not 
warranted.  
(73) However , for the purpose of this decision, the Commission considers that  the exact 
market definition of self -propelled mainline trains  can be left open (i.e., whether 
separate markets for  EMUs and DMUs  or a single market comprising all typ es of 
traction)  because  the conclusion of  the competitive assessment remains the same 
under any plausible product market definition.  
(C.ii.c)  Single -decker and double -decker  
(74) With regard to the possible distinction by number of decks, most  respondents 
indicated that single - and double -decker rolling stock display  technical, price and 
capacity differences .78 However, f rom the demand -side perspective, a majority of 
customers use single - and double -decker interchangeably on the same routes 
depending on capacity requirements.79 The main factors driving demand for double -
decker trains, according to  the results of the market investigation, include capacity 
                                                 
75  Skoda’s response to Q3, question 8.1.1.  
76  Q3, replies to question 3.2; Q4, replies to question 4.2.  
77  Q3, replies to question 3.2.1; Q4, replies to question 4.2.1.  
78  Q3, replies to question 3.4; Q4, replies to question 4.4.  
79  Q3, replies to question Q4, replies to questions 9  and 9.1.  
 
 
15 requirements, configurations of the rail infrastru cture, vehicle length requirements, 
level acces s and price .80  
(75) Furthermore, t here are mixed views as to whether customers specifically re quest 
double -deckers in tenders . Some customers indicate d that they specifically requested 
double -decker trains in tenders, while others responded that they neither requested 
nor exc luded procuring double -decker trains.81 Arriva Tog  confirms that in some 
instances suppliers may determine the train architecture based on customers’ 
capacity requirements: ‘Generally, when specifying rolling stock, we would look to 
specify a passenger capa city and then the physical characteristics of the 
infrastructure that the rolling stock needs to be compatible with. It would then be up 
to the rolling stock manufacturers to propose the type of unit that meets this 
specification – whether it be single or double deck. There may be occasions when a 
contracting authority requests specific double or single deck, in which case we 
would include that requirement in our specification ’.82 SNCF also considers that it 
does not explicitly specif y if single - or double -deckers will be procured and that 
‘manufacturers adapt their offers according to the need expressed in terms of 
passenger carrying capacity ’.83 
(76) From the supply -side perspective, some competitors explain that substitution 
between single - and double -decker trains is constrained by technical, structural 
differences and architectures.84 Stadler expressed the view that ‘from the perspective 
of a supplier, switching production from single -deck to double -deck rolling stock 
entails significant time and investment b ut it is technically and commercially 
feasible ’.85  
(77) Respondents consider ed that the investment  required to start  manufactur ing double -
decker platforms would be consistent with the manufacturing of any new 
train/platform .86 Respondents  explain ed that engineer ing know -how specific to 
double -decker trains may be required but also provide d the example of suppliers 
who developed low -cost double -decker trains  or used internal  engineering capacity  
and facilities already employed in the manufacturing of single -decker s to develop 
double -deckers .87  
(78) The Commission  also observes that a large number of the Parties’ competitors 
already supply both single - and double -decker train s (including Stadler, Siemens, 
CAF, Hitachi  and Skoda ).88 Furthermore, as indicated by  the Notifying Party, the 
existence of trains co mbining  both single -decker and double -decker cars (such as 
Bombardier’s Omneo, Siemens’ Desiro  and […]) may render a distinction between 
single - and double -decker trains less relevant . 
                                                 
80  Q4, replies to question 4.4.1, 9.1.1 and 10.  
81  Q4, replies to question 11.  
82  Arriva Tog’s response to Q4, question 11.1.  
83  SNCF’s response to Q4, question 4.4.1.  
84  Siemens’ response to Q3, question 12.1.  
85  Minutes of conference call with Stadler, 24 March 2020, paragraph 8.  
86  Q3, replies to question 13.1.1.  
87  Siemens’ response to Q3, questions 13.2.1 and 13.3.  
88  Q3, replies to question 12.1.  
 
 
16 (79) The Commission thus con siders that, for the purpose of the present decision,  on 
balance, a distinction between single -decker and double -decker trains is not 
warranted. The Commission will carry out the competitive assessment in the overall 
market without further segmentations ba sed on train architecture.  
(80) In view of the considerations set out at paragraphs 60-79 above, for the purpose of 
the present d ecision, the Commission will conduct its competitive assessment of the 
mainline rolling stock markets considering that self -propelle d mainline trains are 
distinct from locomotive -hauled trains . Within  the market for self -propelled trains 
(segmented on the basis of traction), the Commission will assess both the overall 
market for self -propelled mainline trains and the separate market fo r EMUs (where 
the Transaction creates a horizontal overlap). The Transaction's impact in regional 
and intercity trains and will also be considered both on  a single market and on 
hypothetical separate markets, so as to cover all conceivable hypotheses . 
5.2.1.3.  Urba n rolling stock  
(81) Urban rolling stock comprise railway vehicles used for mass transit and operating 
within cities, typically on closed networks, separate from mainline networks, that are 
not shared between operators or with freight rail transport. Urban roll ing stock is 
characterised by lower speeds, more frequent stops, and/or high passenger capacity.  
(82) Urban rolling stock comprises trams and LRVs, metros and automated people 
movers. The Parties' activities overlap in trams , LRVs and metros.  
(A) Metros  
(83) Metros are automated or non -automated (‘conventional ’) electric vehicles operating 
within a city centre on segregated tracks, typically underground.  
(A.i) The Notifying Party’s view  
(A.i.a)  Segmentation between rubber tyre  and steel wheels metros  
(84) The Notifying Party considers that steel wheel and rubber  tyre metros may constitute 
separate markets given differences which hinder supply  and demand substitutability.  
(85) From a demand -side perspective, the Notifying Party explains that customers 
typically require a specific t ype of wheel  in their tender specifications. Their choice 
is driven by the various technical and operat ional differences between steel wheel 
and rubber  tyre met ros. For instance, while rubber tyre metros can navigate steeper 
slopes due to their well -adjusted grip and gen erate less noise, they are less energy 
efficient and have higher  maintenance costs than steel  wheel metros . The Notifying 
Party further states that rubber  tyre metros are niche projects, with only seven new 
projects globally in the past 10 years, of which only five took place in the EEA.89  
(86) From a supply -side perspective,  the Notifying Party indicates that  there are several 
distinctions between rubber  tyre and steel wheel metros. The primary difference is 
                                                 
89  Form CO, Chapter B.3, paragraph 19. Within the EEA there is no demand for rubber tyre project s outside 
of France with the exception of one single project in Italy (Turin). The Notifying Party further notes that 
there is also demand in Switzerland  (Lausanne ).  
 
 
17 the use of different bogie technology  and train archi tecture (namely the weight limit 
per axle ), which impacts the length and width of each car.  As a result, there is limited 
technical overlap between rubbe r tyre and steel  wheel metros.  The Notifying Party 
further states that not all steel  wheel metro suppliers are active in the market for 
rubber tyre metros.90  
(87) The Notifying Party considers that t he exact market definition can be left open as the 
Proposed Transaction does not give rise to any competitive concerns, regardless of 
the market de finition.  
(A.i.b)  Segmentation between automated and conventional metros  
(88) The Notifying Party consider s that a segmentation between automated and 
conventional  metros  is not warranted.  
(89) From a supply -side perspective,  the Notifying Party states that  there are no 
significant differences between automated and conventional metros, which are based 
on the same platform, have the same car type, are produced with the same equipment 
and have the same key components (car bodies, bogies, traction, brakes converters, 
etc.). The  majority of the principal components are shared between the conventional 
and automated versions of the same platform.91 Accordingly, suppliers’ current 
platforms are typically designed with both automated and conventional versions. 
Therefore, s uppliers par ticipate in both automated and conventional projects with 
different versions of the same platform.92  
(90) Furthermore, in terms of pricing, the Notifying Party estimates that the price 
difference between the automated and conventional configuration of the same 
platform does not exceed [5-10]%. Moreover, there is no need for a supplier to have 
a signalling business in order to supply automated metros. Even in cases where the 
rolling stock and signalling system  are procured in the same tender, players that do 
not have their own independent signalling businesses can team up with others 
through consortia or sub -contracting in order to provide a complete offer.93  
(91) From a demand -side perspective , the Notifying Party considers that t he difference 
between automated and conventional metros is blurred by customers, who 
sometimes requires metros which can be operated with a driver but with already all 
the necessary equipment and software to be operated in automated mode. Such 
solutions ar e requested where the customer envisages upgrading its lines to a fully 
automated system. Driverless -ready metros can easily be switched to automated 
operation without manual changes.94 
                                                 
90  Form CO, Chapter B.3, paragraph 19.  Alstom and Siemens were the sole supplier s of rubb er-tire metros in 
the EEA in the past 10 years .  
91  Alstom estimates that c. 95% of components are used in both automated and conventional metros. The 5% 
of components which are specific to automated metros concern additional antennas (used for the on boar d 
units to communicate with the wayside equipment), e mergency communication devices  and r emote -
controlled safety systems  (Form CO, Chapter B.3, paragraph 29).  
92  Form CO, Chapter B.3, paragraphs 26 to 28.  
93  Form CO, Chapter B.3, paragraphs 31 -32.  
94  Form CO, Chapter B.3, paragraph 34.  
 
 
18 (92) In any event, the Notifying Party considers that the exact market defin ition can be 
left open as the Transaction does not raise competitive concerns regardless of the 
exact segmentation.  
(A.ii) The Commission's decisional practice  
(A.ii.a)  Segmentation between metros and other trains  
(93) In previous cases, the Commission identified a relevant product market for 
‘underground vehicles ’ which is separate from other types of trains such as 
trams/LRVs and mainline trains.95 
(94) In its decision in case Metronet/Infraco , the Commission assessed whethe r the 
supply of metros and the supply of mainline trains constitute two separate relevant 
markets. The Commission found that there are different standards and specifications 
between metros and mainline vehicles. However the Commission also considered 
that vehicle suppliers are frequently the same  companies, which suggests the 
existence of a unified mainline / metro market. The Commission ultimately left this 
question open.96 
(A.ii.b)  Segmentation between metros  and people movers  
(95) In previous cases , the Commission identified a separate market for automated guided 
transport and automatic or airport people movers, distinct from the market for the 
supply of metros. The Commission defined people movers as completely automated 
vehicles that form part of an integrated transit  system carrying passengers often in 
the context of terminal airports. As travel times are shorter and passengers may be 
carrying luggage, quick loading and unloading are crucial, which is why they are 
fitted with large doors and little seating capacity.97  
(A.ii.c)  Segmentation between rubber tyres and steel wheels metros  
(96) In previous cases, the Commission defined the relevant market of ‘underground 
vehicles or met ros’ as electric vehicles that ‘run o n either steel or rubber wheels ’. 
This definition thus considers ru bber tyres and steel wheels metros to belong to the 
same product market.98 
(A.ii.d)  Segmentation between automated and conventional metros  
(97) The Commission has not previously considered a distinction between automated and 
conventional metros.  
                                                 
95  Commission Decision in Case M.2139 - Bombardier/Adtranz  (2001), recital 7.  
96  Commission Decision in Case M.2694 - Metronet/Infraco  (2002), recitals 26 and 27.  
97  Commission Decision in Case M.685 - Siemens/Lagardère  (1996), recital 16; Commission Decision in 
Case M.2139 - Bombardier/Adtranz  (2001), recital 15; Commission Decision in Case M.7871 - 
Bombardier/CDPQ/Bombardier Transportation UK  (2016), recital 22.  
98  Commission Decision in Case M.2139 - Bombardier/Adtran z (2001), recital 14.  
 
 
19 (A.iii)  Results of the market investigation and the Commission's assessment  
(A.iii.a)  Segmentation between metros and other trains  
(98) The results of the market investigation confirm ed that metros constitute a product 
market distinct from other rolling stock, in particular trams/LRVs and mainline 
trains.  
(99) With respect to trams/LRVs, the vast majority of respondents to the market 
investigation (both customers and competitors ) consider that metros and trams/LRVs 
constitute distinct product markets , due to different operating speed, passenger 
capacity  and the fact that , unlike trams/LRVs, the metro infrastructure is usually 
segregated from overground traffic .99  
(100)  In addition, respondents indicate d that, compared to trams/LRVs,  metros carry a 
higher number of passengers, the stops between metro stations must be as short as 
possible, requir e larger doors entrances and higher performances for acceleration and 
braking.100 
(101)  With respect to mainline trains , the vast majority of respondents to the market 
investigation similarly indicate d that metros and mainline trai ns constitute distinct 
product market.101 Respondents (both customers and competitors) mostly mention ed 
differences in terms of speed (lower for metros ), segregated tracks for metros  and 
requirement of higher acceleration/deceleration rate for metros than for mainline 
trains . Moreover, mainline trains serve stations that are much further apart than 
metros, while also covering longer distances overall than metros.102 
(102)  In light of the results of the market investigation, t he relevant product market for the 
purpose of this decision is the market for the manufacture and supply of metros, 
excluding other rolling stock such as trams/LRVs and mainline trains.  
(A.iii.b)  Segmentation between metros and automated  people movers  
(103)  From both a demand and supply -side perspective, the large majority of respondents 
to the market investigation confirm that metros and automated people movers 
constitute distinct product markets.103  
(104)  Metros and  automated  people movers have different  trainset infrastructure s, capacity 
and speed s. People movers a re smaller and have less passenger capacity than metros. 
Moreover, automated  people movers have dedicated transport uses (e.g. airport 
terminal connections, theme park transport, etc.), while metros serve passenger 
transport covering large parts of major c ities.104  
                                                 
99  Questionnaire 8 addressed to competitors in urban rolling stock (“Q8”), replies to ques tion 3; 
Questionnaire 9 addressed to customers in urban rolling stock (“Q9”), replies to question 3.  
100 Q9, replies to question 4.1.  
101 Q8, repl ies to question 4; Q9, replies to question 4 . 
102 Q9, replies to question 4.1.  
103 Q8, replies to question 5; Q9, rep lies to question 5.  
104 Q8, replies to question 5.1.; Q9, replies to question 5.1.  
 
 
20 (105)  In addition, m etros and automated  people movers correspond to distinct tender 
specifications.105 Specifically, if a supplier w as to offer a metro platform in a tender 
that required a n automated  people mover, the majority of respondents to the market  
investigation explained that such offer would likely not be eligible and/or 
competitive.106  
(106)  During the investigation, a competitor held the view that, from the supply -side, 
automated  people movers and automated rubber -tyre metros with low/medium 
capacity107 are substitutable. According to this competitor , automated  people movers 
and automated rubber  tyre metros can compete in particular in greenfield projects, 
where the customer can make an infrastructure decision in order to fit either type of 
rolling stock .108  
(107)  However, this statement is not supported by evidence gathered in the course of the  
investigation. The Notifying Party explained that customers require different designs 
for automated people movers or automated  rubber tyre metros (such as door size and 
seating capacity), so that suppliers develop different solutions.109 Another supplier 
confirm ed that automated  people movers or automated  rubber tyre metros are not 
substitutable, as they address  different service needs , which require  different 
technical cha racteristics. Automated  people movers are simple vehicles that operate 
in very specific proprietary system with very short distances (i.e., in airports or in 
some specific city locations) while automated rubber  tyre metros with low/medium 
capacity correspo nd to metro systems (same type of line lengths, distance between 
stations, headways) but with a lower passenger transport capacity.110 In addition, the 
limited number of specific tenders for which certain metro suppliers would be able to 
adjust their metro p latform to compete in automated people mover tenders is limited 
to exceptional cases. In the case of Alstom, [Information on Alstom’s bidding data ]. 
Therefore, this constituted the exception and not the common industry practice.111  
(108)  These explanations are consistent with  the overall results of the market investigation , 
which  indicate d that automated  people movers and automated  rubber tyre metros  
belong to distinct relevant markets , both from a demand and a supply -side 
perspective .112  
(109)  It follows from the above that t he relevant product market for the purpose of this 
decision is the market for the manufacture and supply of metros, excluding other 
rolling stock  such as people movers.  
                                                 
105  Q8, replies to questions 6 and 7.  
106 Q8, replies to questions 8.1. and 8.2.; Q9, replies to question 8.1.  
107  Also called L ow Capacity Driverless Metros (‘LCDMs’ ).  
108  Reply  to RFI 24. For instance, the competitor indicates one project in the EEA, the 2012 Lille tender, in 
which Alstom’s modified RTMs platfo rm competed against Bombardier’s Innovia APM solution, 
concerning the replacement of the rolling stocks for a legacy VAL system provided by Siemens in 1983.  
109  Reply to RFI 37.  
110  CAF, submission on 8 July 2020.  
111  In that regard, the Commission notes tha t Alstom’s bid in the 2012 Lille tender was made with 
[Information on Alstom’s business strategy ].  
112 Q8, replies to questions 8.1. and 8.2.; Q9, replies to question 8.1.  
 
 
21 (A.iii.c)  Segmentation between rubber tyre and steel wheel metros  
(110)  The market investi gation provided mixed results as to a possible distinction b etween 
rubber tyre and steel  wheel metros.  
(111)  From a demand -side perspective, half of the customers that responded to the market 
investigation  consider that rubber  tyre and steel  wheel metros consti tute separate 
markets, while the other half support s the opposite view. However, most customers 
also explain ed that they have limited knowledge in that regard, consideri ng that they 
only operate steel wheel metros. It is worth nothing that RATP, a very imp ortant 
urban rolling stock operator of both rubber tyre and steel  wheel metros, indicated  
that both types of metros should be distinguished due to significant technical 
differences. RATP further explained  that rubber -tyre metros constitutes a niche 
market.113 In addition, competitors tend to consider that there is a limited 
substitutability between rubber tyre and steel wheel metros from a customer’s 
perspective, as most respondents indicate that a steel-wheel would not be eligible 
and competitive in a tender  for rubber -wheel metros, and vice versa.114 
(112)  From a supply -side perspective, a large  majority of competitors consider that rubber  
tyre and steel  wheel metros belong to the same market .115 In that regard, some 
respondents indicate d that suppliers can easily swi tch between rubber  tyre and steel  
wheel metros, as both types of metros share several components  and a similar 
braking system. Some further explain ed that the main differences between both  types 
of vehicles  rests in the metro’s  bogie, which  requires specif ic developments in the 
case of a  rubber wheel metro .116 Accordingly, some respondents indicate d that an 
existing steel wheel metro could  be easily adapted ( i.e., in terms of  time and cost) 
into a rubber  wheel metro .117  
(113)  In any event,  the exact delineation of the metro market  can be left open as the  
Transaction will not give rise to competition concerns under any alternative market 
definition.  
(A.iii.d)  Segmentation between automated and conventional metros  
(114)  Metros can be operated according to dif ferent levels of automation. These are 
referred to as Grades of Automation ( ‘GoAs ’). As set out by the International 
Association of Public Transport ( ‘UITP ’), there are five degrees of GoA. Each 
degree is defined according to the exact allocation of respon sibilities between the 
driver and the system.118 In particular:  
 GoA 0 corresponds on -sight operation, like a tram running in street traffic.  
                                                 
113  Q9, replies to question 12 .1.  
114  Q8, replies to questions 14.1. and 14.2.  
115  Q8, replies to question 13.  
116  Q8, replies to question 13.1.  
117  Q8, replies to question 14.3.  
118  See ‘Press Kit – Metro Automa tion Facts, Figures and Trands’  
(https://www.uitp.org/sites/default/files/Metro%20automation%20 -%20facts%20and%20figures.pdf )  
 
 
22  GoA 1 is manual train operation where a driver controls starting and 
stopping, operation of doors, and handling of emergencies or sudden 
diversions.  
 GoA 2 is semi -automatic train operation where starting and stopping is 
automated, but the driver controls train operation, operates the doors, drives 
the train if needed and handles emergencies.  
 GoA 3 is the first degree  of driverless train operation where starting and 
stopping are automated but a train attendant operates the doors and drives the 
train in case of emergencies.  
 GoA 4 refers to a system in which vehicles are run fully automatically 
without any operating sta ff on-board . It is fully unattended train operation 
where starting and stopping, operation of doors, and handling of emergencies 
are fully automated without any on -train staff.  
(115)  According to these definitions, the level GoA 3 already corresponds to driverl ess 
metros . However, the Commission notes that the UITP uses the term ‘automated 
metro ’ for platforms operating at GoA4. For the purpose of this decision, the exact 
definition of automated metros can be left open, as the Transaction does not give rise 
to c ompetitive concerns regardless of the definition of ‘automated ’ and 
‘conventional ’ metros .  
(116)  The market investigation provide d mixed result s as to the substitutability between 
automated and conventional metros.119 Overall, some respondents indicated that 
automated metros are becoming increasingly important and progressively replacing 
conventional ones.  
(117)  Respondents supporting a distinction between both types of metro indicate d that 
automated metros require specific signalling equipment  and that the amount of 
engineering expertise required to supply a platform and meet the customers’ 
requirements is much higher for automated metros . In addition, competitors 
indicated that a conventional metro could not be eligible in a tender for automated 
metros (and vice versa).120 Conversely, other respondents claim  that an existing 
conventional metro platform can easily be adapted into an automated platform, 
especially if it is in its pre -design , and that the different levels of auto mation 
applicable to the metro platform make  the distinction between both types of vehicles  
blurry .121  
(118)  In any event, for the purpose of the present decision, the exact product market 
definition can be left open. The Transaction will be analysed on the possi ble relevant 
product market s of (i) conventional metros, (ii) automated metros (operated at GoA4 
or GoA3 and 4)  and (iii) metros  overall, including both conventional and automated 
metros.  
                                                 
119  Q8, replies to question 11 ; Q9, replies to question 1 0.  
120 Q8, questions 12.1 and 12.2.  
121 Q8, question 12.3.  
 
 
23 (B) Trams/LRVs  
(B.i) The Notifying Party's views  
(119)  The Notifying Party submits t hat there is a single market for trams/LRVs with no 
further sub -segmentation on the basis of f loors (low - or high -floor) or ty re (steel 
wheel or rubber  tyre). 
(B.i.a)  Segmentation on the basis of floors (low - or high -floor)  
(120)  The Notifying Party states that the demand for high -floor trams/LRVs  in the EEA  is 
limited compared to low -floor trams and has been steadily decreasing in the past few 
years. The demand for high -floor trams/LRVs mainly originates from legacy 
infrastructure s that require high -floor rolling st ock (e.g., due to high -platform tram 
stops in existing rail systems).  Customers also prefer low -floor trams as these are 
more easily accessible for passengers. Customers increasingly change their 
infrastructure and replace their high -floor with low -floor t rams.122 
(121)  As a result, the demand for high -floor trams/LRVs essentially consists of repeat 
orders. Indeed, in 2010 -2019 in the EEA, high -floor trams demand accounted for 
only [10-20]% of total order s, and only [5-10]% of contestable tenders for  
trams/LRV s.123  
(122)  Therefore  the Notifying Party states that, even if there was a historic distinction 
between low -floor and high -floor tram/LRVs, this is no longer commercially 
relevant as high -floor trams/LRVs are increasingly becoming a niche product.  
(123)  The Notifying Party  further states that low-floor and high -floor trams/LRVs  are 
highly substitutab le from a supply -side perspective. M any suppliers, including 
Bombardier and Stadler,  offer both low -floor and high -floor solutions. In addition, 
suppliers that used to offer hig h-floor trams/LRVs can easily develop low -floor 
solutions in view of the decreased demand for high -floor trams/LRVs.124  
(124)  Therefore, the Notifying Party considers that  a distinction between low -floor 
trams /LRVs  and high -floor trams /LRVs  is not warrantied . 
(B.i.b)  Segmentation between rubber ty re and steel wheel trams/LRVs  
(125)  The Notifying Party submits that no segmentation between rubber t yre and steel 
wheel trams/LRVs  is warrantied since r ubber t yre trams/LRVs are a niche product.  
The demand for rubber t yre trams/LRV s is de minimis and exclusively for legacy 
infrastructure.125  
                                                 
122  Form CO, Chapter B.3, paragraph 121.  
123  Form CO, Chapter B.3, paragraph 121.  
124  Form CO, Chapter B.3, paragraph 121.  
125  Form CO, Chapter B.3, paragraph 123. The Notifying Party indicates that there are only six rubber tyre 
trams/LRVs that are currently in operation in the EEA. To the Parties’ knowledge, there have been no 
rubber tyre tram/LRV projects for new lines in the E EA since at least 2010.  
 
 
24 (126)  In any event, the Notifying Party states that the exact market definition can be left 
open because the Parties’ activities do not overlap in a potential market segment for 
rubber t yre trams.126 
(B.ii) The Commission’s decisional practice  
(127)  In previous cases, the Commission identified a relevant product market for 
trams/LRVs, distinct from other rolling stock and encompassing both trams and 
LRVs.127 
(128)  The Commission also considered high-floor and low -floor trams  to belong to the 
same relevant market.128 In its decision in case M.2139 - Bombardier/ADtranz , the 
Commission noted the increasing demand for  low-floor trams  and the progressive 
replacement of  high-floor trams by low -floor trams. From a demand -side 
perspect ive, operators have been found hesitant to switch to high -floor trams once 
they had introduced a low -floor system , because their investments in a low-floor  
infrastructure would be frustrated and because low-floor trams are better designed to 
grant disabled  people better access to public transport. From a supply -side 
perspective,  the Commission’s market investigation pointed towards substitutability 
between high -floor and low -floor trams. The Commission concluded  that low-floor 
and high -floor trams/ LRVs belo ng to the same product market . 
(129)  Finally , the Commission also considered steel wheel and rubber tyre trams/ LRVs 
cannot be considered as distinct product markets but ultimately left the exact 
definition open.129 
(B.iii)  Results of the market investigation and the Commi ssion's assessment  
(B.iii.a)  Segmentation between trams and LRVs  
(130)  A large majority of respondents consider that trams and LRVs belong to the same 
market.130  
(131)  From the demand -side, customers indicate d that trams and LRVs share many 
technical requirements concerning vehicle design, speed, passenger flow, standing 
capacity, braking capacity, infrastructure size of doors , driveable curve radius . Some 
customers further indicate that  the infrastructure of trams and  LRVs are usually quite 
similar and can allow  LRVs to be  operated in tram systems. In addition, some 
customers state that trams and LRVs do not share a commonly understood definition 
                                                 
126  Bombardier last produced rubber tire trams in 2002 and has removed these products from its commercial 
offer since 2006. Alstom last delivered rubber t yre trams in 2015, when it supplied vehicles to existing 
lines for a repeat or der. Alstom has since decided to stop the co mmercialization of its rubber ty re tram 
solution.  
127  Commission decision in case IV/M.1064 – Bombardier / Deutsche Waggonbau  (1998), recital 7; 
Commission decision in case COMP/M.2139 – Bombardier / ADtranz  (2001 ), recital 7; Commission 
decision in case COMP/M.3653 – Siemens / VA Tech  (2005), recital 113.  
128  Commission decision in case COMP/M.2139  – Bombardier / ADtranz  (2001), recital 13.  
129  Commission decision in case COMP/M.6646 – Alstom Transport SA / FSI / Tr anslohr  (2012), recitals 10 -
22. 
130  Q8, question 15  ; Q9, question 14.  
 
 
25 in the industry. Finally, some customers indicate that suppliers generally offer both 
trams and LRVs.131  
(132)  The view expressed by cus tomers is shared by competitor s, which confirm that trams 
and LRVs are mostly similar in characteristics and that there is no  clear dis tinction 
between both equipment  within the industry. They also confirm that the delineation 
between the two types of vehi cle is fluid, since they often operate as both trams and 
LRVs on a defined closed network within cities or between neighbouring cities, and 
sometimes sharing the wayside with road and pedestrian traffic .132  
(133)  As a consequence, the Commission considers that, f or the purpose of this decision, 
trams and LRVs belong to the same market.  
(B.iii.b)  Segmentation between low floor and high floor trams / LRVs  
(134)  Most respondents consider that low -floor and high -floor trams/LRVs do not belong 
to the same market.133 In that regard, res pondents indicate d that low -floor and high -
floor do not share the same technicalities in terms of brake system, bogie, carbody, 
position of the components. Some further indicate d that the vehicle design and the 
infrastructure of trams /LRVs are significantl y different. In addition, some 
respondents indicate d that low -floor and high -floor trams/LRVs do not exactly allow 
the same use, as for instance high -floor trams /LRVs have usually the advantage of 
being able to run on narrower tracks (curves) given  that they usually have swivel 
bogies. A customer further stated  that street levels may determine the possible use of 
low-floor or high -floor trams/LRVs.134  
(135)  Accordingly, most customers indicate d that they distinguish between low -floor and 
high-floor trams/LRVs  in tender  specification s.135 Likewise, all competitors 
indicate d that low -floor tram/LRV s would not be eligible in high -floor tram/LRV 
tender s and vice versa.136 In addition, all competitors indicate d that an existing low -
floor tram/LRV platform cannot be easily adapted into a high -floor tram/LRV.137  
(136)  Finally, the Commission notes  that the  demand in trams/LRVs is indeed evolving to  
the benefit of  low-floor vehicles . For instance, both the customer De Li jn (Belgium) 
and the supplier Siemens (Germany) consider the demand for h igh-floor trams /LRV  
is at least limited if not gradu ally disappearing from the market. In that regard, 
Siemens explain ed that the demand for high -floor trams/LRVs is mainly due to 
legacy infrastructure .138  
(137)  In any event,  the exact delineation of the trams/LRVs market  with respect to a 
possible segmentation between low -floor and high -floor can be left open as the  
Transaction will not give rise to competition concerns under any alternative market 
definition.  
                                                 
131  Q9, replies to question 14.1.  
132  Q8, replies to question 15.1.  
133  Q8, question 19  ; Q9, question 18.  
134  Q8, replies to question 19.1.; Q9, replies to question 18.1.  
135  Q9, question 19.  
136  Q8, questions 20.1 and 20.2.  
137  Q8, question 20.3.  
138  Q8, reply from Siemens to question 19.1.; Q9, reply from De Lijn to question 18.1.  
 
 
26 (B.iii.c)  Segmentation between rubber tyre and steel wheel trams/LRVs  
(138)  A majority of respondents consider  that steel -wheel and rubber -tire trams/LRVs do 
not belong to the same market.  
(139)  In that regard, so me respondents explain that rubber tyre and s teel wheel 
trams/LRVs are  not interchangeable due to infrastructure constraints .139 A customer 
(STIB) further indicate d that rubber  tyre and steel wheel trams/LRVs are not 
comparable in terms of lifetime and system cost, as rubber  tyre trams/LRVs entail 
lower infrastructure costs but higher complexity of maintenance.140 In addition, a 
competitor  (Knorr Bremse ) indicate d that the brake system for a rubber  tyre 
trams/LRVs differs completely from steel wheel trams /LRVs  as the former  uses 
trucks and buses brake  systems.141  
(140)  Accordingly, most customers indicate d that they distinguish between rubber  wheel 
and rubber tire trams/LRVs in their tenders.142 Likewise, most co mpetitors indicated 
that a steel wheel tram/LRV woul d not be eligible in the rubber wheel tram/LRV 
tender and vice versa.143 Some competitors further indicate d that an existing steel  
wheel tram/LRV platform cannot be easily adapted into a rubber  wheel one.144  
(141)  Finally, the Commission notes that some competitors  (Stadler, Siemens) consider 
that t he demand for  rubber  wheel trams/LRV s is very limited and that steel wheel 
trams /LRVs  are prevailing in the EEA.145  
(142)  The Parties’ activities do not overlap in the potential market for rubber  tyre 
trams/L RVs. As a consequence, for the purpose of the present decision, the possible 
relevant markets are ( i) the overall market for trams/ LRVs (including steel wheel 
and rubber -tyre)  and (ii) the steel wheel trams/ LRVs market.  In any event,  the exact 
delineation of the trams /LRVs market  can be left open as the  Transaction will no t 
give rise to competition concerns under any alternative market definition.  
5.2.1.4.  Locomotives  
(143)  Locomotives are self -propelled vehicles designed to haul and/or push passenger 
coaches and freight wagons. Solely designed for traction, locomotives cannot carry 
passe ngers or have loading capacity.  
(144)  Mainline locomotives are high power locomotives used in the mainline traffic for 
hauling and/or pushing passenger coaches and (heavy) freight wagons. Shunting 
locomotives are low power locom otives that are used for organis ing train cars into 
complete train sets, or for parking trains and/or track works. They operate at lower 
speed than mainline locomotives. Certain shunting locomotives can be also used to 
haul light freight cargo over shorter distances on mainline networks . 
                                                 
139  Q8, replies to question 17.1.  ; Q9, replies to question 16.1.1.  
140  Q9, reply to question 16.1.1.  
141  Q8, reply to question  17.1.1.  
142  Q9, replies to question 17.  
143  Q8, replies to questions 18.1 and 18.2.  
144  Q8, replies to question 18.3.  
145  Q8, replies to question 17.1.1.  
 
 
27 (A) The Notifying Party's views  
(145)  The Notifying Party considers that mainline and shunting locomotives constitute 
separate product markets  because they are  used for different purposes and exhibit 
significant technical differences . From the demand -side perspective , mainline 
locomotives are used to haul and/push passenger coaches and freight wagons over 
long distances and thus require significant power. Shunt ing locomotive have a lower 
power output and are designed to manoeuvre train cars and train sets in marshalling 
yard and/or haul ballast for track works . From the supply -side perspective, there are 
significant technical differences between the mainline and shunting locomotives 
(e.g., in terms of speed or track and security devices).146 
(146)  The Notifying Party considers that mainline locomotives should not be further 
segmented between electric and diesel locomotives , irrespective of technical 
differences in terms of traction. The Notifying Party submits that s uch a 
segmentation is not necessary for shunting loco motives as electric shunting 
locomotives are a niche product. Shunting operations are mainly performed by diesel 
locomotives as ports, industrial railways and works are not electrified.147  
(B) The Commission's decisional practice  
(147)  In past decisions, the Commissi on found that locomotives constitute a separate 
product market. In case Knorr Bremse/Vossloh , the Commission noted that there are 
‘significant technical differences ’ between mainline and shunting locomotives and 
suppliers tend to specialise in either of tw o. The Commission therefore considered 
that mainline locomotives and shunting locomotives belong to separate markets.148  
(148)  In previous decisions, the Commission found a distinction between electric and 
diesel locomotives.149 In a more recent decision, in case Siemens/VA Tech , the  
Commission left the distinction between electric and diesel locomotives open.150 
(C) Results of the market investigation and the Commission's assessment  
(149)  The majority of respondents to th e market investigation indicate d that mainline 
locomotiv es and shunting locomotives constitute separate product markets.151 
Respondents  indicate d that mainline locomotives and shunting locomotives serve 
different purposes and are subject to different technical specifications , including in 
terms of speed, power, e nergy supply, capacity to manoeuvre, homologation, 
infrastructure requirements.152 The results of the market investigation confirmed that  
mainline locomotives could be also sub -segmented on the basis of the type of 
traction.153 
(150)  Therefore, for the purpose of this decision, the Commission considers that mainline 
and shunting locomotives constitute separate markets. The Commission considers 
                                                 
146  Form CO, Chapter D, paragraph 19.  
147  Form CO, Chapter D, paragraphs 21-22. 
148 Commission Decision in case M.7538 – Knorr Bremse/Vossloh  of 14 September 2015 , recital 62.   
149 Commission Decision in case IV/M.580 - ABB/Daimler Benz  of 18 October 1995, recital 9.  
150 Commission Decision in case M.3653 – Siemens/Va Tech  (2005), re cital 113.  
151  Q3, replies to question 15.2; Q4, replies to question 12.2  
152  Q4, replies to question 12.2.1.  
153  Q3, replies to questions 15.1 and 15.1.1; Q4, replies to questions 12.1 and 12.1.1.  
 
 
28 that the question whether mainline locomotives should be further segmented based 
on the type of traction  between electric and diesel locomotives  can be left open as 
the Transaction will not give rise to competition concerns under any plausible 
product market definition.  
5.2.1.5.  Components and spare parts  
(151)  Components are pieces of equipment, which are used as inputs for the manufacture 
of rolling stock.  The Notifying Party explains that rolling stock components are 
rolling stock inputs that are less than a complete trainset (or coach or locomotive). A 
defining feature of components is that they are not indep endently performing 
products, i.e., they need to be integrated into a trainset, locomotive or coach in order 
to deliver functional performance. Examples include bogies, dampers, and 
switchgears .154 
(152)  Rolling -stock subsystems typically include a combination of hardware (i.e., rolling 
stock components) and control mechanisms which deliver a particular functional 
performance. Similar to components, sub -systems cannot independently deliver the 
full performance and functionality associated with an ‘integrated soluti on’ (in this 
case a rolling stock vehicle).155 The Notifying Party explains that components could 
be seen as passive devices (i.e., hardware but no control mechanisms) while sub -
systems are active devices (a combination of hardware and control mechanisms ).156 
(153)  Spare parts refer to pieces of equipment used to replace worn, damaged, or fully 
consumed parts which are already installed on existing rolling stock. Examples of 
spare parts are brakes and wheels . 
(A) The Notifying Party's views  
(154)  The Notifying Party submits th at components constitute a separate product market 
from  other rail -related products such as rolling stock, maintenance, repair, and 
refurbishment services . The Notifying Party considers that components may not be 
substitutable with each other (e.g., electr ical components cannot replace mechanical 
components ). The Notifying Party consider s spare part s to be part of a larger market 
for rolling stock aftermarket solutions .157 
(155)  However, the Notifying Party submits that the precise product market definition can 
be left open because the Parties' activities do not overlap  in the EEA and the 
Transaction will not give rise to competition concerns under any product market 
definition .158 
                                                 
154  Response to RFI 35 of 6 July 2020, paragraph 2.2.  
155  The Notifying Party provides the following examples: the propulsion system (also called the Propulsion & 
Power Control or PPC) is a rolling stock sub -system which allows electrical energy to be converter to 
mechanical energy and propel a vehicle. It integr ates components such as induction machines and 
transformers, as well as insulated -gate bipolar transistors. Another example of a sub -system is the Train 
Control and Management System or TCMS, i.e., the standard control, communication, and train 
management system for rolling stock platforms, and which is made up a mixture of hardware and 
software . See Response to RFI 3 5 of 6 July 2020, paragraph 2.4.  
156  Response to RFI 35 of 6 July 2020, paragraph 2.5.  
157  Form CO, Chapter D, paragraph 63.  
158  Form CO, Chapter  D, paragraph 63.  
 
 
29 (B) Commission's decisional practice  
(156)  In case Alstom/Fiat Ferroviaria , the Commission includ ed spare parts in its 
‘miscellaneous ’ category. The Commission did not clearly identify separate 
segments for components and spare parts.159 In case Cardo/Thyssen , the Commission 
identified a separate product market for spare parts and distinguished spare pa rts 
from sales of ‘original equipment. ’ The Commission included spare parts in a 
broader aftermarket category. The Commission found that contracts for spare parts 
are usually entered into with the end user (generally an operator), whereas contracts 
for ori ginal equipment are usually concluded with other rolling  stock suppliers 
(assemblers).160 The Commission considered separate segments based on the type of 
spare part, but left the exact definition open . 
(157)  In more recent decisions, the Commission found that cer tain components for rolling 
stock, each constituted  separate product market. In case Knorr Bremse/Vossloh , the 
Commission found that HVAC  (heating, ventilation and air conditioning)  systems, 
friction/service brake systems and door systems were separate pro duct markets.161 
The Commission considered whether HVAC systems and door systems could be 
further segmented by type of rolling stock vehicles.162 The Commission also 
considered whether friction/service brake systems could be segmented between 
pneumatic and hydraulic brake systems, but left the exact product market definition 
open.  
(158)  In case Wabtec/Faiveley , the Commission found that energy meters, event recorders, 
doors, pneumatic friction brake systems and sub -systems, friction materials in disc 
brakes, brake  discs and pantographs each constituted separate product markets.163 
The Commission considered whether components should be sub -segmented by types 
of rolling stock or components, but left open the precise product market definition.164  
(159)  In case Knorr -Bremse , the Commission found the supply of components and spare 
parts take place  in the the original equipment manufacturers ( ‘OEM ’) and the 
independent after -market ( ‘IAM ’) respectively. In the OEM market, components are 
sold to rolling stock suppliers by component  suppliers  while in the IAM market, 
spare parts are sold by the same components suppliers but to rail operators directly. 
The Commission found that rolling stock suppliers also supply spare parts. The 
Commission found nonetheless that the IAM market largel y mirrors the OEM 
market, and assessed the OEM market  only.165 In the most recent Wabtec/Faiveley  
case, the Commission endorsed the Commission's finding in Knorr/Bremse , but 
added that the latter case concerned components that do not require regular 
replacem ent. The Commission further explained that the situation may be different 
for components that need regular replacement. The Commission accordingly 
                                                 
159  Commission Decision in Case M.2069 – Alstom/Fiat Ferroviaria  (2000), paragraph 8.  
160  Commission Decision in Case M.818 – Cardo/Thyssen  (1996), paragraph 19.  
161 Commission Decision in case M.7538 – Knorr Bremse/Vossloh  (2015), paragraphs  40, 48 and 55.  
162 Commission Decision in case M.7538 – Knorr Bremse/Vossloh  (2015), paragraphs  40, 48 and 55.  
163 Commission Decision in Case M.7801 – Wabtec/Faiveley  (2016), recitals 35, 54, 75, 100 -101, 237, 415 -
417. 
164  Commission Decision in Case M.7538 – Knorr Bremse/Vossloh  (2015), paragraph 40.  
165 Commission Decision in Case M.7538 – Knorr Bremse/Vossloh  (2015), paragraphs 28 -36. 
 
 
30 conducted the effects of the Transaction for friction materials and brake discs 
separately in the IAM markets .166 
(C) Result of the market investigation and the Commission's assessment  
(160)  The market investigation did not provide indications to depart from the Notifying 
Party's views and the Commission's most recent decisional practice according to 
which each type of compo nent constitute s a separate product market from  rolling 
stock and that there may be  a separate market for spare parts.167   
(161)  The results of the market investigation confirm ed the Commission’s decisional 
practice that each type of rolling stock component (e.g., bogies, electrical equipment, 
wheels axes, propulsion, converters etc.) constitutes a separate market.168 
Respondents indicated that each component has specific technical requirements (also 
in terms of R&D), serve a different function and are subject to separate procurement. 
Wabtec explained that ‘[c]ar builders' procurement operations are broken down by 
railway components, because of the very specific technical content of each system. 
The specs of each component vary upon various factors: rolling stock mission 
profile, operators specifics expectations and existing installed base, local norms and 
regulations, system interfaces ’.169 
(162)  With regard to spare parts, a majority of res pondents  considered that spare parts 
constitute a separate market distinct from other rail -related products such as rolling 
stock, maintenance and components .170 There are mixed results as to whether 
customers procure spare parts at the same time and in the same tender as the rolling 
stock. Customer tend to procure spare parts from the rolling stock supplier for the 
duration of the warranty period. This is also true for customers that do not outsource 
their maintenance services but carry them out in -house. Af ter the warranty  period, 
some customers appear to continue to procure spare parts from the rolling stock 
OEMs while others procure directly from component suppliers. Several customers 
expressed the view that the aftermarket for the supply of spare part is more robust.171  
(163)  For the purpose of this decision, the Commission considers that there is a separate 
market for each type of component and a separate market for spare parts.  The 
Commission will carry out the competitive assessment on that basis . 
5.2.1.6.  Maintenance and refurbishment  
(164)  Maintenance services are operations which are essentially conducted to keep rolling 
stock vehicles in good order to operate. Examples of services are repair and 
components exchanges. Refurbishment services consist in operations which 
essentially aim at modernising rolling stock vehicle  and extending their commercial 
life and/or improving their reliability, functionality and comfort . 
                                                 
166 Commission Decision in Case M.7801 – Wabtec/Faiveley  (2016), paragraph s 237 and 393.  
167  Q3, replies to questions 17; Q4, replies to question 14; Q10 – Questionnaire to suppliers of components 
(‘Q10’), replies to questions 6, 6.1, 6.2, 7.  
168  Q10, replies to question 6.  
169  Q10, replies to question 6.1.  
170 Q1, replies to question 8 ; Q2, replies to question 8; Q8, replies to que stion 23 ; Q9, replies to question 21  
171  Q4, replies to question 58.1.  
 
 
31 (A) The Notifying Party's views  
(A.i) Segmentation between maintenanc e and refurbishment services vs rolling 
stock  
(165)  The Notifying Party explains that customers (rail operators) mainly provide rolling 
stock maintenance services in -house. When customers opt to outsource the provision 
of maintenance services to third parties, they typically rely o n the OEM of the rolling 
stock. In the Notifying Party’s view, t he extent to which customers outsource 
maintenance or refurbishment services depends on factors such as size of services 
and maintenance workforce , and its engineering capabilities.172 
(166)  According to the Notifying Party, when customers decide to rely on third parties for 
maintenance services, they often tender the maintenance services contract together 
with the tender for the rolling stock, such that the supplier of the rolling stock will 
also provide the maintenance service s, typically for a specified period. The Notifying 
Party estimates that up to [30-40]% of the total yearly outsourced rolling stock 
maintenance services in the EEA are tendered simultaneously with the new rolling 
stock vehicles.173 Furthermore, the Notifying  Party submits that when the tender 
concerns a standalone maintenance contract (e.g., when the initial contract expires), 
the incumbent supplier has an advantage over other bidders and is best placed to win 
the new contract (due to existing knowledge of th e technical details of the rolling 
stock and required maintenance procedures).174  
(167)  The Notifying Party considers that, similar to maintenance services, refurbishment 
works may be carried out either in -house or outsourced to the incumbent OEM 
supplier, and in  some cases by specialist engineering companies with railway -related 
expertise.175 
(168)  Therefore, the Notifying Party submits the relevant market  for mainte nance and 
refurbishment services includes all maintenance and refurbishment services, whether 
carried out by operators in -house, by OEMs or by third party maintenance 
suppliers.176 
(A.ii) Segmentation s within rolling stock maintenance  
(169)  First, t he Notifying Party submits that light maintenance can be distinguished from 
heavy maintenance. Light maintenance includes day-to-day repairs, component 
exchanges and safety checks carried out on a regular basis, while heavy maintenance 
covers more substantial interventions and major overhaul of railway vehicles. From 
the supply side, suppliers typically offer both light and h eavy maintenance services.  
The Notifying Party submits that further segmentation of maintenance services is not 
necessary.177 
                                                 
172  Form CO, Chapter D, paragraph 104.  The Notifying Party refers to UNIFE (the European rail supply 
industry association ) and SCI Verkehr data, according to which around 60% of rolling stock maintenance 
and refurbishment work in the EEA by value is carried out by customers in -house . 
173  Form CO, Chapter D, paragraph 106.  
174  Form CO, Chapter D, paragraph 108.  
175  Form CO, Chapter D, paragraph 110.  
176  Form CO, Chapter D, paragraph 111.  
177  Form CO, Chapter D, paragraph 112.  
 
 
32 (170)  Second, t he Notifying Party explains that a further segmentation by train type is not 
warranted as the scope maintenance services is  comparable across different type of 
trains and the suppliers of maintenance services typically supply maintenance 
services for all types of trains. Similarly, maintenance techniques are very similar for 
all types of trains.178 
(171)  Third , the Notifying Party con siders that no distinction between (light and heavy) 
maintenance and refurbishment services is warran ted. Refurbishme nt services 
involve the modernis ation and adaptation of rolling stock vehicles and their 
components. In the Notifying Party’s view, all maj or suppliers can and do typically 
provide both maintenance and refurbishment services.  From a demand -side 
perspective, customers that require refurbishment services sometimes also contract 
the refurbishment provider to carry out maintenance services on the  refurbished 
rolling stock .179 Furthermore, contracts that provide for full maintenance over 30 
years typically also provide for refurbishment and overhaul services.  In any event, 
the Notifying Party submits that the exact market definition can be left open since 
refurbishment makes up a very small portion (c. 11%) of the overall maintenance 
and refurbishment market and the Transaction does not raise concerns under any 
possible segmentation .180 
(B) The Commission's decisional practice  
(172)  In case Bombardier/ADtranz , the Commission found that light maintenance, heavy 
maintenance and refurbishment require different equipment, skills and technology 
and therefore constitute separate product markets.181 
(173)  In case Metronet/Infraco , the Commission considered whether the supply of new 
rolling stock could be analysed together with the maintenance of that rolling stock. 
However, the Commission ultimately left open whether the supply of maintenance 
services should be considered as complementary services within one single market 
with ro lling stock supply.182 
(174)  In the more recent case Bombardier/CDPQ/Bombardier Transportation UK  case, the 
Commission noted its previous findings in Bombardier/ADtranz  and 
Metronet/Infraco , but left the exact product market definition open.183 
(C) Results of the market investigation and the Commission's assessment  
(175)  The results of the market investigation did not depart from the Notifying Party's 
views and the Commission's decisional practice according to which maintenance 
services constitute a separ ate product market . Similarly, the market investigation did 
not provide indications to depart from the Commission's decisional practice 
                                                 
178  Form CO, Chapter D, paragraph 113 . 
179  Form CO, Chapter D, paragraph 114 . The Notifying Party provides the example of Bombardier that has 
undertaken to provide both maintenance and refurbishment services on 59 Regina E MUs  for AB Transitio 
in Sweden,  and a Stadler/OBB joint venture  that is providing both maintenance and refurbishment 
services on 17 KISS EMUs in Austria for DB . 
180  Form CO, Chapter D, paragraph 114 . The Notifying Party refers to data from SCI Verkehr from 2017.  
181 Commission Decision in Case M.2139 – Bombardier/Adtranz  (2001), recital 16.  
182 Commission Decision in Case M.2694  – Metronet/Infraco  (2002), recital 30 . 
183 Commission Decision in Case M.7871 – Bombardier/CDPQ/Bombardier Transportation UK  (2016), 
recitals 18 -21. 
 
 
33 regarding the distinction between light maintenance, heavy maintenance and 
refurbishment  due to different equipment, ski lls and technology .184  
(176)  The results of the market investigation were mixed as regards the precise scope of 
the market. Respondents confirmed that depending on the customers’ requirements, 
competencies and existing infrastructure, there can be different procu rement patterns 
for maintenance services. Maintenance services can  indeed be provided in -house, 
and the market for maintenance services is therefore partly captive.  Some 
respondents indicated that national railway operators tend to carry out maintenance 
in-house, while private operators would typically outsource the provision of 
maintenance.185 Several c ustomers that participated to the market investigation 
indicated that when maintenance services are procured from third parties, they are 
typically procured a t the same time and from the same supplier as the rolling 
stock.186 This seems to vary depending on the type of rolling stock. With regard to 
very-high speed trains, customers tender to procure maintenance services separately 
from their procurement of rollin g stock.  
(177)  A majority of customers that responded to the market investigation indicates that if 
maintenance services are supplied together with mainline trains it is generally  for a 
fixed period of time (that varies between 10 and 25 years, depending on the 
customer). Some private operators  indicate that the duration of the maintenance 
contract coincides with the duration of the lease or franchise agreement.187  
(178)  The Commission considers , for the purpose of this decision,  that the marke t for the 
provision of maintenance services is separate from the supply of other rail -related 
products such as rolling stock, spare parts  and components. T he Commi ssion 
considers that the exact  product market definition for maintenance  services (i.e., 
whether an overall market or further segmented by light, heavy maintenance and 
refurbishment  or segmented by type of rolling stock ) can be left open as the 
Transaction will not give rise to competition  concerns under any alternative product 
market def inition.  
5.2.2.  Geographic market definition  
5.2.2.1.  Introduction and framework for reference  
(179)  The Commission Notice on the definition of the relevant market188 highlights that 
the Commission ‘will take a preliminary view of  the scope of the geographic market 
on the basis of broad indications as to the distribution of market shares between the 
parties and their competitors, as well as a preliminary analysis of pricing and price 
differences at national and Community or EEA lev el’.189 The Commission will also 
need to explore ‘the reasons behind any particular configuration of prices and 
                                                 
184  Q1, question 8  ; Q2, question 8; Q3, replies to question 16.1; Q4, replies to question 13.1; Q8, question 
21.2 ; Q9, question 20.2.  
185  Q3, replies to questions 73.1 and 73.2.  
186  Q2, r eplies to question 64; Q3, replies to questions 73 and 73.1; Q4, replies to question 58; Q8, replies to 
question 68; Q9, replies to question 66.  
187  Q2, replies to question 64  ; Q4, replies to questions 16, 16.1, 16.2; Q9, replies to question 66.  
188 Commissi on Notice on the definition of relevant market for the purposes of Community competition law 
(OJ C 372, 9.12.1997, p. 5 –13). 
189 Commission Notice on the definition of the relevant market, paragraph 28.  
 
 
34 market shares […]’.190 For example, ‘companies might enjoy high market shares in 
their domestic markets just because of the weight of the past, and conversely, a 
homogeneous presence of companies throughout the EEA might be consistent with 
national or regional geographic markets ’.191 
(180)  The Notice goes on to  identify a number of factors such as the ‘importance of 
national or local preferences, current patt erns of purchases of customers, product 
differentiation/brands, other) in order to establish whether companies in different 
areas do indeed constitute a real alternative source of supply for consumers ’ and 
‘the question to answer is again whether the custo mers of the parties would switch 
their orders to companies located elsewhere in the short term and at a negligible 
cost’.192 The Notice also states that ‘the Commission will identify possible obstacles 
and barriers isolating companies located in a given area  from the competitive 
pressure of companies located outside the area, so as to determine the precise 
degree of market interpenetration at national, European or global level ’.193 
5.2.2.2.  Very high -speed rolling stock  
(A) The Notifying Party's views  
(181)  The Notifying Party co nsiders that the relevant geographic market (s) for (very) high -
speed trains is worldwide and likely excluding China, Japan and South Korea.  
(182)  First, the Notifying Party explains that high -speed rolling stock suppliers compete 
globally for a few and prestigi ous large tenders. The market for high and very high -
speed trains is characteris ed by infrequent, but large, orders. In the past 10 years, 
only 14 contestable projects were awarded worldwide (excluding China, Japan and 
South Korea) including  nine in the EE A and Switzerland. According to the 
Notifying Party, the low number of contestable tenders and their commercial  
significance incentivises high -speed suppliers to participate more frequently and 
actively in tenders, irrespective of the country in which the tender takes place.194  
(183)  Second, the Notifying Party considers that EEA -specific technical requirements do 
not constitute a barrier to entry i n the EEA for non -European high -speed suppliers. 
High -speed suppliers compete globally regardless of authorisation  requirements. 
Competition at the global level is made easier by the fact that all suppliers already 
comply with similar standards and that high -speed trains are typically tailored to a 
specific customer’s specifications and needs. Differences between nationa l, EEA and 
other technical requirements are thus tackled in the context of customization for each 
customer. According to the Notifying Party, this also applies to non -European 
suppliers as they already comply with high standards in their home countries. 
Indeed, technical requirements in and outside the EEA are increasingly similar. 
European standards have in fact often been the basis for other standards.195 
                                                 
190 Commission Notice on the definition of the relevant market, paragraph 29.  
191 Idem.  
192 Idem.  
193 Commission Notice on the definition of the relevant market, paragraph 30.  
194  Form CO, paragraph 43.  
195  Form CO, Chapter B.1, paragraphs 48 to 50.  
 
 
35 (184)  Third , the Notifying Party considers that there are no significant differences in prices 
between EEA an d the rest of the world. In that regard, the Notifying Party submits 
that EEA standards are not necessarily more costly to comply with  than standards 
applicable  in non -EEA jurisdictions, such as the US. Moreover, even if prices differ  
across regions , that alone is not indicative of different geographic markets, because 
prices are typically not comparable across projects due to customization 
requirements.196  
(185)  In any event, the Notifying Party considers that the geographic market definition for 
very high -speed rolling stock can be left open, since the Transaction does give rise to 
competitive concern regardless of the market definition (EEA (including 
Switzerland) or worldwide (excluding China, Japan, and South Korea) level).  
(B) The Commission’s decisional practic e 
(186)  In its decision Siemens/Alstom , the Commission considered that the geographic 
scope of the market(s) for both high and very high -speed trains include  at least the 
EEA  and Switzerland . The Commission also considered that the market could be 
worldwide, excluding China, South Korea and Japan , in scope , but ultimately left the 
question open.197 
(187)  With respect to the EEA -wide delimitation of the market, the Commission noted that 
high-speed and very high -speed platforms are under  specific technical requirements  
in the EEA. It further considered  that TSIs have contributed to harmonising the 
authorisation requirements within the  whole  EEA . In addition, the Commission 
noticed that the set of competitors bidding for high and very high -speed contracts 
within the EEA differs from the ones in the rest of the world , and that prices for the 
same type of high -speed rolling stock differ significantly between customers located 
in the EEA and those located in the rest of the world, due to additional costs 
associated with EEA -specific standards .198 The Commission also considered that 
Switzerland  should be included in the relevant geographic market, due to its  
adoption of equivalent rules and participation in the EU railway regulatory 
framework and the absence of barriers to entry for EEA -based suppliers .199  
(188)  With respect to the global geographic market, the Commission noted that demand 
outside of the EEA is expected to grow and that, a s other regions develop their  high-
speed rail  infrastructures, certain non -EEA countries appear to a dopt EU regulatory 
standards in their own calls for tenders, demanding TSI -compliant rolling stock .200 
Furthermore, the Commission considered that China, Japan and South Korea should 
                                                 
196  Form CO, Chapter B.1, paragraphs 56 -57. For instance, the Parties  understand that Talgo supplied high -
speed trains capable of speeds of up to 300 km/h to Saudi Railways Organization (‘SRO’) for €34 million 
per trainset (following the 2011 tender) and will supply trains capable of (2)  speeds of up to 350 km/h to 
Renfe fo r €20 million per trainset (following the 2016 tender). While it is difficult to make a like -for-like 
comparison of selling prices, including due to different customer requirements (e.g., as regards train size 
and passenger capacity), this example nonethel ess illustrates that the customer’s geographic location or 
applicable regulatory standards cannot, of themselves, explain differences in price.  
197  Commission decision of 8 February 2018 in Case M.8677 – Siemens/Alstom , recital 133.  
198  Commission decision of 8 February 2018 in Case M.8677 – Siemens/Alstom , recitals 113 to 118.  
199  Commission decision of 8 February 2018 in Case M.8677 – Siemens/Alstom , recital 126.  
200  Commission decision of 8 February 2018 in Case M.8677 – Siemens/Alstom , recital 128.  
 
 
36 be excluded from the global geographic market due to insurmountable barrier s to 
enter these national markets.201  
(C) Results of the market investigation and the Commission's assessment  
(189)  The results of the market investigation fully confirm ed the Commission’s findings in 
Siemens/Alstom .  
(190)  A large majority of respondents consider that the relevant markets for both high and 
very high -speed trains are at least EE A-wide and include  Switzerland, due in 
particular to  the applicable  EU regulatory and technical requirements and 
homologation standar ds.202 In that regard, the majority of respondents indicated  that 
the authorisation requirements across the EEA for high -speed and very high -speed 
rolling stock have become similar as a result of EEA -wide Technical  Specificati ons 
for Interoperability (TSIs).203 For instance, a customer stated  that, in order to bid for 
a European tender, non -European manufacturers ‘have to adapt their products to 
European TSI, which implies very high costs. Therefore, their offers are not enough 
competitive compared to those of Europe -based bidders.  As a consequence, in our 
past experience, only Europe -based manufacturers has participated to tenders. ’204  
(191)  In addition, a  majority of competitors consider that it cannot be excluded that the 
geographic market for very high -speed is als o global market excluding China, South 
Korea and Japa n.205 However, the explanation provided from respondents in that 
regard show that European technical and regulatory standards remain a significant 
barrier to enter for non -European suppliers. In particular , CRRC  considers that the 
geographic market for very high -speed trains should be defined as EEA -wide 
including Switzerland in scope.206 The results are rather mixed from a customers’ 
perspective. Some respondents indicate d that Asian competitors (Hyundai Rot em, 
CRRC) were  willing to enter the European market. However, a  majority of 
customers consider  that CRRC, Hyundai Rotem and Kawasaki do not constitute 
credible bidders for the procurement of VHS trains.207  
(192)  In light of the results of the market investigation, and in accordance with the 
Siemens/Alstom decision, the Commission considers that , for the purpose of the 
                                                 
201  Commission decision of 8 February 2018 in Case M.8677 – Siemens/Alstom , recital 129. More 
specifically, the Commission noted that  in China, barriers to entry include (i) rules under which only 
Chinese majority -owned companies are allowed to bid for rolling  stock contracts; (ii) the direct award of 
contracts to domestic suppliers; (iii) the requirement that companies be licensed to bid for contracts, under 
no pre -defined criteria, effectively resulting in licenses only granted to Chinese -controlled company; (iv) 
public procurement rules requiring local production. In Japan, barriers to entry include (i) a clause 
allowing Japan to circumvent the WTO's Agreement on Government Procurement in the rail sector for 
reasons of ‘operational safety’, which has been use d to prevent foreign firms from bidding in procurement 
contracts and avoid the publication of open tenders; (ii) limited open procurement; (iii) discriminatory and 
complex procurement rules de facto benefiting local companies. In South Korea, barriers to e ntry include 
(i) tendering procedures tailor -made for the domestic industry and lacking transparency for foreign 
suppliers; (ii) government backing of Hyundai -Rotem; (iii) requirements in relation to licensing and 
technology transfers; (iv) the express exc lusion of EU suppliers from tenders until 2015.  
202  Q1, replies to questions 12.2 and 12.2.1; Q2,  replies to  questions 11.2 and 11.2.1.  
203  Q1, question 14.  
204  Q2, reply to question 11.1.1.  
205  Q1, replies to question 13.2 . 
206  Q1, reply from CRRC to question 13.2.  
207  Q2, replies to question 12.2 and 14.  
 
 
37 present case,  the exact geographic  market definition for very high -speed rolling 
stock can be left open. The Commission will address it s competitive assessment both  
at EEA  (includ ing Switzerland ) and global level.   
5.2.2.3.  Mainline  trains  
(A) The Notifying Party's views  
(193)  The Notifying Party considers that the geographic market for mainline trains is at 
least EEA -wide for the following reasons: (i) sup pliers participate in mainline 
tenders across the EEA, and all major players are ac tive across the EEA ; (ii)  
suppliers win projects across the EEA regardless of their footprint ; (iii) the 
harmonisation of technical standards in the EEA facilitates EEA -wide  competition 
because standardisation reduces the cost of adapting rolling stock equipment  to local 
specifications and offering trains that can operate in  several Member States; and (iv ) 
the increased use of platform -based products makes it easier for suppl iers to adapt 
their trains to national requirements, thus making it easier for suppliers to operate 
throughout the EEA .208  
(194)  The Notifying Party submits that the geographic market also includes Switzerland 
for the following reasons: (i) similar technical requ irements apply in Switzerland and 
the EEA in the areas of railway interoperability and railway safety , also evidenced 
by the fact that Switzerland is a member of the ERA, and (ii) there is no material 
difference between suppliers participating in projects  in the EEA and Switzerland.209 
(195)  In any event, the Notifying Party considers that the geographic market definition can 
be left open as the Transaction does not give rise to competition concerns regardless 
of the market definition.  
(B) The Commission's decisional p ractice  
(196)  In Bombardier/ADtranz , the Commission  considered the market for regional trains 
to be national in scope and considered both national and EEA markets for intercity 
trains, leaving the geographic market definition for intercity trains open. The 
Commission noted that the market for regional trains was still national, especially in 
Member States with a strong rail industry, and in view of the different national 
standards for rail infrastructure across Member States.210 
(197)  In Alstom Holdings/Areva T&D , the Commission considered whether the market for 
EMUs for intercity and regional transport should be considered EEA -wide instead of 
national, noting that all respondents to the market investigation had pointed towards 
an at least EEA -wide market for EMUs. T he Commission ultimately left the 
geographic market definition open.211 
                                                 
208  Form CO, Chapter B.2, paragraph 42.  
209  Form CO, Chapter B.2, paragraph 43.  
210 Commission Decision in Case M.2139 – Bombardier/Adtranz  (2001), recitals 19 -23. 
211 Commission Dec ision in Case M.5754 – Alstom Holdings/Areva T&D  (2010), recitals 40 -43. 
 
 
38 (C) Results of the market investigation and the Commission's assessment  
(198)  The market investigation is inconclusive as to whether the relevant product markets 
are national or EEA -wide , includin g Switzerland . Responses from competitors  and 
customers are mixed  as regards the geographic scope of the market.212 Nevertheless, 
the Commission considers that there are strong indications that the market for self -
propelled mainline rolling stock and possibl e segmentation are national in scope  due 
to country -specific technical differences, authorisation and homologation 
requirements, and barriers to entry identified in France and Germany.  
(199)  The Commission considers that  self-propelled mainline trains are signif icantly 
different in terms of customer preference, technical specifications, and regulatory 
requirements in different countries of the EEA such that a self -propelled mainline 
train operated within one EEA country could not be used in another EEA country 
absent significant adaptation . This view is supported by a majority of competitors .213  
(200)  The continued existence of national technical specifications is cited as a reason for 
markets being national. CAF claims that the markets are national because ‘[e]ven 
with TSI compliance, country specific technical specifications (gauge, envelope, 
signalling systems, power supply tension) differ so that trains can require significant 
adaptation from one EEA country to another ’.214 Competitors also indicate that to 
the extent t hat mainline trains differ from one EEA country to another, significant 
investments are required to adapt a train developed for operation in one Member 
State for operation in another.215 
(201)  Several customers also expressed the view that country -specific technic al 
requirements still prevail. Deutsche Bahn explained  that, ‘[w]hile the same platform 
may be used for the production of mainline trains used in different countries, there 
is, at this point in time, no product on the market which can be used in different 
countries in Europe without significant and expensive modifications. This is mainly 
due to differences regarding certification requirements, signalling and other 
infrastructure technologies (e.g. electric power supply) ’.216 Alpha Trains, a large 
leasing company for passenger trains, indicates that ‘[s]ome manufacturers have 
products which they try to sell on different EEA (and Swiss) markets, however, quite 
often the incumbent operators have specific requirements for its coun try. […] 
France is extremely difficult for other manufacturers than Alstom and Bombardier 
who have shared the market […] ’.217 
(202)  With regard to authorisation requirements, wh ile many respondents indicate that 
TSIs have resulted in the authorisation requirements  across the EEA for mainline 
trains to converge, the majority of respondents  consider that significant differences 
from one country to another still remain  (e.g., relating to infrastructure, gauge, 
envelope, signalling, power supply) . A majo rity of custome rs thus consider  that the 
                                                 
212  Q3, replies to question 21; Q4, replies to question 18.  
213  Q3, replies to question 22.  
214  CAF’s response to Q3, question 22.1.  
215  Q3, replies to question 22.1.  
216  Deutsche Bahn’s response to Q4, question 18.1.  
217  Alpha Trains’ response to to Q4, question 18.1.  
 
 
39 adoption of EU -wide authorisation procedures have not yet created homogenous 
conditions for competition within the EEA .218  
(203)  In particular, with regard to France and Germany some respondents indicate d 
country -specific technical and r egulatory requirements as a factor limiting the 
number of credible competitors. As regards France, SNCF explains that ‘[t]he 
constraint of national requirements may generate technical discrepancies between 
the reference product of certain manufacturers and  the specifications ’.219 In SNCF’s 
view, the related adaptations maybe seen as too expensive or requiring engineering 
capabilities that cannot be mobilised. Alpha Trains also refers to these requirements 
as limiting the number of competitors in France.220 
(204)  As regards Germany, Deutsche Bahn similarly states that ‘[t]he complexity of the 
German national rules is one reason why it is difficult to purchase rolling stock 
especially from manufacturers in Asia, but also in Eastern Europe. More generally, 
the different national requirement are an obstacle to the development of standards in 
the industry. The lengthy homologation requirements in various European countries 
are often a challenge for new suppliers when entering the market ’.221 Other 
customers having their operation in Germany (Flixtrain, Netinera, LNVG) also 
consider that suppliers have to comply with national standards and point out that 
homologation is difficult to achieve in Germany.222 Skoda expresse d the view that 
some count ries require a ‘specific approach, especially Germany and France are 
very specific in terms of vehicle homologation, and therefore competition may be 
limited ’.223 
(205)  The bidding analysis confirms that the identity of bidders and the scope of 
competitive interac tions vary from one EEA Member State to the other.224 Therefore, 
although a large number of suppliers are active in the EEA, they are not all active in 
the same Member States and the scope of their competitive interactions and mutual 
constraints is, conseque ntly, limited.  This is particularly true in France and 
Germany, where the Parties overlap and hold high combined market shares.  
(206)  In addition, w ith respect to France, the Commission considers that  there are high 
barriers to entry for the following reasons.   
(207)  First, w ith regard to the need for local manufacturing presence, a s a preliminary 
point, the Commission notes that EU procurement rules prohibit customers from 
disqualifying bidders that do not have local production assets.225 While customers 
cannot include explicit requirements in that regard, the requirement for local 
manufacturing presence appear to be a prerequisite for a bidder to win contracts in 
France.  
                                                 
218  Q4, replies to question 21.  
219  SNCF’s response to to Q4, question 20.1.  
220  Alpha Trains’ response to to Q4, question 20 .1. 
221  Deutsche Bahn’s response to Q4, question 20.1 . 
222  Q4, replies to question 20.1.  
223  Skoda’s response to Q3, question 24.1.  
224  Parties’ CPL.  
225  Articles 36.1, 60.2, and 60.4 of Directive 2014/25/EU of February 26, 2014 on procurement by entities 
operating in the water, energy, transport and postal serv ices sectors and repealing Directive 2004/17/EC 
[2014] OJL 94/243 . 
 
 
40 (208)  The Parties’ bidding data and market shares demonstrate that the only  suppliers that 
won contracts in France in the period 2010 -2018 are Alstom, Bombardier, and CAF. 
The Commission notes that all these suppliers have manufacturing facilities in 
France. As stated by the Notifying Party, CAF acquired a manufacturing site in 
Bagnères de Bigorre in France226 in 2008 and secured a contract with SNCF for 28 
intercity trains in 2019227. The Commission notes that it took CAF more than 10 
years after establishing manufacturing presence in France before it was able to win a 
tender  against  Alstom and Bombardier. This is despite previous bids submitted in 
this period as indicated in the Parties’ bidding data.228 No other supplier was able to 
enter the French market in the last 10 years. Furthermore, the number of suppliers 
that competed in ten ders in France is also very limited. According to the Parties’ 
bidding data, in addition to the Parties and CAF, only Stadler participated in a single 
tender held by the Hello Paris consortium in 2019 but the contract was ultimately 
awarded to Alstom  in 20 19 (with the Coradia Polyvalent platform). 229  
(209)  Therefore, the Commission considers that there is a strong correlation between being 
having manufacturing presence and the ability to win contracts  in France, which 
raises high barriers to entry.  
(210)  Second , a supplier refer red to the requirement for an existing track record in France 
to be eli gible in tenders and win contracts.230  This requirements does not apply in 
other Member States where customers generally require commercial references from 
previously supp lied mainline rolling stock in the EEA.  The Commission also notes 
that complex tender requirements prevent smaller competitors from bidding in 
France , as evidence d by the absence of participation in tenders in France from other 
suppliers.231 
(211)  According to a respondent , complex homologation requirements also deter entry in 
France. Transdev expressed the view that ‘[i]n France, the Transaction is 
problematic because Alstom and Bombardier are the only market participants that 
have homologated rolling stock (heavy  trains) ’.232 
(212)  In addition, the Commission considers that the Parties’ large installed base and 
longstanding customer relationships in France entrench their established position and 
further raise barriers to entry. This is evidenced by the high proportion of repeat/non -
contestable orders that were awarded to the Parties in the last 10 years in France (i.e., 
nearly all repeat orders for which customers chose not to tender out their 
procurement were awarded to Alstom or Bombardier , see section 6.3.2.2, B.iii).  
                                                 
226  Form CO, Chapter B.2, footnote 205.  
227  Form CO, Chapter B.2, paragraph 84.  
228  Parties’ CPL.  
229  Parties’ CPL.  
230  Confidential minutes of conference call with Talgo, 14 April 2020, paragra ph 8.  
231  For example, Siemens lists a number of large scale, complex tenders in France that were awarded the 
Parties. These include SNCF’s 2017 tender  won by the Parties in consortium. According to Siemens, 
SNCF rejected a lower -priced offer from CAF becau se of concerns that the Spanish company might not 
have the capacity needed for the project.  Non-confidential submission of Siemens, 21 April 2020, 
paragraph 61.  
232  Non-confidential minutes of conference call with Transdev, 4 June 2020, paragraph 9.  
 
 
41 (213)  Similarly, with respect to Germany, the Commission considers  that there are high 
barriers to entry for the following reasons.  
(214)  First, the lengthy and complex homologation process limits the number of credible 
competitors and raises barriers to entry.  Most r espondents to the market investigation 
having railway operations in Germany expressed the view that the homologation 
process limits the number of credible suppliers in Germany.233 Transdev explained 
that ‘[i]t is very difficult to obtain homologation in Germ any (the process takes 2 - 4 
years) due to the very high safety standards and the fact that these standards keep 
changing. Also because of these different homologation standards, a train in France 
would not be the same as a train in Germany (e.g. Stadler’s KISS or FLIRT 
platforms are different in both countries). Suppliers such as Skoda or Chinese 
companies have good trains but they are not homologated in Germany and 
France ’.234 
(215)   In view of the lengthy and complex homologation process, customers have a strong 
preference for a supplier that already has a homologated train in Germany. This is an 
important selection criterion for customers that seek to ensure that delivery times are 
respected. For examp le, according to Deutsche Bahn, [a]pproval management for 
rail vehicles, […], is a critical key factor in rail vehicle projects. In the past, a lack 
of experience with this official act was one of the reasons for delivery delays ’.235 
Alpha Trains similarly stated that ‘[s]uch compliance generally reduces the 
homologati on risk ’.236 Flixtrain explained that ‘[a]nother important aspect to 
consider is that homologation is a significant barrier to enter the German market. 
Considering the time needed and the difficulty to obtain homologation in Germany, 
having a previously homo logated train is an important advantage for a bidder ’.237 
Flixtrain further explains that homologation is seen a risk factor for timely delivery 
in Germany.  
(216)  The Commission thus considers that the complex homologation process and the 
related risks linked with timely delivery and successful completion of the project 
deter entry from suppliers not already present with a homologated train.  
(217)  Second , there are very stringent financial and technical requirements for bidders in 
Germany. The main customer in Germany, Deutsche Bahn, sets very high financial 
criteria because suppliers have to bear the costs of development and adaptations of 
platforms during the homologati on process and until full project delivery. Deutsche 
Bahn explained that  it ‘purchases homologated trains, and payment of the purchase 
price depends on the delivery of a fully -functional train. This means that up to that 
point operators need to finance the  whole project and the ability to pre -finance the 
project has to be demonstrated in tenders ’238. Smaller customers such as Flixtrain 
also explained that technical and financial capabilities are one of the main […] 
selection criteria ’.239  
                                                 
233  Q4, replies to question 20.1 and 26.1.  
234  Non-confidential minutes of conference call with Transdev, 23 June 2020, paragraph 8.  
235  Deutsche Bahn’s response to Q4, question 26.1.1.  
236  Alpha Trains’ response to Q4, question 26.6.1.  
237  Non-confidential minutes of  conference call with Flixtrain,  
238  Non-confidential minutes of call with Deutsche Bahn, 14 April 2020, paragraph 7.  
239  Flixtrain’s response to Q4, question 26.3.1.  
 
 
42 (218)  The Commission consid ers that such stringent technical and financial requirements 
to participate and win contracts in Germany deter entry from smaller suppliers not 
already having a homologated platform in operation and not being able to bear the 
financial cost of the investme nt required for the duration of the homologation 
process (up to 4 years).  Such suppliers are effectively excluded from tenders in 
Germany.  
(219)  Skoda explained that it succeeded in winning a single contract with Deutsche Bahn 
for locomotive -hauled intercity tra ins in 2014. However, Skoda also stated that 
‘[a]lthough it is usually very hard for a medium -sized supplier like Skoda to sell 
rolling stock in Germany (due to German homologation requirements and herewith 
connected need for pre -development), for this ten der Deutsche Bahn set out specific 
customisation requirements and quantity, so that only a limited number of suppliers 
were interested to participate. Skoda considers that the special conditions of this 
tender allowed Skoda to enter the German market ’.240 
(220)  In the Commission’s view, this indicates that suppliers such as Skoda can only win 
contracts in Germany under specific circumstances and when such projects do not 
attract interest from established players with homologated platforms in Germany that 
are able t o comply with the high financial requirements imposed by customers. The 
single contract won by Skoda  (for locomotive -hauled trains)  and the fact that Skoda 
was not able to expand its activities after winning this contract  therefore reinforces 
the conclusio n that there are high barriers to entry and expansion in Germany.  
(221)  Third , while a number of competitors participated in tenders in Germany, including 
the Parties, Stadler, Siemens, Hitachi, CAF, Pesa, Skoda, the suppliers that won 
contracts are indeed only the Parties, Siemens and Stadler.241 Both competitors have 
established manufacturing facilities in Germany. Siemens is a long -standing player 
in the German market which increased its activities in mainline rolling stock in 
recent years. Stadler was the remed y taker in   Bombardier/ADTranz , which also 
included the transfer of ADtranz’  Berlin  Pankow manufacturing facility in 
Germany.242 No supplier  (except for Skoda)  was able to enter the German market  for 
regional trains  without having local m anufacturing facilit ies.243 Skoda won only one 
small contract  in Germany  (for locomotive -hauled intercity train s) and due to the 
very specific circumstances of the tender  and the absence of interest of established 
players . The Commission thus considers that also in Germany ther e is a strong 
correlation between having local manufacturing presence and the ability to win 
contracts.  
(222)  Fourth, similarly to France, the Parties’ large installed base and longstanding 
customer relationships in Germany further raise barriers to entry. Nearl y all repeat 
orders in Germany in the last 10 years were awarded to Alstom and Bombardier (see 
section  6.3.2.2, B.iii).  
                                                 
240  Non-confidential minutes of conference call with Skoda, 6 May 2020, paragraph 4.  
241  The Commission notes that Skoda secured a single contract for intercity trains in 2014 but, as explained, 
due to the specific conditions of the tender which generated only limited interest.  
242  Non-confidential minutes of conference call with Stadler, 20 March  2020, Annex – Stadler’s response to 
RFI 151.  
243  Non-confidential minutes of conference call with Skoda, 6 May 2020, paragraph 4.  
 
 
43 (223)  Therefore , the Commission considers that the market for mainline rolling stock (and 
possible segmentations) is most likely national in scope. For the purpose of this 
decision, the Commission will carry out its competitive assessment at both an EEA -
wide level, including Switzerland, and at national level.  
5.2.2.4.  Metros  
(A) The Notifying Party's views  
(224)  The Notifying Party considers that the metro market has evolved significantly 
towards an at least EEA -wide market.  
(225)  First, the Notifying Party states that suppliers participate in tenders across the EEA. 
While rolling stock players may have different geographic focuses based on their 
respective commercial strategies, all major metro  suppliers are active in tenders 
outside of their historic home base.244  
(226)  Second, the Notifying Party considers that difference in technical specifications are 
limited and driven at project -level. In contrast w ith high -speed and mainline trains, 
there are no platform -level authorizations for metros at European or national level. 
Authorizations are instead given for a specific project due to the differing 
infrastructure of projects, even those within the same cou ntry and sometimes even 
within the same city. As a result, the ‘technical ’ variations are generally driven by 
project -specific requirements and not national standards. In any event suppliers can 
easily overcome the project -level technical variances by maki ng minor adjustments 
to their existing EEA -level platforms. Suppliers design their platforms taking into 
considerations variances across different countries and customers. As a result, the 
resulting platform has a broad spectrum of applications.  
(227)  In any ev ent, the Notifying Party considers that the exact market definition can be 
left open as the Transaction does not raise competitive concerns regardless of the 
exact geographic market.  
(B) The Commission’s decisional practice  
(228)  In the previous decision, the Commi ssion considered that the geographic market for 
metros should be national in scope.245 This conclusion was mainly based on the fact 
that, despite the EU procurement rules and standardisation trends, in countries in 
which there is a strong national rail indus try (Germany was used as an example), 
orders for rail vehicles had almost exclusively gone to national suppliers and only 
very few ‘truly foreign suppliers ’ had bid for the tenders. Moreover, the diversity of 
infrastructural requirements among different Me mber States was considered a major 
obstacle to EEA harmonisation.  
                                                 
244  Form CO, Chapter B.3, paragraph 38. For instance, in the past 10 years, Siemens won projects in Austria, 
Bulgaria, France, Poland and the United Kingdom in addition to Germany, and received repeat orders in 
Italy and Norway. Similarly, CAF won projects in Belgium, Finland, Italy, the Netherlands, Romania, 
Spain, and the United Kingdom. Stadler won projects in Germany and the U nited Kingdom and Newag 
won projects in Bulgaria and Poland.  
245  Commission decision of 3 April 2001  in case M.2139 - Bombardier/ADtranz , at paras. 14 and 23.  
 
 
44 (229)  In its subsequent  decision in Metronet/Infraco , the Commission left the question 
open of a possible delineation of the market for the supply of metros  at national or 
EU level .246 
(C) Results of the market investigation and the Commission's assessment  
(230)  The results of the market investigation show that respondents consider that the 
relevant geographic market for metros is at least  EEA-wide  (including Switzerland)  
due to similar customer and homologa tion requirements, which allow suppliers to 
compete at European level.247 The presence of similar suppliers within the EEA is 
further confirmed by a majority of competitors, which indicated that the set of 
competitors that they face does not differ between t he different EEA Member States 
but vary significantly for tenders in or outside the EEA .248 Moreover, some 
customers, all located in the EEA, confirm that European suppliers (or European 
branches of global suppliers) typically participate in their tenders.249  
(231)  These results are supported by the bidding data provided by the Parties, which 
indicate that most of the metro suppliers typically bid in various Member States 
across the EEA. For instance, over the past 10 years, CAF bid in […] different 
Member States in  steel wheel metro tenders, Siemens […] or Alstom […], while 
tenders have been issued in 15 different Member States.  
(232)  Some  respondents to the market investigation consider that the market for metro is 
global in scope.  They  explain that metro suppliers are able to bid on a global scale, 
due to similar metro systems. For instance, a  component supplier  (Knorr Bremse)  
indicate d that ‘Metro systems originate in Europa and the system has been brought 
to a worldwide application from there. Metro systems are simila r, thus carbuilders 
usually operate with worldwide platforms where possible, only distinguishing 
carbody shells where legacy infrastructure are demanded (e.g. London, Berlin, 
Paris). ’  
(233)  However, the Commission notes that  non-European suppliers of metros which may 
be successful outside the EEA are not active in the EEA . In that regard, no non-
European suppliers250 have been successful in winning metro tender s in the EEA in 
the past 10 years. In addition, bids stemming from non -European suppliers in metro 
tenders remain erratic .251  
(234)  Finally , some competitors  further  explain that some  national manufacturers may 
have a stronger position in  their domestic countries, which may make it more 
difficult to foreign suppliers to enter these national markets.252 However, for a large 
majority of respondents, this does not constitute s a sufficient barrier to enter to 
consider a national geographic market in scope . Indeed, no customer consider that 
the market for  metros is national in scope , while  only a minority of competitors  
support this view and indicate d that the competition conditions for metros should be 
                                                 
246  Commission Decision in Case M.2694 - Metronet/Infraco  (2002), recital 34.   
247  Q8, replies to question 26.1.; Q9, replies to question 27.1.  
248  Q8, replies to question 27.1  and 27.2.  
249  Q9, replies to question 27.1.  
250  Except Hitachi.  
251  For instance, CRRC bid in […]  tenders  over the past 10 years.  
252  Q8, replies to question 26.1.  
 
 
45 assessed at national level  (depending on the responses, on a standalone basis or in 
parallel with a wide r scope, either EEA -wide or globally) .253  
(235)  It follows from the above that, for the purpose of this decision, the geographic 
market for metros is EEA -wide (including Switzerland) in scope.  
5.2.2.5.  Trams/LRVs  
(A) The Notifying Party’s view s 
(236)  The Parties consider that the relevant geographic market for trams/LRVs is at least 
EEA -wide.  
(237)  First, the Notifying Party states that t ram/LRV suppliers compete in tenders across 
the EEA. For instance, Spanish player CAF has been recently awarded projects in 
Norway, Sweden, Italy, the Netherlands, Germany, the UK, Belgium and Portugal, 
in addition to its Spanish contracts. Even smaller players like Pesa are increasingly 
active across the EEA .254  
(238)  Second, the Notifying Party considers that trams/LRVs are more standardi sed than 
other rolling stock. Trams/LRVs are low capacity solutions that are typically ordered 
more frequently, and in lower quantities per tender than other rolling stock. 
According to the Notifying Party, customers aim to avoid high production c osts with 
relatively standardis ed technical requirements, design and product specification 
requirements, which allow suppliers to offer standard models in various Member 
States  with limited adapted costs. In addition, the increased level of harmoni sation o f 
technical requirements has also facilitated the entry of non -European, and especially 
Asian suppliers, such as Hyundai Rotem  or CRRC.255  
(B) The Commission’s decisional practice  
(239)  The Commission previously considered that the market for trams/LRVs is national 
in scope.256  In its decision in case Alstom Transport SA/FSI/Translohr , it noted that 
the market could be wider in scope (EEA) but ultimately left the precise geographic 
market definition open.257 
(C) Resul ts of the market investigation and the Commission's assess ment  
(240)  The results of the market investigation indicate that the geographic market for 
trams/LRVs  is at least EEA -wide (including Switzerland) .  
(241)  In that regard, almost all respondents consider that the market for trams/LRVs 
include at least the EEA and Switz erland. Among the respondents, while customers 
consider that the market is EEA -wide,258 including Switzerland,259 a majority of 
                                                 
253  Q8, replies to question 6.1.; Q9, replies to question 27.1.  
254  Pesa won a 2019 contract in Bulgaria and a 2020 contract in Romania . 
255  Form CO, Chapter B.3, paragraphs 130 -131.  
256  Commission Decision in Case M.2139 – Bombardier/ADTranz  (2001), paragraph 23.  
257  Commission decision in case M. 6646 – Alstom Transport SA/FSI/Translohr , paragraph 26.  
258  Siemens and CAF did not express explicit view in that matter.  
259  Q9, replies to question 30.  
 
 
46 competitors  consider that the market for trams/LRVs is worldwide in scope.260 No 
respondents, except CRRC, consider that the market fo r trams/LRVs is national in 
scope.  
(242)  In that regard, a majority of customers indicate d that there is no national technical 
specifications and regulatory requirements that would limit the number of viable 
suppliers of trams/LRVs in their home country.261 While some respondents indicate 
that national specificities in the regulatory requirements persist between the Member 
States, customers mainly  consider that those should not  be considered as barriers to 
enter a national market. For instance, one customer ( Blackpool Council) state d that 
‘Tram manufacturers are well aware of the differences in regulatory requirements in 
each country and whilst in the past this may have limited the number of suppliers, 
the situation appears to have changed. ’262 Another customer (RATP) indicated  that 
tender specifications consisted in functional requirements and allowed for flexible 
solution, on the basis of standardized European platforms263 
(243)  Several respondent s (both customers and competitors ) explain ed that trams/LRV s 
are relatively standardised products which  are tailored following the specific 
technical specifications and requirements expressed by  each customer , according to 
its needs and demand, regardless of the Member State where the vehicles are 
operated .264  
(244)  In additio n, responses  expressed by the customers in the market investigation  are 
indicative of relatively homogenous competitive conditions in the market for 
trams/LRVs within the EEA. During  the market investigation, the Commission 
interrogated various customers l ocated in the EEA  which generally identified  the 
same EEA -based suppliers as credible bidder s for the provision of trams/LRVs, such 
as Alstom, CAF, Siemens, Bombardier, Skoda or Pesa.265 In addition, a majority of 
competitors indicate d that they face a diffe rent set of competitors in tenders in the 
EEA and outside the EEA .266 
(245)  These results are supported by the bidding data provided by the Parties, which 
indicate that most of the metro suppliers typically bid in various Member States 
across the EEA. For instance , over the past 10 years, CAF bid in […] different 
Member States in tram/LRV tenders, Stadler […] or Skoda […] , while tenders have 
been issued in 25 different Member States.267   
(246)  Other respondents consider that t rams /LRVs s ystems are similar  around the world , 
thus allowing manufacturers to usually  operate with worldwide platforms, only 
distinguishing bogies where demanded by legacy infrastructure . For instance, a 
customer (Blackpool Council) indicate d that ‘Tram systems operate in most major 
cities around the  world. Whilst they are most prominent in Europe, they do operate 
in parts of Africa, USA, Australia, New Zealand, South America, Canada, China and 
                                                 
260  Q8, replies to question 30.  
261  Q9, replies to question 33.  
262  Q9, reply form Blackpool Council to question 33.1.  
263  Q9, reply from RATP to question 33.1.  
264  Q8, replies to questions 31 and 31.1. ; Q9, replies to question 32 and 32.1.  
265  Q9, replies to question 31.  
266  Q8, replies to question 32.1.  
267  CPL ( Consolidated Projects List ) provided by the Notifying Party.  
 
 
47 Russia. ’ In addition, so me customers  further retain ed a worldwide dimension  based 
on the fact that  CRRC has taken part in a procurement of trams/ LRVs conducted 
within the last 5 years in the EEA .268  
(247)  However, the Commission notes that  non-European suppliers of trams/LRVs  remain 
poorly  active in the EEA . In that regard, bids and win in trams/LRVs projects from  
non-European suppliers’ have remained  very limited in the EEA in the past 10 years. 
Out of more than 180 contestable projects in the EEA (including Switzerland), one 
non-European supplier was present in around 5% of all tenders  only, mostly in 
Member States close to their domestic country.269  
(248)  In light of the results of the market investigation, the Commission considers that, for 
the purpose of the present case, the relevant market for trams/LRVs is EEA -wide 
and include s Switzerland .  
5.2.2.6.  Locomotives  
(A) The Not ifying Party’s views  
(249)  The Notifying Party submits that the market for locomotives is at least EEA -wide. 
Referring to the findings of the Commission in Knorr Bremse/Vossloh , the Notifying 
Party submits that all major suppliers are active across the EEA and c ustomers tend 
to source locomotives on an EEA -wide basis.270 
(B) The Commission’s decisional practice  
(250)  In ABB/Daimler Benz , the Commission found that the markets for electric and diesel 
locomotives are national in scope in the case of Member States which have the ir own 
strong rail vehicle industry.271 In Siemens /VA Tech , the Commission made a similar 
finding with respect to electric locomotives.272 In a more recent decision, in Knorr 
Bremse/Vossloh , the Commission found that manufacturers could supply rail 
vehicles, i ncluding locomotives, throughout the EEA, and the majority of rail 
operators sourced them rail vehicles on an EEA -wide basis. However, the 
Commission left ultimately the precise geographic market definition open.273 
(C) Resul ts of the market investigation and th e Commission's assessment  
(251)  The results of the market investigation are mixed regarding the geographic market 
definition.  
(252)  Competitors expressed mixed views as to whether the markets for shunting and 
mainline locomotives are EEA -wide , including Switzerland,  in scope, while others 
(Siemens) considering that the supply of locomotives has both national and EEA -
wide elements.274 They notably indicated that the same competitors supply 
                                                 
268  Q9, replies to question 30.1.  
269  For instance, the Turkish companies Durmazlar and Bozankaya bid and won in Romania exclusively. The 
Russian company Ust Katav bid and won in Latvia.  
270  Form  CO, Chapter D, paragraph 24.  
271 Commission decision in Case IV/M.580  – ABB/Daimler Benz  (1995), recital 41.  
272 Commission decision in Case M.3653 – Siemens/VA Tech  (2005), recital 118.  
273 Commission decision in Case M.7358 – Knorr Bremse/Vossloh  (2015), recital 65.  
274  Q3, replies to questions 28 and 28.1.  
 
 
48 locomotives across the EEA and that suppliers compete with the same locomotives 
in different countries.275  
(253)  The majority of customers indicated that the market for locomotives is EEA -wide.276 
This is due to  national specification and regulatory requirements that do not seem to  
restrict the number of viable suppliers of locomotives in their home country.  
Customers also explained that locomotives (both mainline and shunting) are more 
standardised that self -propelled trains and are thus less dependent on country -
specific requireme nts.277 
(254)  However, for the purpose of this decision , the Commission considers that the precise 
geographic market definition for locomotives can be left open as the Transaction will 
not give rise to competition concerns under any alternative market definition.278 
5.2.2.7.  Maintenance and refurbishment  
(A) The Notifying Party’s views  
(255)  The Notifying Party considers that the market for rolling stock maintenance and 
refurbishment is at least EEA -wide, if not worldwide, in view of the following 
factors: (i) most players are active a cross the EEA as well as outside the EEA, (ii) 
maintenance and refurbishment set -ups are standardised with depots having 
comparable equipment and skills -set, irrespective of their location, (iii) maintenance 
and refurbishment operations are often provided across national borders with 
vehicles shipped to service providers.279 
(B) The Commission’s decisional practice  
(256)  In previous decisions, the Commission defined the markets for maintenance and 
refurbishment services as national.280 
                                                 
275  Q3, replies to questions 28.1.  
276  Q4, replies to question 22.  
277  Q4, replies to question 22.1.  
278  Based on the Notifying Party’s submission and the results of the market investigation, the Pa rties’ 
activities do not overlap as Alstom is only active in shunting locomotives (including through TMH in 
which Alstom holds a […]% stake, see footnote 558), while Bombardier is only active in mainline 
locomotives. Based on the Notifying Party’s submissi on, Alstom does not have any mainline locomotive 
platform that would allow it to re -enter in a timely fashion without incurring significant investment costs  
and it has no immediate plans to do so.  Similarly, the Notifying Party explains that Bombardier doe s not 
supply shunting locomotives, nor does it plan to do so. See Form CO, Chapter D, paragraphs 10 -18. The 
results of the market investigation also confirmed that the Parties’ activities as regards locomotives are 
different, with Alstom suppling shunting locomotives and Bombardier mainline locomotives. As Siemens 
explains ‘Alstom is not or only to a small extent active in locomotives. To Siemens’ knowledge, they only 
supply shunting locomotives’. Similarly, Siemens explains that both Bombardier and Siemens  supply 
mainline locomotives. See Q3, replies to questions 81, 81.1, 82 and 82.1. Therefore, due to the absence of 
an overlap between the Parties’ activities in locomotives, the Commission will not further assess in this 
decision the effects of the Transac tion in the markets for shunting and mainline locomotives at the EEA -
wide or national level.  
279  Form CO, Chapter D, paragraph 116.  
280 Commission Decision in Case M.2139 – Bombardier/ADTranz  (2001), recital 22; Commission Decision 
in Case M.7871 – Bombardier /CDPQ/Bombardier Transportation UK  (2016), recital 25.  
 
 
49 (C) Resul ts of the market investigation  and the Commission's assessment  
(257)  The results of the market investigation generally  confirm the Commission's 
decisional practice on the geographic market definition.  The majority of participa nts 
to the market investigation  indicated that markets for mainten ance and refurbishment 
services are likely national.281 Several respondents indicated that they procure 
maintenance services from suppliers that have local presence in the country of 
operation.282 
(258)  In any event, the exact geographic scope of the markets for mai ntenance and 
refurbishment services can be left open as the Transaction does not raise serious 
doubts as to its compatibility with the internal market under any alternative market 
definition , i.e., EEA -wide or national . 
5.2.2.8.  Components and spare parts  
(A) The Notifying Party’s views  
(259)  The Notifying Party submits that the market for components can be considered EEA -
wide. The Notifying Party explains that there are different sales practices between 
the EEA (where customers  organi se tenders for complete trainsets an d rarely source 
standalone components ) and non -EEA mar kets (where there is a significant demand 
for standalone sales of components ).283 
(260)  The Notifying Party submits the market for s pare parts is at least EEA -wide  because 
spare parts can be shipped among Membe r States, if not beyond.284  
(261)  However, the Notifying Party considers that the geographic market s for components 
and spare parts can be left open as the Parties ’ EEA activities do not overlap and  the 
Transaction will not give rise to competition concerns in co mponents  or spare parts  
in the EEA .285 
(B) Commission's decisional practice  
(262)  In past decisions, the Commission found the market for components to be EEA -
wide.  
(263)  In Knorr Bremse/Vossloh , the Commission found that the geographic market for 
HVAC systems, friction/serv ice brake systems and door systems were likely to be 
EEA -wide, but left the exact geographic market definition open.286  
(264)  In Wabtec/Faiveley , the Commission found that the geographic markets for doors, 
pneumatic friction brake systems and sub -systems, friction materials (both OEM and 
                                                 
281 Q1, replies to question 16; Q2, replies to question 16; Q3, replies to question 29.1.1; Q4, replies to 
question 23.1; Q8, question 35.1; Q9, question 34.1.  
282  Q2, replies to question 17; Q9, replies to question 37.  
283  The Notifying Party provides the example of Alstom which did not sell any traction and motor component 
in the EEA in the last three years and reported annual sales of more than EUR […]  in non -EEA countries . 
See Form CO, Chapter D, paragr aph 67.  
284  Form CO, Chapter D, paragraph 69.  
285  Form CO, Chapter D, paragraphs 68 and 70.  
286 Commission Decision in Case M.7538 – Knorr Bremse/Vossloh  (2015), recitals 43, 51 and 58.  
 
 
50 IAM) and brake discs (both OEM and IAM) were EEA -wide.287 The Commission 
found the geographic market for pantogra phs was at least EEA -wide.288 The 
Commission left the geographic market definitions for energy meters, event 
recorders open.289  
(C) The Commission’s assessment  
(265)  The results  of the market  investigation confirm the existence of EEA -wide markets 
for components and sp are parts.290 Respondents point out certain differences 
between procurement patterns and regulation as regard s the supply of components in 
the EEA and outside the EEA but generally consider that competitive conditions are 
homogenous in the EEA.291 
(266)  Therefore, f or the purpose of this decision, the Commission considers that the scope 
of the markets for each type of component s and for spare parts is EEA -wide, 
including Switzerland.  
6. COMPETITIVE ASSESSMEN T – ROLLING STOCK  
6.1. Framework for the competitive assessment  
6.1.1.  Gene ral principles  
(267)  Under Article 2(2) and (3) of the Merger Regulation, the Commission must assess 
whether a proposed concentration would significantly impede effective competition 
in the internal market or in a substantial part of it, in particular through th e creation 
or strengthening of a dominant position.  
(268)  In this respect, a merger may entail horizontal and/or non -horizontal effects. Non -
horizontal effects are those deriving from a concentration where the undertakings 
concerned are active in different relev ant markets.  
(269)  As regards the assessment of horizontal overlaps, the Commission guidelines on the 
assessment of horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings292 (the ‘Horizontal Merger Guidelines ’) 
distin guish between two main ways in which mergers between actual or potential 
competitors  on the same relevant market may significantly impede effective 
competition, namely non -coordinated and coordinated effects. Non -coordinated 
effects may significantly imped e effective competition by eliminating important  
competitive constraints on one or more firms, which consequently would have 
increased market power, without resorting to coordinated behaviour. In that regard, 
the Horizontal Merger Guidelines consider not o nly the direct loss of competition 
                                                 
287 Commission Decision in Case M.7801 – Wabtec/Faiveley  (2016), recitals 79, 105, 241 and 393.  
288 Commission Decision in Case M.7801 – Wabtec/Faiveley  (2016), recital 420.  
289 Commission Decision in Case M.7801 – Wabtec/Faiveley  (2016), recitals 38 and 61.  
290  Q1, question 18; Q2, question 18; Q3, replies to question 30; Q4, repli es to question 24; Q8, question 36; 
Q9, question 36  ; Q10, replies to question 9 . 
291  Q10, replies to question 9.1.  
292 Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings (OJ C  31, 05.02.2004, pages 5 -18), in particular paragraphs 4 and 
22. 
 
 
51 between the merging firms, but also the reduction in competitive pressure on non -
merging firms in the same market that could be brought about by the merger.  
(270)  The Horizontal Merger Guidelines list a number of factors which  may influence 
whether or not significant non -coordinated effects are likely to result from a merger, 
such as the large market shares of the merging firms, the fact that the merging  firms 
are close competitors, the limited possibilities for customers to sw itch suppliers, or 
the fact that the merger would eliminate an important competitive force. Not all of 
these factors indicated in the Horizontal Merger Guidelines as relevant to the 
analysis of non -coordinated effects need to be present to make significant  non-
coordinated effects likely. Also, the list of factors is not exhaustive.  
(271)  The extent of closeness of competition between the merging parties is one of the 
factors relevant for the analysis of the likelihood of significant non -coordinated 
effects of a merger.293 The Commission is not required to show that the merging 
parties  are each other’s closest competitors to find that significant non -coordinated 
effects are likely to arise  from a merger.294 The Horizontal Merger Guidelines clearly 
provide for a relati ve approach to the relevance of closeness of competition. 
According to the Horizontal Merger Guidelines, ‘the higher the degree of 
substitutability between the merging firms' products, the more likely it is that the 
merging firms will raise prices signific antly .’295 
(272)  The same concept is set out in paragraph 17 of the Horizontal Merger Guidelines, 
according to which a merger may raise competition concerns based on ‘the extent to 
which the products of the merging parties are close substitutes ’. Both wordings set  
out a correlation between the degree of substitutability of the products of the 
merging parties and the likelihood and seriousness of competition concerns raised by 
the proposed merger.  
(273)  It foll ows that if the merging parties’  products are each other's closest substitutes, the 
competition concerns may be particularly strong. However, a merger between firms 
producing close, but not necessarily the closest substitutes also makes price increases 
more likely than a merger between f irms producing products with a low degree of 
substitutability.  
6.1.2.  Calculation of market shares and bidding data  
(274)  In prior cases involving industries where orders are infrequent, the Commission has 
considered that market shares should be analysed over several years.296 At the same 
time, as mentioned in paragraph 15 of the Horizontal Merger Guidelines, ‘changes in 
historic market shares may provide useful information about the competitive process 
                                                 
293 Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings, paragraphs 26 and 28 -30. 
294 See, e.g., Commission decis ion in Case M.7962 – ChemChina/Syngenta  (2017), recital 182; Commission 
decision in Case M.7612 – Hutchison 3G UK/Telefonica UK  (2017), recital 324; Commission decision in 
Case M.6992 – Telefonica Deutschland/E -Plus (2014), recitals 278 -280. 
295 Guidelines o n the assessment of horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings, paragraph 28.  
296 See Commission decision in Case M.7278 – GE/Alstom  (2015), Annex 1  - The Commission's Economic 
Analysis of Bidding Data, recital 189, page 55 ; Commission decision in Case M.3653 – Siemens/VA Tech  
(2005), recital 141. 
 
 
52 and the likely future importance of the various competitors, for ins tance by 
indicating whether firms have been gaining or losing market shares ’.  
(275)  In the present case, in order to address these two issues, the Parties and their 
competitors' market shares have been examined over a  period of 10 years  (2010 -
2019 ) period .297 This both limits the distorting impact of infrequent tendering  for 
projects and enables the analysis of historical changes or permanence of competitive 
positions over a meaningful period of time.  
(276)  The Notifying Party argues that historical market shares a re not determinative for the 
competitive assessment because the size and infrequency of rolling stock projects 
distort historical market shares. It considers that calculating market shares on the 
basis of sales over the past 10 years overstates the Parties ’ position and ignores 
recent developments more predictive of post -merger market dynamics. Among these 
recent developments, the Notifying Party claims  that the Parties’  market share in 
high and very high -speed trains has  diminished and the competitors’ pos ition, most 
notably Stadler’ s, has increased .298 It also observes that tender participation has 
increased in the past few years.299 Similarly, in mainline rolling stock, the Notifying 
Party argues that, both EEA -wide and in certain countries, Bombardier’s comp etitive 
position decreased in recent years while new competitors have emerged and won 
contracts. The Notifying Party therefore argues that the time period of the 
assessment of market shares should be shorter and focus on the last 5 years in order 
to reflec t the more recent development of competition in high and very high -speed 
rolling stock.  
(277)  However, the Commission’s assessment in the present case cannot be determined by 
market shares and bidding analysis conducted over the most recent 5 years period, as 
this would raise significant methodological issues. The Notifying Party’s suggested 
approach would rely on quantitative analysis of a limited number of tenders and 
would, therefore, give disproportionate weight to recent contract awards or losses, 
without r egard to the position of players with less recent awards, but no less weight 
as competitors in contemporaneous tenders. This is all the more problematic that 
rolling stock are characterized by long life cycles (spanning 30 -40 years) and the 
procurement of major customers is also cyclical. As a result, limiting the competitive 
assessment to the past 5 years would ignore large portions of the market’s main 
customers’ procurement and the main suppliers’ position. This would risk leading to 
insufficiently repre sentative results.  
(278)  Furthermore, the Parties' and their competitors' positions, as well as the extent of 
rivalry between different suppliers and the loss of competition caused by the 
Transaction will also be assessed using data on tenders and bidding provi ded by the 
Notifying Party.  
                                                 
297 The review of the present Transaction spanned over 2018. In order to conduct its assessment using the 
most up-to-date data, reflecting the most recent market dynamics, the Commission used market share and 
bidding data covering 2018 in addition to the prior 10 years.  
298 Notifying Party’s Response to the Article 6(1)(c) Decision, High Speed Rolling Stock, paragr aphs 103 -
109. 
299 Notifying Party’s Response to the Article 6(1)(c) Decision, High Speed Rolling Stock, paragraphs 110 -
123. 
 
 
53 (279)  The Notifying Party provided a Consolidated Project List ( ‘CPL’) that consists of a 
comprehensive list of tender procedures that took place, to the best of the Parties' 
knowledge, over the period 2010 -2019. The CPL includes both  tenders in which 
either Alstom  or Bombardier participated, as well as the tenders in which neither  
participated. It provides details of the different tenders, lists other bidders and 
winners. In the case of awards to consortia, it allocated the related or der intakes to 
the different consortia members.  
(280)  The Commission performed its bidding analysis on the basis of so -called 
‘contestable ’ (competitive) tenders. The information regarding the contestability 
status of each tender was provided by the Notifying Pa rty. The Notifying Party 
defined a tender as contestable if, to the best of its knowledge, the procedure was 
open to competition300. Other awards were designated as ‘non-contestable ’ and, 
unless indicated otherwise, were not used for the bidding analysis301.  
6.2. Very High -Speed trains  
(281)  The Commission considers that the Transaction does not raise concerns with respect 
to the overall market for high -speed rolling stock (comprising all trains capable of 
speed equal to or above 250 km/h). The Parties’ combined market s hares in the 
overall market for high -speed rolling stock are markedly lower ( [30-40]% worldwide 
and [40-50]% EEA -wide) than in the market for very high -speed rolling stock.302 On 
the overall market for high -speed rolling stock, Siemens, holds a market share 
comparable to that merged entity’s ( [30-40]% worldwide and [30-40]% EEA -wide). 
Additionally, several competitors such as Stadler ( [5-10]% EEA, [0 -5]% worldwide) 
and Talgo ([0 -5]% EEA, [5-10]% worldwide) remain. Finally, the investigation 
shows that the los s of competition resulting from the Transaction stems from its 
impact in very high -speed rolling stock.  
(282)  Therefore, the competitive assessment a ddresses the market with respect of which 
the Transaction raises serious doubts as to its compatibility with the  internal market , 
namely  the market for very high -speed rolling stock  (trains capable of speed equal to 
or above 300 km/h) , at EEA and worldwide level.  
6.2.1.  The Parties’ activities  
(283)  Alstom and Bombardier are both active in the supply of very high -speed rolling 
stock. Bombardier has not sold any high -speed platform s in the past 10 years in the 
EEA and at global level.  
6.2.1.1.  Alstom’s activities  
(284)  Alstom ’s very high -speed rolling stock portfolio includes  several very high -speed 
platforms .  
                                                 
300  The term ‘contestable’  as used in the CPL relates to tenders formally open to competition.  
301  Non-contestable tenders under the CPL  are usually for repeat orders of rolling stock already supplied by a 
certain manufacturer in execution of a prior contract.  
302  As explained below, the Parties’ act ivities do not overlap in the market for high -speed rolling stock (trains 
capable of speed between 250 and 300 km/h).  

 
 
55 6.2.1.2.  Bombardier’s activities  
(290)  Bombardier is active in very high -speed rolling stock where it operates  through 
several consortia307 with other suppliers.308 Outside China , Bombardier’s very high -
speed train offering consists of the Zefiro V300, a very high -speed solution with a 
maximum speed of 360 km/h (operating at 300 km/h), which was jointly dev eloped 
and produced with AnsaldoBreda (now Hitachi).309  
(291)  In 2010 , the consortium Hitachi/Bombardier was awarded a contract with  Trenitalia . 
Trenitalia places a repeat order  for additional rolling stock in 2019310 and two 
options for services in 2014  and 2017 . In addition, the consortium 
Hitachi/Bombardier expect s to be awarded a very high -speed project in Spain for the 
supply of 21 Zefiro V300 trainsets and 30 years maintenance to  Intermodalidad de 
Levante, S.A. ( ‘ILSA ’)/Trenitalia. Bombardier and Hitachi  expect to sign the 
contract in 2020.311  
(292)  With respect to the Trenitalia contract , the rolling stock scope of the 2010 order has 
been delivered in its entirety. The outstanding work relates to maintenance and 
certain deliverables in terms of rolling stock pe rformance. The rolling stock and 
maintenance scope of the 2019 repeat order [Confidential information on 
Bombardier’s contract with Hitachi and Trenitalia ]. The split of work for both the 
2010 and 2019 Trenitalia orders and for the 2017 retrofit is c. […]% for Hitachi and 
c. […]% for Bombardier.  
(293)  In China , Bombardier offers the very high -speed platform CRH380 through a joint 
venture controlled by CRRC.312  
6.2.2.  Market shares  
(294)  The Parties combined position in the very high -speed rolling stock  market is 
indicated in  the following table.313  
                                                 
307  Bombardier has bid on a standalone basis but has not won any very high -speed tender in the past 10 years 
in the EEA and outside the EEA.  
308  The Parties’ activities strictly overlap in very high -speed rolling stock marke t only (and not in the high -
speed rolling stock market, comprising trains capable of speed between 250 km/h and 299 km/h, since 
Bombardier did not bid in any high -speed rolling stock tender in the past 10 years).  
309  Form CO, Chapter B.1, paragraph 65. The  cooperation between Bombardier and Hitachi takes the form of 
a temporary association of enterprises (Form CO, Chapter B.1, paragraph 72).  
310  The 2010 Trenitalia order and the 2019 option for 14 additional trainsets each include a 10 -year 
maintenance period starting from the delivery of the first train (extendable by 5 year periods).  
311  Both Trenitalia and ILSA contracts include services: […] year maintenance and a […]-year extension 
option under the 2010 contract and […]-year maintenance under the 2019 repeat order  (Form CO, Chapter 
B.1, paragraph 74)  
312  Form CO, Chapter B.1, paragraph 172. In addition, the consortium CRRC/Bombardier operates a high -
speed platform in China, the CRH1 (maximum speed of 250 km/h).  
313  Market shares for consortia (includ ing the consortium between Bombardier and Hitachi for the provision 
of the Zefiro V300) are attributed to the consortia members according to their respective share in the 
overall rolling stock contract. For projects in which suppliers acted as sub -supplier s to the contract winner, 
market shares are solely attributed to the respective prime contractor .  

 
 
57 (298)  The Notifying Party  states that the joint bid with Hitachi in the context of the 
ongoing HS2 tender in the UK further illustrates that Bombardier depends on 
cooperation with other suppliers to submit competitive bids for very high -speed 
projects. Despite having pre -qualified on a stand -alone basis, Bombardier and 
Hitachi submitted a joint bid on 5 June 2019. Th e Notifying Party explains that 
Bombardier decided to enter into a consortium agreement primarily because it s track 
record in very high -speed in the past 10 years strictly relies on its consortium with 
Hitachi.317  
(299)  In addition, the Notifying Party states that Bombardier’s share , which was [10-20]% 
in the past 10 years  in the EEA, dropped to only [0-5]% in the past five years  and 
relates solely to the 2010 Trenitalia order for the jointly developed Zefiro V300 and 
a non-contestable follow -on order in 2019 .318  
(300)  Finally, c onsidering that Bombardier’ s presence in the market for very high -speed 
rolling stock relates to  its consortium with Hitachi, the Notifying Party states that th e 
market share increment in the very high -speed market  is limited  and therefore will 
not lead to any impediment of competition .319 According to the Notifying Party, an 
assessment of the Transaction on the basis of the sole contestable tenders would 
further confirm its limited impact on the structure o f the market.320  
(B) The Commission’s assessment  
(B.i) Market shares and structural impact  
(301)  The Commission notes that, as set out in table 2 above, the Transaction, combining 
Alstom’s and Bombardier’s competitive position , would lead to very high market 
share for the merged entity in the market for very high -speed rolling stock at EEA 
and worldwide level .  
(302)  After the Transaction , the merged entity would represent  [60-70]% of the very high -
speed rolling stock market at EEA le vel (Alstom [50-60]%, Bombardier [10-20]%) 
and [50-60]% at global level (Alstom [40-50]%, Bombardier [5-10]%). Under 
paragraph 17 of the Hor izontal Merger Guidelines, the merging p arties’  very large 
market shares constitute evidence consistent with the exi stence of a dominant market 
position.   
(303)  The main remaining competitor in the market for very high speed rolling stock  
would  be Siemens, whose size will be about 1/6th of the new entity  at EEA level and 
1/5th at global level . In addition, besides Hitachi, wh ose competitive position will be 
further analysed below, Talgo will also be active but would represent a  very modest 
share of the market ([5-10]%). The situation is comparable on the worldwide market, 
where the merged entity’s market share will be 4 times higher than the second 
supplier, Talgo. Other competitors (CRRC, Japanese suppliers) have very limited 
sales outside of their domestic markets.321.  
                                                 
317  Form CO, Chapter B.1, paragraphs 82 -83.   
318  Form CO, Chapter B.1., paragraph 217.  
319  Form CO, Chapter B.1, paragraph 123.  
320  Form CO, Chapter B.1., paragraph 120.  
321  CRRC currently has no very high -speed trains in operation outside of China.  
 
 
58 (304)  As concerns Alstom’s position, the Commission consider that, contrary to the 
Notifying Party’s view, the calc ulation of Alstom’s market share should include its 
‘TGV du Futur ’ sales to SNCF.322 In this respect, the Commission notes that, 
contrary to the Notifying Party’s claims, this project was awarded to Alstom 
following a competitive tender for SNCF’s ‘Partenariat d’innovation ’. SNCF’s 
project was therefore not reserved to Alstom. Rather, it was awarded following a 
European tender in the course of which SNCF discussed with several suppliers in 
order to assess the potential bidders’ capacities to fulfil i ts requirements. In addition, 
the selection process followed a several steps process aiming to select the best offer 
under specific selection criteria. SNCF further confirmed that two other suppliers 
initially participated in the tender but ultimately did not submit offers.323 
(305)  As concerns Bombardier’s position, despite the fact that t he increment stemming 
from the Transaction amounts to [10-20]% at EEA level  (and [5-10]% at worldwide 
level ), the Commission considers that the structural impact on competition resulting  
from the Transaction will be significant . The Bombardier/Hitachi  consortium’s sales 
were generated by the Zefiro V300 platform, which was awarded two very high -
speed projects in the EEA: a contract with Trenitalia (a subsidiary of Ferrovie dello 
Stato Italiane, ‘FSI’) in 2010  (the second largest very high -speed project at global 
level in the past 10 years324), with a follow -on order in 2019, and an expected 
forthcoming contract with ILSA.  [Market intelligence on the Parties’ customers ]. 
However, the entry of Trenitalia in ILSA’s shareholding325 led to the selection of 
Hitachi/Bombardier’s Zefiro V300 platform. In that regard, Trenitalia has explained 
to the Commission that the final selection of the Zefiro V300 platform stemmed 
from Trenitalia’s choice to procure the same platform as the one it currently operates 
in Italy, and which it considers to be ‘the best in class train at European level, in 
terms of operating performances. ’326  
(306)  As a result, the competitive position of the Bombardier/Hitachi  consorti um is 
significant and represents a significant part of the very high -speed market both at 
EEA and global level. The Zefiro V300 platform thus accounts for [20-30]% of the 
very high -speed market in the EEA (Hitachi [10-20]%, Bombardier [10-20]%) and 
[10-20]% of the market at global level (Hitachi [10-20]%, Bombardier [5-10]%). As 
explained in detail in section B.ii below, the significant competitive constraint 
represented by the Zefiro V300 platform would therefore be eliminated as a result of 
the Transactio n, thus aggravating its structural impact.  
(307)  Finally, the Notifying Party’s argument relating to Bombardier’s limited position 
over the past 5 years does not change the conclusion of the competitive  assessment.  
                                                 
322  This project is the largest order of very high -speed trains at worldwide level  in the past 10 years. The 
Notifying Party explains that approximately [20-30]% of Alstom’s worldwide very high -speed market 
share in the 2010 -2019 period and approximately [30-40]% in the 2015 -2019 period relates to the SNCF’s  
TGV du Futur order  (Form CO, Chapter B.1, paragraph 124.  
323  Minutes of the call with SNCF, dated 16 April 2020.  
324  The largest order of very high -speed rolling stock in the world in the past 10 years is the ‘ TGV du Futur ’ 
tender, from SNCF, for a projec t value of almost EUR 2.8 billion. The tender has been awarded to Alstom 
in July 2018 (Form CO, Chapter B.1,paragraph 124).  
325  Trenitalia has acquired joint control over ILSA (cleared by the Commission on February 11, 2020 (case 
M.9768)).  
326  Reply of Tren italia to RFI 13.  
 
 
59 (308)  As found  in the Siemens/Alstom  decision,327 the market for very high -speed rolling 
stock is characterised by large and infrequent tenders. As in prior cases involving 
markets characterised by lumpy demand, market shares should be analysed over 
several years.328 Calculating market shares based on a more li mited length of time 
restricts the underlying number of tenders to very few, with the consequent risk of 
providing a very distorted view of each player’s competitive position. In the present 
case, calcula ting market shares over the 2015 -2019  period instead  of the 2010 -2019  
period significantly reduces the number of w orldwide tenders covered, from 9 to 4 
closed  tenders in very high -speed rolling stock  (from 4 to 2 at EEA level, including 
Switzerland) . In this context, because market share calculat ed over a s hort period of 
time are based on a very small sample of tenders, any individual  win or loss 
inevitably results in  a very significant impact, which does not however accurately 
reflect appropriately the competitive dynamics.  
(309)  In any case , the Commission notes  that the structural impact of the Transaction 
remains particularly important when examining  the Parties’ market shares over the 
past 5 years. More precisely, over the past 5 years, the merged entity represents  [80-
90]% of the market at  EEA level (Alstom [70-80]%, Bombardier [0-5]%) and [60 -
70]% at global level (Alstom [60-70]%, Bombardier [0 -5]%). Furthermore , the 
Commission notes that Bombardier’s market share is underestimated , since, as 
further explained below, it is in the process of signing an agreem ent with the railway 
operator ILSA in Spain for the delivery of several units of the Zefiro V300. 
Bombardier’s position will therefore increase in the very short term.  
(310)  Moreover , the structural  impact  of the Transaction  must be assessed by considering 
that it will eliminate the Zefiro as a competitive constraint, since Hitachi cannot 
maintain the platform on a standalone basis. As a result, the impact of the merger 
will be greater than the mere acquisition of Bombardier’s market share. Accordingly, 
the Zefi ro V300 accounts for  around [10-20]% of the sales in the very high -speed 
market over the past 5 years both at EEA and global level. The Transaction will 
therefore have a significant impact on the structure of the market even if assessed 
over the past 5 yea rs. 
(311)  As a consequence, the combination of the Parties’ market share demonstrate s the 
merged entity’s very strong position  in the market for very high -speed  rolling stock .  
(B.ii) The Transaction risks eliminating the Zefiro V300 platform from  the market   
(312)  In the co ntext of Trenitalia ’s contract , Bombardier’s contribution to the Zefiro V300 
platform accounted for c. […]%329 of the scope of the platform. Bombardier and 
Hitachi each manufacture components and provide the services that belong to their  
respective  scope of work of the joint platform.330  
                                                 
327  Commission Decision in case  M.8677 – Siemens/Alstom  (2019), recitals 184 et seqq.  
328 See Commission decision in Case M.7278 – GE/Alstom (2015), Annex 1  - The Commission's Economic 
Analysis of Bidding Data, recital 189, page 55.  
329  […]% for Bombardier, […]% for Hitachi.  
330  Form CO, Chapter B.1, paragraph 76.  
 
 
60  With respect to rolling stock,  Bombardier’s scope covers [Information on 
Bombardier’s contracts with Hitachi ].331  
 With respect to m aintenance , Hitachi and Bombardier [Information on 
Bombardier’s contracts with Hitachi ].332  
(313)  The Notifying Party explains that t he allocation of work between Bombardier and 
Hitachi will [Information on Bombardier’s contracts with Hitachi ] for the ILSA 
project. [Information on Bombardier’s contracts and ongoing contractual 
negotiations with Hitachi ].333 
(314)  Furthermore, the Notifying Party has indicated t he currently envisaged split of work 
for the overall HS2 contract (including rolling stock and services) is […] between 
Bombardier and Hitachi . Bombardier’s rolling stock scope of work is approximately 
[…]% (including  [Information on Bombardier’s contracts with Hitachi ]), and its 
maintenance scope of work is approximately […]%.334 
(315)  If follows from the above that Bombardier’s contribution to the development of the 
Zefiro V300 platform is critical.  
(316)  As a consequence , Hitachi is dependent on Bombardier for the development of the 
Zefiro V300  and the iteration of the Zefiro platform offered to HS2  and would not be 
able, without Bombardier’s contribution, to continue manufacturing and supplying 
the platform  on a standalone basis.  
(317)  Indeed, a bsent a partnership with Bombardier , Hitachi would have to build out the 
capabilities that Bombardier currently deploys for producing its part of the Zefiro  
V300 , which would take years and require significant costs . In that regard, Hitachi 
has in dicated to the Commission that ‘ from Hitachi Rail’s perspective, the 
Transaction could have drastic effects on the VHS [very high -speed]  market by 
hampering both Hitachi Rail’s possibilities to participate in new VHS rolling stock 
tenders as well as the ongoing production of the Zefiro platform and the provision of 
the related services, since, as stated above, this platform has been developed – and it 
is being offered - in partnership with BT [Bombardier] .’ The company further stated 
that ‘If Hitachi Rail had to produce the Zefiro platform alone, it would have to build 
out the capabilities that BT currently deploys for producing its part of the platform, 
redesign and manufacture a new traction system and electronic switches […]’.335  
(318)  In addition, as a consequence of Hitachi’s sole involvement in the production of the 
Zefiro V300, the company would need to re -homologate the platform in view of the 
required redesign and manufacturing of a new traction system and electronic 
                                                 
331  Hitachi’s scope covers [Information on Bombardier’s contracts with Hitachi ]. 
332  The 2010 Trenitalia order and the 2019 option for 14 additional trainsets each include a […] -year 
maintenance period starting from the delivery of the first train (extendable by […] year periods). The 
maintenance period started in […] when the first train from the 2010 order was delivered. Maintenance for 
the initial 2010 order will thus last unti l […]. The […] -year maintenance for the 2019 option was actioned 
in 2019 with the option and will therefore last until […]. Therefore, while maintenance is initially 
provided for […] years, the contracts provide […] potential […]-year extensions. Maintenan ce could 
therefore be provided for […] years (i.e., the whole lifecycle of the rolling stock).  
333  Form CO, Chapter B.1, paragraph 77.  
334  Form CO, Chapter B.1, paragraph 84.  
335  Hitachi’s submission to the Commission, dated 2 July 2020.  
 
 
61 switches : ‘[T]herefore, [Hitachi]  would need to re -homologate the platform leading 
to unnecessary additional costs for operators who might decide to buy the platform. 
As the overall phase out timing from BT [Bombardier Transportation]  to Hitachi Rail 
may likely require some years, the disruption of BT’s partnership with Hitachi Rail 
could thus delay or even stop altogether the manufacturing of the Zefiro 
platform. ’336  
(319)  In that regard, the Notifying Party indicated  that ‘Alstom has no current plans to 
vary or discontinue an y of Bombardier’s partnerships or sub -contracting 
agreements with third parties post -Transaction. The Combined Entity is committed 
to pursue the cooperation with Hitachi/Ansaldo for ongoing projects, i.e., projects 
that are currently ongoing (Trenitalia) o r for which bids are ongoing (ILSA, HS2 
and new Trenitalia order). ’337 However, the Notifying Party’s intent in this respect is 
non-binding. Furthermore, nothing would prevent the Notifying Party from 
discontinuing  the platform besides ongoing contracts. In any event, absent specific 
remedies, the Zefiro would cease to compete with Alstom on the very high -speed 
rolling stock market.  
(320)  As a result, the Transaction would eliminate competition from a [20-30]% market 
share supplier  at EEA level  and a [10-20]% marke t share supplier at global level.  
(321)  In addition, such lessening of competition  would significantly reinforce Alstom’s 
leadership in the market for very high -speed rolling stock , as it would eliminate a 
competing  platform with a strong track record. Indeed, the Zefiro V300  boasts one of 
the strongest  track record in the market for very high -speed rolling stock  both at 
EEA and global level . The Trenitalia contract  is the second most important order for 
very high -speed trains in the past 10 years, after SNCF’s ‘TGV du Futur ’ project, 
won by Alstom .338  
(322)  As a result of the Transaction, t he merged entity will thus  hold the main very high -
speed platforms with a proven track -record in the EEA and globally, with platforms 
operated in France, Italy, Spain, Belgium, Germa ny, Luxembourg, Spain, 
Switzerland, Morocco  and the United States.339 While Siemens’ platforms are also 
operated in several countries (i.e. Belgium, China, France, Germany, Netherlands, 
Spain, Russia, Turkey and the UK), the Commission notes that Talgo’s tra ck record 
is limited compared to its two main competitors, since the company  has not sold 
very high -speed trains outside of Spain, except  in Saudi Arabia, where it won the 
SRO (Saudi Railways Organization ) project  in 2011.340  
(323)  Furthermore, t he Transaction will be all the more detrimental to competition that the 
market for very high -speed rolling stock is , already prior to the Transaction,  a 
concentrated market from the supply -side perspective . In this market, Alstom is the 
leading supplier  by far  ([50-60]% in the EEA and Switzerland) , followed by the 
consortium Hitachi/ Bombardier  ([20-30]% in the EEA and Switzerland) .  
                                                 
336  Hitachi’s submission to the Commission, dated 2 July 2020.  
337  Form CO, Chapter B.1, paragraph 159.  
338  After Deutsche Bahn’s order in 2011 for a value of almost €3.7 billion, won by Siemens, and SNCF’s 
‘TGV du Futur ’ project.  
339  Even when excluding the Zefiro V300 from the merged entity’s portfolio.  
340  In that regard, Talgo signed a component sub -supply and maintenance agreement with Bombardier.   
 
 
62 (324)  The concentration of the market for very high -speed rolling stock is illustrated by the 
HHI levels pre - and post -merger. The HHI level, alrea dy largely higher than 2,000 
before the Transaction ( [2000 -3000]  at worldwide level and [3000 -4000]  at EEA 
level) will be considerably higher after the Transaction ( [3000 -4000]  at worldwide 
level and [4000 -5000]  at EEA level), with a delta greatly above 25 0 ([0-1000]  at 
worldwide level and [1000 -2000]  at EEA level).341  
(325)  It follows from the above that the structural impact of the Transaction will be very 
significant. It will remove Alstom’s largest competitor from the very high -speed 
rolling stock market , both  at EEA and global level , reinforcing Alstom’s position  
significantly .  
6.2.3.2.  Closeness of competition  
(A) The Notifying Party’s view  
(326)  The Notifying Party argues that the Parties are not close competitors in the market 
for very high -speed rolling stock.  
(327)  First, the Notifying Party relies on the results of the market investigation in the 
Siemens/Alstom case, which indicated that Siemens, not Bombardier, was Alstom’s 
closest competitor in the market for  very high -speed  rolling stock .342 In th at market, 
the Com mission stated that ‘competitors unanimously consider [ed] that [Siemens 
and Alstom] are ea ch other’s closest competitors ’ and that c ustomers ‘also clearly 
consider [ed] that the Parties are close competitors, in particular in ter ms of 
technical capabilities .’343 
(328)  Second, bidding data related to the Parties’ participation  in tenders would show that 
the Parties are not close competitors.  Alstom competed twice  more  often against 
Siemens and Talgo ( […] and […] tenders respectively) than against  Bombardier 
([…] tenders, […] of which in the EEA344). It further states that, in  the 2010 -2019 
period, the Parties overlapped in only [20-30]% of contestable tenders, versus [50-
60]% for Alstom and Siemens, and that Alstom lost to Siemens ( […]) and Talgo 
([…]) more often than to the Bombardier /Hitachi consortium  ([…]).345  
(329)  Third , the Notifying Party states that the Parties’  internal documents show that the 
Alstom and Bombardier  are not close competitors . In that regard, the Notifying Party 
cites internal documen ts in which other competitors are identified as one of the 
Party’s most important competitive threat in the context of tender s in the EEA and in 
Turkey .346  
                                                 
341  These estimates include Hitachi’s market share in the very high -speed rolling sto ck market. Thus, the 
removal of Hitachi of the market would lead to an even higher concentration (above [5000 -10000]).  
342  Form CO, Chapter B.1, paragraph 111.  
343  Form CO, Chapter B.1, paragraph 111, and Commission Decision in case M.8677 – Siemens/Alstom  
(2019), recitals 345 and 346.  
344  The 2010 Trenitalia tender and the 2016 Renfe tender. The third one, outside the EEA, is the 2013 TCDD 
tender in Turkey.  
345  Form CO, Chapter B.1, paragraph 113. The bidding data provided in the Form CO relate the overall  
market for high -speed rolling stock (comprising all trains capable of speed equal to or above 250 km/h).  
346  Form CO, Chapter B.1, paragraphs 114 -115.  
 
 
63 (B) The Commission’s assessment  
(330)  As stated in the Siemens/Alstom  decision,347 suppliers  that bid in tenders in the 
market for very high-speed rolling stock compete on multiple parameters. An 
important parameter relates to the trainsets offered to customers. Customers issue 
technical specifications applying to the rolling stock they wish to procure that 
suppliers  must match in order to be awarded supply contracts.  Other parameters also 
apply and relate to the conditions of manufacturing and delivery of trains, a 
supplier’s expertise, know -how and financial viability, supply -chain management, 
engineering and R&D ca pacity in case of specific developments and other factors.  
(331)  It follows that tender procedures for the procurement of very high -speed  rolling 
stock aim at fostering competition  not just for the supply of trainsets, but also on the 
basis of the supplying entity’s ability to fulfil the requirements of a rolling stock 
project including, but not limited to, a supplier’s competitiveness in rolling stock 
manufacturing, assembly and de livery, as well as its experience and viability.  
(332)  Consequently, the assessment of closeness of competition between the Parties cannot 
be limited  to a comparison of the observable characteristics of their existing 
platforms, but must also take into account other overall factors (such as track -record, 
expertise, portfolio, manufacturing locations, ability to customise, etc.) that are 
relevant for customers when awarding tenders.  
(333)  It follows that the assessment of closeness of competition between the Parties should 
rely on an analysis of the closeness of their product portfolios as well as, more 
broadly, on the closeness of the Parties’ overall positions as alternative suppliers  in 
the market for very high-speed rolling stock.  
(334)  In that regard, t he Commission considers  that the Parties are particularly close 
competitors  in the market for very high -speed rolling stock .  
(335)  First, t he Commission notes  that the Parties are among the few roll ing stock 
suppliers able to provide very high -speed platforms in the EEA  and at global level . 
As stated above, only four very high -speed suppliers are currently active in the EEA, 
i.e., Alstom, the consortium Hitachi/Bombardier, Siemens and Talgo. The very  high-
speed platforms offered by these suppliers are able to meet the customers’ demand in 
trains operating at speed equal to or above 300 km/h. In that regard, the market 
investigation confirmed that customers regularly invite all or part of these four 
suppliers to submit bids and consider them as credible bidders in the context of very 
high-speed rolling stock tenders. The same consideration  applies at global level, 
where the market shares of the remaining non -European competitors (such as 
CRRC) remain ve ry limited  compared to European suppliers and the merged entity 
in particular.348  
(336)  Among the suppliers for very high -speed rolling stock, the Parties  have the strongest 
track -record, followed by Siemens, as illustrated by their respective market shares at 
EEA and global level. As confirmed  by the market investigation and further 
                                                 
347  Commission Decision in case  M.8677 – Siemens/Alstom (2019), recitals 332 et seqq.  
348  The Commission notes that, in any event, concentration of the market for very high -speed rolling stock in 
the EEA (including Switzerland) necessarily leads to concentration of the market at global level, since the 
EEA (including Switzerland) represents [60 -70]% of the de mand in very high -speed  
 
 
64 explained below, a strong track -record is considered to be one of the most  important 
criteria for customers when selecting a very high -speed rolling stock supplier  
(337)  Second , the bidding  analysis shows that the Parties exert a very important 
competitive constraint on each other in the context of the very high -speed tenders 
issued a t EEA and global level, as they  frequently  bid for the same projects .  
(338)  Due to the infrequency of the tenders, the  number of instances in which the Parties 
competed is  necessarily limited. Nevertheless, the Commission notes that the Parties 
have competed he ad-to-head for most opportunities in the EEA  and global level in 
the past ten years. In that regard, the Commission notes that, in the past 10 years, the 
Parties were simultaneously present in [60-70]% of the very high -speed projects 
issued in the EEA and [50-60]% of the projects at global level.349 In the context of 
the limited number of suppliers active in the very high -speed market at EEA and 
global level  and submitting bids to tenders , the Parties exert on each other very 
important competitive constraint in each tender in which they participate. 
Furthermore, the Commission notes that the competitive constraint exerted by 
Bombardier is particularly important on Alstom, as Bombardier systematically 
participated in [90-100]% tenders in which Alstom was also p resent at both EEA and 
global level in the past 10 years.  
(339)  In addition, examples  of ongoing projects (ILSA and HS2) demonstrate the current 
closeness of competition between the Parties and illustrate the constraints that they 
exercise on one another.  
(340)  In the ongoing ILSA project, for which the Parties’ platforms were successively 
chosen as the preferred solution. In 2017, the Spanish high -speed infrastructure 
manager  (Adif AV ) tendered slots for operation of  the Spanish high -speed network. 
Six operators , Renfe, ILSA, Rielsfera (subsidiary of SNCF), Talgo Globalia alliance, 
Globalvía and Eco Rail) bid, each offering their own preferred rolling stock supplier. 
Adif awarded a slot to the ILSA/Trenitalia consortium in November 2019.350 
(341)  The Notifying Party explai ns that, as found in the Siemens/Alstom  decision, ILSA 
initially selected Alstom’s [Information on Alstom’s bidding strategy ]. [Market 
intelligence on the Parties’ customers ]351. In that regard, Trenitalia has explained to 
the Commission that the final selec tion of the Zefiro V300 platform stemmed from 
Trenitalia’s choice to procure the same platform as the one it currently operates in 
Italy, and which it considers to be ‘the best in class train at European level, in terms 
of operating performances. ’352  
                                                 
349  The list of the projects issued in the past 10 years is the following: Trenitalia (Italy, 2010), ONCF 
(Morocco, 2010), Eurostar (UK, 2010), Saudi Railways Organisation (2011, Saudi Arabia), TCDD 
(Turkey, one project in 2013 and a nother one in 2018), Renfe (Spain, 2016), SNCF (France, 2018), and 
the two ongoing HS2 and ILSA projects. Bombardier’s bid in consortium and on a standalone basis have 
been included in the percentages.  
350  ILSA will operate 16 services (one train  per hour per direction) on three corridors, namely (i) the corridor 
Madrid -Barcelona -French border, (ii) the corridor Madrid -Valencia/Alicante and (iii) the corridor Madrid -
Seville/Málaga.  
351  Trenitalia has since acquired joint control over ILSA (cleared by the Commission on February 11, 2020 
(case M.9768)).  
352  Reply of Trenitalia to RFI 13.  
 
 
65 (342)  It fol lows from the above that Alstom’s and Bombardier’s platforms were ILSA’s 
two preferred solutions. Trenitalia’s choice to favour the Zefiro V300 platform, after 
its involvement in ILSA, shows that the platform remains highly competitive.  
(343)  Moreover , the Part ies are currently competing for the ongoing HS2 tender in the UK . 
HS2 is the public body in charge of developing and managing a new very high -speed 
railway (up to 360 km/h) linking up London, the Midlands and the North of England. 
Phase One will open betwe en 2029 and 2033 and run from London to Birmingham. 
Phase Two will extend the route from Birmingham to Crewe and to Manchester and 
Leeds . A tender for the procurement of high -speed rolling stock for Phase One 
railway is currently ongoing. The tender  is planned to be awarded  by the end of 2020 
or in early 2021 at the latest. In that regard, HS2 has indicated to the Commission 
that f ive bidders passed the prequalificat ion stage and submitted tenders, namely  
Alstom, the consortium Bombardier/Hitachi, Siemens, CAF and Talgo. At the 
moment , all five offers remain in the procurement process .353 As mentioned above, 
Alstom’s, Siemens’ and the consortium Hitachi/Bombardier’s bids appear to be the 
most credible, given that CAF qualified as a bidder after a legal action and Talgo has 
never delivered very high -speed rolling stock in the EEA outside its domestic market 
(Spain).  
(344)  Third , the results of the market investigation largely confirmed that the Parties are 
particularly  close competitors. A majority of customers indicated that Siemens and 
Bombardier are the closest competitors to Alstom in terms of product offering and 
technical capabilities.354 Accordingly, Alstom and Siemens are considered by a 
majority of customers to be the closest competi tors to Bombardier , either operating  
on a standalone basis and or in consortium with Hitachi.355  
(345)  In addition, customers have been asked to rank the very high -speed suppliers which 
should be considered as Alstom’s or Bombardier’s best alternative in terms of  
products, competitiveness, quality and innovation. The results show that Siemens is 
on average considered to be Alstom’s closest competitor, closely followed by 
Bombardier (on a standalone basis  or in  consortium Hitachi ).356 Other competitors, 
such as Talgo , are ranked largely below  Siemens and Bombardier. For instance, one 
major customer indicate d that ‘[t]he consortium between Bombardier and Hitachi is 
the best alternative [to Alstom]  because it represents the fusion of high -level of 
know -how, techniques a nd production capacity. ’ The same findings apply when 
customers are asked to rank Bombardier’s closest competitors: Siemens is 
considered to be Bombardier’s closest competitor, closely followed by Alstom.357  
(346)  Responses provided by competitors are in line wit h the customers’ view , with a  
majority consider ing that  Siemens and Bombardier (on a standalone basis  or in  
consortium Hitachi ) are Alstom’s closest competitors.358 For instance, a competitor 
stated  that ‘Siemens, Alstom and Bombardier (alone and/or in consortium with 
Hitachi/Ansaldo) are the only three credible players with proven platforms in the 
                                                 
353  Minutes of the call with HS2, dated 29 April 2020.  
354  Q2, replies to questions 21.1. and 21.2.  
355  Q2, replies to questions  21.3., 21.4., 21.5. and 21.6.  
356  Q2, replies  to question 28.1.  
357  Q2, replies to question 28.2.  
358  Q1, replies to question 24.1.  
 
 
66 EEA. The other manufacturers lack either a platform that is operational outside its 
home market, if operationa l at all, or have to rely on Bombardier as a consortium 
partner to be able to have an offering. ’ Accordingly, Siemens and Alstom  and, to a 
lesser extent, Talgo,  are considered to be Bombardier’s closest competitors by a 
large number of very high -speed roll ing stock suppliers.359 A competitor indicated  in 
that regard that ‘[i]t can be checked that Very High Speed tenders in the EEA in the 
past years have been awarded in most cases to Alstom, Siemens, 
Bombardier/Hitachi, or Talgo. Outside of EEA, Rotem and Japa nese holdings have 
very high speed Rolling stock in their portfolio, but not so closest  (sic) to 
Bombardier product offering. ’360 In addition, a competitor indicated that the 
Transaction will lead to the combination of the few companies with “ a track record 
of worldwide projects. ”361  
(347)  In addition, a majority of  competitors indicated  that the Parties, along with Siemens, 
have the best proven capability to innovate and to customise their platforms 
according to the customers’ needs. They further point ed out the strong local footprint 
of manufacturing and services facilities  owned by the Parties .362  
(348)  Fourth, the Commission notes that the excerpt of the Parties’ internal documents in 
the context of five tenders issued in the EEA and outside the EEA quoted by the 
Notify ing Party in the Form CO do not demonstrate the lack of competitive 
closeness between the Parties. Indeed, a mong the tenders concerned by these 
excerpts, the Commission notes that:  
 Two tenders  (2014 SBB  (Switzerland) , ongoing TCDD  (Turkey) ) concern 
high-speed rolling  stock363 (trains capable of speed below 300 km/h), for 
which the  Parties’ activities do not overlap due to the lack of Bombardier’s 
sales in the past 10 years. The Commission further notes that Bombardier did 
not bid in the 2014 SBB tender ;  
 Two tenders (2013 TCDD (Turkey) and 2016 Renfe  (Spain) ) concern very 
high-speed rolling stock. However, the Commission notes that Bombardier 
bid as a standalone supplier in these tenders. As a consequence, Alstom’s 
internal assessment related to the thr eat represented by Bombardier’s bid did 
not concern Bombardier as a supplier  offering a very high -speed platform in 
consortium with Hitachi;  
 The fifth one (HS2  (UK) ) is ongoing and the outcome of the tender remains 
unknown. There are currently five bidders  in the tender, namely Siemens, 
Alstom, the consortium Hitachi/Bombardier, CAF and Talgo. However, the 
bids presented by Siemens, Alstom and the consortium Hitachi/Bombardier 
may be considered as the more credible, given that CAF qualified as a bidder 
after a threat of legal action and Talgo has never delivered very high -speed 
rolling stock in the EEA outside its domestic market (Spain).  
                                                 
359  Q1, replies to question 24.2.  
360  Q1, replies to question 24.2.  
361  Q1, replies to question 33.2.  
362  Q1, replies to question 26.  
363  Form CO, footnote 237; CPL.  
 
 
67 (349)  It follows from the above that the Parties compete closely in the market for very 
high-speed rolling stock at EEA  and gl obal level .  
6.2.3.3.  Barriers to ent ry 
(A) The Notifying Party’s view  
(350)  The Notifying Party considers that barriers to entry are limited for very high -speed 
rolling stock  at EEA  and global level.  
(351)  At global level, the Notifying Party states that very high -speed customers do not face 
any significant barriers to switch rolling stock supplier. According to the Notifying 
Party, the large number of suppliers active in the market enable customers to 
purchase rolling stock from a wide range of alternatives. The Notifyin g Party 
provides several examples of customers who switched suppliers, including (i) the 
2010 Eurostar tender, where Eurostar changed from Alstom to Siemens; (ii) SBB 
switching from Alstom to Stadler in 2014; and (iii) Spanish operator Renfe 
procuring roll ing stock from various suppliers including Talgo, Alstom, Siemens, 
and a CAF -Alstom consortium. More generally, the number of bidders participating 
in contestable tenders demonstrates the possibility for customers to change rolling 
stock supplier. For inst ance, Renfe received applications from five suppliers for its 
2016 tender (Alstom, CAF, Siemens, Talgo, and Bombardier) and CRRC, Hyundai 
Rotem, Siemens, Alstom, CAF, and Bombardier all competed in the pre -
qualification phase of the 2018 TCDD tender in Tur key.364  
(352)  At EEA level, the Notifying Party considers that barriers to enter ar e not such to 
deter entry and expansion within the EEA for rolling stock suppliers  for the 
following reasons .  
(353)  First, the Notifying Party considers that all competitors have suffic ient technical and 
financial capabilities to enter or expand their position across the EEA. The Notifying 
Party considers that several suppliers are able to provide very high -speed rolling 
stock  in the EEA, including Siemens, Talgo, Hitachi, CAF or CRRC. Regarding the 
latter specifically, the Notifying Party points out the fact CRRC is the largest global 
rolling stock player and has demonstrated its technical capabilities through its 
various complex projects around the world. It further states that  CRRC has sufficient 
knowledge of the  European technical standards , since the Chinese company has  
recently developed a high -speed train with maximum operating speeds of 280 km/h, 
a 250 km/h version of its EMU whose interior design is ‘complying with TSI ’ and a 
350 km/h version complying with international and EN 15 standards regarding 
safety and reliability.365 
(354)  Second,  the Notifying Party states that t ender process and bidding costs do not deter 
competitors from bidding across the EEA. This is evidenced by the high nu mber of 
competitors participating in very -high-speed tenders. Very high -speed suppliers are 
able to recoup the bidding and development costs after the award. This reduces the 
bidders’ financial exposure and keeps bidding costs low. More generally, supplier s 
active in the EEA are highly sophisticated players with significant financial 
resources and extensive experience in supplying rolling stock. They  are therefore 
                                                 
364  Form CO, Chapter B.1, paragraph 206.  
365  Form CO, Chapter B.1, paragraph  166.  
 
 
68 well aware of the tender process and related costs and will participate in a tender 
when comme rcially attractive.  
(355)  Third, the Notifying Party considers that , contrary to the Commission’s 
consideration in Siemens/Alstom , EEA -specific technical requirements do not 
constitute a barrier to entry in the EEA for non -European high -speed suppliers.  
(356)  The Not ifying Party states that c onvergence of technical requirements at global level 
facilitates entry in the EEA. Technical requirements in and outside the EEA are 
increasingly similar and address the same issues . As such, there is no category of 
technical requ irements existing only in the EEA and not in other countries. European 
standards have in fact often been the basis for other standards. In certain countries, 
technical standards are also more stringent than EEA ones, making it easier for 
foreign suppliers to comply with European requirements.366 Therefore, non -
European suppliers such as CRRC, Hyundai Rotem, Kawasaki, and Hitachi already 
comply with high standards which do not greatly differ from European 
requirements.367 
(357)  In addition,  the Notifying Party states that the implementation of a single market for 
rail services ( also called Single European Railway Area ), notably via the Fourth 
Railway Package  of 2016 , has harmonized most of the technical requirements that 
apply to high -speed trains in Europe by means of  TSIs. This harmoni sation of 
technical requirements has facilitated the entry of non -European high -speed 
suppliers who now face standardis ed technical requirements and can more easily 
access and compete throughout the EEA.368 
(358)  Furthermore, according  to the No tifying Party , as homologation is only obtained 
once a tender is won and it is not part of the bidding costs, it does not deter entry or 
expansion. Suppliers will bid for tenders without prior homologation if these are 
commercially interesting.369  
(359)  Finally, the Notifying Party explains that c ommercial references are not an 
insurmountable barrier to entry  and are, c ontrary to the Commission’s consideration 
in Siemens/Alstom , not required to enter the very  high-speed market. While useful at 
first to assess a su pplier’s experience, commercial references (i.e., the track -record of 
previous supplies) are not relevant for the customer’s ultimate decision during the 
bidding process. Multiple suppliers have already won tenders without prior 
commercial references at pl atform or national level. For instance, Talgo won the 
2016 Renfe tender with its Talgo 350 platform without any reference in very high -
speed.370  
(B) The Commission’s assessment  
(360)  Contrary to the Notifying Party’s view, the market for very high-speed rolling stock  
is characterised by high barriers to entry. As stated in the Siemens/Alstom  decision, 
                                                 
366  For instance, in the U.S., manufacturers are required to make all cars and related toilets accessible by 
wheelchair users.  
367  Form CO, Chapter B.1, paragraph 222.  
368  Form CO , Chapter B.1, paragraph 222.  
369  Form CO, Chapter B.1, paragraph 224.  
370  Form CO, Chapter B.1, paragraph 224.  
 
 
69 most of these barriers generally apply at EEA  and global level. Some barriers are 
EEA -specific.  
(361)  With respect to the generally applicable barriers to enter, the Commission notes the 
existence of several barriers related to the level of technical knowledge, investment 
and prior experience required vis -à-vis the suppliers.  
(362)  First, a majority of responde nts confirmed that the development of very high -speed 
rolling stock requires significant investment, technical capabilities and time. In 
particular , respondents to the market investigation stressed out the fact that the 
development of a very high -speed pla tform demand ‘considerable ’ technological and 
financial capabilities.  
(363)  Several reasons explain the required  level of  investments  with respect to very high -
speed platforms . For instance , a competitor explains that the strict safety regulatory 
requirements ( e.g. sophisticated aerodynamic and dynamic aspects or crash) 
applicable to very high -speed platforms entail very important investments and 
technical developments. Testing a new ly-developed  platform also requires important 
investments . In th at regard, a com petitor explained  that ‘One of the main technical 
issues which arise when developing VHS trains is that there are no specific very 
high-speed circuits to test their units. Therefore, track tests need to be performed on 
tracks in service and during limited time periods to respect traffic restrictions (for 
instance, at night). In addition, manufactures need to negotiate agreements with 
infrastructure operators to carry out special tests. ’371 This financial and technical 
barrier to enter the high-speed and very high-speed market is confirmed by a 
majority of customers. For instance, one of t hem indicated  that ‘The development of 
a high speed train, starting from conception phase to the final certification requires 
specific technical capabilities, as well as the f inancial one. Moreover, costs related 
to design and authorization processes can be very high, thus constituting a 
significant barrier to enter a new market .’ Another customer explain ed that the level 
of investment needed is linked to the long duration need ed to develop a very high -
speed platform: ‘The development of a very high -speed product platform appears to 
require significant investment over a long period of time – perhaps in the region of 5 
years. ’ 372 
(364)  In addition, the level of investment required to develop a very high -speed platform 
constitutes a barrier to enter for middle -sized rolling stock suppliers who do not have 
the financial capabilities to sustain such investments . As stated by a competitor, 
‘[f]inancial requirements are becoming difficult t o fulfil for middle -size companies. 
This might be one of the reasons why some sector companies have been merged in 
order to be able to deal with this, leaving a less competitive scenario .’373 
(365)  Second, another financial barrier to enter pointed  by the responde nts is the level of 
investments required to participate in tenders. A majority of respondents to the 
market investigation considered that investments such as bidding costs, pre -
qualification costs and business development costs relating to adaptation of ex isting 
                                                 
371  Q1, replies to question 19.3.1.  
372  Q2, replies to question 20.3.1.  
373  Q1, reply to question 19.3.1.  
 
 
70 products to the customer's needs constitute a  significant  barrier to enter.374 For 
instance, a competitor state d that ‘It is also becoming common in tenders to have 
very demanding financial requirements in terms of capital and guarantees. This 
makes i t difficult or even inaccessible for middle -size companies to compete in the 
tenders, independent of how competitive their proposal is. This goes in favour of 
very big multinationals. The cost of developing a very high -speed trains bid can 
reach several mi llion euros, usually more expensive than a high speed trains bid. ’ 
(366)  Third, the Commission notes  that commercial references and a proven track -record 
constitute another significant barrier to enter. As stated in the Siemens/Alstom  
decision, w hen organising a  tender for the procurement of very high -speed rolling 
stock customers require that prospective bidders demonstrate that they have a track -
recor d of previous supplies . References provide customers with a confirmation that a 
given supplier has experience in  executing similar projects and will thus be able to 
meet customers' requirements in similar projects.375 
(367)  In that regard, a large majority of customers explain that the bidders’ track record in 
very high -speed constitute s a very important criteria taken into account in the bid 
assessment.376 Indeed, customers usually require several  references to qualify for a 
tender.377 More specifically, respondents to the market investigation  consider  that 
having supplied other customers in the EEA or outside the EEA  when bidding in 
very high -speed rolling stock tenders is a significant advantage.378 Accordingly, a 
majority of customers consider that  prior sales of a very high -speed platform 
competing in a tender constitute an  important factor  for the assessment of the bid.379 
As stated in the Siemens/Alstom  decision, the Commission notes that references in 
the EEA are particularly important , because suppliers with such track -record  are 
judged to be very competent, reliable and, therefore, more c redible bidders .380 
(368)  In addition , the existence of  a longstanding relationship with a very high -speed 
rolling stock supplier constitutes an important selection criterion.381 In that regard, 
the results of the market investigation show  that, from the perspective  of customers,  
a bidder who previously supplied very high -speed rolling stock to the a given rail 
operator  has an advantage due to its ‘[b]etter knowledge of our requirements and 
well-know product reliability. ’382 Competitors hold the same view.383  
(369)  With respe ct to EEA -specific barriers to entry, the results of the market investigation 
show ed that authorisation under EEA technical and safety rules constitutes another 
barrier to enter the very high-speed market in the EEA. As stated in the 
Siemens/Alstom  decisio n, very high -speed rolling stock cannot be placed in service 
in the EEA unless suppliers obtain regulatory authorisations at EU and Member 
                                                 
374  Q1, replies to question 19.2.1. ; Q2,  replies to question 20.2.1.  
375  Commission decision in case M.8677 – Siemens/Alstom  (2019), recital 463.  
376  Q2, replies to question 20.4.1.  
377  Q1, replies to question 19.4.1.3; Q2, question 20.4.1.3.  
378  Q1, replies to question s 36.1.  and 36.2.  
379  Q2, replies to question 38.  
380  Commission decision in case M.8677 – Siemens/Alstom  (2019), recital 474; Q2, replies to question 38.  
381  Q1, replies to question 34; Q2, replies to question 36.  
382  Q2, reply to question 36.  
383  Q1, replies to question 34.  
 
 
71 State level. The authorisation process is primarily governed by the Interoperability 
Directive,384 TSIs385 and the Safety  Directive.386 
(370)  It should be noted that , as stated by the Notifying Party,  the number of national rules 
in the EEA is expected to decrease due to the extension of the scope of TSIs and the 
harmonisation of requirements.387 Nevertheless, the majority of responde nts to the 
market investigation, including competitors, have confirmed that the European 
certification and authorisation regime constitutes a barrier to entry .388 For instance, a 
competitor indicated  that ‘HS train manufacturers must follow a long homologation 
process with a certification body, which may take up to 6 years. Delays in the 
certification process may be caused mainly by necessary adjustments required 
between the different interfaces of the manufacturer, the infrastructure operator and 
the certification body itself. ’389  
(371)  In addition, even if customers do not necessarily expect suppliers to offer a  pre-
certified solution, bidding for a contract with a fully authorised product under both 
European TSIs and the relevant national technical rules constitutes a significant 
advantage. In that regard, a competitor explains that ‘[a]ll parties, Operators and 
Supp liers, are willing to reduce cost and time that comes from authorisation 
processes, which is always a lengthy and expensive process. ’390 
(372)  Furthermore , despite EU procurement rules prohibiting customers from 
disqualifying bidders that do not have local product ion assets  (i.e., facilities located 
in the country in which the relevant customer is located) , some respondents have 
indicated that customers do informally favour bidders that do or plan to invest in 
local facilities. According to respondents to the marke t investigation , having a local 
presence, even if not a formal requirement, can constitute an important aspect of a 
bid or a competitive advantage for the bidder .391 For instance, a competitor indicated 
that ‘[t]here are only four countries in EEA with very high-speed operations (Spain, 
France, Italy & Germany). In all those countries listed are rolling suppliers located. 
Thus, without having a home market the entry barrier is very high. ’392 
(373)  In that regard, competitors confirm  that, post -Transaction, the merged  entity will 
have a competitive advantage due to its larger manufacturing footprint for very high -
speed rolling stock in the EEA. They explain ed that the merged entity’s 
                                                 
384 Directive 2008/57/EC of 17 July on the interoperability of the rail systems within the Community, 
(‘Interoperability  Directive’ ) [2008] OJL 191/1 (recast by Directive 2016/797/EU of 16 May 2016 on the 
interoperability of the rail system within the Europe an Union  [2016] OJL 138/44).  
385 TSIs are developed by the EU Agency for Railways under the Interoperability Directive, the Commission  
Delegated Decision (EU) 2017/1474 of 8 June 2017 supplementing Directive (EU) 2016/797 of the 
European Parliament and of the Council with regard to specific objectives for the drafting, adoption and 
review of technical specifications for interoperability and the Agency's 2017 mandate.  
386 Directive 2004/49/EC of 29 April 2004 on safety on the Community’s railways, (Safety Directive) [2004] 
OJL 220/16 (recast by Directive 2016/798/EU of 11 May 2016 on railway safety [2016] OJL 138/102).  
387 Q1, replies to quest ion 14. For completeness, the Interoperability Directive 2008/57/EC and the Safety 
Directive 2004/49/EC have been amended by Directive (EU) 2016/797 and Directive (EU) 2016/798 
giving a reinforced role to the European Union Agency for Railways to limit nat ional rules.  
388  Q1, replies to question 19.1; Q2, replies to question 20.1.  
389  Q1, reply to question 19.1.1.  
390  Q1, reply to question 29.1.  
391  Q1, replies to question 20.1.  
392  Q1, reply to question 20.1.  
 
 
72 manufacturing footprint will be the largest in the EEA, which will provide it with a 
significant competitive advantage thanks to its closeness to the potential clients and 
the possible economies of scale. For i nstance, a competitor summarised  the 
competitive advantages stemming from the merged entity’s industrial footprint in 
those terms: ‘Close access to local supply chain, sources of funding and clients; 
economies of scale, higher negotiating power with suppliers, subsegment 
specialization in each facility, reinforced R&D capabilities, (…).’393 
(374)  Finally, a s a result of the  above mentioned EEA -specific  barriers , the entry of new  
suppliers  is highly unlikely in a foreseeable future  in the EEA . In particular, the 
Notifying Party’s argument that CRRC, the Chinese rolling stock manufacturer, is a 
credible likely entrant has not been supported by  the market investigation.  
(375)  The existence of high barriers to enter the European market for very high-speed 
rolling stock  has been confirmed by CRRC in the course of the investigation.  CRRC 
confirmed  that, contrary to the Notifying Party’s assumption, it do es not have a TSI 
compliant very high -speed platform in the EEA . On balance, CRRC considers that 
the lack of any track record in the EEA and the complexity of homologation 
requirements contribute to restraining its prospect of entry. The company explained 
that: ‘there are high barriers to enter the European high speed and very high speed 
markets due to [CRRC’s]  lack of commercial references with European customers 
and the complex process for obtaining TSI homologation/certification. CRRC 
currently does not have a TSI -compliant high speed or very high speed platform in 
Europe. The Joint Venture between CRRC and Bombardier concerns high speed 
trains supplied only in the domestic Chinese market .’394 
(376)  CRRC’s difficulty to enter  the European very high -speed market h as been recently 
illustrated during th e HS2 tender, in which the company tried to pre -qualify but 
failed to be qualified to participate in the tender ’s bidding process .395  
(377)  CRRC’s lack of credibility in the European market for very high -speed has been 
further confirmed by the results of the market investigation. Competitors consider 
that CRRC is not currently a credible bidder in the EEA, and most of them indicated 
that a minimum period of 5 to 10 years should be necessary for the company to offer 
credi ble bids.396  
(378)  Competitors confirm ed that CRRC’s impediment to become able to bid for contracts 
in the EEA  mostly relies in the investment and timeframe required to get a very 
high-speed platform authorised . A explained by a competitor, ‘[n]or CRRC nor other 
Chinese company is currently present in the VHS trains segment in the EEA and the 
situation may be the same in the near future due to the existence of high barriers to 
entry into this segment in the EEA . […] Furthermore, in order to access this segment 
in the EEA, manufacturers need to go through subsequent phases, that take at least 
12 years to complete, namely,: (i) design and construction; (ii) factory and track 
testing; (iii) validation; (iv) homologation; and (v) commercial  service. ’397 
Customers evoke a dditional bar riers to ent ry preventing CRRC from  enter ing the 
                                                 
393  Q2, reply to question 33.2.  
394  Minutes of the call with CRRC, dated 27 May 2020.  
395  Minutes of the call with CRRC, dated 27 May 2020.  
396  Q1, replies to questions 43 and 43.3.  
397  Q1, reply to question 43.2.  
 
 
73 European market for very high -speed rolling stock, such as the lack of market 
experience, proof of product quality as well as the language barrier.398  
(379)  The same considerations equally apply to other Asian suppliers such as Hyundai 
Rotem, Kawasaki  and Toshiba, which face the  same  challenge s to enter the  overall  
European mar ket for very high-speed rolling  stock , as confirmed by the customers 
who responded to the market investigation .399 Accordingly, an Asian supplied 
indicated that ‘[c]onsidering huge necessary investments in order to comply with 
EEA technical requirements, to develop a manufacturing partner for rolling stock 
assembly, and to establish EEA -based production and assembly ca pacity, we do not 
have a plan to enter very high -speed rolling stock market in EEA […].’ 
(380)  It follows from the above that the market for  very high -speed rolling stock are 
characterised by high barrier to enter  in the EEA  and at global level .  
6.2.3.4.  Countervailing buyer power  
(A) The Notifying Party’s view  
(381)  The Notifying Party states that very high -speed rolling stock customers are 
sophisticated and experienced, and choose their suppliers through highly structured 
and competitive tender procedures . The competitiveness of  the very high -speed 
market is further safeguarded by the high number of bidders, the customer’s ability 
to choose and switch suppliers and the resulting pressure for suppliers to offer 
technically advanced products at low prices.  
(382)  First, the Notifying Part y also argues that s ophisticated customers drive competition 
through highly structured tenders. Most customers are large, incumbent, public 
entities, backed by national governments, such as DB (Germany), Renfe (Spain), 
SNCF (France), or SNCB (Belgium). The se sophisticated customers have 
longstanding experience with the procurement of very high -speed trains. This 
customer set -up, combined with the high commercial value of the projects, safeguard 
the customer’s leverage powers .400  
(383)  Second , the Notifying Party considers that t he significant number of bidders allows 
customers to compare offers and switch supplies. This was the case in the 2010 
Eurostar tender, where Eurostar changed from Alstom to Siemens . The number of 
competitors participating in tenders and th e customers’ ability to switch supplier 
incentivises competitors to provide highly competitive offers. More importantly, 
according to the Notifying Party,  customers will not have reduced options in 
upcoming tenders,  as Bombardier has not won a very high -speed tender on a stand -
alone basis  in the past 10 years .401 
(B) The Commission’s assessment  
(384)  Under paragraph 64 of the Horizontal Merger Guidelines, countervailing buyer 
power consists in  the bargaining strength that a buyer has vis -à-vis the seller in 
                                                 
398  Q2, replies to question 46.2.  
399  Q2, replies to question 49.2.  
400  Form CO, Chapter B.1, paragraph 195.  
401  Form CO, Chapter B.1, paragraph 184.  
 
 
74 commercial negotiations due to its size, its commercial significance to the seller and 
its ability to switch to alternative suppliers. Several elements concur to refute the 
existence of countervailing buyer power in the present case .  
(385)  The exercise of buyer power requ ires that customers have sufficient alternative 
options other than the Parties and can credibly switch or threaten to  switch suppliers 
after the Transaction.  In that regard, the Commission notes that the high -speed and 
very high -speed tenders are character ised by a low number of bidders, and that the 
Parties are among the suppliers, with Siemens, who participate the most  in tenders .  
(386)  Out of [a small number of ] very high -speed contestable tenders402 in the period 
2010 -2019 in the EEA and Switzerland:  
 [Specific details based primarily on Alstom’s bidding data and market 
intelligence in relation to customers, the number and the identities of bidders 
in very high speed tenders in the EEA and Switzerland in 2010 -2019 ];403  
 […];  
 […].  
(387)  Overall, there have been only 3 bidders on average in very high -speed rolling stock 
tenders in the EEA and 2. 7 at the worldwide level in the 2010 -2019 period.  Alstom 
participated in [90-100]% [of] very high -speed rolling stock tenders in the EEA in 
the pas t 10 year s, and Bombardier participated in [60-70]% of them. This means 
that, on average, options available to customers will significantly reduce in 
upcoming tenders, the merger either lowering the number of bidders, or reinforcing 
the position of the merged entity. This is all the more true that, as described above at 
paragraph (340) , in a rare additional opportunity in the EEA, namely the ILSA 
procurement, the customer switched its procurement decision fr om Alstom to 
Bombardier/Hitachi , highlighting that the Zefiro V300 platform is  ‘the best in class 
train at European level, in terms of operating performances ’ (paragraph (341)  
above).  As a result, customers  will be unable to counter the merged e ntity's increased 
market power . The impact is also significant at worldwide level, since Bombardier 
participated in [40-50]% of the  […] tenders issued in the past 10 years (Alstom 
participated in  [90-100]%  of them ). 
(388)  These results are consistent with the results of the market investigation. A majority 
of respondents qualified customers’ buyer power for the procurement of very high -
speed rolling stock  as ‘medium ’404 and dependent on the outcome  of tendering 
processes put in place.  
(389)  As found by the Commission  in Siemens/Alstom , the tendering process for rolling 
stock, including in tenders for very high -speed trains, is typically carried out in four 
phases:  
a. An initial market engagement phase, during which customers collect 
information about manufacturers and available products and solutions;  
                                                 
402  Excluding the ILSA project.  
403  Form CO, Chapter B.1., paragraph 130.  
404  Q1, replies question 49; Q2, replies to question 54.  
 
 
75 b. A pre -qualification phase, which typically follows the publication of a 
request for qualif ication ( ‘RFQ ’) and consists in customers providing an 
overview of the tender (a Pre -qualification Pack, ‘PQP’) and issuing a pre -
qualification questionnaire to assess prospective suppliers' track record and 
credentials. At the end of the process, customer s select suppliers qualified to 
bid. Customers usually do not make the short -list of qualified suppliers 
public;  
c. A bidding phase, which is marked by the issuance of a request for proposals 
(‘RFP’), which describes the project's specifications, assessment c riteria, 
grading scheme and formal conditions for submitting bids. Prospective 
suppliers prepare and submit bids on this basis. Tenders may have more than 
one bidding round, often involving the submission of best and final offers 
(‘BAFOs ’); 
d. A post -bidding phase, which involves the customers' evaluation of bids and 
award, as well as final exchanges with the supplier.  
(390)  This process, which typically take s several years, entails long preparation from the 
potential bidders as well as a long assessment period of t he bids by the customers 
followed by negotiation between the railway operator and the participants. It aims to 
ensure a competitive dynamic throughout the tender in order to  ultimately  select the 
best offer on the basis of criteria defined by the customer.   
(391)  However,  this process does not suffice alone to ensure the competitive dynamic 
leading to the selection of the best offer. As highlighted by respondents to the market 
investigation, a competitive outcome can only be obtained if a sufficient number of 
bidders participate in a tender. As stated by a competitor, ‘[b]uyer power is relevant 
if rail operators have the option between several established and proven 
suppliers. ’405 
(392)  In that regard, respondents to the market investigation indicated that one of the main  
impediments to the customer’s buyer power is the low number of bidders, due to the 
high level of concentration in the market for very high -speed in particular. Thus, in 
the course of the market investigation,  customer s explained  that ‘[w]e procure very 
high speed trains through competitive procurement procedures. The number of 
suppliers is limited. ’ They confirmed the fact that ‘the market is very concentrated 
and made up of large, international businesses with significant ‘bargaining power’ 
themselves. ’406 
(393)  Following the Transaction, as stated in section 6.2.3.1.  above , the market for very 
high-speed  rolling stock  will become significantly more concentrated , thus further 
limiting the number of bidders in tenders and the customers’ buyer power. This is 
confi rmed by a majority of competitors who consider that Transaction will 
negatively impact the  customers’ bargaining strength in commercial negotiations 
                                                 
405  Q1, reply to question 49.1.  
406  Q2, replies  to question 54.1.  
 
 
76 when purchasing very high -speed rolling stock ,407 due to the reduction of available 
alternatives and the posi tion of the merged entity.408  
(394)  Finally, the Commission notes that, as found in Siemens/Alstom , certain customers’ 
countervailing buyer power can be limited in the context of s pecial relationships 
between these  customers and suppliers . 
(395)  In particular, all tenders for very high -speed rolling stock organised by Deutsche 
Bahn, SNCF, Trenitalia, Renfe and SBB since 2008 have been awarded to each of 
the corresponding national supplier (respectively, Siemens, Alstom, Hitachi, Talgo 
and Stadler).  Historically,  SNCF and Deutsche Bahn procure trains that have been 
developed and designed specifically for them.  As explained by the Notifying Party, 
‘ICx platform, with a maximum speed of 250 km/h, was developed for DB and 
operates in Germany ’ and ‘Alstom won the SNCF  tender with a customer -specific 
version of the TGV du Futur, named TGV 2020. ’409 
(396)  These tailored developments limit the ability of those customers to exercise buyer 
power since they have limited options to effectively change suppliers.  In that regard, 
a comp etitor stated that ‘[r]ailway companies do not have countervailing power, 
particularly in the VHS trains segment. Customers of VHS trains are national 
railway companies, such as the SNCF in France, Deutsche  Bahn in Germany, Renfe 
in Spain or Trenitalia in Italy; and private railway companies, such as Eurostar or 
NTV.  However, these companies do not have buying power, in particular, given the 
close relationship between national railway operators and national champions and 
the existence of partnership  agreeme nts (such as the innovation partnership entered 
into by SNCF and Alstom in 2016).  In fact, the SN CF has only acquired VHS trains 
from Alstom, Deutsch Bahn from Siemens and Trenitalia from Ansaldo [Hitachi]  (in 
a consortium with Bombardier). Furthermore, Eu rostar, which is run by  a co -
operation between French, UK and Belgian national railway companies, only 
invited Alstom and Siemens to bid for the supply of its new VHS trains. ’410 
(397)  It follows from the above that customers’ buyer power is limited, in particular  in the 
market for very high -speed rolling stock , and that the Transaction, by eliminating a 
significant supplier in very high -speed rolling stock, is likely to further decrease 
their countervailing buyer power.  
6.2.3.5.  Liberalisation  
(A) The Notifying Party’s view  
(398)  As explained by the Notifying Party, save for a few countries including Italy and 
Switzerland, high -speed  rail operation s are not yet open to competition but are 
instead performed  by national incumbent operators as part of their ‘public service ’ 
obligation. International traffic (i.e., traffic across different Member States) is 
typically done by partnerships between national operators such as Lyria (SNCF and 
SBB), Thalys (SNCF and SNCB), and Alleo (SNCF and DB).  
                                                 
407  Q1, replies to question 50.  
408  Q1, reply to question 50.1.  
409  Form CO, Chapter B.1, paragraphs 62 and 134.  
410  Q1, reply to question 49.1.  
 
 
77 (399)  The Notifying Party explains that  liberalisation of  very high-speed operation entails  
an increase in the number of operators. For example, in Spain, t he tender of Spanish 
high-speed infrastructure manager ADIF for operation s across various corridors in 
Spain attracted bids from six operat ors. In the end, ADIF awarded concessions to 
three suppliers (Renfe, Rielsfera and ILSA), which plan to source trains from three 
different suppliers (Talgo, Alstom, and Bombardier (with Hitachi).411 
(400)  Pursuant to the Fourth Railway Package, national and region al authorities  will be 
required (subject to a few exceptions) to publicly tender rail public  service  operation  
contracts, which represents an important change from the current situation where 
many such contracts are directly awarded without a tender. The N otifying Party 
states that t he Fourth Railway Package is expected to be implemented in all Member 
States during the course of 2020 (with several Member States having already 
implemented it in 201 9). The Fourth Railway Package is expected to increase 
compet ition for very high -speed operation across the EU.  
(401)  According to the Notifying Party, the ongoing liberalis ation will create new 
opportunities for various very high-speed corridors across different Member States. 
It expects that these opportunities will attract interest from both national incumbent 
operators, public operators running private operation (such as Trenitalia in Spain and 
France ( through its  subsidiary Thello), SNCF  and Italo), and purely private operators 
(such as ILSA, NTV, FlixBus/FlixTrain). The Notifying Party claims that t he 
increase in the number of different operators will in turn increase competition for the 
supply of very high -speed rolling stock to the new ope rators.  
(402)  The Notifying Party claims that all suppliers will benefit from the liberalis ation as it 
will lead to the emergence  of new opportunities  and new entrants seeking to 
purchase new very high -speed rolling stock .412 According to the Notifying Party, 
most of these new customers h ave not previously purchased rolling stock  and have a 
strong focus on the overall cost of the rolling stock solution. For private operator in 
particular, the price of the platform  procured is of critical importance , because most 
of them  have limited resources and seek to enter the very high -speed  market 
following a disruptive low -cost strategy .413  
(403)  The Notifying Party therefore claims that  liberali sation will render markets more 
competitive and increase price competition between the numerous rolling stock 
suppliers active in Europe .414   
(B) The Commission’s assessment  
(404)  The Fourth Railway Package is designed to complete the single market for rail 
services ( also called Single European  Railway  Area).415 It aims at boosting the 
                                                 
411  Form CO, Chapter B.1, paragraph 228 .  
412  For instance, the Parties faced CAF, Talgo, and Siemens for EcoRail’s order in Spain (postponed) and 
expect to face at least those three suppliers in the upcoming [Information based on market intelligence ] 
(Form CO, Chapter B.1, paragraph 239).  
413  Form CO,  Chapter B.1, paragraph 236.  
414  Form CO, Chapter B.1, paragraph 240.  
415  The Fourth Railway Package is a set of six legislative texts designed to complete the single market for 
Rail services. Its goal is to revitalise the rail sector and make it more comp etitive vis -à-vis other modes of 
transport. It comprises two pillars: (i) the “technical pillar” adopted in April 2016 and (ii) the “market 
 
 
 
78 competitiveness of  the railway sector by reducing costs and administrative burden 
for railway undertakings wishing to operate across Europe.  
(405)  However,  the impact of the liberalisation of the railway sector on the structure of the 
market for the supply of very high -speed roll ing stock remains  uncertain . Contrary to 
the Notifying Party’s view, several features of the markets for  very high -speed 
rolling stock may particularly favour  suppliers with a strong track in the context of 
liberalization .  
(406)  In that regard, e xamples of past  awards indicate that suppliers offering very high -
speed solutions with a strong track record, in particular the Parties, are the preferred 
suppliers of non -incumbent railway operators , whether these operators are public or 
private operators.  
(407)  First, public  operators are involved in the operation of l iberalised very high -speed 
corridors  and bid , directly or through a dedicated subsidiary, for the attribution of 
new operational slots  outside their historic footprint. Past examples show that public 
operators tend to foresee operations  using trains that they already own or procure 
additional trains of the same type that they already have experience with in case of 
win. 
(408)  For example, a s explained above, the Spanish high -speed infrastructure manager  
(Adif AV ) award ed a slot for operation of  the Spanish high -speed network  to several 
operators, including ILSA.  The Notifying Party explains that, after a simplified 
tendering process, ILSA initially chose Alstom’s [Confidential information on 
Alstom’s bidding strategy ] as its preferred solution. However, before the signing of 
the contact with Alstom, the Italian operator Trenitalia acquired ILSA’s  joint 
control .416 […], ILSA switched its procurement to the Hitachi/Bombardier’s Zefiro 
V300 platform.  Trenitalia e xplained that their choice was driven by the Zefiro V300 
track -record  and readiness to be operational . The Zefiro V300 is fully compliant with 
TSI and is already operating in Italy. Trenitalia further mentioned that the platform 
has a high -level reliabilit y.417  
(409)  Likewise, Rielsfera, a subsidiary of SNCF , won a nother  slot in the context of the 
same Adif tender . SNCF decided to rely on its existing fleet of Alstom Euroduplex 
trains and therefore asked Alstom to submit an offer to adapt these trains for 
operatio ns in Spain.  
(410)  The sole example involving  a private operator  in the past 10 years  lead to the same 
findings. In 2015, NTV issued a tender for the procurement of very high -speed trains 
for operations in Italy . Four bidders, namely Alstom, Hitachi, Talgo and Stadler 
                                                                                                                                                      
pillar” adopted in December 2016. The technical pillar notably create a “one -stop-shop” acting as a single 
entry poi nt for the multiple applications in the case of operations beyond one single Member State, ensure 
that the European Traffic Management System (ERTMS) equipment is interoperable and reduce the 
number of remaining national rules. The market pillar establishe s the general right for railway 
undertakings established in one Member State to operate all types of passenger services everywhere in the 
EU, lays down rules aimed at improving impartiality in the governance of railway infrastructure and 
preventing discrim ination and introduces the principle of mandatory tendering for public service contracts 
in rail.  
416  Trenitalia has since acquired joint control over ILSA (cleared by the Commission on February 11, 2020 
(case M.9768)).  
417  Reply of Trenitalia to RFI 13.  
 
 
79 participated in the tender, which finally awarded Alstom. In addition, the Notifying 
Party explains that NTV previously issued another tender in 2006 , also won by 
Alstom.418  
(411)  As a consequence, recent examples of tenders issued by railway companies  acting in 
the context of liberalised operations tend to favour companies rolling stock suppliers 
with a track record , rather than new entrants .  
(412)  This is consistent with the results of the market investigation.  
(413)  Indeed, a majority of respondents consider that  a prior track -record is one of the 
most important criteria for a private or public operator when selecting a supplier .419  
(414)  As a consequence, respondents to the market investigation consider that 
liberalisation of the railway sector will favour already stron g very high -speed 
suppliers, in the foreseeable future . In that regard, a competitor indicated that 
‘Although the liberalisation of railway operations in the EEA might have an impact 
on the market for the supply of VHS trains in the long run , CAF  does not expect any 
real impact in the next 2 -3 years. Private operators that will enter  the market will 
tend to acquire those existing trains that are manufactured following the technical 
and regulatory requirements of each country. This situation will reinforce t he 
position of those train manufacturers that are now active in a particular country and 
will make even more difficult the entrance of new players. ’420 Likewise, a private 
customer indicated that ‘In the next few years, the VHS market could enlarge due to 
the potential entrance of new comers into different European countries, although, 
under a competitive point of view, there are still several barriers to entry related to 
the dominance of incumbent undertakings. ’421 
(415)  It follows from the above that the liberalisa tion of the railway sector is unlikely to 
materially change the competitive structure and functioning of the markets for the 
supply of very  high-speed rolling stock.  
6.2.4.  Conclusion  
(416)  For the reasons set out in section 6.2,  and in light of the evidence made avai lable 
during the investigation, the Commission considers that the Transaction raises 
serious doubts as to its compatibility with the internal market  as a result of  
horizontal non -coordinated effects, either through the creation of strengthening of a 
domin ant position or otherwise significantly impeding effective competition,  in 
relation to the market for very high -speed rolling stock in the EEA (including 
Switzerland ) and on a worldwide basis (excluding China, Japan and South Korea).  
                                                 
418  Form CO, Chapter B.1, paragraph 235.  
419  Q1, replies to question 41; Q2, replies to question 43.  
420  Q1, reply to question 51.  
421  Q2, reply to question 56.  
 
 
80 6.3. Mainline trains  
6.3.1.  Introduction  
(417)  The Transaction leads to horizontally affected markets in the overall market for self -
propelled mainline trains and possible segm entations at the EEA -wide level  
(including Switzerland ), and at the national level in France, Germany, Italy and 
Sweden.  
(418)  The Commission considers that the Transaction does not raise concerns with respect 
to the market for self -propelled trains (and possible segmentations) at the EEA -wide 
level, including Switzerland. While t he Parties’ combined market shares in the 
overall market for self -propelled trains (and possible segmentations) at the EEA -
wide level will be high, the merged entity will continue to face competitors such as 
Stadler, Siemens, Hitachi, CAF, Skoda, Pesa, Newag, which have successfully 
expande d their activities outside of their home base and in several EEA Member 
States.  
(419)  The situation is markedly different at the national level, in particular in France and 
Germany, as explained in detail in the following sections.  
6.3.2.   The Parties' activities  
6.3.2.1.  Alstom's activities  
(420)  Alstom’s main platform family for mainline transport is the Coradia. Alstom's 
Coradia platform family is used for commuter, regional, intercity and international 
traffic . Seven different  Coradia platforms are offered in the EEA. They compr ise 
EMUs (namely, Coradia Continental, Coradia Meridian, Coradia Nordic  and Coradia 
Stream), a DMU (Coradia Lint) and a platform running on hydrogen fuel cells and 
Lithium -ion batteries (Coradia iLint). The Coradia Polyvalent/Liner platform is 
available in  EMU and bimode .422 While Alstom [Confidential information on 
Alstom’s business strategy and product development ].423 
                                                 
422  Bimode trains operate on both electrified and non -electrified lines . 
423  Form CO, Chapter B.2, paragraph 46.  

 
 
82  X’Trapolis CityDuplex: an EMU platform that can operate at speeds of up 
to 140 km/h. It is a hybrid platform combining single - and double -decker 
cars and is manufactured specifically for suburban operation on the Ile -de-
France network in France (RER Lines D & E) ;432 
 SNCB M7: an EMU platform that can operate at speeds of up to 200 
km/h. This double -decker train was originally manufactured in response to 
the Belgian operator SNCB’s 2015 tender ;433 
 ET430: an EMU platform that can operate at speeds of up to 140 km/h. 
This single -decker tra in was manufactured specifically for a 2009 
Deutsche Bahn project in Germany ;434 
 MI 09 : a double -deck EMU platform that can operate at speeds of up to 
120 km/h. This train was manufactured in response to a 2009 project for 
the Paris Regional Express Network (RER) ; 
 Rabe 525 : an EMU platform that can operate at speeds between  140-160 
km/h. This  is a single -decker train  sold in Switzerland.435 
(423)  The Notifying Party explains that Alstom does not have any other platforms 
developed in consortia or similar contractual a rrangement with other suppliers . 
Similarly, Bombardier did not win any  projects in consortium  other than  with 
Alstom .436 
6.3.3.  Market shares and methodology  
6.3.3.1.  Market shares  
(A) EEA -wide level  
(424)  The Parties are the leading suppliers of self -propelled mainline trains in the EEA, a 
market in which the Transaction leads to overlaps . The Transaction does not lead to 
overlaps with regard to locomotives and DMUs. As stated above, Bombardier has 
not supplied any DMU trains in the EEA in the last 10 years.  
                                                 
432  Alstom and Bombardier entered into a consortium agreement for this project on 31 January 2017. The 
agreement concerned the  2017 SNCF project w ith an order intake of approx. EUR […]  and was concluded 
for such duration as is necessary to achieve its objectives . Form CO, Chapter B.2, paragraph 50.  
433  Alstom and Bombardier entered into a consortium agreement for this project on 14 September 2015. The 
agreement concerned the 2015 SNCB project with an order intake of approx. EUR […]  and was 
concluded for such duration as is necessary to achieve its objectives . Form CO, Chapter B.2, paragraph 
50. 
434  Although Alstom initially particip ated in the 2009 tender, organized by Deutsche Bahn for the supply of 
83 EMU units for the suburban railway Stuttgart, in consortium with Bombardier, the Parties renegotiated 
their roles still during the tender phase, and ultimately signed the contract wit h Alstom acting as a sub - 
supplier to Bombardier . Form CO, Chapter B.2, paragraph 50.  
435  BLS AG ordered 13 trains in 2006135 and Bern S -Bahn ordered 4 trains in 2011 . 
436  Form CO, Chapter B.2, paragraphs 52 and 53.  In the past 10 years, Bombardier acted as a sub -contractor 
to Stadler in the context of the 2018 FGC project for […], which are part of Stadler’s Class 115 
contestable project for FGC, awarded in 2018 . Bombardier’s contract value was limited to […]% of the 
total order intake which amounted to appr ox. EUR 100 million . 






 
 
89 Similarly, Bombardier’s standalone share for regional E MUs is [30-40]%. The same 
holds true for intercity EMUs. Discounting the consortia -related market share shows 
that only [50-60]% of the intercity EMU market  in the EEA, including Switzerland  
will be impacted by the Transaction in 2010 -2019 . 
(444)  Therefore, the Notifying Party considers that historical market shares should only be 
nuanced in light  of other factors, including the strong competition exercised by 
numerous rivals and bidding data which provides an overview of competitive 
constraints exercised at proj ect level .441 
(445)  Third, the Notifying Party argues that market shares calculated by only taking into 
account sales from contestable  tenders (thus excluding ‘non-contestable repeat 
orders from the Parties’ customers) show  that the Parties have been less successf ul at 
winning new regional EMU projects . According to the Notifying Party, b y 
combining non -contestable repeat orders with new contestable projects, the market 
shares do not adequately reflect the most recent competitive strengths of the Parties, 
nor of th eir competitors. It argues that a  review of contes table regional EMU tenders 
would show  that the Parties have been struggling to secure new orders. By co ntrast, 
Stadler, Hitachi , and CAF have won  new projects .442  
(446)  Fourth, according to the Notifying Party, th e Parties have experienced significant 
competitive constraints from various competitors in the past two years . The 
Notifying Party argues that w hile their combined market share appears  significant 
over a ten -year period ( [40-50]% regional EMUs and [60-70]% intercity EMUs), 
these shares do not adequately reflect the significant competitive pressure that the 
Parties have experienced over time and in particular, over the past two years . This is 
especially true for new contestable  projects where the Parties hav e experienced 
fierce competition and which the Notifying Party  consider s to be a better reflection 
of competition post -Transaction than historic market shares.  The Notifying Party 
argues that t he Parties faced significant competition from the market leader  Stadler, 
as well as Siemens, Hitachi , Skoda, Pesa, and Newag. While there are fewer intercity 
EMU tenders, the same development appears to hold true , with the Parties only 
account ing for [30-40]% of all order intake, and Alstom does not appear to have won  
any contestable regional intercity tender.443 
(447)  Fifth, the Notifying Party submits that i t is challenging for Bombardier to exert 
significant competitive constraints  due to (i) the significant financial challenges 
befalling the company over the past years  and (ii) critical project -execution problems 
concerning the delivery of several mainline platforms .444 The Notifying Party asserts 
                                                 
441  Form CO, Chapter B.2, paragraph 60.  
442  Form CO, Chapter B.2, paragraphs 61 -62. In particular, the Parties together account for only [30-40]% of 
the contestable -only projects for regional EMUs in the past 10 years, compared to [40-50]% for all 
(contestable and non -contestable) projects. In contrast, Stadler is the market leader for new projects, with 
a market share of [20-30]%. Combined shares for contestable projects are even lower in the past two 
years, with the Parties accounting for only [20-30]% of the contestable projects in 2018 -2019, well behind 
Stadler at [30-40]%. 
443  Form CO, Chapter B.2, paragraph 64.  
444  Form CO, Chapter B.2, paragraphs 66 and 67.  
 
 
90 that contestable market shares show that Bombardier struggled to secure new 
contracts in the past two years.445 
(B) The Commission’s ass essment   
(448)  As a preliminary point, in accordance with the Commission's Horizontal Merger 
Guidelines,446 market shares are used as the starting point of the present competitive 
assessment. Furthermore, as the Commission already found  in Siemens/Alstom , 
market shares do have value in assessing competitive positions in bidding 
markets.447 The Court's case -law thus recognises that the mere fact that a merger 
takes place on a bidding market, ‘does not mean that market shares are of virtually 
no value in assessing the  strength of the various manufacturers […], especially 
where those shares remain relatively stable or reveal that one undertaking is tending 
to strengthen its position ’.448 
(B.i) Timeframe for the Commission’s assessment   
(449)  First, with regard to the appropriate tim eframe for the assessment of the Transaction, 
the Notifying Party argues that calculating market shares over a period of 10 years 
overstates the Parties’ competitive position and does not reflect recent developments 
relevant for assessing the competitive d ynamics in the market for mainline rolling 
stock (and possible segmentations). However, calculating market shares based on a 
more limited length of time restricts the underlying number of tenders to very few, 
with the consequent risk of providing a very di storted view of each players’ 
competitive position . As established in previous Commission’s decisions, in markets 
characterised by lumpy demand, market shares should be analysed over several 
years .449 
(450)  In the present case , assessing the Transaction over a shorter period of time, i.e., 5 
years, would result in the exclusion of a large proportion of projects. The 
Commission thus considers that s uch an approach would not adequately  reflect the  
structural impact that the Transa ction brings about in the market for mainline rolling 
stock and possible segmentations because it excludes nearly half of the underlying 
number of tenders and repeat orders.  
(451)  In particular, the Commission observes that the market size in terms of order inta ke 
over a period of 5 years  (2015 -2019)  represents [50-60]% of the market size in the 
period 2010 -2019 in the overall market for mainline trains at the EEA -wide level  
(including Switzerland) . The proportion is similar when considering possible 
segmentation s of the overall market for self-propelled mainline trains: (i) [50-60]% 
                                                 
445  Form CO, Chapter B.2, paragraph 70.  
446 Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings, paragraph 14.  
447  Commission decision in case M.8677 – Siemens/Alstom  (2019), recital 179.  
448 Judgement of 14 December 2005, General Electric v Commission , T-210/01 , EU:T:2005:456 , paragraphs 
149 and 150.  
449  Commission decision in case M.8677 – Siemens/Alstom  (2019), recital 185.  


 
 
93 fluctuations over time are a normal feature of the market for mainline rolling stock, 
and do not necessarily constitute evidence of durable trends . In the present case,  
based on the Parties’ bidding data,  the evolution of Bombardier’s sales appears to be  
a result not of any decreasing competitiveness, but of Deutsche Bahn’s cyclical 
procurement. Rolling stock have a long life -cycle, spanning several decades, and 
therefore lend themselves to cyclical demand as required by the gradual needs for the 
replacement of fleets. Indeed, Deutsche Bahn, the German market’s main customer, 
procured twice as many  trains in the 2010 -2014 period than in the subsequent 5 
years. Bombardier represented […]% of all Deutsche Bahn  contracts over the 2010 -
2014 period.  
(461)  Over the past 5 years, the biggest winner of Deutsche Bahn contracts has been 
Alstom. Competitors appear to have been more successful with customers other than 
Deutsche Bahn. However, the time period examined (5 years ) is too short to draw 
any conclusions as to any durable trend on the market. On the contrary , as per the 
Commission’s precedents in bidding markets, the assessment must be conducted on 
a longer time period to avoid erroneous analysis of evolution of the c ompetitive 
significance of various bidders.  
(462)  Moreover, the Commission considers that , contrary to the Notifying Party’s 
suggestion,  a competitive assessment of the Transaction over a n even shorter  period 
of time ( 2 years ) unduly impairs  any meaningful conc lusions as to the Parties’ and 
their competitors’ market position.  The value of order intake calculated over the 
period 2018 -2019 represents [20-30]% of the value over of a period of 10 years in 
the overall market for self -propelled trains (and [10-20]% in  the market for EMUs, 
[20-30]% in the market for regional trains, [30-40]% in the market for intercity 
trains)  at the EEA -wide level, including Switzerland . In France, the market size over 
a period of 2 years is [20-30]% of the market size for the period 2 010-2019 in the 
overall market for self -propelled trains ( [20-30]% in the market for regional trains 
and [20-30]% in the market for EMUs). In Germany, the proportion is comparable 
([10-20]% in the market for EMUs, [20-30]% in the overall market for self -propelled 
trains and in market for regional trains).  
(463)   Given the lumpy nature of demand, long lifecycle of rolling stock products and 
cyclical nature of the procurement patterns of market’s the main customers, an 
assessment of competitive positions over a mere two years period cannot be 
considered sufficiently  representative and risks, on the contrary, rely on a grossly 
distorted overview of the Parties’ and their competitors’ position. Therefore, the 
Commission will base its assessment on the Parties’ and their competitors’ market 
shares over the period 201 0-2019. 
(B.ii) Contestable and non -contestable orders  
(464)  The Notifying Party argues  that market shares based on contestable shares represent 
the competitive dynamics in the market for mainline rolling stock and the increasing 
competitive pressure that the Parties’ comp etitors exert  more accurately . However, 
as already found by the Commission in Siemens/Alstom , orders that were awarded to 
a given supplier by a customer via a repeat order (thus without going through a 
competitive tender ) provide an important insight into the Parties’ competitive 
strength. Disregarding non -contestable/repeat orders would unduly favour the Parties 
and underestimate their competitive position in the market for self-propelled  rolling 
stock and possible segmentations.  
 
 
94 (465)  As established in previous  decisions, the Commission considers that non-contestable 
orders contribute to a supplier's competitive position. They contribute to establishing 
a supplier's track -record of manufacturing and delivering certain types of trains and 
therefore constitute ref erences which suppliers can leverage in other calls for 
tenders. Furthermore, they contribute to supporting large investment in R&D, 
engineering, development and manufacturing capacity which are important 
contributors to a supplier's stre ngth when bidding for tenders. Therefore, non -
contestable awards do reflect a position in relation to a long -standing customer 
relationship, often initially obtained in a competitive process.451  
(466)  The advantages resulting from long -standing customer relationships are relevant  to 
the competitive assessment.  In this regard, t he Commission notes that t he Parties  
have the largest installed base in the EEA, including Switzerland, as well as in 
France and Germany  and have been long standing suppliers of some of the national 
rail oper ators in these countries, namely SNCF and Deutsche Bahn . A quantitative 
assessment reinforces the conclusion that non -contestable/repeat orders generate a 
significant competitive advantage for the Parties and are a strong evidence of their 
leading market p osition.  
(467)  Non-contestable/repeat orders represent  a significant  proportion of the total market 
size. At the EEA -wide level, including Switzerland, non-contestable/repeat orders 
represent [30-40]% of the total demand in the market for EMUs and [30-40]% in the 
overall market for mainline rolling stock  in the period 2010 -2019 . Furthermore,  the 
Parties benefit from  more non -contestable/repeat orders than their competitors. At 
the EEA -wide level,  including Switzerland,  the Parties account for [60-70]% of all 
non-contestable/repeat orders in the market for EMUs and [60-70]% in the overall 
market for mainline trains, well ahead of their competitors (Stadler: [20-30]%, 
Siemens: [0-5]%, Hitachi: [5-10]%, CAF: [0-5]%, Newag: [0-5]%).452 As a result, a  
competitive asses sment solely focused on contestable market shares would 
underestimate the Parties’ competitive strength and disproportionately inflate their 
competitors’ market position.  
(468)  The Commission considers that  non-contestable/repeat orders have  a significant 
effec t of entrenching the Parties’ established position and raising barriers to entry  in 
France and Germany. In France, the proportion of repeat orders out of the total order 
intake is [70-80]% in the overall market for self -propelled mainline trains and the 
Parties account for all of them . In the market for EMUs in France, non -
contestable/repeat orders account for [70-80]% (and [70 -80]% in the market for 
regional trains)  of the total order int ake and the Parties were awarded [90-100]% of 
the repeat orders  (and all repeat orders in the market for regional trains) . In the 
market for regional EMUs, the proportion of repeat/non -contestable orders is similar 
([70-80]%) and the Parties accounted for all of them.  
(469)  In Germany, non-contestable/repeat orders constitute [10-20]% of the overall market 
for mainline rolling stock,  the market for regional trains and the market for regional 
EMUs and  [20-30]% of the market for EMUs . The Parties accounted for  the vast 
                                                 
451 Commission decision in case M.8677 – Siemens/Alstom  (2019 ), recitals 216 -220. 
452  In the market for EMUs at the EEA -wide level in the period 2010 -2019. The figures in the overall market 
for mainline rolling stock are comparable: Stadler: [20 -30]%, Siemens: [0 -5]%, Hitachi: [5 -10]%, CAQ: 
[0-5]%, Newag: [0 -5]%.  
 
 
95 majority of such orders ( [90-100]% in the market for EMUs and [90-100]% in the 
overall market for self -propelled trains , and in the markets for regional trains and 
regional EMUs ).  
(470)  Therefore, the Commission considers that calculating market shares on  the basis of 
total order intake is informative because it allows taking into account the significant 
competitive advantages that the Parties’ installed base and longstanding customers 
relationships confer.  
(B.iii)  Bombardier ’s financial difficulties and their impact on its ability to compete  
(471)  The Notifying Party argues that assessing the competitive effects of the Transaction 
over a shorter period of time, instead on the basis of historical market shares also 
demonstrates that  it is challenging for Bombardier to exert significant competitive 
constraints as indicated above.  
(472)  Pursuant to the Horizontal Merger Guidelines, ‘In assessing the competitive effects 
of a merger, the Commission compares the competitive conditions that wou ld result 
from the notified merger with the conditions that would have prevailed without the 
merger ’.453 Therefore, when assessing the competitive constraint exerted by 
Bombardier, in the context of recent fi nancial difficulties or project execution 
problems  concerning the delivery of several mainline platforms, the Commission has 
to take into account the counterfactual scenario absent the merger.  
(473)  In assessing the competitive impact of a concentration, of particular relevance may 
be the issue of whether, wit hout the concentration, the relevant business and assets 
would exit the market. In that context, ‘the Commission may decide that an 
otherwise problematic merger is nevertheless compatible with the [internal]  market 
if one of the merging parties is a failin g firm. The basic requirement is that the 
deterioration of the competitive structure that follows the merger cannot be said to 
be caused by the merger. This will arise where the competitive structure of the 
market would deteriorate to at least the same ext ent in the absence of the merger.454 
(474)  According to the Horizontal Merger Guidelines and the relevant case law, three 
criteria are especially relevant in determining whether an entity is to be regarded as a 
‘failing firm ’: 
i. First, the allegedly failing firm wou ld in the near future be forced out of the 
market because of financial difficulties if not taken over by another 
undertaking (first criterion ); 
ii. Second, there is no less anti -competitive alternative purchase than the 
notified merger (second criterion ); 
iii. Third, in the absence of a merger, the assets of the failing firm would 
inevitably exit the market (third criterion ). 
                                                 
453 Guidelines on the assessment of horizontal mergers unde r the Council Regulation on the control of 
concentrations between undertakings, paragraph 9.  
454  Horizontal Merger Guidelines, paragraph 89. See also: judgment of 31 March 1998 , France and Others v 
Commission (Kali & Salz) , C-68/94 and C -30/95, EU:C:1998:1 48, paragraph 110 . 
 
 
96 (475)  It is for the Notifying Party  to provide in due time all the relevant information 
necessary to demonstrate that the expected deterioration of the competitive structure 
that follows the merger would not be caused by the merger .455 
(476)  The Commission notes that the Notifying Party does not seek to rely on the failing 
firm defence set out in  Section VIII  of the Horizontal Merger Guidelines.  In 
particular , the Notifying  Party has not argued nor presented specific evidence that 
the three criteria, mentioned above  are met . 
(477)  The Notifying Party rather argue s that, absent the Transaction Bombardier ’s 
financial situation may deteriorate  and adversely affect its ability to compete . The 
Commission notes that, to be able to preclude competition concerns , the alleged 
possible exit of Bombardier would have to meet the criteria referred to in paragraph 
(474) , with all the relevant information to be provided by the Parties.  
(478)   The Commission thus assesses the Transaction under the premise that Bombardier 
would not in the near future be forced to exit  the market due to financial difficulties  
and competition will continue under current conditions . For the purpose of this 
decision, and absent a failing firm defence invoked by the Notifying Party, the 
Commission considers that Bombardier’s mainline rollin g stock assets must be 
considered  viable. The Commission thus concludes that, absent the Transaction, 
Bombardier will either continue to compete on a stand -alone basis or it would  be 
acquired by another market player. This w ould result in preserving and re inforcing 
Bombardier’s current assets, contracts, products in development and its competitive 
position on the market.  Therefore, for the purpose of the present assessment  the 
Commission assesses the competitive constrain exerted by Bombardier in view of it s 
market shares and competitive position on the market for self-propelled mainline 
trains  and possible segmentations . 
(B.iv)  Consortia  
(479)  In line with the approach adopted in Bombard ier/ADTranz  and Siemens/Alstom , the 
Commission considers that market shares includin g consortia are indicative of the 
Parties’ competitive position. In Bombardier/ADTranz , the Commission noted that 
‘in many cases companies submit bids as part of consortia. In the case of consortia, 
this decision regards the prime contractor as the winner of the contract; but market 
shares are attributed to the other members of the consortium according to their 
share in that consortium ’.456 
(480)  Following this  approach, the Commission considers  that, for the purpose of this 
decision, market shares should be alloca ted based on the contribution of each 
consortium partner. Therefore, in the remainder of this decision, unless otherwise 
indicated, the Commission refers to market shares of the Parties and their 
competitors calculated on this basis.  
(481)  The Commission nevert heless also notes that the Parties’ market shares including 
and excluding consortia do not materially differ such that market shares excluding 
consortia would lead to a different conclusion regarding the Parties’ combined 
market shares  as demonstrated below.  
                                                 
455  Horizontal Merger Guidelines, paragraph 91.  
456  Commission decision in case M.2139 - Bombardier/ADTranz , (2001), paragraph 41.  

 
 
98 (B)  The Commission's assessment  
(486)  Based on the market shares presented in section  6.3.2.1 , the Parties’ main 
competitors are the following.  
(487)  Stadler is the 2nd largest mainline train s upplier in the EEA. It has two regional 
platforms, called GTW and  Wink. Stadler has two platforms that operate as both 
regional and intercity trains , called  Flirt and Kiss.  In the EEA, Stadler has sold 
regional trains in Austria, Czech ia, Estonia, Germany, Hungary, Italy, Luxembourg, 
the Netherlands, Poland, Slovenia, Spain, Sweden, Switzerland, and the UK. In 
addition, Stadler received repeat orders in Finland and Norway based on initial 
contracts awarded before 2010.458 
(488)  Siemens is the 4th largest mainline train supplier at the EEA -wide level , including 
Switzerland,  and in Germ any. Siemens offers two main train platforms for mainline 
transport: Mireo and Desiro. The Desiro family includes four EMU platforms. 
Siemens' EMUs include two platform specifically designed for the UK market, 
called Desiro City and Desiro Verve. Its other  EMUs are called Desiro ML and 
HC.459 Siemens has sold trains in Germany, UK, Austria and Hungary.460 
(489)  Hitachi is the 5th largest mainline train supplier and 2nd largest in the UK. Hitachi has 
regional platforms, called Caravaggio and TSR, and intercity platfor ms, called 
AT300 and AT200. In the EEA, Hitachi has sold intercity trains in the UK and 
Italy.461 
(490)  CAF is the 6th largest mainline train suppliers and 4th largest supplier of regional 
DMUs. It has a regional platform, called Civity with 5 declinations (UK, No rdic, 
Duo, XL, and Max). In the EEA, CAF ’s trains have been sold in France, Italy, the 
Netherlands, and the UK . CAF also markets another Civity platform capable of a 
maximum speed of 200 km/h, which has been sold in the UK. Its intercity platform 
is Comfor t 200.462 
(491)  Skoda is the largest supplier in Czechia. It has two regional platforms  (InterPanter  
and CityElefant ), and an intercity platform, called RegioPanter.  Skoda also has won 
projects in Latvia, Lithuania, and Slovakia and has bid for projects in Germany , 
Hungary, and Slovenia . 
(492)  Other Eastern European manufacturers Pesa (Poland)  and Newag (Poland) are 
mostly active in regional rolling stock (Pesa  has three regional platforms,  
respectively,  and Newag has two).  
(493)  Talgo is a recent entrant in the regional EMU market with its platform VitTal. Its 
bidding activities include tenders in Spain and Latvia.463 Talgo has not won any 
contracts with its EMU platform yet.  
                                                 
458  Form CO, Chapter B.2, paragraph 73 and table 9.  
459  Form CO, Chapte r B.2, table 11.  
460  Parties’ CPL. According to its non -confidential submission of 21 April 2020, Siemens sold regional trains 
in Austria, Belgium, Denmark, Germany, the Netherlands and the UK.  See footnote 31.  
461  Form CO, Chapter B.2, table 13 and Parties’  CPL.  
462  Form CO, Chapter B.2, table 12 and Parties’ CPL.  
463  Form CO, Chapter B.2, paragraphs 94 -95. 
 
 
99 (494)  Finally, Asian manufacturers have a n egligible presence in Europe. CRRC has been 
awarded a contract for  3 regional trains by the Czech private operator Leo Express in 
2016, albeit not through an open tender procedure. CRRC has had limited and 
unsuccessful bidding activities since then (2016 Ferrovie Nord Milano tender). 
Hyundai Rotem has unsuccessfully bid for three contestable regional EMU projects 
in the EEA in the past 10 years .  
(495)  The Commission notes that at the EEA -wide level, suppliers are active in several of 
countries outside of their home base.  Some suppliers such as Stadler and Siemens 
expressed the  view that they could participate in a tender for self -propelled mainline 
trains in any country of the EEA.  464  
(496)  Siemens bid  for mainline rolling stock contracts  in Germany, Austria, the UK, the 
Netherlands, Switzerland, Italy, Hungary, Denmark and Belgium. The geographic 
scope of Stadler’s activities is wider, with participations in tenders in Switzerland, 
Germany, France, Italy, Spain, the UK, the Netherlands, Austria, Poland, Hungary, 
Slovakia, Slovenia, Estonia, Luxembourg, Sweden and Norway.  In its respo nse to 
the market investigation, Hitachi also stated  that it can participate in tenders across 
the EEA as it ‘can rely on the availability of self -propelled mainline product 
platforms with limited design evolution able to meet the specific EEA market 
requi rements ’.465 However, as evidenced by Hitachi’s participation over the last 10 
years, it appear s that in fact it bid in tenders in a limited number of countries.466  
(497)  The Commission notes that in the last 10 years Stadler  won contracts in Germany, 
Austria , Hungary, Poland,  Slovenia, Estonia , Italy, Spain , the UK, Sweden, Finland , 
the Netherlands, Switzerland, Luxembourg;  Siemens  in Germany, Austria, and the 
UK; CAF  in Spain, UK, Italy, the Netherlands, France (1 project);  Hitachi  in Italy 
and the UK.  Talgo , for its part,  has so far not succeeded in entering the market for 
regional trains or EMUs despite bidding in several countries.467  
(498)  The bidding analysis  shows that w hile in recent years competitors such as Stadler, 
Hitachi , and CAF have increased their mark et shares , they win fewer tenders in 
countries where the Parties are active and high barriers to entry have been identified 
(i.e., France and Germany ).   
(499)  In France, CAF participated in 3 (out of 5) contestable tenders. As specified in 
section  6.3.4.3, CAF succeeded in winning […] with SNCF for the supply of 
intercity trains (a market where the Parties’ activities do not overlap) more than a 
decade  after acquir ing a manufacturing site in France.  Stadler participated in a single 
tender held by t he Hello Paris consortium, which was ultimately awarded to Alstom 
with the Coradia Polyvalent platform  in 2019 .468 Based on the Parties’ CPL, Siemens 
and Hitachi did not take part in any tenders in the last 10 years.  
                                                 
464  Q3, replies to question 37.  
465  Hitachi’s response to Q3, question 37.  
466  Hitachi participated in tenders in the last ten years in Italy, the UK, Norway  Austria . See Hitachi’s 
response to Q3, question 36. According to the Parties’ CPL, Hitachi also participated in a tenders in 
Germany.  
467  The Parties’ CPL.  
468 The Parties’ CPL.  
 
 
100 (500)  With regard to Germany, Hitachi and CAF, which have increased their market shares 
in other countries of the EEA , were not successful  in winning any contestable 
tenders . Hitachi participated in 1 tender in Germany for a regional EMU trains but 
lost to Bombardier and CAF bid in 3 tenders and lost t o Alstom, Bombardier and 
Stadler, respectively. The only players that achieved wins in Germany are the 
Parties, Stadler and Siemens . 
(501)  Central and Eastern European suppliers are currently unable to surpass barriers to 
entry in Western European countries , including  France and Germany . Suppliers such 
as Skoda, Pesa and Newag rarely  compete in Western Europe due to higher technical 
and financial requirements , while the Parties do not compete in countries where 
these suppliers are very active (Central and Eastern  Europe).  Base d on the Parties’ 
CPL data, Alstom and Bombardier  [Information on the Parties’ sales data ] i.e., 
countries in which the Central and Eastern European suppliers have a strong 
foothold. By contrast, t he bidding analysis demonstrates that Skoda w on contracts in 
the last 10 years in Czechia, Slovakia, Latvia and Lithuania; Pesa in Poland, 
Czechia, and a DMU project in Germany; Newag in Poland and Italy.  
(502)  Central and Eastern European suppliers are nevertheless expand ing their activities. 
For instance , over the past  10 years, Newag won two contracts in Italy. Skoda, for its 
part, placed bids in five EMU tenders in Germany (including once in consortium 
with Alstom), but lost all opportunities to Alstom, Bombardier and Siemens.  Pesa 
placed four unsuccessful bids in Italy and two bids in Germany in the same period.  
(503)  To this date, Central and Eastern European suppliers have managed to achieve a few 
sales in lower end mainline rolling stock products  in Germany . In 2013 and 2014, 
Deutsche Bahn ordered Pesa Link regional train un der a framework agreement for 
470 trains. However, due to difficulties in acquiring the necessary authori sations, 
Deutsche Bahn  only ordered 73 trains and cancelled the larger part of the framework 
agreement. D eutsche Bahn  ordered trains from Alstom to compensate for the 
shortfall .469  
(504)  For its part, Skoda explains having won a Deutsche Bahn / DB Regio contract for  six 
locomotive -hauled  intercity trains in 2014 in Germany (against Siemens and 
Bombardier). Skoda not es that ‘[a]lthough it is usually very hard for a medium -sized 
supplier like Skoda to sell rolling stock in Germany (due to German homologation 
requirements and herewith connected need for pre -development)), for this tender 
Deutsche Bahn set out specific c ustomisation requirements and quantity,  so that only 
a limited number of suppliers were interested to participate. Skoda considers that 
the special conditions of this tender allowed Skoda to enter the German market .’470 
(505)  However, t he Commission does not consider that these sales  can be construed as 
evidence that Newag, Pesa or Skoda are likely entrants in the market for EMUs in 
France or Germany . Both Pesa’s and Skoda’s experience in Germany illustrate the 
fact that complex homologation requirement in combination with high upfront 
investment borne by the supplier pending homologation constitutes a barrier to enter 
the German market.  It is therefore similarly unlikely that these suppliers will succeed 
                                                 
469  Non-confidential submission of Siemens, 22 April 2020, paragraph 32.  
470  Minutes of conference call with Skoda of 6 May 2020.  
 
 
101 in entering  the French market characterised by high barriers to entry  (and where 
these players did not participate in any tenders).  
(506)  This conclusion is supported by the results of the market investigation. Competitors 
do not consider that Eastern European suppliers (S koda, Pesa, and Newag) can 
currently successfully bid in large EMU tenders elsewhere in the EEA .471 This is due 
to, among other  thing s, complex technical requirements and demanding engineering 
capabilities, authorisation requirements, and  the lack of commerc ial references.472 
For example, a ccording to Siemens, ‘it is not foreseeable that CEE suppliers will 
become competitive in France ’.473 
(507)  This is confirmed by  customers , the majority of which do not consider  that Skoda, 
Pesa and Newag can currently compete with t he Parties.474 Alpha Trains ( which 
operat es in Germany and France) confirms that this is due to barriers to entry 
relating to timely homologation, technical standards and compliance with ‘Western 
European market demands ’.475 For its part, NS (the Dutch national rail operator ) 
indicated  that these suppliers currently  lack of ability to supply the requested 
volumes in a tender.476  
(508)  Respondents estimated that it will take Central and Eastern European competitors 
more than 3 years to become credible bidders el sewhere in the EEA.477  As a result, 
Central and Eastern European suppliers will be  not able to compensate for the loss of 
competition generated by the Transaction within a time period compatible with the 
protection of effective competition . This is particul arly true for countries where high 
barriers to entry have been identified that Central and Eastern European suppliers are 
unlikely to be able to overcome given current market conditions (France and 
Germany).  
(509)  Finally, Talgo has bid with its recently introdu ced EMU platform in Spain, Latvia 
and Lithuania but has not yet successfully entered the market for EMU or regional 
trains.478 In 2019, Talgo was awarded a frame contract with Deutsche Bahn in 2019 
for push pull trains to operate at speed above 160 km/h . Eve n though it has 
participated in tenders and established local manufacturing facilities in Germany, 
until 2019 it did not succeed in winning any other tenders. Talgo’s very limited 
activities in the markets for EMUs and regional trains demonstrate that it i s not 
currently a credible competitive constraint  in these markets. Similarly, to Skoda and 
Pesa, Talgo’s difficulties in entering the German market demonstrate that there are 
high barriers to entry.  
(510)  Finally, Asian suppliers such as CRRC or Hyundai Rotem d o not exercise  material 
competitive constraints in the EEA  (and therefore in any country in the EEA) . As far 
as CRRC  is concerned, the Chinese supplier only has a negligible presence in 
                                                 
471  Q3, replies to question 41.  
472  Q3, replies to question 41.1.  
473  Siemens’ response to Q3, question 41.1.  
474  Q4, replies to 30.6 -30.9.  
475  Alpha Trains’ response to Q4, question 31.1.  
476  NS’ response to Q4, question 31.1.  
477  Q3, replies to question 41.2; Q4, replies to question 31.2.  
478  Talgo was initially awarded the order in a tender for  regional EMU s in Latvia but the order was later 
overturned on appeal by Skoda . 
 
 
102 Czechia  where its market share stems from a single win in September 2019 for the 
supply of Regional EMUs to the  Czech  private operator Leo Express . However, 
CRRC  faces significant barriers to entry and expansion in other countries in  the EEA 
due to complex homologation process  (and complying with TSI and national 
certifica tion requirements ), lack of commercial references , and customer 
preferences . According to CRRC, “having achieved homologation in Czechia would 
not aide CRRC’s participation in tenders in other European countries because the 
homologation process is very dif ferent in each  tender/project/country ”.479 In 
CRRC’s view, t his is also evidenced by the fact that it has not and is not currently 
participating in any other tenders/projects for the supply of mainline trains in 
Europe.480 The Commission however notes that bas ed on the Parties’ CPL, CRRC 
participated in tenders in the UK and Austria.481 
(511)  Customers that expressed a view stated that CRRC was either not a candidate in their 
tenders or it attempted to pre -qualify but was not successful.482 SBB explained that 
‘CRRC are n ot capable yet to offer products which comply with the European 
regulation and / or national requirements in combination with a European reference 
project ’.483  
(512)  Suppliers considered that it will take CRRC more than 5 years to become a credible 
bidder for sel f-propelled mainline train tenders in other countries than Czechia in the 
EEA.484 CRRC estimates that it will take a very long time (more than 10 -20 years) 
before it can credibly compete for rolling stock projects (both high speed and 
mainline trains) elsewhere in Europe.485 
(513)  For its part,  Hyundai Rotem  is currently not active in the  EEA.486 The results of the 
market investigation also demonstrated that Hyundai Rotem  is currently not 
perceived as a credible competitor in the EEA and did not participate in th e tenders 
organised by responding customers.487 Hyundai Rotem faces the same barriers to 
entry as other non -European suppliers such as CRRC.  
(514)  In view of the above, t he Commission considers that at the EEA -wide level, 
including Switzerland, the  number of suppl iers remaining after the Transaction will 
be sufficient to maintain effective competition post -Transaction . Thus at the EEA -
wide level, post -Transaction the Parties will continue to face significant competitive 
constraints from Stadler, Siemens, Hitachi, C AF, and the Central European players 
(Skoda, Pesa and Newag).  
                                                 
479  Non-confidential minutes of confere nce call with CRRC, 27 May 2020, paragraph 4. The Commission 
notes that CRRC entered the market for shunting locomotives in Germany already before its acquisition of 
the German company Vossloh (by obtaining a contract with Deutsche Bahn). Thus, the acquisi tion of 
Vossloh and establishing local presence did not in any way facilitate CRRC’s entry in the German market 
for locomotives. However, CRRC would not be able to leverage its activities in locomotives to win 
contracts in other mainline rolling stock main ly because Vossloh’s activities and resources are limited to 
shunting locomotives . 
480  Non-confidential minutes of conference call with CRRC, 27 May 2020, paragraph 4.  
481  Parties’ CPL.  
482  Q4, replies to question 45.  
483  SBB’s response to Q4, question 45.1.  
484  Q3, replies to question 59.4.  
485  Non-confidential minutes of conference call with CRRC, 27 May 2020, paragraph 6.  
486  Non-confidential email of 29 June 2020.  
487  Q4, replies to question 29.6.  
 
 
103 (515)  By contrast, in France, the number of credible competitors is very limited, i.e., to the 
Parties and CAF. The Commission however notes that CAF only won a 2019  
contract with SNCF under which it  has not  yet deliver ed the rolling stock.  
(516)  In Germany, the credible competitors  in the market for self -propelled trains  (and 
possible segmentations) are  limited to a small group of suppliers . While a number of 
smaller competitors participated in few tender s (e.g.,  Hitachi, CAF, Skoda, Pesa), the 
only suppliers that achieved any wins are the Parties, Stadler and Siemens. 
Therefore, the Commission considers that the Transaction will eliminate the 
particularly  significant competitive co nstrain t existing betwee n the Parties, while 
barriers to entry are likely to prevent that loss from  being offset by the prospect of a 
timely entry  able to maintain effective competition in the market for self -propelled 
mainline trains.  
(517)  Furthermore, according to the results of the market investigation, the Transaction 
will negatively impact competitors’ ability to win contracts or will affect their 
incentive to participate in tenders against the Parties, thus reducing the overall 
competitive outcome o f tenders  in countries where the Parties have a strong 
competitive position such as France and Germany .488  
(518)  Suppliers’ decision to participate in tenders depends not only on their existing 
products and perceived competitiveness in a given tender but also on the 
participation of competitors. Competitors almost unanimously  indicated that their 
decision to participate in tenders is influenced by the identity of the  competitors they 
are facing . The market investigation confirms that  competitors may decide not to 
participate in tenders if competing suppliers have significant advantages in terms of 
local manufacturing footprint  or long -standing customer relationships.489 In 
particular, the participation of Alstom and Bombardier discourages rivals from 
competing in ten ders in countries where they are established and have a significant  
presence.490 By that measure, t he merged entity will have significant advantages in 
future tenders due to combined a wider range of homologated platforms  and larger 
manufacturing footprint , thus making it more difficult for other suppliers to compete  
in France and Germany . 
(519)  The Commission thus considers that the Transaction  will prevent competitors  from 
expanding their activities or entering the market for self -propelled mainline trains  
(and p ossible segmentations)  in France and Germany.   
6.3.4.2.  Closeness of competition  
(A) The Notifying Party’s views  
(520)  The Notifying Party considers that b oth participation data and the win/loss analysis 
show that the Parties have not most frequently faced (or lost to) each other in 
contestable mainline EMU tenders. Instead, each faced and was more constrained by 
the presence of other rivals. The Notifying P arty therefore argues that t he 
                                                 
488  Q3, replies to questions 56 and 56.3  
489  Q3, replies to questi ons 56 and 56.1.  
490  Q3, replies to question 56.2.  
 
 
104 Transaction will not remove each Party’s closest competitor  but that the merged 
entity will continue to be constrained by a range of well -established competitors.491 
(B) The Commission’s assessment  
(521)  Bidding data shows  that, in mainl ine rolling stock, Alstom and Bombardier belong to 
a small group of close competitors  and the Parties are among the top 2 or 3 bidders 
in tenders in which they participated.  
(522)  This is particularly true at the national level . In terms of tender participation, the 
Commission noted the following : 
(a) In France,  Alstom’s most frequent competitor in the overall mainline rolling 
stock market is CAF ( [50-60]%), with Bombardier in second position ( [20-
30]%). In  regional EMUs , Alstom’s most frequent competit or was 
Bombardier, participating in [60-70]% of tenders, followed by CAF ( [30-
40]%) and Stadler ( [30-40]%) in the period 2010 -2019.  With regard to 
intercity trains, Alstom competed against CAF (Bombardier did not bid) in 
the only contestable tender awarded  to CAF ; 
(b) In Germany, in all tenders for regional EMUs,  Alstom most often competed 
against Stadler ( [70-80]%), Bombardier ( [50-60]%), and Siemens ( [30-
40]%), and CAF ( [30-40]%), and to a lesser extent Skoda ( [10-20]%), Pesa 
([0-10]%). Bombardier  most frequent ly competed against  Alstom ( [70-
80]%), followed by Stadler  ([60-70]%), Siemens  ([40-50]%), and CAF  ([30-
40]%). In very few tenders where Bombardier competed  also Hitachi ( [0-
10]%), Skoda  ([0-10]%), and Pesa  ([0-10]%) participated . However, i n 
tenders held by Deutsche Bahn, the only bidders are the Parties, Stadler and 
Siemens.  
(523)  Although participation provide useful indications, w hen conducting this type of 
analysis, as the Commission explained in Siemens/Alstom , a firm that participates 
often  but never wins is less credible as a competitive alternative and thus exercises 
less significant constraint than a firm that participates and wins .492 Winning statistics 
show that the Parties constitute each other’s most significant competitive constraint 
or are among a small group of close competitors:  
(a) In France, the Parties lost no tenders to any supplier other than CAF (in 
intercity rolling stock, a market in which the Parties ’ activities  do not 
overlap);  
(b) In Germany, t he Parties most often lost against Stadler. Alstom lost more 
tenders to Siemens than Bombardier, while Bombardier lost more tenders to 
Alstom than to Siemens.  Moreover, the Commission notes that  the Parties 
won the majority of contestable tenders organized by Deut sche Bahn in the 
last 10 year s (Alstom - […] and Bombardier – […], out of […]). In addition, 
                                                 
491  Form CO, Chapter B.2, paragraph 117.  
492  Siemens/Alstom, at paragraph 408.  
 
 
105 Bombardier accounts for nearly […] repeat orders placed by Deutsche Bahn 
in the period 2010 -2014.493  
(524)  As a result, t he bidding analysis confirms the strong competitive constraints that the 
Parti es currently exert on one another in France. Despite their participation in tenders 
against Alstom, no competitor other than Bombardier has had any success, with the 
sole exception of CAF. CAF won […] against Alstom, in the intercity market 
segment, in whi ch Bombardier did not participate. CAF represents no more than [5-
10]% of the French market for mainline trains, the rest being in the Parties’ hands. It 
follows that Alstom and Bombardier are particularly close competitors in France.  
(525)  In Germany, bidding data shows that the Parties only face two other credible bidders 
that have won contracts in Germany : Stadler and Siemens . Even if other suppliers 
participated in tenders, they have not been successful and do not currently exercise a 
significant competitive  constraint in Germany. Furthermore, the number of bidders 
in the large -scale, complex tenders held by Deutsche Bahn is limited to the Parties, 
Stadler and Siemens. The Parties are thus among the top 2 -3 bidders in Germany and 
form part of a small group of  four close competitors.  More specifically, in regional 
EMUs  (the only type of EMU procured in Germany over the past 10 years) , Alstom 
currently exercises a particularly significant competitive constraint on Bombardier. 
Out of all Deutsche Bahn tenders in the 2010 -2019 period, Alstom and Stadler were 
Bombardier’s most frequent competitors (participating in [60-70]% of tenders in 
which Bombardier participated). Out of the tenders in which Bombardier 
participated, it most often lost tenders to Alstom and Siem ens (c. [30-40]% of 
Bombardier’s lost tenders, respectively) . As a result, Alstom represents the highest 
combined  participation and win rate against Bombardier.  Together, the Parties 
represent […]% of the value of Deutsche Bahn tenders for regional EMUs in  the 
2010 -2019.  
(526)  Deutsche Bahn’s procurement further confirms that the Parties remain very 
competitive in larger projects (both evidenced by winning rates in contestable 
tenders and repeat orders), well ahead of Stadler and Siemens s. As a result, they 
exercise a particularly important competitive constraint on one another. The 
Transaction therefore reduces the number of credible competitors in Germany from 4 
to 3 in a market where high barriers to entry were identified  and will eliminate the 
particularly cl ose competitive relationship existing between the Parties . 
(527)  According to the results of the market investigation, on an EEA -wide basis, the 
majority of respondents either confirmed that the Parties are each other’s main 
competitors or part of a group of clo se competitors that mainly also includes Stadler  
and Siemens  as well as, in certain instances, CAF and Hitachi .494  
(528)  Accordingly, customers indicate that the participation of Alstom in past or current 
tenders had an impact on their ability to obtain better co ndition from  Bombardier,  
Stadler, Siemens and , to a lesser extent,  CAF and Hitachi. Similarly, customers 
indicate that the participation of Bombardier in past or current tenders had an impact 
                                                 
493  As stated in Section 6.3.3.2, Deutsche Bahn, the German market’s main customer, procured twice as much 
trains in the 2010 -2014 period than in the subsequent 5 years. Bombardier represented […]% of all 
Deutsche Bahn contracts over the 2010 -2014 period . 
494  Q3, replies to question 40.1; Q 4, replies to question 28.2.  
 
 
106 on their ability to obtain better condition from : Alstom , Siemen s, Stadler, CAF and 
Hitachi.495  
(529)  Therefore, the Commission considers that at the EEA -wide level, the Parties, face 
Stadler, Siemens, CAF and Hitachi . In light of the results of the bidding data, the 
scope of close competitors is significantly smaller in France and Germany. In 
France, the merging Parties are the closest competitors. Indeed, they are the sole 
competitors in regional rolling stock and face fringe competition from CAF in 
intercity rolling stock. In Germany, the merging Parties are the closest  competitors in 
relation to Deutsche Bahn, the country’s rail operator. On the global German market, 
they are part of a group of four close competitors, that also includes Stadler and 
Siemens. No other supplier exercises a material competitive constraint o n the 
Germany market .  
6.3.4.3.  Barriers to entry  
(A) The Notifying Party’s views  
(530)  The Notifying Party submits that a ny barriers to entry do not prevent expansion 
within the EEA for existing rolling stock suppliers active in other  markets . In the 
Notifying Party’s vie w, the EEA -wide markets for regional and intercity EMUs are 
fast-growing and , as such, attract various entry and expansion both from existing  
European players such as Talgo and  CAF and from Asian players that likely  to enter 
and expand their position.496 
(531)  The Notifying Party submits that s uppliers have ample technical and financial 
capabilities.  In the Notifying Party’s view, a s illustrated by the numerous projects 
won, all competitors have sufficient technical and financial capabilities to expand 
their positi on across the EEA. Even smaller competitors such as Newag, Pesa, and 
Skoda, have sufficient technical and financial capabilities to compete in different 
Member States across the EEA .497 
(532)  According to the Notifying Party, t ender process es and bidding costs do not deter 
competitors from bidding across the EEA . While the Notifying Party acknowledges 
that tender processes can be costly and time -consuming, it also argues that bidding 
costs are not insurmountable and in any event only one of the factors that 
competi tors evaluate before their decision to bid and do not deter competitors.498  
(533)  In the Notifying Party’s view, homologation  does n ot deter entry or expansion 
because n ational technical rules and homologation processes do not affect a rolling 
stock supplier's incentive to participate in tenders for rolling stock in the EEA. 
According to the Notifying Party , while there are still some differences between 
national technica l rules due to legacy infrastructure, the Commission’s Railway 
Packages and TSIs are increasingly removing such divergence s.499 The Notifying 
Party refers to a drop in the number  of national rules applicable in addition to the 
                                                 
495  Q4, replies to questions 29 and 30.  
496  Form CO, Chapter B.2, paragraphs 154 -157.  
497  Form CO, Chapter B.2, paragraph 157.  
498  Form CO, Chapter B.2, paragraph 157.  
499  Form CO, Chapter B.2, paragraph 157.  
 
 
107 TSIs500 and considers  any effects  that national rules would have on suppliers’ 
incentives to bid has significantly decreased in the past five years and is expected to 
further decrease in the future. In the Notifying Party’s view, a suppliers’ incentives 
to participate in a tender are base d on the assessment of its commercial attractiveness 
and probability of success rather than existing homologation or experience in a 
country.501 The Notifying Party provide s a list of competitors that bid in various 
countries without prior homologation.  Furthermore, Europea n TSIs are increasingly 
harmonis ing the divergent national rules. Therefore, in the Notifying Party’s view, 
the extent that national differences constituted a hypothetical barrier to entry in the 
past, they will become increasingly less rel evant in the future . 
(534)  The Notifying Party consider s that commercial references are also not an 
insurmountable barrier to entry .502 The Notifying Party submits  that while 
commercial references may be relevant in pre -qualification stage, they are not 
relevant f or the customer’s ultimate decision during the bidding process  as evidenced 
by examples of competitors that have won tenders without prior customer references  
such as  CAF in France, CRRC in Czechia  and Stadler in Slovenia and Spain.503 
(535)  The Notifying Party fu rther argues that s uppliers win projects across the EEA 
regardless of their footprint  and there is no correlation between the presence of a 
rolling stock production or assembly facilities and success at national level . The 
absence of a correlation is underpinned by, among others: (i) the historical growth of 
rolling stock suppliers from national players supported by national governments to 
truly EEA -players bidding and winning projects across the EEA, (ii) the 
decentral ised approach to manufacturing; a nd (iii)  the explicit prohibition of 
locali sation requirements in the EEA.504 The Notifying Party provides examples of 
competitors who win projects in countries where they are not located or where their 
capacity is limited.505  
(B) The Commission’s assessment  
(B.i) Barriers to entry  
(536)  The Commission considers that there are high barriers to entry and expansion  in the 
market for self -propelled mainline trains . However, there are significant differences  
at  national level, whereby barriers to entry are very high in France and Germany, 
                                                 
500  The Notifying Party  explains that t he ERA has been tasked in 2016 with “cleaning -up” unnecessary 
national rules in order to ensure a single European Railway Area.359 In June 11, 2019, ERA reported that 
the number of national rules applicable in addition to the TSIs has dropp ed from 14,312 in 2016 to 1,026 
in 2019 . See Form CO, Chapter B.2, paragraph 157.  
501  Form CO, Chapter B.2, paragraph 157.  
502  Form CO, Chapter B.2, paragraph 157.  
503  Form CO, Chapter B.2, paragraph 157.  
504  Form CO, Chapter B.2, paragraph 42.  
505  Form CO, Ann ex B.2.12. The Notifying Party refers to the following examples of competitors who won 
projects despite not having production plants capable of producing or assembling mainline rolling stock in 
these countries : (i) Stadler in Austria, Czech Republic, Eston ia, Finland, Luxembourg, the Netherlands, 
Norway, Poland, Slovenia, Sweden, and the UK , (ii) Siemens in Hungary and the UK , (iii) CAF in Italy 
and the Netherlands  and with little production capacity in France, (iv) Skoda in Latvia, Lithuania, and 
Slovakia (Skoda did not win any mainline projects in Hungary and Finland despite having production 
facilities in these countries ), (v) Pesa in the Czechia , Germany, Italy, and Lithuania , (vi) Newag in Italy , 
and (vii) CRRC in Czechia.  
 
 
108 while other countries are characterised by low er barriers to entry and expansion 
(such as Sweden) .  
(537)  First, m ainline trains – similarly to other rolling stock – cannot be pl aced in service 
in the EEA without first obtaining a reg ulatory authorisation at both EEA  level and 
in the Member State in which the rolling stock is intended to be o perated. The 
requirement for EEA and national regulatory authorisation (due to country -specific 
requirements ) makes the process complex and can prevent competitors from 
expanding their activities across the EEA and in particular in countries where they 
do not already have homologated trains. Due to the persisting country -specific 
requirements i n this regard, the Commission’s assessment takes into account the 
relevant differences at national level.  
(538)  The results of the market investigation indicated that suppliers generally  seek to 
obtain authorisation under national rules in parallel of the bidding  process  or after 
having been awarded a contract in a specific country. This may depend on the 
technical specifications, delivery times, and investment required.506 Furthermore, the 
lack of authorisation under TSIs and NRDs in a specific country may a ffect a 
supplier's incentives to participate in a tender in that country.507 Skoda expressed the 
view that ‘[l]arge difference in the authorisation process in different EEA countries 
are often the reason for no participation in a tender ’.508 
(539)  While some custome rs may accept that homologation be obtained after a tender is 
awarded to a given supplier, it is nevertheless a significant advantage for suppliers to 
be able to offer, at the moment of the tender, a fully authorised product compliant 
with both TSI and nat ional requirements.509 This criterion is important for customers 
that seek to ensure that delivery times will be respected. For example, Alpha Trains , 
having its operations in France  and Germany , explained  that ‘[s]uch compliance 
generally reduces the homolo gation risk ’.510 For suppliers, the ability to offer 
homologated rolling stock  limits the related costs, provides an advantage in terms of 
delivery times, increases customers’ trust and represents a lower project execution 
risk.511 Skoda  thus explains that having a fully authorised product at the moment of 
the tender ‘cut[s] the costs, lead time and increase [s] customer trust ’.512 
(540)  As previously stated, obtaining homologation in France and in Germany is a very 
complex process, which deters entry from suppliers not alre ady having homologated 
trains. In particular, h omologation in Ge rmany is seen as a risk factor for timely and 
successful delivery  both by public and private operators . In addition,  the complex 
homologation  process  in combination with  strict financial and technical 
requirements imposed by Deutsche Bahn renders implausible the entry of suppliers 
not already active in Germany . As evidenced by the example of Pesa, the lack of 
authorisation, even when the supplier has been awarded a contra ct, can effectively 
prevent  the prospect of  durable  entry  in Germany . 
                                                 
506  Q3, replies to questions 44  and 44.1.  
507  Q3, replies to question 45.  
508  Skoda’s response to Q3, question 32.1.1.  
509  Q4, replies to question 26.6.  
510  Alpha Trains’ response to Q4, question 26.6.1.  
511  Q3, replies to question 46.1.  
512  Skoda’s response to Q3, question 46.1.  
 
 
109 (541)  Second,  mainline trains are usually purchased through a sophisticated tender process , 
participation in which is costly, which is likely to limit the number of participants in 
each tender . Bidding costs provided by the Parties indicate that participating in 
tender s is material . Alstom ’s bidding costs for tenders for mainline rolling stock  
amounts to  an average of EUR […] per tender.513 
(542)  Although the Notifying Party claims that tender costs do  not deter entry, it also 
recognis es that it is one (of several) factors taken into account by prospective 
suppliers before deciding to bid for an opportunity. The results of the market 
investigation demonstrate that there is a difference between establish ed players such 
as Siemens and other  players or new entrants  in that respect . While costs related to 
participation in tenders may be less of a deterring factor for larger players, they are 
still considered as an ‘entry costs ’ and a ‘criticality ’ for certai n projects by other 
suppliers. The extent to which tender -related costs deter entry  also depend s on the 
complexity  and scope of the tender. In Hitachi’s view, ‘[f]or instance, pre -
qualification specifications and bids are necessary conditions for entering the 
tendering processes, and they come with financial costs which constitute barriers to 
entry. Furthermore, large tenders may require financial securities such as bonds, 
constituting, as well, a barrier to entry ’.514 New entrants such as Transmashholding 
(‘TMH ’) also explained tender -related costs are substantial, especially given that 
established players already have the advantage of scale and resources and previous 
bids with the same customers.515 
(543)  The Commission also notes that large scale tenders are typica lly characterised by 
lower (or no) participation from smaller competitors that are unable to meet the strict 
financial requirements and tender -related costs (in addition to other factors such as 
inability to comply with requested volumes).516 This is especia lly the case in France 
and in Germany for SNCF’s and Deutsche Bahn’s tenders.  
(544)  Third,  the market investigation provided mixed views as to whether technical and 
financial capabilities  constitute a barrier to entry. Established suppliers such as 
Siemens considered that such capabilities may  play a role ‘if customers require 
technical features not already integrated in a supplier’s platform ’.517 A majority of 
customers expressed the view that technical and financial capabilities do not deter 
entry. The Commi ssion considers that this is true at the EEA -wide level, where 
competi tors’ participation in tenders in different countries demonstrates that they 
indeed have the technical and financial capacity to comply with project 
requirements.  
(545)  However, as previously stated, the  Commission considers that such stringent 
technical and financial requirements to participate and in tenders, most notably 
organised by Deutsche Bahn  in Germany , deter entry from smaller suppliers not 
already having a homologated platform in ope ration and not being able to bear the 
financial cost of the investment required  during the period (of up to 4 years in 
Germany).  
                                                 
513 Form CO, A nnex RFI 2 Q 4, table 3.  
514  Hitachi’s response to Q3, question 32.2.  
515  TMH’s response to Q3, question 32.2.  
516 For example, Siemens lists a number of tenders (organised by SNCF  in France , NS in the Netherlands, 
Abellio in the UK) in which only the Parties,  Stadler, Siemens (and to a lesser extent CAF) participated.  
517  Siemens’ response to Q3, ques tion 32.3.  
 
 
110 (546)  Fourth , to be eligible for pre -qualification in a tender, customers require prospective 
bidders to prese nt prior commercial ref erences. A majority of  responding 
competitors and customers  consider ed that the commercial references required in 
tenders constitute a barrier to entry .518 As previously stated, the requirement for an 
established track record and commercial references represents an important factor 
deterring entry in France. Customers generally indicated that commercial references 
from outside the EEA  are less relevant.519 The requirement for prior references  
obtained in a n EEA Member State  thus constitutes a high barrier to entry especially 
for non -European suppliers of mainline rolling stock.  
(547)  Furthermore, as confirmed by the results of the market investigation, the 
Commission considers that holding prior EEA references as well as references in the 
country where the tender is held represents a significant competitive advantage.520 
(548)  The Commission notes that c ustomers  rely on references to assess a supplier's 
credibility in relation  to key tender requirements and thus limiting risks when 
procuring from certain suppliers. This means that established suppliers with more 
rolling stock in operation are perceived as more credible.  
(549)   This is confirmed by the results of the market investiga tion. The majority of 
customers who expressed an opinion thus indicated that suppliers with more 
mainline rolling stock currently in operation in the EEA than their competitors are 
more credible bidders.521 Therefore, it follows that post -Transaction the Par ties will 
combine commercial references, homologation certificates and established customer 
relationships which confers a strong competitive advantage upon the merged entity.  
(550)  Fifth, as stated in section  5.2.2 , the Commission considers that there is a corre lation 
between having a manufacturing presence in France and Germany and the ability to 
win contracts.  The need for local manufacturing footprint in France and Germany 
constitutes a barrier to entry as evidenced by the fact that no supplier was able to 
enter the market in a meaningful way in both countries without local presence.  
(551)  The Commission considers that any correlation between having a manufacturing site 
and being able to secure contracts is less prevalent in other EEA countries. As 
demonstrated by th e Notifying Party, suppliers win contracts in the Nordic countries 
without having a manufacturing facility. For example, Stadler won contracts in 
Sweden, Finland, and Norway without having local manufacturing assets in these 
countries. Similarly, Alstom do es not have manufacturing presence in Denmark but 
generated sales in the country. Such a correlation also appears to be less strong in 
Eastern Europe. Stadler succeeded in selling mainline rolling stock in e.g., Czechia, 
Estonia, Slovenia without local man ufacturing presence. The same applies to Skoda, 
Pesa and Newag that expanded their activities outside of their home countries in 
other Central and Eastern European countries without establishing manufacturing 
facilities.522 
                                                 
518  Q3, replies to question 32.4; Q4, replies to question 26.4.  
519  Q4, replies to question 26.4.1.3.  
520 Q4, replies to question 44.  
521  Q4, replies to question  
522  Form CO, Annex B.2.12, Table 1.  
 
 
111 (552)  In particular, with rega rd to Sweden, where the Parties  combine a high market share 
in the overall market for mainline rolling stock, the Commission  submits that 
barriers to entry are low.  
(553)   In the Commission’s view , there is no  correlation between winning contracts and 
having local pr esence. Neither Alstom nor Bombardier have an y manufacturing sites 
in Sweden which has not prevented them from winning tenders and generating sales. 
This is confirmed by customers. For example, AB Transitio having railway 
operations in Sweden expressed the  view that a bidder does not need to have ‘a prior 
track record or local manufacturing and/or servicing capabilities in Sweden or in 
the Nordic countries to be selected ’.523 It selected Stadler without having previous 
sales of EMUs in Sweden (just a limited presence in passenger traffic).524 
(554)  Furthermore, AB Transitio also considered that there are sufficient alternative 
suppliers of mainline rolling stock in Sweden. This customer has a frame contract 
with three suppliers, namely Bombardier, Stadler and CAF. This frame contract sets 
out AB Transitio’s general needs regarding regional trains. When AB Transitio has 
new needs for rolling stock, it runs a competitive tender among the suppliers 
included in the frame contract.  Even if CAF was not yet selected in a c ompetitive 
tender, it is still considered as a credible alternative supplier.525  
(555)  The results of the market investigation did not provide any further elements 
demonstrating any particular difficulties in terms of homologation, complex tender 
requirements or stringent financial and technical requirements  that would amount to 
high barriers to enter the Swedish market .  
(556)  The Commission further notes that this conclusion holds true also for other EEA 
countries that are characterised by low barriers to entry and a higher number of 
alternative suppliers. For example, in Italy, the Commission observes that in addition 
to Alstom (and Bombardier to a very limited extent), other suppliers include Hitachi, 
Stadler, CAF, and smaller players such as Newag and Firema.  In add ition, in the 
countries in Central and Eastern Europe, the Commission also notes that not only 
Skoda, Pesa and Newag succeeded in expanding their activities outside of their home 
countries but also other players such as Stadler, Siemens, CAF, and Talgo com pete 
and win tenders.  
(557)  It results from the above that there are high barriers to entry and expansion  in the 
market  for self -propelled mainline trains (and possible segmentations) in France and 
Germany. This results  from a combination of factors, including the need for local 
presence, product development, bidding costs, certification of rolling stock under 
European and national rule s and the requirement that prospective bidders hold 
sufficient references of prior sales in the EEA .  
(B.ii) New entry  
(558)  Similarly to the  conclusion as regards very high -speed rolling stock, the Commission 
considers that the above mentioned barriers make the entry of non -European 
suppliers in the market for self -propelled mainline trains  in the EEA, including 
                                                 
523  Non-confidential minutes of conference call with AB Transitio, 29 May 2020, paragraph 6.  
524  Non-confidential minutes of conference call with AB Transitio, 29 May 2020, paragraph 5.  
525  Non-confi dential minutes of conference call with AB Transitio, 29 May 2020, paragraphs 4 and 5.  
 
 
112 Switzerland, and in particular in EEA countries such as France and Germany,  highly 
unlikely in a foreseeable future.  
(559)  With regard to mainline rolling stock, Asian suppliers such as CRRC and Hyundai 
Rotem are not expected to become credible players in the EEA, including 
Switzerland, (or any country in the EEA) in the next 2 -5 years.  
(560)  Furthermore, the Commission notes that the TMH (the largest rail rolling stock 
manufacturer and services provider in Russia and the CIS region) is also not 
currently able to credibly compete in tenders fo r mainline rolling stock in the EEA, 
including Switzerland  due to the lack of homologation certificates and an established 
track record. According to the results of the market investigation, it will take TMH 
3-5 years before it could enter the market for m ainline rolling stock in the EEA.526 
(561)  Therefore, the Commission considers that entry from suppliers from outside the EEA 
(that could potential exercise a competitive constraint on the merged entity) is not 
likely in the foreseeable future . 
6.3.4.4.  Structural competit ive advantages  
(562)  First, t he Commission considers that even if local manufacturing presence is not a 
prerequisite to win contracts in all EEA countries, having a large geographic 
footprint still represents a significant competitive advantage for the merged en tity. 
(563)  The bidding data, the Parties’ and their competitors’ market shares generally 
demonstrate that having a local manufacturing presence in some countries results in 
a stronger market position. For example, Hitachi ’s market position in terms of 
market sh ares is stronger  in Italy, Spain and the UK where it also has manufacturing 
presence. The same is true for CAF in  Spain, Italy, Siemens in Germany and Austria, 
Stadler in Switzerland, Germany and Hungary, Skoda in Czechia, Pesa and Newag 
in Poland .  
(564)  Theref ore, the Commission considers that having local manufacturing footprint 
represents a competitive advantage. This is confirmed by the majorit y of competitors 
and customers which consider that local presence in terms of local manufacturing 
and/or servicing c apabilities is advantageous  when suppliers participate in a tender 
for self -propelled mainline trains.527  
(565)  In that regard , the Commission considers that the merged entity will  have the largest 
manufacturing footprint  in the EEA , ahead of all competitors . While the Parties will 
combine manufacturing sites in twelve countries, their competitors will have 
manufacturing presence, at most, in five countries.528  
(566)  The merged entity will combine homologation certificates and commercial 
references allowing it to part icipate in tenders requiring national homologation 
without incurring additional costs. Respondents to the market investigation share this 
view. For example, SNCF expressed the view that ‘[t]he catalog of off -the-shelf 
platforms of the merged entity will be  enlarged and will allow it to position itself 
                                                 
526  Q3, replies to question 42.2.  
527  Q4, replies to question 40.  
528  Non-confidential submission of Siemens, 21 April 2020, paragraph 18.  
 
 
113 more easily by better controlling the costs of adapting the platforms to the specifics 
of each call for tenders ’.529 NS explained that a larger manufacturing footprint gives 
‘the merged entity the possibility to  bid for more and larger tenders by using the 
different strengths and competing against at least one competitor less ’.530  
(567)  Second, in the Commission’s view, the merged entity will also benefit from its large 
installed base and long -term customer relationship s.  
(568)  The Parties will combine the largest installed base in France and Germany. This 
endows the merged entity with a competitive advantage because having a large 
installed base is significant for winning future tenders, provides valuable customer 
references , potential for modernis ation and upgrades, as well as revenues from the 
provision of maintenance and other service s.531 Indeed , as confirmed by the results 
of the market investigation, a large installed base translates into a competitive 
advantage in the af termarket for the provision of maintenance and related services  
potentially for a long period of time over the lifecycle of the rolling stock 
(compensating for the lumpiness of rolling stock orders) .532 
(569)  With regard to longstanding commercial relationships , all competitors that expressed 
a view  indicated that the existence of a longstanding commercial relationship with 
the train supplier represent s an important selection criterion for a customer of self -
propelled mainline trains.533 By contrast, customers do not consider that having 
previously procured mainline rolling stock  from a given supplier cons titutes an 
important factor in future (contestable) tenders.534 The reason is that each supplier 
must fulfil the criteria at the time of the specific tender.535 
(570)  However, while some customers hold tenders for the procurement of self -propelled 
trains, in some instances they chose to instead place repeat orders to their incumbent 
suppliers. Customers that placed repeat orders in the last ten years explained that the 
advantage s of repeat orders  from the same supplier include  shorter time to market, 
homogeneity of the fleet, reduced staff training costs, operational flexibility, similar 
maintenance requirements etc. 536 According to NS, ‘from an operational/logistical 
cost perspective it is more beneficial to exercise such additional order, for instance 
due to not having to educate staff again, not having to adjust equipment and 
facilities, being able to couple the trains of the additional order to the existing trains 
to gai n operational flexibility ’.537 
(571)  As stated in section  6.3.2, repeat orders account for a significant proportion of the 
market  and are thus important evidence of suppliers’ competitive strength . This 
favours the Parties more than other suppliers because they be nefit from the largest 
proportion of repeat orders placed at in France and Germany (where nearly all repeat 
orders benefitted the Parties).  The Commission considers that this represents a 
                                                 
529  SNCF’s response to Q4, questio n 41.1.  
530  NS’ response to Q4, question 41.1.  
531  Siemens’ response to Q3, question 64.1.  
532  Q3, replies to question 64.1.  
533  Q3, replies to question 53.  
534  Q4, replies to question 42.  
535  Q4, replies to question 42.1.1.  
536  Q4, replies to question 43.1.  
537  NS’ response to Q4, question 43.1.  
 
 
114 competitive advantage entrenching the Parties’ established positions and further 
raising barriers to entry.  
(572)  Therefore, the Transaction will have an important structural impact (beyond the 
Parties’ high market shares)  in the market for self -propelled trains (and possible 
segmentations)  in France and Germany further reinforcing the Parties’ competitive 
position.   
6.3.4.5.  Countervailing buyer power  
(A) The Notifying Party’s views  
(573)  The Notifying Party  argue s that rolling stock customers are highly sophisticated 
buyers (i.e., mainly public national in cumbent operators) with decades of experience 
in procuring rolling stock.538 In the Notifying Party’s view, t he Parties face 
significant countervailing buyer power from their customers and will continue doing 
so post -Transactio n because (i) c ustomers customi se their tenders to ensure the 
desired level of participation , (ii) p rocurement methods , including frame contracts539 
and repeat orders540, ensure flexibility , (iii) customers face limited switching costs 
and engage in multi -sourcing.   
(B) The Commission’s assessm ent 
(574)  As stated in section  6.2.3.4, the exercise of buyer power requires the existence of 
sufficient credi ble alternative suppliers such that  customers can switch or threaten to 
switch to the Parties’ competitors post -Transaction.541 Furthermore, according to 
paragraph 67 of the Horizontal Merger Guidelines, ‘it is not sufficient that buyer 
power exists prior to the merger, it must also exist and remain effective following the 
merger. This is because a merger of two suppliers may reduc e buyer power if it 
thereby removes a credible alternative ’. 
(575)  The bargaining power of customers is thus dependent on the number of participants 
in a tender.  
                                                 
538  Form CO, Chapter B.2, paragraph 140.  
539 Framework agreements allow customers to pre -select a number of suppliers based on estimated future 
procurement needs and requirements. Once they have framework agreements in place , customers only 
proceed with procurement once the demand materializes. Framework agreements thus allow customers to 
receive competitive bids for future demands well ahead of the process. Most notably, as framework 
agreements are not exclusive, they encour age further competition between the pre -selected suppliers. In 
addition, as customers are not bound by framework agreements, they may organize contestable tenders 
should they consider that the terms of the framework agreements are no longer competitive. Se e Form CO, 
Chapter B.2, paragraph 140.  
540  According to the Notifying Party, o ptions/repeat orders allow customers to purchase additional rolling 
stock based on the specifications of the initial tender. Sales from repeat orders are not obtained in 
“tenders. ” Instead, repeat orders are non -contestable call -offs based on a contract for which competition 
took place at an earlier stage . Before executing a non -contestable repeat order, customers may consider if 
the option available as part of their existing contr act is still attractive in light of prevailing market 
conditions or in case of non -satisfaction during the execution of the original order. If it is no longer 
attractive, a customer may opt not to call -off the option but instead to organize a new contestab le tender 
that is open  to competition . See Form CO, Chapter B.2, paragraph 140.  
541  Horizontal Merger Guidelines, paragraph 65.  
 
 
115 (576)  As regards France and Germany, where high barriers to entry have been identified, 
pre-Transaction, the number of credible bidders is currently very limited, i.e., to 3 in 
France and 4 in Germany. The number of average bidders per tender in France is 2 
(in the overall market for self -propelled mainline trains) and in Germany 2.7 (both in 
the overall mark et for self -propelled mainline trains and for regional trains).  
Following the Transaction, the market for self -propelled mainline trains, and 
possible segmentations, in France and Germany will become significantly more 
concentrated which further limits the  number of credible bidders in France from 3 to 
2 and in Germany from 4 to 3. This is confirmed by the majority of competitors who 
consider that the Transaction will negatively impact customers’ bargaining power, 
most notably in markets where the Parties a re the two main competitors and which 
are characterised by high barriers to entry. 542 
(577)  The results of market investigation  show that there is a difference in the existing 
buyer power between large national railway operators and and smaller ones. A 
majority o f customers however indicate  that the Transaction will have no impact on 
their bargaining power, including national railway operators such as Deutsche Bahn, 
SNCF,  Ferrovie dello Stato, and SBB .  By contrast, a significant number of 
customers, mostly smalle r operators (such as Alpha Trains Europa , Lokltrafik but 
also the national railway operator SNCB), express the view that the Transaction will 
weaken their bargaining power.543 In that regard, these respondents point out the fact 
that the loss of one bidder w ill have a negative impact on their buyer power.544  
(578)  Pursuant to paragraph 67 of the Horizontal Merger Guidelines, ‘Countervailing 
buyer power cannot be found to sufficiently off -set potential adverse effects of a 
merger if it only ensures that a particular segment of customers, with particular 
bargaining strength, is shielded from significantly higher prices or deteriorated 
conditions after the merger ’. Therefore, the fact that some national railway operators 
may have bargaining power that will not be signif icantly impacted by the 
Transaction does not change the conclusion that the Transaction raises serious 
doubts as to its compatibility with the internal market due to the reduction of 
available alternatives and the strong competitive position of the merged entity post -
Transaction.  
(579)  Therefore,  the Commission considers that the Transaction is likely to decrease 
customers’ buyer power in the market for self -propelled mainline trains, and possible 
segmentation in France and Germany, which are characterised by hig h concentration 
and barriers to entry and expansion.  
                                                 
542  Q3, replies to questions 66 and 67.  
543  Q4, replies to question 52.  
544  Q4, replies to question 52.1.  
 
 
116 6.3.4.6.  Liberalisation of the railway industry  
(A) The Notifying Party’s views  
(580)  The Notifying Party submits that o ver the past few years, EU efforts for railway 
liberalis ation545 have  significantly shifted the competi tive landscape for all rolling 
stock markets, including for regional EMU s and intercity EMUs .546  
(581)  In the Notifying Party’s view, the liberalisation of the railway industry has led to the 
emergence of private operators (including national incumbents acting ou tside their 
territory)547 and leasing companies employing business models that tend to be more 
driven by short -term profit incentives given their temporally limited concession 
rights . By contrast, national incumbents have historically enjoyed long -term 
monop oly on routes and have enjoyed significant support from governments , 
allowing them to focus more on long term profits, which has for example translated 
in them procuring and owning custom -made trains or paying specific attention to 
long-term costs and main tenance . The Notifying Party explains that the prevalence 
of private operators at national level varies depending on the exi sting level of 
railway liberalis ation .548  
(582)  In the Notifying Party’s view, c ustomers procuring tenders for private operation 
(‘private operators ’) put more emphasis on price -related criteria compared to 
customers procuring for public operations . According to the Notifying Party, private 
operators tend to lease existing versatile platforms  which are considered ‘low-risk’ 
instead of owning their own trains . The Notifying Party explains that private 
operators typically have smaller fleets compared to incumbent public operators, they 
typically pay less focus on long term maintena nce considerations compared to public 
operator s with larger fleets .549 
(583)  The Notifying Party submits that t he emergence of this new customer group has 
facilitated the entry and expans ion of suppliers with standardis ed and affordable 
platforms including Stadler, CAF, and to an increasing extent CRRC. This has in 
turn allowed such competitors to successfully participate in the highly structured 
tenders organi sed by s tate-owned railway operators.  In the Notifying Party’s view, 
the change in the customer landscape has, in turn, placed significant constraints o n 
historical players.550 Even in the interim (i.e., until 2023), more and more lines are 
                                                 
545  The Notifying Party explains that s ince 2011, the European Union has undertaken  significant effort to 
liberalis e domestic passenger services in an attempt to reduce, with the aim of enabling privately owned 
train operators to access the market on a competitive basis. These ef forts culminated in the adoption of the 
Forth Railway Package in 2016, imposing, among others, measures to sever the close relationship between 
train operators and infrastructure managers in efforts to open the rail operation market to entry from 
private p layers. As of 2023, the Fourth Railway Package also requires all subsidized railway passenger 
services in Europe to be tendered.  See Form CO, Chapter B.2, footnote 310.  
546  Form CO, Chapter B.2, paragraph 142.  
547  The Notifying Party explains that with refer ence to the distinction  between public and private operators , 
instead of segmenting customers based on their ownership and funding structure (i.e., receiving public 
funds or purely private company), it is more appropriate to assess whether the line that an operator bid for 
is liberalis ed, i.e., whether it was open to competition . The Commission follows this approach throughout 
the present decision. See Form CO, Chapter B.2, paragraph 144.  
548  Form CO, Chapter B.2, paragraph 142 and footnote 311.  
549  Form CO, Chapter B.2, paragraph 146.  
550  Form CO, Chapter B.2, paragraph 143.  
 
 
117 being tendered for private operation across the EEA, including in countries with 
strong national incumbents, such as France.  
(B) The Commission’s assessment  
(584)  The Commission c onsiders that while the liberalisation of the European railway 
industry may increase competition in the market for self -propelled mainline trains, 
any effects from the liberalisation will not be such that the structural impact of the 
Transaction can be off set for the following reasons .  
(585)  First, t he results of the market investigation are mixed as regards the expected 
impact of liberalisation  on the demand for self -propelled mainline trains. Several 
customers and competitors expect a slight increase in demand  in the next 2 -3 year s 
as a result of liberalisation but others do  not expect the liberalisation of railway 
operations to have any significant impact on competition for the supply of mainline  
trains .551 
(586)  In the Commission’s view, and according to the results of the market investigation, 
private operators, albeit more price -oriented, select suppliers on the basis of the same 
criteria as public operators, including technical characteristics, an established t rack 
record , and suppliers’ reputation. The Commission  further  considers that private 
operators have a strong preference for standard platforms, manufactured in 
compliance with technical and regulatory requirements  and already in operation in a 
specific country.552 According to Stadler, private operators ‘prefer off -the-shelf 
solutions ’, while Siemens considers that they ‘prefer train with high quantities in 
operation to look to a supplier’s prior track record to ensure project execution ’.553  
Keolis, a priva te operator active  among others in Germany, explains that ‘[t]he 
criteria for selecting suppliers include: (i) price, (ii) track record and previous 
experience in cooperating with a supplier, (iii) delivery time, (iv) technical features, 
including maintain ability ’.554 
(587)  Therefore, any increase in demand as a result of the liberalisation of the railway 
industry is expected to benefit established players rather than to facilitate the entry of 
new suppliers. In CAF’s view, ‘[l]iberalisation will reinforce the posi tion of 
manufacturers already active in a partic ular country ’.555  
(588)  The Commission further submits that even if railway liberalisation would facilitate 
entry and expansion (quod non), any additional demand stemming from private 
operators is not expected to ha ve a significant impact on the competitive conditions 
in the market for mainline trains (and possible segmentations) , especially in 
countries where the merged entity has a significant competitive position and which 
are characterised by high barriers to ent ry. This is because, as confirmed by the 
results of the market investigation, private operators procure small volumes.   
(589)  Fourth, liberalisation has not yielded the same results in all EEA countries and is 
accordingly not expected to have the same impact across the EEA in the next 2 -3 
                                                 
551 Q3, replies to question 33.  
552 Q4, replies to question 38.  
553 Q3, replies to question 35.1.  
554  Non-confidential minutes of conference call with Keolis, 23 June 2020, paragraph 6.  
555 Q3, replies to question 33.  
 
 
118 years. In line with the Notifying Party’s arguments, the railway industry in some 
Member States is more open to com petition  (e.g., the UK or Sweden) than in others. 
While the liberalisation of national railway operations has started years ago (e.g., 
more than 20 years ago in the UK), other countries  such as France are only now 
starting the liberalisation process. The C ommission also notes that there are several 
private operators in Germany but their presence has not contributed to the entry of 
supplier s not already active in Germany.  
(590)  This is confirmed by the results of the market investigation. Private operators 
expres sed the view that in Germany, as stated above, the lengthy and complex 
homologation process is still seen as a barrier to entry which limits the number of 
credible suppliers. According to Transdev, ‘in Germany, currently the credible 
suppliers for regional  EMUs are Stadler, Siemens, Alstom, and Bombardier. […] 
Transdev could consider a proposal coming from a supplier that has no 
homologated trains in Germany but it is uncertain if a supplier will be able to obtain 
homologation during the construction period . But there are currently no credible 
alternative bidders in Germany or France in that regard ’.556 
(591)  The Commission thus concludes that the impact of the liberalisation is not such that 
it will remove  or reduce  the barriers to entry identified in France and Ge rmany in a 
significant way in the next 2 -3 years.  
6.3.5.  Conclusion  
(592)  For the reasons set out in section  6.3., and in light of the evidence made available 
during the investigation, the Commission considers that the Transaction raises 
serious doubts as to its compa tibility with the internal market as a result of horizontal 
non-coordinated effects, in relation to the market for self -propelled mainline trains  
and in the narrower possible segmentations for regional trains, EMUs, and regional 
EMUs in France and Germany.   
6.4. Urban Rolling stock  
(593)  The Parties’ activities overlap in the supply of steel wheel metros (automated and 
conventional) and steel wheel trams/LRVs (low floor and high floor).  
6.4.1.  Metros  
6.4.1.1.  The Parties’ activities  
(A) Alstom  
(594)  Alstom is active in the supply of metros in  the EEA through its Metropolis platform 
and tailor -made projects. The Metropolis  platform  is a steel -wheel metro platform 
which can be configured in automated or conventional mode, and supplied in high, 
medium, or low capacity versions.  Alstom also offers  tailor -made metro solutions in 
response to specific customer requirements, which can be based on either steel -
wheels or rubber tires.557  
                                                 
556  Non-confidential minutes of conference call with Transdev, 4 June 2020, paragraph 6.  
557  Form CO, Chapter B.3., paragraph 41.   
 
 
119 (595)  In addition, Alstom  holds a […]% controlling stake558 in the company  TMH, the 
holding company of Russian rolling stock su pplier Transmashholding Group. In the 
EEA, TMH offers conventional steel wheel metros .559  
(B) Bombardier  
(596)  Bombardier is active in the EEA -wide market for metros with its Movia platform. 
Movia is a steel -wheel metro platform which  can be upgraded to provide drive rless 
operation. Bombardier also offers tailor -made steel -wheel metro solutions in 
response to specific customer requirements.560  
(C) Consortia  
(597)  In addition to their stand -alone activities, Alstom and Bombardier participate 
together  in several  consortia:  
 MF19 : In November 2019, the Alstom and Bombardier consortium was 
awarded the contract for the design and manufacture of the new generation of 
metros for Île -de-France Mobilités and RATP ;561  
 MF 2000 : Alstom, Bombardier, and Areva562 were awarded a contract for the 
replacement of up to 40% of the RATP fleet on three lines of the Paris metro 
in 2001. RATP exercised options for additional trains in 2006, 2011, and 
2014 ;563 
 DT5: Alstom and Bombardier won the 2006 project for tailor -made 
conventional steel -wheel trains for the Hamburg metro in consortium. The 
customer placed additional orders in 2013, 2015, 2016, 2018 and 2019.564 
(598)  Alstom does not have any other platforms developed in consortia or similar 
contractual arrangement s with other sup pliers for steel -wheel metros except for the 
aforementioned arrangements in the past 10 years. Bombardier did not win any 
projects in consortia with other suppliers in the past 10 years.  
                                                 
558  As part of its interest, Alstom has certain veto rights, including [Information on Alstom’s veto rig hts over 
TMH ]. Under the Jurisdictional Notice, Alstom considers these rights to amount to the exercise of 
“decisive influence” over the “strategic commercial behavior” of TMH. Therefore, the Notifying Party 
considers that Alstom likely jointly controls TM H. TMH is globally active in the manufacturing and 
supply of locomotives, mainline trains, passenger, freight, and specialized railcars, rail buses, trams and 
metros.  
559  Reply to RFI 48. Therefore, the order intake and market shares provided for Alstom inc lude the order 
intake and market shares for TMH (Form CO, Chapter B.3, paragraph 44).  
560  Form CO, Chapter B.3, paragraph 46.  
561  The customer sought a “driverless ready” platform to be initially operated at GoA 2 but with the 
possibility of an upgrade to G oA 4. The contract also includes the option for the purchase of GoA 4 
directly for Line 13 (without the initial GoA 2 level operation). The firm order was worth €[…], with an 
option for up to 410 trains (Form CO, Chapter B.3, paragraph 47).  
562  Areva’s com mand and control transportation have been acquired by Alstom in 2014.  
563  Form CO, Chapter B.3, paragraph 47.  
564  Form CO, Chapter B.3, paragraph 47.  

 
 
121 regardless of the market segmentation , the Parties’ activities in the market for metros 
do not overlap in the past five years  and their market share is significantly lower  for 
the per iod 2010 -2019 .  
(604)  In addition, the Notifying Party states that the m arket shares do not take into account 
the pro -competitive effects of the Transaction resulting from the combination of 
consortium partners . It explains in that regard that t he existence of s everal Alstom 
and Bombardier consortia indicate that the Parties engage in complementary 
services.  The Notifying Party indicates that the Parties’ integration will allow  the 
merged entity  to offer lower prices  and decrease transaction costs and allow for a  
better co -ordination in terms of product design, the organization of the production 
process, and the way in which the products are sold .569  
(605)  Third, the Notifying Party states that c ontestable -only market  shares illustrate that 
the Parties have been less successful at winning new projects . For instance, t he 
Parties together account for only [20-30]% of the contestable -only steel wheel 
projects in the past 10 years, compared to [30-40]% for contestable and non-
contestable projects.570 The Parties’ difficulty to win new projects is particularly 
obvious for automated steel wheel metros, for which only Alstom won a new tender 
in the past 10 years (accounting for [0-5]% of the market).571  
(606)  Fourth, the Notifying Part y states that the Parties are not close competitors in the 
EEA. T he bidding data for steel wheel metros ([…] contestable projects in the past 
10 years ) indicate that Bombardier has only participated in […] steel wheel metro 
projects in the past 10 years ( [20-30]% of all tenders ), of which three in consortia 
with other suppliers, which makes it an infrequent bidder. In addition, among the 
[…] contestable projects in the past 10 years, t he Parties only overlapped in […] or 
[0-10]% of these projects, with Bomb ardier bidding in consortia in [all such]  
tenders.572  
(607)  Furthermore, the Notifying Party argues that Parties are significantly more 
constrained by the presenc e of rivals than by each other, because the Parties lost 
more to competitors than to each other. Whil e the Parties have never lost any steel  
wheel metro projects to each other , Alstom has lost […] each to CAF and Siemens 
and […] to each Newag (in consortia with Siemens), Škoda and Stadler. 
Bombardier, in turn, has lost […] to each of Stadler, CAF, and Sie mens .573  
(608)  Fifth, the Notifying Party indicates that the market for steel -wheel metros is 
characterised  by strong countervailing customer buyer power  exerted by Public 
Transport Authorities  (‘PTAs ’) operating  under stringent  budget constraints  which 
lead them  to carefully balance price -related criteria (such as acquisition price and life 
cycle costs) against non -price related considerations (including performance, and 
adherence to contractual terms and considerations).  As a result, customers are 
increasingly s hying away from expensive and tailored products in favo ur of low -risk 
                                                 
569  Form CO, Chapter B.3, paragraph 61.  
570  Form CO, Chapter B.3, paragraph 64.  
571  Form CO, Chapter B3, paragraph 68.  
572  Form CO, Chapter B.3, paragraphs 103 and 105.  
573  Form CO, Chapt er B.3, paragraphs 108 -109. 
 
 
122 standardized platforms. This has benefitted low -risk suppliers with highly 
customizable platforms, including Stadler, CAF, and Škoda .574 
(609)  Sixth, the Notifying Party states that EEA -wide mar ket for steel -wheel metros is 
fast-growing  market which attracts European and non -European suppliers. For 
instance, the Notifying Party explains that  CRRC is significantly increasing its 
bidding activities for steel -wheel metros in the EEA, with bids in Po rtugal, the UK, 
Romania and Spain.575 
(610)  Finally, the Notifying Party argues that Bombardier’s market share overstates its 
position because the company is facing financial difficulties and has encountered 
critical project -execution problems concerning the deliv ery of several platforms, 
including the 2013 SL order for automated steel -wheel metros in Sweden 
(Stockholm). As a consequence, the Notifying Party considers that Bombardier has 
weakened its position in the market for metros .576  
6.4.1.4.  The Commission’s assessment  
(611)  The merged entity will hold a large  market share, especially in the overall m arket for 
metros, in which the T ransaction will reinforce Alstom’s market position  pre-merger  
([20-30]%) by [10-20] points and confirm  its market leading position. The merged 
entity will also become the market leader in the possible market for steel wheel 
metros and its market position will be reinforced in the possible markets for steel 
wheel automated and conventional metros.  
(612)  However, t he Commission considers that, for the reasons set out below, the 
Transaction does not raise serious doubts as a result of possible horizontal non -
coordinated effects , either through the creation of strengthening of a dominant 
position or otherwise significantly impeding effective competition , in steel-wheel 
metros  in the EEA .  
(613)  First, in the overall market for metros, the merged entity will face the competitive 
constraint exerted by important competitors, in particular Siemens ( [20-30]%) and, 
to a lesser extent, CAF ( [10-20]%), Stadler ( [10-20]%) and Hitachi ( [5-10]%). The 
merged entity ’s market share will be significantly lower when considering the 
possible market for steel wheel metro (Alstom [10-20]%, Bombardier [10-20]%). 
Even if the merged entity will become the market leader, it will be clo sely followed 
by Siemens ( [20-30]%) and will also face competition from important suppliers such 
as CAF ( [10-20]%), Stadler ( [10-20]%) and Hitachi ( [10-20]%).  
(614)  When sub -dividing the steel wheel market between automated and convention al 
metros, the Transact ion, although it will  reinforc e Alstom’s position  ([20-30]% in 
conventional steel wheel metros, [30-40]% in automated steel wheel metros) ,577 will 
not materially  change the structure of the markets . Alstom will remain the second 
supplier behind Stadler ( [20-30]% in conventional  steel wheel  metros) and Siemens 
([40-50]% in automated steel wheel metros). In addition, the merged entity will face 
                                                 
574  Form CO, Chapter B.3, paragraphs 111 -112.  
575  Form CO, Chapter B.3, paragraph 116.  
576  Form CO, Chapter B.3, paragraphs 55 to 59.  
577  As stated in the footnote 566 of this decision, the Parties’ and their competitors’ market share does not 
materially differ when including GoA3 and GoA4 in the market for automated steel wheel metros.  
 
 
123 the competitive constraint exerted by important suppliers such as CAF and Hitachi 
(in both automated and conventional  steel wheel metros) or Skoda (in conventional 
steel wheel metros).  
(615)  Second, as stated above at paragraph s (465)  et seqq. , in respect of mainline rolling 
stock , the Commission considers that a competitive assessment solely focused on 
contestable market shares would underestimate the Parties’ competitive strength and 
disproportionately inflate their competitors’ market position , particularly in 
circumstances where non -contestable orders represent a material portion of the 
market . As far as metros are concerned, non -contestable (repeat) orders represent 
[…]% of the total market. Accordingly, restricting the assessment on contestable -
only tenders would lead to excluding m ore than a quarter of the market. In any event, 
as such assessment is unnecessary for the purpose of the present assessment, there is 
no need to take a view as to the appropriateness of the assessment of contestable -
only portion of the market.  
(616)  Third, for s ame reasons as applicable to mainline rolling stock, market share 
calculations do not exclude consortia. For the purpose of this decision, market shares 
have been allocated based on the contribution of each consortium partner. There is 
no reason to depart from this approach in urban rolling stock.  
(617)  Fourth , the results of th e market investigation indicate d that, according  to a majority 
of respondents , Siemens is considered by competitors and customers to be Alstom’s 
or Bombardier’s closest competitor. Some re spondents also cite CAF, Siemens, 
Hitachi or Stadler as the Parties’ closest competitors.578 The bidding data confirms 
that other suppliers exercise more significant competitive constraints on the Parties 
than each other . In the market for steel wheel metro and possible sub -markets for 
automated or conventional steel wheel  metros, CAF is the by far most regular bidder  
(its participation rate is comprised between [60-70]% and [80-90]%, according the 
market envisaged) , followed by Siemens, Alstom or Stadler, depending on the 
segmentation envisaged. Bombardier is significantly less active on all these 
conceivable markets.579  
(618)  More generally, the results of the market investigation confirm  that the market for 
metros in the EEA is less concentrated than other rolli ng stock markets . Indeed, a  
large number of competitors interrogated identif ied themselves as close competitors 
to the Parties for the supply of metros  on their respective market segment .580 For 
instance, a supplier indicated that ‘[t]here is not much differ ences between Alstom 
and other rolling stock manufacturer .’ 
(619)  In addition, unlike the Commission’s findings regarding other rolling stock markets 
such as very high -speed and mainline trains, a majority of competitors consider that 
the competitive pressure ex erted by the Chinese company CRRC may increas e in a 
foreseeable future . In that regard, some respondents  indicate d that, even if the 
company is still missing a track -record and homologated platforms in the EEA, 
CRRC is considered by most respondents to be currently or soon able to submit 
                                                 
578  Q8, replies to questions 42.1. and 42.2  ; Q9, replies to questions 39.1. and 39.2. and to questions 43.1. and 
43.2.  
579  CPL provided by the Notifying Party.  
580  Q8, replies to question 40.  
 
 
124 credible bi ds in metro tenders in the EEA .581 For instance, competitors indicate  
several projects where CRRC recently bid in the EEA, such as the contract  to 
support track renewal and maintenance activities on the London Unde rground 
network  (which was won by CRRC) or the supply of rolling stock and the 
modernization of the Lisbon metro signalling system.582  
(620)  Fifth , a majority of respondents  consider that customers have a medium or strong 
buyer power in metro projects , which allow s them, according to a customer , to 
challenge submissions  from  bidders in tenders  in order to obtain more competitive 
offers .583 The majority of customers further consider that the Transaction will not 
weaken their buyer power, in particular because a s ufficient number of competitors 
will remain after the Transaction.584  
(621)  Finally, overall, the very large majority of customers did not raise concerns related to 
the supply of metros, regardless of the possible segmentation, by the merged 
entity.585 Some custome rs expect efficiencies resulting  from the Transaction through 
the mutualisation of the Parties’ internal costs.586  
(622)  Based on the above, the Commission considers that the Transaction does not raise 
serious doubts as to its compatibility with  the internal mark et as a result of  horizontal 
non-coordinated effects , in particular through the creation or strengthening of a 
dominant position, in the market for the supply of metros (and possible 
segmentations).  
6.4.2.  Trams/LRVs  
6.4.2.1.  The Parties’ activities  
(A) Alstom 
(623)  Alstom supplies  three trams/LRVs platforms in the EEA:  (i) the Citadis platform, 
which is a low -floor, steel wheel  platform  available in a broad range of 
configurations and lengths. In the past 10 years, the Citadis has been sold to France, 
Germany, Greece, Ireland, the UK and Spain ; (ii) t he Citadis Dualis, which is a low -
floor steel wheel platform . The Citadis Dualis is multimodal solution which allows 
the platform to switch between conventional rail networks (mainly in suburbs of 
large cities) and tramway tracks (mainl y in city centres ). The Dualis operates in 
France ; and (iii) t he Translohr STE and SP Prime trams are both low -floor, rubber 
tire trams in 2012. In the EEA, the trams have been sold in France and Italy.  
(B) Bombardier  
(624)  Bombardier supplies trams/LRVs with its Fl exity family platforms  within the EEA:  
(i) the Flexity Classic platform, which a low -floor tram running on steel wheels. It 
operates in Germany, Austria, Sweden and Poland ; (ii) t he Flexity Swift , running on 
                                                 
581  Q8, replies to question 55.1.  
582  Q8, replies to question 55.1.  
583  Q9, replies to question 60  ; Q9, replies to question 58.  
584  Q9, replies to questions 60 and 60.1.  
585  Q9, replies to question 99.  
586  Q9, replies to question 100.1.  
 
 
125 steel wheels, which  exists as low -floor or high-floor solution . The Flexity Swift 
operates in Germany, the Netherlands, Portugal, Sweden and the UK ; (iii) t he 
Flexity 2 , running on steel wheels,  is a customisable low-floor tram with a universal 
design. It operates in Germany, Belgium, Switzerland and the UK, as well as in 
Australia.  
(625)  The Notifying Party explains that Bombardier used to offer a rubber -tire tram 
solution but has discontinued the production and delivered its  last orders in 1998 .587  
(C) Consortia  
(626)  Alstom and Bombardier have not entered into any co mmon consortia with each other  
for the development of tram/LRV projects in the last 10 years in the EEA.588 In the 
last 10 years in the EEA, Alstom has entered into a consortium agreement with 
Kiepe Electric , a subsidiary of Knorr Bremse,  for the supply of steel wheel high-
floor trams to Üstra in Hannover (Germany) in 2011. Bombardier has entered into 
consortia agreements with Kiepe Electric for the delivery of trams/LRVs  in Austria, 
Germany, Poland, Sweden and the UK.589  
6.4.2.2.  Market shares  
(627)  The Parties’ activities overlap in steel -wheel trams/LRVs  (including the possible  
narrower segments for high-floor and low -floor ) in the in the EEA (including 
Switzerland) .  
(628)  The Parties combined position in the overall market trams/LRVs and possible 
market segmentations are indicated in the following table.  
  
                                                 
587  Form CO, Chapter B.3, paragraph 135.  
588  Form CO, Chapter B.3, paragraph 136.  
589  Form CO, Chapter B. 3, paragraphs 137 -138.  

 
 
127 European suppliers , such as Newag,  have been continuously  expand ing as they offer 
very good responses t o customer needs at low costs.595 Finally, the Notifying Party 
points out the recent competitive constraint exerted by non -European suppliers. For 
instance, Asian suppliers such as CRRC and Hyundai Rotem have been expanding 
their tram/LRV business es in the EEA.596  
(633)  Second, the Notifying Party claims  that the assessment of the Parties’ market shares 
based contestable -only projects  show s that the Parties have been less successful at 
winning new contestable tenders.  For instance, t he Par ties together ac count for only 
[20-30]% of the contestable -only projects in the past 10 years, compared to [30-
40]% for all  (see table 19), contestable and non -contestable projects . Combined 
shares for contestable projects are even lower in the past two years, with the Pa rties 
accounting for only [20-30]% of the contestable projects in 2018 -2019 .597  
(634)  Third, the Notifying Party considers that the Parties are not close competitors. 
Participation data shows that the Parties face most competitive constraint from 
rivals. In the p ast 10 years, Alstom faced CAF ( [60-70]% of all Alstom bids)  and 
Stadler ( [30-40]%) more frequently than Bombardier ( 10-20]%). Similarly, 
Bombardier faced Alstom  ([20-30]% of all Bombardiers bids ) less frequently t han 
Stadler ([60-70]% of all Bombardiers bids), Siemens ( […] bids, [40-50]%), CAF 
([40-50]%), and Škoda ( [20-30]%).598 In addition, the Parties lost more to 
competitors (CAF and Stadler) than to each other.599  
(635)  Fourth, the Notifying Party indicates that the market for steel -wheel trams/ LRVs  is 
charac terised  by strong countervailing customer buyer power . Similarly to metros, 
tram/LRV customers are often local or regional public entities  who tend to be 
financially constrained and are thus highly price sensitive. Structured tender 
procedures allow customers to procure rolling stock under extremely competitive 
conditions.600  
(636)  Fifth, the Notifying Party states that t he tram/LRV market is character ised by a 
continuous price pressure , which leads customers to increasingly seek out offers 
from lower -cost-base suppliers, including Asian and Eastern European players. 
According to the Notifying Party, the pricing pressure is reflected in the margins 
generated in the tram/LRV segment, which are significantly lower than in other 
rolling stock segments.601  
                                                 
595  Form CO, Chapter B.3, paragraphs 219 -220.  
596  Form CO, Chapter B.3, paragraph 218.  
597  Form CO, Chapter B.3, paragraphs 143 to 145.  
598  Form CO, Chapter B.3, paragraphs 200 -201.  
599  Form CO, Chapter B.3, paragraph 203.  
600  Form CO, Chapter B.3, paragraph 215.  
601  Form CO, Chapter B.3, paragraphs 221 -222. For instance, Alstom estimates that its average gross margin 
for trams/LRVs in the past three years was in the range of […]% compared to […]% for metros and 
regional trains. Similarly, Bombardier estimates that its average gross margin for trams/LRVs in the past 
three years was in the range of […]% compared to […]% for metros .  
 
 
128 6.4.2.4.  The Commission’s assessment  
(637)  The merged entity will hold a large  market share  on all conceivable markets for 
trams/LRVs,  especially in the segments for stee l-wheel trams/LRVs (and possible 
segmentation between high -floor and low -floor).  
(638)  However, t he Commission considers that, for the reasons set out below, the 
Transaction does not raise serious doubts as a result of possible horizontal non -
coordinated effect s, either through the creation of strengthening of a dominant 
position or otherwise significantly impeding effective competition , in the market for 
the supply of trams/LRVs  and possible sub -segments thereof .  
(639)  First, the merged entity will face the competit ive constraint exerted by important 
competitors . In the overall market for trams/LRVs, the merged entity will in 
particular face the competitive constraint exerted by Stadler ( [20-30]%) and  CAF 
([10-20]%) and Skoda ( [10-20]%). The same applies in the possible market for steel 
wheel trams/LRVs  and the possible sub -market  for steel wheel low -floor 
trams/LRVs (on both markets, Stadler holds a market share above [10-20]% and 
CAF  and Skoda around [10-20]%).  
(640)  The Parties’ combined market share will be t he highest in the market for steel wheel 
high-floor trams/LRVs, in which the merged entity’s market share will amount  to 
[40-50]%. However, the increment stemming from the Tr ansaction is very  limited 
([0-5]%) and the merged entity will face competition fro m two competitors with 
significant market shares (Stadler [20-30]% and Kiepe Electric  (Knorr Bremse )602 
[10-20]%).  
(641)  Second, as stated above, the calculation of market shares on the basis of contestable 
tenders only risk leading to a distorted view of competi tive positions to the extent 
that non -contestable orders represent a large portion of the relevant market, as is the 
case in trams/LRVs, where non -contestable (repeat) orders amount to [30-40]% of 
the total market size.  
(642)  Third , the results of the market in vestigation indicate that, other competitors, such as 
Siemens, Stadler, CAF, Skoda or CRRC are considered to be credible bidders and 
suppliers603. Accordingly, a large number of competitors interrogated identify 
themselves as close competitors to the Parties  for the supply of trams/LRVs on their 
respective market segment.604 This assessment is confirmed by the bidding data, 
which indicates that Stadler and CAF are the most active bidders in the market for 
steel wheel trams and the possible sub -market for low -floor steel wheel  trams /LRVs  
(their participation rate is comprised between [20-30]% and [30-40]% according the 
envisaged market). In the market for high -floor steel wheel trams/LRVs, Bombardier 
and Stadler are the most frequent bidders (participation rate at [40-50]% each), 
followed by Knorr Bremse and Siemens) . In addition, a majority of competitor s 
consider that non -European suppliers for trams/LRVs (such as CRRC, Hyundai 
Rotem, Bonzakaya, Durmalar) have the technical knowledge to submit credible bids 
                                                 
602  Kiepe Electric was previously Vossloh Kiepe and was taken over by the Knorr -Bremse Group in 2017 
(Form CO, Chapter B.3, footnote 235).  
603  Q9, replies to questions 75.1. and 75.2.  
604  Q8, replies to question 73.  
 
 
129 in tenders organised by EEA customers , even if their presence remains limited in the 
EEA .605  
(643)  More g enerally, similarly to metros, the results of the market investigation suggest 
that the market for trams/LRVs  in the EEA is less concentrated than other rolling 
stock markets , due in particular to lesser technical barrier s to ent ry. Trams/LRVs are 
indeed less complex vehicles than other types of  rolling stock , which allows 
suppliers to enter market with  less incurring costs.  In that regard, most of customers 
consider that regulatory authorisation processes or i nvestments required to 
participate in tenders  do not constitute barriers to enter  the trams/LRVs market .606 
For instance, a customer indicated that trams/LRVs are often standard products 
which require  ‘much lower investment  […] as for metro. ’ Likewise, another 
customer indicated that most suppliers ‘have  standardized tram/LRV vehicle 
platforms that can be adapted to the individual needs of the contracting Entity. ’607 
The lack of particularly high barriers to ent ry, including for non -European suppliers, 
is confirmed by most competitors. An Asian competitor  indicate d that ‘Nowadays 
usually suppliers follow the international standards ’.608  
(644)  Fourth , the large number of competitors allows customers to exercise  countervailing 
buyer power, as confirmed by the results of the market investigation.609 In addition, a  
major ity of customers consider that the transaction will have no impact on their 
bargaining strength , in particular because a sufficient number of competitors will 
remain after the Transaction .610 Competitors generally consider that countervailing 
buyer power dep ends on the number of suppliers active in the market.611  
(645)  Finally, overall, the very large majority of customers did not raise concerns related to 
the supply of trams/LRV s, regardless of the possible segmentation, by the merged 
entity.612 Some customers expect efficiencies resulting from the Transaction through 
the mutualisation of the Parties’ internal costs.613 
(646)  Based on the above, the Commission considers that the Transaction does not raise 
serious doubts as to its compatibility with  the internal market  as a result of  horizontal 
non-coordinated effects , in particular through the creation or strengthening of a 
dominant position, in the market for the supply of trams/LRVs (and possible 
segmentations).  
6.5. Maintenance and refurbishment  
6.5.1.  The Notifying Party’s view  
(647)  The Notifying Party submits that the Transaction will not gi ve rise to competit ive 
concerns for the following reasons.  
                                                 
605  Q8, replies to question 80.  
606  Q9, replies to questions 70.1. and 70.2.  
607  Q9, replu to  question 71.1.1.  
608  Q8, reply to question 80.2.  
609  Q8, replies to question 85 ; Q9, replies to question 91.  
610  Q9, replies to  question 93.  
611  Q8, replies to question 85.1.  
612  Q9, replies to question 104.  
613  Q9, replies to question 105.1.  
 
 
130 (648)  First, t he Notifying Party explains  that a significant part of the market for 
maintenance services (around [60-70]% in Europe) is not accessible to third party 
maintenance service providers because maintenance services are supplied by the 
customers’ in-house  maintenance capabilities .614 The Notifying Party explains that 
the extent to which rail operators can perform ro lling stock maintenance and 
refurbishment services in -house primarily is likely to depend on the size and level of 
skills of the operators’ technical team  and the size of its fleet ; conversely, it  does not 
depend on the type of rolling stock .615  
(649)  Second, the vast of majority of maintenance services  not performed  in-house by 
customers is supplied by the rolling stock supplier as rolling stock and maintenance 
tenders are carried out simultaneously and typically awarded to the same entity.616 
The Notifying Party e stimates that up to [30-40]% of the total yearly outsourced 
rolling stock maintenance services in the EEA are tendered simultaneously with the 
new rolling stock vehicles.617 The Notifying Party explains that it is rare for OEMs 
to provide maintenance services for rolling stock vehicles manufactured by another 
OEM. Specifically, maintenance services for third -party rolling stock represents c. 
[10-20]% and below [5-10]% respectively of Alstom’s and Bombardier’ total 
maintenance business in the EEA .  
(650)  The Notifying Party therefore argues that the competitive effects in the market for 
maintenance services are derivative of the principal rolling stock markets. The 
Notifying Party refers to Knorr Bremse/Vossloh , where the  Commission found that 
the independent after -market (which includes the service and maintenance of trains) 
mirrored the original equipment market and focused its competitive assessment on 
the effects the transaction in the original equipment market.  In that decision, the 
Commission noted  that the Parties’ shares were similar, or even lower  than in the 
related rolling stock market, and accordingly considered that its competitive 
assessment would not differ if it looked at the aftermarket separately to or toget her 
with the related rolling stock market .618 The Notifying Party submits that the same 
approach should be applied in the present case.  The Parties’ estimated shares in 
maintenance and refurbishment services (provided below) are similar to or lower 
than thei r shares in most rolling stock markets where they overlap, including very 
high-speed rolling stock, mainline rolling stock, and trams/LRVs.619  
(651)  Third, according to the Notifying Party, t he Parties will continue to face competition 
from a large number of comp etitors , including (i) experienced railway operators 
often carrying out rolling stock maintenance and refurbishment services in -house  or 
even offering maintenance services to rival operators , (ii) rival OEMs such as 
Siemens, CAF, Stadler, Hitachi , Talgo, N ewag, Pesa, and S koda , (iii) independent 
                                                 
614  The Notifyin g Party refers to railway operators, such as D eutsche Bahn  (via its subsidiary Arriva), SNCF 
(via Keolis), Ferrovie dello Stato Italiane (via its overseas subsidiaries), NS (via Abellio), MTR 
Corporation etc., further strengthens the share of these railway  operators in the overall maintenance and 
refurbishment market since, in general, their international subsidiaries carry out their own maintenance 
services . See Form CO, Chapter D, paragraph 119.  
615  Form CO, Chapter D, paragraphs 120 -122. 
616  Form CO, Chapt er D, paragraphs 124 -126. 
617  Form CO, Chapter D, paragraphs 106. The Notifying Party explains that customers that such an approach 
include PKP, NTV, and HS2.  
618  Commission decision in Case M.7358 – Knorr Bremse/Vossloh  (2015),  recital 36.  
619  Form CO, Chapter D, paragraphs 129 -130. 
 
 
131 providers620, and (iv) engineering companies (for refurbishment services) . 
Furthermore, according to the Notifying Party, the market for rolling stock 
maintenance and refurbishment services has become more fragmented in recent 
years as a result of the deregulation and liberali sation of the rail passenger market.621 
6.5.2.  The Commission’s assessment  
6.5.2.1.  The Parties’ activities  
(652)  The Parties  offer a range of customi sed rolling stock maintenance services , including  
light and heavy ma intenance and refurbishment services .622 The Parties' maintenance 
activities are mainly focused on their own rolling stock fleets. The supply of 
maintenance services for third party rolling stock represents [10-20]% of Alstom's 
total maintenance business in the EEA  and less than [5-10]% of Bombardier’s  
maintenance business in the EEA.   
6.5.2.2.  The Commission’s assessment  
(A) Horizontal assessment  
(653)  The Parties' activities overlap in light maintenance, heavy maintenance and 
refurbishment both at the EEA -wide level, includ ing Switzerland,  and national level . 
(654)  Market data provided under this section are based on the Parties' estimates of the 
overall market for maintenance services in the EEA  and at national level , i.e., the 
market for maintenance services including maintenanc e carried out in -house (around 
[60-70]% of the total market as estimated by the Notifying Party) and outsourced by 
customers to third parties, including rolling stock supplier s. The Notifying Party  
provided market data for the period 2015 -2019 .623  
(655)  Table 16 sets out the market share of the Parties and their competitors in the overall  
market for maintenance and refurbishment.  
  
                                                 
620  Independent providers include Euromaint  (Scandinavia), MWG (Germany), ATI Francesco Ventura Srl 
Costruzioni Ferroviarie/Esperia Srl (Italy), Desarrollos de Tecnologia Avanzada (DTA) (Spain), ZNTK 
Mińsk Mazowiecki S.A ( Czechia  and Poland) . See Form CO, Chapter D, paragraphs 131 -133. 
621  Form CO, Chapter D, paragraphs 135.  
622  Form CO, Chapter D, paragraphs 92 -102. 
623  The market share data is based on the Notifying Party’s best estimates. However, the Notifying Party 
explai ns that due to the absence of reliable market data, these share estimates are based on significant 
assumptions and may not be accurate for the following reasons in particular : (i) a s UNIFE does not 
provide a split between light and heavy maintenance, the P arties relied on an Alstom ’s estimate of the 
total size of these two segments  ([…]%), (ii) t he Parties’ maintenance sales are not reported for light, 
heavy maintenance and refurbishment services separately. The Parties therefore had to estimate their 
maint enance sales for these three segments , (iii)  the Parties are not aware of any reports that estimate 
competitor sales for maintenance services overall, nor at the sub -segment level, and therefore provided the 
Parties’ best estimates. See response to RFI 25 of 3 July 2020, paragraph 4.3.  





 
 
137 maintenance depots in the UK .625 A respondent to the market investigation  indicated 
that rivals ’ ability to compete for maintenance contracts would depend on gaining 
access to the Parties’ depots. This would  especially be the case for smaller fleet for 
which it would not be economical to build a new depot.  
(662)  This concern amounts to a vertical input foreclosure concern and would therefore 
require a showing  that the merged entity will have the ability and incentive to 
foreclo se access to its maintenance depots .  
(663)  The merged entity cannot be considered to have the ability of foreclosing access to 
maintenance depots in the UK. The UK’s Railways Act 1993 ensure s that 
prospective beneficiaries can obtain access to a light maintenance depot on terms 
that are open, fair and transparent.  Access to  the Parties’  maintenance depots in the 
UK is therefore regulated in the following way: (i) i f the Parties  have capacity i n a 
maintenance depot and a train operator or a rival OEM wants to use it, the 
operator/OEM can apply to use the depot; in case of a refusal of access  despite 
available capacity, the rail regulator  for Great Britain  (the Of fice of Rail and Road, 
‘ORR ’) may  ask Alstom or Bombardier to grant  access to the depot. The ORR also 
oversees the terms of access, and has the power to ensure that they are not 
unreasonable or discriminatory.  
(664)  Furthermore, based on the Notifying Party’s submission, there are no recent 
instances where rolling stock OEMs have sought to gain access to the maintenance 
depots of rival rolling stock suppliers. Typically, rolling stock OEMs use their own 
depots or the train operators’ depots in some cases. In addition, there are recent 
examples o f rolling stock OEMs building new depots after having won a tender to 
supply and maintain a new fleet of trains.626 Therefore, the Transaction will not 
result in any change in the merged entity’s incentives such that there will be negative 
effects on competi tion in the market for the provision of maintenance services in the 
UK. 
(665)  As regards possible conglomerate effects, the Commission considers that the 
Transaction does not give rise to any conglomerate effects between rolling stock and 
maintenance services du e to the absence of a merger -specific impact. The results of 
the market investigation generally  confirm that already before the Transaction 
customers (that do not carry out maintenance in -house)  often procure rolling stock 
together with maintenance service s at the same time and from the same supplier.  In 
addition, the Parties are mainly focusing on providing maintenance services on their 
own rolling stock.  
(666)  Therefore, the Commission considers that the Transaction, as modified by the 
Commitments, would not significantly impede effective competition in the internal 
market or in the EEA by giving rise to horizontal non -coordinated effects, in 
                                                 
625  Alstom has nine active maintenance depots in the UK: two depots in London (Morden and Golders Green) 
and one depot in each of Nottingham, Wembley, Wolverhampton, Chester, Manchester, L iverpool, and 
Glasgow. Bombardier has 14 sites across the UK where it can carry on maintenance services: four in 
London (East Ham, Neasden, New Cross Gate, and Old Oak), two in Ilford, and one in each of Asfordby, 
Central Rivers, Crewe, Crofton, Derby, Ram sgate, Reading, and Harlesden.  See Response to RFI 43 of 20 
July 2020, paragraph 1.2.  
626  According to the Notifying Party, Hitachi built a new depot in Kent after winning the Javelin project . See 
Response to RFI 4 3 of 20 July 2020, paragraph 2.1.  
 
 
138 particular through the creation or strengthening of a domina nt position, in the market 
for the supply of maintenance services (and possible segmentations , including the 
possible markets for light, heavy maintenance and refurbishment or the market for 
the provision of maintenance services segmented by type of rollin g stock) . 
6.6. Components and spare parts  
6.6.1.  The Notifying Party’s views  
(667)  As regards components, t he Notifying Party explains that the Transaction does not 
lead to an overlap in the Parties’ activities in the sale of rolling stock components in 
the EEA.  Alstom’s st andalone sales of components are limited to bogies, dampers, 
and switchgears, while Bombardier’s only sells traction converters in the EEA.627  
(668)  The Notifying Party explains that the Transaction creates a limited number of 
potential vertical relationships bet ween the upstream market for standalone rolling 
stock components and the downstream markets for rolling stock.   
(669)  The Notifying Party submits that the Transaction will not result in input foreclosure  
because the merged entity will not have the ability or inc entive to foreclose 
downstream competitors or to increase their costs . According to the Notifying Party, 
Alstom and Bombardier have very limit ed sales of standalone components  and 
accordingly the Parties have no market power in any upstream market for the supply 
of components. In addition, post -Transaction, there will be numerous alternative 
suppliers of components in the EEA which will be able to supply the Parties’ 
downstream competitors , including  Siemens, Hitachi , Hyundai -Rotem, S koda, 
CRRC and Talgo, a s well as specialist component suppliers such as ABB, Wabtec, 
and Knorr -Bremse. The Notifying Party states that i n any event, rival rolling stock 
suppliers typically produce components internally. Any attempt to foreclose 
downstream competitors or to incre ase prices for standalone components would 
therefore be ineffective .628 
(670)  The Notifying Party argues that the merged entity will not have the ability or 
incentive to  engage in customer foreclosure or to increase its downstream 
competitors’ costs.  The Notifying Party explains that the Parties produce their 
components internally, and neither Party has purchased any bogies, dampers, 
switchgears, or traction converters on the open market (including from each other) in 
the past three years. Accordingly , the Transaction will not decrease the demand for 
upstream suppliers.629 Moreover, several customers of rolling stock components 
                                                 
627  Form CO, Chapter D, paragraphs 72 and 73.  For completeness, the Notifying Party submits that even in 
an overall market including all rolling stock components, the Transaction does not give rise to competition 
concerns because (i) the Parties’ have very limited standalone sales of rolling stock components in the 
EEA, (ii) there are many suppliers, including other rolling stock suppliers and specialist component 
suppliers, and (iii) competitive effects in the market for components stem from the principal rolling s tock 
markets.  
628  Form CO, Chapter D, paragraphs 74 -76. 
629  A supplier of wireless communications solutions for railways active in France expressed the view that 
post-Transaction, the merged entity will be able to exclusively rely on Alstom’s subsidiary Noma d Digital 
for such digital technology, while Bombardier is procuring such solutions from another component 
supplier. The market participant considers that the Transaction will create a monopoly in France and thus 
will prevent Nomad Digital’s competitors fr om selling their offerings to a sufficient customer base. 
However, the Commission notes that the market for the supply of components for rolling stock is EEA -
 
 
 
139 (including all major rolling stock operators) will remain accessible to competing 
suppliers post -Transaction .630 
(671)  With regard to co mponents that Alstom produces internally and Bombardier 
purchases from external suppliers (switchgears and dampers), the Notifying Party 
submits that Bombardier will have no ability or incentive to cease purchasing these 
components as a result of the Trans action.  The Notifying Party estimates that 
Bombardier represents a modest proportion (and materially less than 30%) of the 
overall EEA demand for such components. The Notifying Party considers that 
Bombardier will not have an incentive to cease purchasing switchgears and dampers 
from external suppliers as a result of the Transaction. These are largely 
commoditised products and represent a negligible portion (e.g., less than [0-10]%) of 
the overall production cost of a trainset. There would therefore be litt le to no 
financial gain from sourcing such components exclusively from Alstom, even 
assuming it would be marginally cheaper to do so .631 
(672)  As regards spare parts, the Notifying Party submits that there is no overlap between 
the Parties’ sales of spare parts in  the EEA. Alstom had no sales of spare parts to 
other rolling stock suppliers in the EEA (and only minimal worldwide sales), and 
Bombardier only re -sells minor quantities of third -party spare parts in the EEA .632  
(673)  The Notifying Party also states that t he Tra nsaction will not result in input 
foreclosure  because the merged entity will not have the ability or incentive to 
foreclose downstream competitors or to increase their costs.   
(674)  As regards ability, A lstom does not have any standalone sales of spare parts in the 
EEA, and Bombardier only re -sells minor quantities of third party spare parts in the 
EEA. In addition, the Parties typically supply spare parts directly to rolling stock 
operators as part of ma intenance services and do not sell spare parts to other rolling 
stock suppliers. Furthermore, according to the Notifying Party, to the extent that 
there are opportunities for standalone sales to other rolling stock suppliers, 
downstream competitors can sou rce from a number of other suppliers , including  
rolling stock supplier or from specialist spare parts suppliers, including market 
leaders Knorr -Bremse and Wabtec Faiveley, as well as Valdune, THH, and national 
                                                                                                                                                      
wide and that post -Transaction there will remain alternative rolling stock suppliers that will con tinue to 
purchase components. Furthermore, the Notifying Party explained that each of the Parties produces 
wireless communications solutions as part of their signalling solutions for railways (of which there are 
many kinds) but typically in collaboration w ith third -party suppliers of radio or 4G wireless technology. 
Therefore, neither of the Parties fully produces wireless communication solutions internally. The Parties 
are also not aware of other rolling stock suppliers that fully manufacture wireless tech nologies internally. 
On that basis, the Commission considers that the Transaction does not give rise to any customer 
foreclosure concerns with regard to the supply of wireless communication solutions.  
630  Form CO, Chapter D, paragraph 77.  
631  Response to RFI  35 of 8 July 2020, paragraph 5.4.  
632  Form CO, Chapter D, paragraphs 78 -79. The Parties’ sales at the world -wide  level are very limited , i.e., 
Alstom and Bombardier’s worldwide sales would account for c. [0-5]% and [0-5]% re spectively (and [0 -
5]% combined)  based on UNIFE’s data and Parties’ estimates. For completeness, in the Notifying Party’s 
view, the Transaction will also not give rise to competition concerns in a potential market for spare parts 
for the following reasons: (i) most rolling stock spare pa rts are commodities, (ii) there is no competition 
for captive spare parts that must be sourced from the OEM because other suppliers do not have the 
necessary IP or because their spare parts are not compatible with the platform, (iii) the Parties focus on 
their own installed base and are not close competitors, (iv) sophisticated buyers exert significant 
countervailing buyer power . See Form CO, Chapter D, paragraph 80.  
 
 
140 or regional spare part suppliers such as ZNTK Mińsk Mazowiecki (Czech Republic, 
Slovakia, Poland, and Baltics), Vialis (Netherlands), and Mantena (Norway and 
Sweden).   
(675)  As regards incentive, t he Notifying Party also explains that spare parts for rolling 
stock only represent a negligible cost of rolling  stock project  because t he cost of 
standalone spare parts required over a vehicle lifecycle typically represent less than 
c. 1% of the overall v alue of a rolling stock project. Therefore, the merged entity will 
not have an  incentive for a hypothetical pric e increase of rolling stock spare  parts.633 
(676)  The Notifying Party also states that t he Transaction will not result in customer 
foreclosure  because the merged entity will not have the ability or incentive to engage 
in customer foreclosure or to increase its dow nstream competitors’ costs . This is 
because in the Notifying Party’s view, opportunities for sales of spare parts to other 
rolling stock suppliers are rare and spare parts are typically supplied directly to 
rolling stock operators. In the EEA, Alstom and B ombardier do not sell spare parts 
to other rolling stock suppliers .  
6.6.2.  The Commission’s assessment  
6.6.2.1.  Components  
(A) The Parties’ activities  
(677)  Alstom’s sales of component s to third -party rolling stock manufacturers (outside of a 
consortium or sub -supply agreement )634 in the EEA are limited  to bogies, dampers, 
and switchgears . The majority of Alstom’s standalone component sales in the EEA 
are switchgears  (sold to Hitachi in the UK). Sales of bogies derive from one project 
only.635 For completeness, Alstom also has minima l EEA (re)sales of pumps 
purchased from third -party suppliers .636 Alstom’s external sales of bogies in the 
period 2017 -2019 accounted for less than [0-5]%; its sales of dampers for [10-20]% 
and its sales of switchgears for [5-10]% (on an order intake basis).  
(678)  Bombardier’s standalone component sales in the EEA are limited to traction 
convertors in the EEA.637 Bombardier’s external sales in the EEA in the period 
2017 -2017 accounted for less than [0-10]%.638 
                                                 
633  Form CO, Chapter D, paragraphs 81 -82. 
634  Alstom’s scope of work under consortium agreements with other rolling stock suppliers sometimes 
involves the supply of components, such sales are not considered as standalone component sales where the 
overall scope of work of the consortium is the delivery  of trains (as such activities are already counted 
towards Alstom’s shares in the relevant rolling stock market). For instance, Alstom sells bogies 
[Confidential information on an Alstom consortium arrangement ]. These sales amounted t o EUR […] in 
FY 2018/1 9. 
635  In March 2018, Montreux -Oberland Bahn (MOB) ordered a fleet of 20 gauge -changing coaches from 
Stadler, which sourced gau ge-changing bogies from Alstom.  The first car wil l be delivered in spring 2020.  
636  These sales amounted to less than EUR […]  annua lly over the past three years.  
637  The Notifying Party explains that w hile Bombardier supplies stand -alone traction motors and bogies, it 
has only done so outside the EEA in the past five yea rs. These sales amounted to c. EUR […]  in 2019 . See 
Form CO, Chapt er D, paragraph 56.  
638  Response to RFI 35, paragraph 4.4.  
 
 
141 (B) The Commission’s assessment  
(679)  The Commission notes that the Transaction does not give rise to any horizontal 
overlaps in the supply of components in the EEA.639 Based on the Notifying Party’s 
submission, Alstom’s sales of components on a stand -alone basis are limited to 
bogies, dampers, and switchgears and Bombardier ’ to traction converters.  
(680)  The Commission also investigated whether post -Transaction, the merged entity will 
increase its buyer power for the purchase of components from third party suppliers 
and whether this would have a negative impact on them.  
(681)  The marke t investigation provided mixed views as to whether the Transaction will 
endow or  reinforce the Parties’ buyer power.640 Nevertheless, the Commission notes 
that the Parties’ combined share of third -party purchases for components, including 
bogies, dampers, sw itchgears, traction converters, body shells do not exceed 30% in 
the EEA. With regard to d ampers and switchgears , Alstom estimates that it accounts 
for a negligible portion of purchases from third party suppliers because it 
manufactures dampers and switchg ears internally. Bombardier purchases these 
components from third party suppliers but estimates that it accounts for less than 
30% of purchases of such components.641 In addition, the Commission considers that 
post-Transaction, there will remain other major purchasers of these components in 
the EEA such as Stadler, CAF, Hitachi,  Pesa, Newag, Skoda, and Talgo.  
(682)  Furthermore, the Commission considers that the Transaction does not give rise to 
any vertical effects for the following reasons.  
(683)  As regards input forec losure, the Commission considers that the merged entity will 
not have the ability or incentive to foreclose  rival rolling stock OEMs  from access to 
components . The Parties’  market share  in the supply of each separate component  at 
the EEA -wide level , including Switzerland , is well below 30%. The Commission 
also notes that there are alternative suppliers for all components that the Parties 
currently supply to third parties, including rolling stock OEMs such as Siemens, 
Hitachi, Hyundai -Rotem, S koda, CR RC and Talgo, as well as specialist component 
suppliers such as ABB, Wabtec, and Knorr -Bremse . Therefore, the Transaction does 
not give rise to any input foreclosure concerns.  
(684)  Second, with regard to customer foreclosure, the Commission similarly considers  
that the merged entity will not have the ability or incentive to engage in customer 
foreclosure .  
(685)  With regard to ability, as indicated at 682, the Parties and their competitors 
manufacture the major part of their components internally for captive use. Bas ed on 
the Notifying Party’s submission, the Parties also source a number of other more 
standardised components from third parties. The Parties have also identified two 
components that are manufactured by Alstom (switchgears and dampers) which 
Bombardier pu rchases from external suppliers. Alstom is not aware of any 
                                                 
639  The Transaction only creates a theoretical horizontal overlap with regard to bogies. However, 
Bombardier’s bogies sales exclusively relate to the ICx project and [Information on Bombardier’s ICx 
contract with Siemens ]. 
640  Q10, replies to questions 16 and 17.  
641  Response to RFI 43, paragraph 3.1.  
 
 
142 component that Bombardier produces which it currently purchases from external 
suppliers. The results of the market investigation did not provide any information to 
contradict this statement. Accor ding to Knorr -Bremse, in the short -term it will not be 
possible for the merged entity to completely cease procuring components from 
external suppliers. Knorr -Bremse also explains that in addition to this not being 
possible or a likely scenario, it has not been the ‘communicated plan ’.642  
(686)  The merged entity will similarly not have an incentive to stop purchasing 
components   from third party suppliers.  Post-Transaction, the merged entity is likely 
to continue purchasing components not already manufactured inter nally for captive 
use due to product differentiation and the need to incorporate various components in 
the trainset. Components that Alstom produces internally and Bombardier purchases 
from third party suppliers (switchgears and dampers)  represent a neglig ible 
proportion (less than [0-10]%) of the production costs of a trainset  such that any 
hypothetical gain from ceasing to purchase components from third parties is 
immaterial.  
(687)  The Commission further considers that, in any event significant  demand for these  
components will remain post -Transaction from the Parties’ competitors in the 
downstream market such that the Transaction will not lead to any negative effects as 
a result of customer foreclosure.  
6.6.2.2.  Spare parts  
(A) The Parties’ activities  
(688)  Alstom’s sales of spar e parts i n the EEA are limited for use in its own trains and  it 
does not sell spare parts for use on third -party platforms (unless as part of 
maintenance services contracts).  In the EEA, Alstom sells spare parts only to its own 
installed base. Alstom also licences the intellectual property for certain components 
to rolling stock operators, who ca n then manufacture spare parts.643  
(689)  Bombardier does not actively sell rolling stock spare parts on a standalone basis in 
the EEA. Bombardier almost exclusively suppli es spare parts in the context of 
providing other aftermarket services, such as overhauls, retrofit, r epair, maintenance, 
and modernis ation solutions.  
(B) The Commission’s assessment   
(690)  The Commission considers that t he Transaction does not lead to any horizontal  
overlaps between the Parties’ activities with regard to spare parts because Alstom 
has no stand -alone sales to other rolling stock suppliers in the EEA and Bombardier 
only acts as a reseller of minor quantities of third party spare parts.  
                                                 
642  Knorr -Bremse’s response to Q10, question 14.1.  
643  In some cases, Alstom has also licensed its IP rights to enable rolling stock customers to manufactur e the 
spare parts themselves or in partnership with a third party, or to source directly from Alstom’ sub -
suppliers . For completeness, in 2018, Alstom created Station One, an online marketplace allowing third -
party spare parts suppliers and c ustomers to tr ade spare parts.  Alstom recently began using this as a sales 
channel for its own spare parts. However, Station One is still at a nascent stage of development, and 
generated negligible sales of less than EUR […]  in 2019 . See Form CO, paragraphs 50 -53. 
 
 
143 (691)  The Commission further considers that any vertical effects of the Transaction can 
also be excluded. The Parties have very limited, if any, spare parts  sales  to other 
rolling stock OEM. The Parties and other rolling stock suppliers typically sell spare 
parts directly to train operators. The results of the market investigation confirmed 
that customers typically procure spare parts from the supplier of rolling stock, in any 
event during the warranty period.  
(692)  In addition, to the extent that spare parts for a given train type a re not protected by 
any IP rights, there are alternative suppliers for ‘non-critical ’ spare parts, including 
Knorr -Bremse and Wabtec Faiveley, as well as Valdune, THH  and other regional or 
national suppliers.  
(693)  Therefore, the Commission considers that the Tr ansaction does not raise  serious 
doubts as to its compatibility with the internal market  as a result of horizontal non -
coordinated effects  or vertical effects , in relation to the  markets for rolling stock 
components and spare parts in the EEA (and Switzerl and).   
6.6.2.3.  Sub-supply agreement with Siemens for the supply of ICx components  
(694)  In 2011, Siemens was awarded a tender to supply Deutsche Bahn up to 300 high -
speed ICx trains .644 On 3 May 2011, Siemens entered into a supply agreement with 
Bombardier, whereby Siemens sub -contracts to Bombardier around […]% of the 
scope of its contract with Deutsche Bahn  (the ‘Supply Agreement ’). As part of the 
Supply Agreement,  Bombardier supplies  Siemens with [Confidential details of 
Bombardier’s scope of work under the Supply  Agreement ] related to the ICx trains 
ordered by Deutsche Bahn in the frame of its contract with Siemens.  
(695)  Deutsche Bahn ’s orders to Siemens for the provision of the ICx trains amount to a 
total value of € […], of which Bombardier’s scope in these orders am ounts to 
€[…].645  
(696)  In the  course of the market investigation, Siemens  submitted that the merged entity’s 
incentives to deliver quality inputs on time under  the Supply Agreement will 
significantly deteriorate  due to the Transaction . In that regard, it explain ed that the 
merged entity would benefit from Siemens’  weakened reputation as a high-speed and 
very high -speed supplier , and vis -à-vis Deutsche Bahn in particular. According to 
Siemens, Alstom is its main competitor for Deutsche Bahn’s  upcoming high -speed 
and very high -speed tenders. Therefore, weakening Siemens’ reputation vis -à-vis the 
customer  would directly translate into softer competition in future Deutsche Bahn 
tenders to Alstom’s benefit. Moreover, according to Siemens, the Supply Agreement 
is insuff icient to ensure on  time delivery of quality inputs in case of change of 
control of Bombardier, because the agreement was drafted for a scenario of 
Bombardier remaining a stand -alone player and having strong incentives to deliver 
quality inputs in  a timely manner . As a consequence, pursuant to the Supply 
                                                 
644  The ICx train is a high -speed platform with a maximum speed of 250 km/h. It is only operated in 
Germany by Deutsche Bahn. To date, Deutsche Bahn has ordered 137 trains, of which Siemens has 
delivered 44.  
645  Form CO, Chapter B.1, paragraph 100.  
 
 
144 Agreement, Bombardier bears only a small share of the adverse effects (including 
penalties) triggered by delays or quality issues.646  
(697)  Siemens’ claims in this respect amount to asserting a vertical foreclosur e concern, 
whereby the merged entity will have the ability and incentive to degrade 
Bombardier’s compliance under the Supply Agreement . However , contrary to 
Siemens’ assertions, a breach of Bombardier’s contractual obligation would lead to 
significant fina ncial damages and lost income for the merged entity, which would 
not be offset by profits or other benefits resulting from a potential total or partial 
input foreclosure vis -à-vis Siemens  in the context of its contract with Deutsche 
Bahn .  
(698)  First, the Suppl y Agreement contains several provisions which expose Bombardier 
to substantial damages in case of failure in relation to quality and delays.  
(699)  The Supply Agreement sets out performance obligations aiming at preventing 
Bombardier deteriorating or delaying th e performance of its obligations . It contains 
[Information on Bombardier’s ICx contract with Siemens ].647  
(700)  In addition, , the Supply Agreement  sets out that, should  Deutsche Bahn holds 
Siemens liable for any issues with Bombardier’s scope of work, Siemens has the 
contractual right to seek redress from Bombardier  and seek for significant  financial 
compensation . In that regard, the Supply Agreement contains provisions related to 
[Information on Bombardier’s ICx contract with Siemens ]. Specifically , the Supply 
Agreement provides that, if Deutsche Bahn claims financial compensation from 
Siemens related to delays caused by Bombardier, [Information on Bombardier’s ICx 
contr act with Siemens ].648 Furthermore, under the Supply Agreement, if, for reasons 
imputable to Bombardier, Deutsche Bahn terminates its contract with Siemens, 
[Information on Bombardier’s ICx contract with Siemens ].649 In addition, if 
Deutsche Bahn withholds paym ent to Siemens for reasons imputable to Bombardier, 
[Information on Bombardier’s ICx contract with Siemens ].650  
(701)  Second, as explained above, the total value of the ICx contract is €[…] based on the 
exercised call -off of 137 trains ordered to date . As of March 2020, the outstanding 
value of Bombardier’s scope of work was c. € […]. The Commission notes that the 
merged entity  stands to receive the vast majority of the outstanding value , since so 
far only […] of a potential 300 trains  have been delivered to De utsche Bahn.651 
Therefore, revenues that the merged entity  can reasonably expect  after the 
Transaction  from the delivery of Bombardier’s obligation s with respect to the 
Supply Agreement  are substantial.  
                                                 
646  Siemens’ submission, 21 April 2020.  
647  Section 6.1.4 of the Supply Agreement.  
648  Section 6.1.1  of the Supply Agreement. In addition, if requirements related to Bombardier’s scope of work 
are not met, Bombardier is obliged to [Information on Bombardier’s ICx contract with Siemens ]. If 
Deutsche Bahn  claims that there has been improper performance of the project which is related to 
Bombardier’s scope of work, and if Bombardier is unable or unwilling within a reasonable period to 
remedy such claims (e.g., to repair the defects identified), [Information on Bombardier’s ICx contract with 
Siemens ].  
649  Section 11.3.1 of the Supply Agreement.   
650  Section 11.3.2  of the Supply Agreement.  
651  Form CO, Annex D.1, paragraph 33.  
 
 
145 (702)  Third, the merged entity’ s commercial opportunit ies in  relation to the potential sale 
to third parties suppliers of components that are currently delivered by Bombardier 
to Siemens  appear limited. In that regard, the Supply Agr eement states that 
Bombardier [Information on Bombardier’s ICx contract with Siemen s].652 In 
addition, the potential demand for such components outside the ICx is unlikely , 
since , as indicated by the complainant itself in relation to [Components covered by 
Bombardier’s scope ], the concerned component s are specifically  tailored to 
Deutsche Bahn’s  specifications and intend to meet this specific  customer’s needs in 
relation to  the ICx train .  
(703)  Fourth, a partial or total input foreclosure strategy would significantly harm 
Alstom’s reputation, notably vis -à-vis Deutsche Bahn, which has a right to  carry out 
quality checks in Bombardier ’s facilities during the manufacturing process. Such a 
strategy would necessarily damage Alstom’s credibility in the context of future 
tenders issued by Deutsche Bahn.  
(704)  Finally, the Commission notes that the Notifying  Party indicated in the Form CO 
that, in relation to Bombardier’s obligation vis -à-vis Siemens in the frame of the 
Supply Agreement, ‘Alstom is fully committed to executing the ongoing 
subcontracting agreement. ’653 
(705)  It follows from the above that the merged e ntity will not have the ability or incentive 
to implement a partial or total input foreclosure strategy vis -à-vis Siemens for the 
supply of the exterior design, the production and design of the steel car bodies, the 
manufacture of the trailer bogies, and t he final assembly of end coaches and some 
intermediate coaches related to the ICx trains ordered by Deutsche Bahn .  
7. MARKET DEFINITION  - MAINLINE SIGNALLING   
7.1. Introduction  
(706)  Rail signalling systems provide safety controls on rail networks. At their most basic 
level, these systems avoid collisions by preventing two trains from meeting on the 
same section of track. Rail signalling systems comprise both trackside654 and on -
board elements.  
(707)  The rail signalling industry is characterised by the following key elements:  
(a) On the supply side, it is a concentrated industry with a limited number of 
players and high barriers to entry .  
(b) On the customer side, on -board signalling equipment is purchased by rolling 
stock manufacturers or train operators (depending on whether intende d for 
installation on new trains or on existing train fleets), while the track -side 
signalling equipment is purchased by infrastructure managers (for mainline 
                                                 
652  Section 5.6 of the Supply Agreement, which provides that [Information on Bombardier’s ICx contract 
with Siemens ]. 
653  Form CO, Chapter B.1 paragraph 140.  
654  Trackside and wayside are used interchangeably in this Decision. Narrowly defined, trackside elemen ts 
are specifically those elements located immediately beside the track, while wayside elements also include 
those elements located at a slightly greater distance from the track and the train.  
 
 
146 signalling). The d eregulation of rail markets has resulted in additional small 
(or smaller than t raditional players) private operators in certain Member 
States.  
(708)  The signalling industry has developed in the context of national standards for  
signalling systems (referred to as ‘conventional ’, ‘legacy ’ or ‘class B ’ systems). New 
signalling technologies have been developed at European level to harmonise the 
various national systems  (see below , section 7.1.5 ). However,  the adoption of 
harmonised  standards  has been slo wer than planned and the installed base in the 
EEA still consists mostly of legacy  signalling technology.  
(709)  Finally, rail signalling involves multiple elements, both installed on -board and on 
railroad tracks, which must interoperate, together with the rolli ng stock running on 
the network.  
(710)  Signalling equipment can be divided into mainline signalling which equips the 
national railway networks and urban signalling which equips the local railway 
networks such as metro and light rail. The present section and sect ion 8 will focus on 
the mainline signalling markets . Urban  signalling is assessed in sections 9 and 10.  
(711)  Mainline signalling refers to signalling systems that provide safety and controls on 
mainline railway networks (includi ng dedicated high -speed lines).  
(712)  The various elements  of mainline signalling systems, or sub -systems, consist of 
interlockings, Automatic Train Protection (‘ATP ’) systems and Operation and 
Control Systems (‘OCS ’). Interlockings and ATP systems constitute the safety level 
of mainline signal ling, while OC S represents the control level. 655 
7.1.1.  Interlockings  
(713)  Interlockings  are the core safety component of mainline signalling systems. 
Interlocking systems are wayside systems that protect and set routes for the safe 
movement of trains by controlling and preventing access to sections of the track to 
avoid collisions, including side -impact, rear and head -on collisions.  The interlocking 
system is  composed by a set of signal apparatus that prevents trains from conflicting 
movements by only allowing trains to receive authority to proceed, when routes have 
been set, lock ed and detected in safe combinations . 
(714)  Interlockings in mainline signalling systems typically work on a principle of splitting 
a track up into sections or ‘blocks ’. Thes e blocks can be as short as 200m to 800m in 
stations and as long as several kilometres on open tracks. Interlockings ensure that 
no more than one train enters a block at any one time. Interlockings must interface 
with adjacent or intersecting interlockings , and with other signalling systems such as 
ATP and OCS systems.  
(715)  Interlockings work by (i) receiving information from wayside sensors (track circuits 
and/or axle counters) about whether a specific block is vacant or occupied by a train; 
(ii) calculating sa fe routes for trains based on that information; (iii) controlling 
machines that move the rail at junctions to allow trains to transfer from one track to 
                                                 
655 Commission Decision in Case M.8677  – Siemens/Alstom  (2019), r ecital 566 and Form CO, Chapter 
C.1.a, paragraph 5.  
 
 
147 another; and (iv) issuing movement authorities to trains to allow them to travel, i.e. 
instructing thro ugh signals the train drivers how to proceed, e.g. to continue, to 
reduce speed, or to stop.  
(716)  Broadly  speaking  there are two types of interlockings: older , non -electronic ones 
(most commonly  relay interlockings ) and modern, electronic interlockings , which 
are a combination of hardware and software and  are implemented through computers 
rather than older technologies  (computer -based interlocking or ‘CBI’).656 
7.1.2.  ATP systems  
(717)  Train protection systems were developed to reduce the risk that train drivers fail to 
respond to signalling commands and ignor e track restrictions such as gradients or 
speed. ATP systems are designed to protect each individual train by ensuring that the 
train obeys the movement authority granted by the interlocking and the appropriate 
line speed of a track section. ATP systems include both on -board units ( ‘OBUs ’) and 
wayside systems .  
(718)  The ATP wayside system  receives the signalling commands from the interlocking 
and transmits this information either:  
 to a balise  or transponder ,657 which then tr ansmits signalling  information to the 
train via an antenna (‘intermittent ATP system ’); or 
 to a wayside  encoder transmitting information, via cable or radio, to the train 
(‘continuous ATP system ’). 
(719)  The ATP  OBU receives the signalling information from the a ntenna  and implements 
safety procedures, such as sending warnings to the driver, or stopping or slowing the 
train. Different levels of ATP systems provide different levels of protection. A basic 
ATP system may cause an alarm to sound in the train cabin whe re the driver failed to 
obey a signal, a more advanced ATP system can intervene where a train d river fails 
to modify the train’ s behaviour by applying the emergency brake, and an even more 
advanced ATP system can control the speed of a train by applying th e brakes of a 
train in response to a signal from the interlocking or based on maximum track speed 
information programmed into the system. 658 
7.1.3.  OCS  
(720)  OCS  are IT solutions designed for the overall management of railway networks and 
operate at a higher level than the other subsystems that form part of a signalling 
project, such as interlockings and ATP systems. OCS have monitoring components 
for signalling sub -systems and command components controlling signalling sub -
systems. The core OCS functionalities respond to  safety requirements, i.e. OCS 
operate networks of interlockings and integrate the information generated by 
                                                 
656 Commission Decision in Case. M.4508 – Alstom  UK/Balf our Beaty /JV (2007), paragraph 16; 
Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recitals 567-569 and Form CO, Chapter 
C.1.a, paragraphs 6 -8. 
657  A balise is an electronic beacon or transponder placed between the rails of a r ailway as part of an ATP 
system . Balises provide localisation information whenever a train passes over them . 
658 Commission Decisio n in Case M.8677  – Siemens/Alstom  (2019), recitals 570-572 and Form CO, Chapter 
C.1.a, paragraphs 9 -13. 
 
 
148 interlockings and their field elements and ATP systems. Thereby, OCS can be 
connected to different ATP systems and a diversity of connected interloc kings in a 
national or regional infrastructure according to the signalling rules and the 
operational context defined by the railway infrastructure manager. These functions 
may be referred to as operational or control -level functions. Additional 
functionali ties, without safety requirements, that are used for the overall 
management of the railway to increase network efficiency are often also included in 
OCS. These may include automatic conflict detection and conflict resolution 
support, timetable management, decision support, and dispatching. These functions 
are often referred to as dispositive, or management -level functions.  
(721)  The operational (or control -level) functionalities of OCS operate networks of 
interlocking, and the OCS is connected to the installed i nterlockings by means of 
interfaces. These may be proprietary to the suppliers of the OCS and/or the 
interlockings or, in the alternative, they may be standardised. The interlockings -OCS 
interface manages a list of controls and indications, relevant for OC S. Similarly, an 
interface may also be required between the OCS and the ATP systems.659 
7.1.4.  Certification and authorisation  
(722)  Each subsystem requires certification and authorisation, which is typically needed 
for the signalling components included in the system and for the signalling 
subsystem in its entirety, including the functionality of the subsystem and the 
interfaces betwee n the various signalling systems or components in the network. The 
term ‘authorisation’  is used to describe the whole process, covering both (i) the 
certification by an independent body, both at EU level and at Member State level 
(for all signalling system s and components), that the signalling system complies with 
the relevant required technical standards, and (ii) the authorisation at Member State 
level by the National Safety Authority ( ‘NSA ’) to place the component or system in 
service. Authorisation occu rs at the national level only after the certification has 
been completed.660 
7.1.5.  Interoperability and standardisation  
(723)  Interoperability among the various signalling subsystems and interoperability with 
the rolling stock have to be ensured. Mainline signalling pro jects typically require 
installation of systems compatible with the signalling system on the wider network. 
Most countries have national operational rules and technical requirements for 
mainline signalling with which any project in that country must comply .661 
(724)  The mainline signalling industry is characterised by a standardisation process, in 
particular at European level. Measures have been taken to improve the 
interoperability and safety of national networks and to encourage the development of 
an integrated  rail system leading to a single European rail area, as outlined in the 
                                                 
659   Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recitals 573-574 and Form CO, Chapter 
C.1.a, paragraphs 14 -15. 
660   Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recital  575. 
661  Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recitals 576 and Form CO, Chapter 
C.1.a, paragraphs 19 -20. 
 
 
149 2011 transport white  paper.662 With the adoption and implementation of the 4th 
Railway Package663 the period of structural changes in the railway sector should be 
concluded. The technical pillar of the 4th Railway Package664 has reviewed and 
optimised the regulatory framework on interoperability and safety and strengthened 
the role of the European Railway Agency ( ‘ERA ’). However non -standardised 
national systems will remain on parts of the ne twork for many years, and non-
standardised national  equipment for rolling stock will remain necessary.  
(725)  There are more than 50 legacy  ATP systems across Europe, including multiple 
systems within some individual Member States . Each legacy system is standalon e 
and cannot interoperate with other legacy systems. In order to travel, a  train must 
have an ATP OBU that is compatible with each wayside ATP system it will 
encounter. For example, a train running from Genoa to Rotterdam would have to be 
equipped with at least three legacy ATP on -board systems, to enable it to receive 
information from legacy wayside ATP systems in Italy, Germany and the 
Netherlands. The requirement that a train must have an OBU compatible with each 
country it enters raises operating and ma intenance costs for cross border traffic: the 
installation of additional OBUs is costly and takes up space in the train cabin, and 
switching operating standards at national borders (or within a country to the extent 
there are multiple national systems) add s to travel time and requires train drivers to 
be familiar with the respective national signalling rules and ‘signalling language ’. 
(726)  The European Rail Traffic Management System (‘ERTMS ’) is the European 
standard for the ATP. It  has been developed to address  the interoperability issues 
caused by legacy systems and enhance cross -border railway traffic, lower costs and 
promote competition between signalling suppliers. It allows a train equipped with an 
ERTMS on -board device made by any supplier to run on track sections equipped 
with ERTMS devices made by other suppliers . 
(727)  ERTMS  is a control, command, signalling and communication system. It is 
composed of (i) the European Train Control System ( ‘ETCS ’)665 and the (ii) Global 
System for Mobile Communications – Railways (‘GSM -R’). 
(728)  ETCS is an ATP  that continuously ensures that the train does not exceed the safe 
speed and distance. In addition, it provides the relevant information to support the 
task of the train driver.  
(729)  GSM-R is the European radio communications standard for railway operations.  
                                                 
662 Whiter paper – Roadmap to a Single European Transport Area – Towards a competit ive and resource 
efficient transport system, 28 March 2011, COM(2011)0144 final.  
663  The 4th Railway Package is a set of 6 legislative texts designed to complete the single market for rail 
services ( single  European railway a rea). Its overarching goal is to  revitalise the rail sector and make it 
more competitive vis -à-vis other modes of transport. It comprises  a ‘technical pillar’ and a ‘market 
pillar’.  
664  The ‘technical pillar’ , which was adopted by the European Parliament and the Council in April 2016, 
includes Regulation (EU) 2016/796 on the European Union Agency for Railways and repealing 
Regulation (EC) n° 881/2004; Directive (EU) 2016/797 on the interoperability of the rail system within 
the European Union (Recast of Directive 2008/57/EC); and Directive  (EU) 2016/798 on railway safety 
(Recast of Directive 2004/49/EC).  
665  For the purpose of the assessment of the Transaction, the terms ERTMS and ETCS will nevertheless be 
used interchangeably . 
 
 
150 (730)  ETCS is divided into 2 subsystems: on -board and trackside . On-board components 
include : the ETCS on -board unit ( ‘OBU ’); the Driver Machine Interface ( ‘DMI ’), 
i.e. the interface betw een the driver and the ETCS ; and the train interface, i.e. t he 
interface that allows t he ETCS to exchange information  and issue commands to the 
rolling stock . Trackside  components include : the E uro-balises666, i.e. balises  which 
compl y with the ETCS  specific ation  (also called ‘ETCS balises ’); the Lineside 
Electronic Unit  (‘LEU ’), i.e. the interface between the E uro-balise and the 
interlocking;  and the Radio Block Centre ( ‘RBC ’), i.e. a device acting as a 
centralised safety unit which, using radio connection via GSM -R, receives train 
position information and sends movement authorisation and further information 
required by the train for its movement . 
(731)  ETCS  systems have different  ‘Baselines ’ and ‘Levels ’: 
(a) ETCS Baseline s: Baseline is a stable kernel in terms of sy stem functionality, 
performance and other non -functional characteristics. Any system needs to 
evolve, and new functions and corrections might be needed.  ETCS ‘Baseline 
2’’is the first complete set of requirements, considered as interoperable, and 
to be ad opted at European level.  ETCS ‘Baseline 3 ’ is a controlled evolution 
of Baseline 2 that includes new additional functions and backward 
compatibility with Baseline 2 .  
(b) ETCS Levels: ETCS  Levels are defined based on how the wayside is 
equipped and based on h ow the information is transmitted to the train.  
Figure  1: Overview of ETCS (Level 1 and Level 2)  
 
Source: Form CO, Chapter C.1.a, Figure 1  
(732)  ETCS Level 1 includes a LEU that encodes or ‘translates ’ the signalling information 
received from the interlocking for standardised transmission to the Euro-balise, and 
then to the train. This signal aspect is then read by the European Vital Computer 
                                                 
666   A Euro -balise is a passive device that lays on the track, st oring data (fixed or switchable, i.e. with the 
possibility of changing information content) related to the infrastructure, such as speed limits, posit ion 
references, gradients, etc..  

 
 
151 (‘EVC ’), and is displayed on the driver's cab. ETCS Level 1 also requires some other 
equipment on the train (such as a radar, EVC  and the juridical recording u nit, which 
is the equivalent of an aircraft’s ‘black box ’). Level 1 also includes a safe output to 
the braking system to ensure the train obeys the signalling information.667 
(733)  ETCS Level 2 uses GSM -R, the developed stan dard for radio based communication 
for trains in Europe, to provide continuous transmission of signalling information to 
a train equipped with on -board ERTMS equipment. Encoding of interlocking 
information takes place via the RBC. The shift to radio based communication means 
that there is no need for either visible wayside signals or LEUs. As a result, the 
wayside infrastructure can be reduced when ETCS Level 2 signalling is installed. 
One benefit of this is that it is possible to increase the capacity on a  line at lower 
cost: the line can be divided into shorter blocks (which may allow for shorter 
distances between trains) without needing to install signal lights at each block. ETCS 
Level 2 requires some additional equipment on the train, e.g. a GSM -R mobil e radio 
device, including an antenna. Euro -balises are still used in Level 2 systems, but only 
for positioning information.668 
(734)  There are proposals to introduce a third ETCS level. ETCS Level 3, like ETCS Level 
2, would be based on a radio solution. The main difference is that, in ETCS Level 3, 
train integrity would be evaluated by a train -borne system, rather than wayside 
sensors, further reducing wayside equipment and simplifying interlockings. The 
train’s position, as in ETCS Levels 1 and 2, would be determ ined based on 
information received from Euro -balises (or satellite positioning)  and combined with 
accurate train -borne odometry. As in ETCS Level 2, the train’s position would be 
reported back to the RBC continuously. This constant updating of train integr ity, 
position and speed would allow following trains to run closer to the one in front by 
adjustment of the movement authority information displayed to the driver. Some 
constituents required for ETCS level 3, such as train integrity monitoring devices are 
currently under development. In addition, an intermediate level, Hybrid Level 3 – 
combining level 2 and level 3 – is being specified. Some infrastructure managers 
have already placed contracts for deploying Hybrid level 3, and next expected 
trackside tende rs will require the same. There is no clear timeline for the roll -out of 
‘pure’ ETCS Level 3. ETCS Level 3 aspects such as train integrity should be 
included the next time the ERTMS standards are updated, in 2022 and any roll -out 
of the technology in Membe r States will be after that date.669  
(735)  ERTMS originated with a 1989 working group of European transport ministers who 
suggested developing an interoperable ATP system for Europe. In order to develop 
and implement an interoperable system, it was necessary to c reate technical 
specifications supporting interoperability. The ERTMS specifications were 
ultimately developed by the Union signalling industry ( ‘UNISIG ’), a group of 
European signalling companies (at the time, Alstom, Bombardier, CSEE, Invensys, 
Siemens a nd Thales) under the leadership of the Union and the ERA670 as the system 
                                                 
667   Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recital 585 and Form CO, Chapter C.1.a, 
paragraphs 30 -31. 
668   Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recital 586 and Form CO, Chapter C.1.a, 
paragraphs 32 -35. 
669   Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recital 587 and Form  CO, Chapter C.1.a, 
paragraph 36 . 
670  ERA is in charge of management, change and production of the specifications related to ERTMS.  
 
 
152 authority and in close cooperation with railway stakeholders and the GSM -R 
industry.  
(736)  The main benefits of ERTMS include interoperability between different national rail 
networks (for example an ETCS OBU on a French train can interoperate with the 
wayside ETCS equipment in Belgium), supporting interoperability between the 
equipment of different suppliers (for example an ETCS OBU from Bombardier can 
interoperate with wayside equipment in stalled by Alstom); and providing a common 
safety platform for taking steps towards further benefits (such as ATO, autonomous 
driving, moving block, satellite positioning, and harmonised braking behaviour of 
trains).671 
(737)  The Technical Specifications of Interoperability  for Control Comm and and 
Signalling ( ‘TSI CCS ’), a Commission Regulation672, is the legal basis of ERTMS 
specification. It includes  the definition of the essential requirements, the subsystem 
and interface functional and technical specifications, and also determines the 
necessary list of constituents and interfaces and procedures for their assessment.  
ETCS systems must respect these specif ications in order to meet the essential  
requirements and to ensure the interoperability of the Union's rail systems. National 
technical rules, in part driven by legacy signalling requirements, can produce 
national specificities in the deployment of ERTMS . 673 
(738)  At the end of September 2019, around 5.750 km of core network corridor674 lines 
were operational with ERTMS and some 13,800 vehicles were equipped or 
contracted with ETCS in the EU, a substantial part of which has been supported by 
the EU funding. The curr ent ERTMS European Deployment Plan (EDP) has the 
following deployment goals: 51  000 km of core network corridors and 66  700 km of 
the wider core network for 2030, and 123  000 km of comprehensive network for 
2050.675 Figure 2 shows the value of ERTMS contract s in the 2012 -2017 period.  
                                                 
671   Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recital 582 and Form CO, Chapter C.1.a, 
paragraph 27 . 
672  Commission Regulation (EU) 2016/919 of 27 May 2016 on the technical specification for 
interoperability relating to the ‘control -command and signalling’ subsystems of the rail system in the 
European Union . 
673   Commission Decision in Case M.8677  – Siemens/Al stom  (2019), recital 583 and Form CO, Chapter C.1.a, 
paragraph 28 . 
674 As defined in Article 2(14) of Regulation (EU) No 1316/2013 of the European Parliament and of the 
Council of 11 December 2013 establishing the Connecting Europe Facility, amending Regulat ion (EU) 
No 913/2010 and repealing Regulations (EC) No 680/2007 and (EC) No 67/2010 (OJ L 348, 20.12.2013, 
page 129).   
675 Form CO, Chapter C.1 .a, paragraph 39; Commission Implementing Regulation (EU) 2017/6 of 5 January 
2017 on the European Rail Traffic Management System European Deployment plan.  
 
 
153 Figure 2: ERTMS Europe market size, contract value (EUR million)  
 
Source: Form CO, Chapter C.1.a, Figure 2  
(739)  Concerning interlockings, EULYNX is a European initiative by 1 3 infrastructure 
managers to standardise interfaces between  components of an interlocking and 
between interlockings and other signalling subsystems, for example ATP.676 The 
project aims to create a system architecture for interlockings, including standardised 
interfaces, with the ultimate goal of reducing lifecycle costs up to 50%, by the so -
called ‘Reference Implementations ’, which allow for standardisation and 
digitalisation of interlocking interfaces and the possibility of implementation of 
different subsystems by different suppliers.  Compared to ERTMS/ETCS, the 
EULYNX project is significantly less advanced.677 
7.2. Relevant markets  
(740)  Both Alstom  and Bombardier have a broad product portfolio covering essentially all 
types of mainline signalling.  
(741)  The Parties' activities lead to horizontally affected markets (i) in mainline signalling 
projects, specifically interlockings, ETCS wayside ATP, ETCS OBUs and  OCS (see 
section 8.2.1 ) and (ii) in  mainline signalling products, specifica lly  track circuits , 
legacy OBUs, i nterlocking equipment, relays and Euro -balises (see section 8.3.1  
below) . 
(742)  The Transaction also leads to vertically affected market s in the supply of track 
circuits and relays as an input  for the downstream markets for mainline wayside 
signalling projects (namely interlocking projects and ETCS ATP wayside re -
signalling projects ) (see section 8.3.2  below) . 
(743)  In the following section, the Commission analyses the product and g eographic 
market definition for:  
 mainline signalling projects, namely: (i) standalone interlocking projects; (ii) 
ETCS ATP wayside overlay projects678 (standalone ETCS ATP wayside); 
                                                 
676 Bane NOR (NO), CFL (LU), DB Netze (DE), Infrabel (BE), Liikennevirasto (FI), Network Rail (UK), 
ProRail (NL), RFI (IT), SBB (CH), SNCF (FR), Slovenske Zeleznice (SI), OBB (AT) and Trafikveket 
(SE).  
677 Commission  Decision in Case M.8677  – Siemens/Alstom  (2019), recitals 588 -589 and Form CO, Chapter 
C.1.a, paragraph 40 . 
678 Overlay projects designate projects that are put on top of existing mainline signalling systems. In an 
ETCS wayside ATP overlay project, an ETCS wayside ATP system is laid on top of existing 
 €931,9
€202,7€1.317,7
€297,1€438,8
€281,3
2012 2013 2014 2015 2016 2017
 
 
154 (iii) ETCS ATP wayside re -signalling projects679 including ETCS ATP 
wayside and interlockings; (iv) ETCS OBU projects; (v)  legacy OBU 
projects ; (vi) OCS;  and  
 mainline signalling products . 
7.2.1.  Product mark et definition  
7.2.1.1.  Segmentation between mainline signalling and urban signalling  
(A) The Notifying Party’ s views  
(744)  In line with Commission’s precedents, the Notifying Party consider s urban and 
mainline signalling projects separately for the purpose of the assessment  of the 
Transaction.  
(B) The Commission’ s decisional practice  
(745)  In previous cases, the Commission considered whether the market for railway 
signalling could be further subdivided according to the rail network type.680  
(746)  In Siemens/Invensys Rail , the Commission found that the technology required for 
railway signalling projects for mainline was more sophisticated than the technology 
for urban transit and that, therefore, the projects for mainline were more 
expensive.681 The exact market delineation of the relevant p roduct market(s) was 
ultimately left open as the notified operation did not raise serious doubts under any 
plausible market definition.682 
(747)  In Siemens/Alstom , the Commission found that  the two types of signalling systems 
serve d different needs, were  based on different technologies and standards, require d 
different technical solutions and were  sold to different customers. These differences 
ruled out demand -side substitutability as urban customers c ould not or need ed not 
use mainline signalling solutions in urba n transport and mainline customers c ould 
not or need ed not use urban solutions in mainline transport.683 Further, even though 
most suppliers  were  present in both fields, the differences between the two fields 
were  substantial and thus exclude d supply -side substitution.  Therefore, the 
Commission  concluded  that there was a distinction between mainline signalling and 
urban signalling. 684 
                                                                                                                                                      
interlockings. The ETCS supplier must, therefore, develop an interface between the ETCS wayside ATP 
system and the existing interlockings.  
679 Re-signalling projects designate installation of new mainline signal ling systems. In an ETCS wayside 
ATP re -signalling project, the ETCS wayside ATP system and new interlockings are installed together.  
680 Commission Decision in Case M.4337 – Thales/Alcatel Divisions Transport et Systèmes  (2006), recitals 
14 and 19; Commissi on Decision in Case M.4508 – Alstom UK/Balfour Beatty/JV  (2007), recital 12; 
Commission Decision in Case M.6843 – Siemens/Invensys Rail  (2013), recital 11.  
681 Commission Decision in Case M.6843 – Siemens/Invensys Rail  (2013), recital 11.  
682 Commission Decisi on in Case M.6843 – Siemens/Invensys Rail  (2013), recitals 19 and 23.  
683 One potential intersection is suburban lines that are not closed loop. In these cases the signalling solution 
needs to be interoperable with the entire network but due to the density o f traffic CBTC can also be 
deployed. However, even in this case, the two types of systems are used together as opposed to 
substitutes.  
684 Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recitals 614-617. 
 
 
155 (C) Results of the market investigation and the Commission's assessment  
(748)  The results of the market investigation broa dly confirm the Notifying Party's views 
with regard to the segmentation based on rail network type.  
(749)  All respondents indicated that mainline signalling and urban signalling should be 
distinguished from one another.685 Respondents considered  several factors t hat 
differentiate the two sectors: different rail network type, different types of 
technology, different customers (national or regional railway operators, large 
infrastructure managers or railway undertakings, for mainline, vs. local operators for 
urban s ignalling)  and different customers’ requirements. Moreover, mainline 
projects are more complex technologically (large, open networks with complex 
junctions compared to mass transportation projects), more expensive, awarded in 
more burdensome tender procedu res and more challenging for suppliers because 
mainline signalling has to be compatible with a wider network. 686 
(750)  Therefore , the Commission concludes that there is a distinction between mainline 
signalling and urban signalling.   
7.2.1.2.  Segmentation  between mainlin e signalling projects  and mainline 
signalling products and services  
(A) The Notifying party’ s views  
(751)  In line with Commission’s precedents, t he Notifying Party consider s signalling 
products separately from signalling projects . In relation to signalling services  (i.e. 
maintenance) , the Notifying Party explains that signalling services are typically only 
supplied by the Parties as part of a warranty agreement included in a signalling 
project. Neither Party provides services for third party signalling systems to an y 
material extent and, as a result, neither is active in the merchant market for signalling 
services. Therefore,  the Notifying Party considers that  the exact market delineation 
of the relevant product market(s) can be left open as the Transaction would have no 
impact on the market for the provision of signalling services.  
(B) The Commission’ s decisional practice  
(752)  In previous  cases, the Commission distinguished  signalling projects from  signalling  
products.687 
(753)  The Commission considered that railway signalling projec ts are comprehensive 
solutions involving project -specific engineering, development and project 
management , procurement of the necessary equipment, installation, testing and, in 
most cases, maintenance . For their part,  railway signalling products are signal ling 
components used in railway signalling projects.688 The exact market delineation of 
the relevant product market(s) was ultimately left open as the notified operation did 
                                                 
685 Questionnaire 5  addressed to competitor s in mainline signalling (“Q5”) , replies to question 5; 
Questionnaire 6  addressed to customers  in mainline signalling (“Q6”) , replies to question 4.  
686 Thales’ response to  Q5, question 3.1.  
687 Commission Decision in Case M.4508 – Alstom UK/Balfour Beatty/JV  (2007), recitals 10 and 14;  
Commission Decision in Case M.6843 – Siemens/Invensys Rail  (2013), recital 6.  
688 Commission Decision in Case M.6843 – Siemens/Invensys Rail  (2013), recitals 7 and 20.  
 
 
156 not raise serious doubts as to its compatibility with the internal market under any 
plausible market definition.689 
(754)  In Siemens/Alstom , the Commission found that mainline signalling projects a nd 
mainline signalling products  belong to separate relevant markets : in contrast to sales 
of mainline signalling products, the mainline signalling purc hased on a project basis 
include not only the equipment itself, but also the system adaptation, engineering, 
project management, and other services required to install, validate and put the 
system into operation. Infrastructure managers are interested in a  signalling solution 
in which each element works seamlessly together as a whole. The building up of 
such a well -functioning mainline signalling system entails significant risk that 
customers are not willing to bear and prefer leaving to the mainline signal ling 
supplier. The project management capabilities of a supplier are, in fact, a key factor 
used in evaluating bids. 690 
(C) Results of the market investigation and the Commission's assessment  
(755)  The results of the market investigation broadly confirm the Notifying  Party's view 
that mainline signalling projects should be considered separate from mainline 
signalling products.  
(756)  The vast majority  of respondents indicated th e relevance of this distinction, in light 
of the existence of a specific demand for such products,  as spare parts, in addition to 
purchases incurred in the context of signalling projects.691 It has been submitted that 
the large majority of mainline signalling systems in the EEA are purchased on a 
project or frame -contract basis rather than on a product b asis. Projects include the 
system adaptation, engineering, project management, and other services required to 
install, validate and put the system into operation. Conversely, products are sold 
without supporting services such as engineering and project man agement. 692 
(757)  The Commission's therefore concludes that mainline signalling projects  and mainline 
signalling  products  belong to separate relevant markets . 
(758)  The majority of the participants to the market investigation also confirmed that 
maintenance services an d/or spare parts are generally supplied together with 
mainline signalling projects .693 The results of the market investigation showed that 
mainline signalling services are generally purchased for a fixed period of time and 
the duration for which they are pro vided depends on the customer's requirements. 694  
(759)  In any event , since neither Party supplies signalling services to third parties, the 
question whether there is a distinct market for services can be left open as the 
Transaction will have no impact on the me rchant market for the provision of 
signalling services . 
                                                 
689 Commission Decision in Case M.6843 – Siemens/Invensys Rail  (2013), recitals 19 and 23.  
690    Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recital 622 . 
691 Q5, replies to question 4; Q6, replies to question 5; Q uestionnaire 7  addressed to customers in OBU 
signalling (“Q7”) , replies to question 4 . 
692 Siemens’ response to Q5, question 4.1.  
693 Q5, replies to question 13; Q6, replies to question 14.  
694 Q5, replies to question 13.1; Q6, replies to question 14.1.  
 
 
157 7.2.1.3.  Segmentation by mainline signalling sub -systems  
(A) The Notifying Party’ s views  
(760)  In line with Commission’s precedents, t he Notifying Party identifie s the following 
sub-segments  within the mainline signall ing sector : legacy OBU projects; ETCS 
OBU projects; legacy ATP wayside projects; standalone ETCS ATP wayside (so -
called overlay) projects; standalone interlocking projects; OCS projects; and ETCS 
ATP wayside re -signalling projects (bundles of ETCS ATP wayside and 
interlockings).  
(761)  Although in general the Notifying Party agrees on the market segmentation 
mentioned in the previous paragraph, it submits that the distinction between ETCS 
ATP wayside overlay and re-signalling adopted by the Commission  in previ ous 
cases would not be warranted . 
(762)  According to the Notifying Part y, the Commission’s finding seems to be based on 
the existence of a specific customer demand for re -signalling projects, and on the 
fact that ETCS ATP systems and interlockings would form an ‘inseparable bundle ’ 
when tendered together by a customer.  Nevertheless, a customer’s decision to opt for 
a re -signalling project instead of an overlay project reflect s the customer’s 
procurement strategy  rather than  a demand for re -signalling projects tha t is distinct 
from overlay projects. For example,  a customer may prefer to always procure the 
sub-systems separately in order to preserve the technical and economic advantages 
of the individual systems. . 
(763)  According to the Notifying Party, several  factors pl ead in favour of an overall 
market for ETCS projects. In particular:  
(a) On the demand side, the decision between whether to tender an overlay 
project or a re -signalling project would  not be necessarily clear cut. The 
decision will rest not only on the age of the installed interlockings (and 
whether they are newly -installed or nearing the end of their lifecycle), but 
also other customer preferences such as preferred procurement size, preferred  
number of incumbent suppliers, budget, and other strategic considerations.  
(b) On the supply side, most suppliers offer both ETCS ATP wayside and 
interlockings, and these suppliers are equally able to deliver re -signalling 
projects (that is, projects that inc lude wayside ATP ETCS combined with 
interlockings) or ETCS overlay projects. Whether procured as an overlay 
project and a standalone interlocking project or as a re -signalling project it is 
the exact same products that are at stake. As a result, a narrow f ocus on order 
intake shares on the (much smaller) overlay segment would ignore the fact 
that competition for overlay projects will include constraints from suppliers 
that have significant activities in re -signalling.  
(c) Overall, essentially the same players would be  active in both overlay and re -
signalling. While the need for interlockings could in theory limit the set of 
competitors able to compete for re -signalling (although even here they have 
the option for re -signalling contracts to be fulfilled by consor tia of ETCS and 
interlocking suppliers) – there is nothing that would limit suppliers of re -
signalling projects from also being co mpetitors for overlay projects.  
 
 
158 (764)  In any event, the Notifying Party submits that for the purpose of the Transaction , the 
exact d elineation of the relevant product market can be left open, because the 
Transaction will not give rise to competitive concerns, regardless of the precise 
market definition adopted.  
(B) The Commission’ s decisional practice  
(765)  In Siemens/Invensys Rail , the Commissi on considered the market for railway 
signalling projects and explained that it included four key systems, namely:  (i) 
interlocking systems consisting of signals, trackside sensors, point machines, and 
electronic interlockings;  (ii) ATP, consisting of both conventional and ETCS ATP 
systems;  (iii) OCS; and (iv) level crossing systems.695 
(766)  The Commission also analysed whether the market should be further subdivided 
according to the rail network type (mainline/urban), the (interlocking) technology 
applied (non -electronic/electronic), and the size of the project.696 However, the exact 
definition of the relevant product market was ultimately left open.697 
(767)  In Siemens/Alstom , the Commission concluded that  mainline signalling projects 
should be further segmented, with the f ollowing separate relevant product markets 
defined:  (i) legacy OBU projects;  (ii) ETCS OBU projects;  (iii) l egacy ATP wayside 
projects;  (iv) s tandalone ETCS ATP wayside (so -called overlay) projects;  (v) 
standalone interlocking projects;  (vi) ETCS ATP waysi de re -signalling projects 
(bundle of ETCS ATP wayside and interlockings).698 
(C) Results of the market investigation and the Commission’ s assessment  
(768)  The Commission considers that mainline signalling projects should be further 
segmented by subsystem, namely ATP, interlockings, and OCS. For ATP systems, a 
distinction should also be made between OBUs and wayside ATP, between legacy 
and ETCS technology, and between overlay and re -signalling projects. A re -
signalling ATP project covers not only ETCS wayside ATP but al so interlockings. 
Each of these (sub -)segmentations constitutes a separate product market.  
(769)  The vast majority of the participants to the market investigation consider that 
mainline signalling projects should be segmented by subsystem , namely ATP, 
interlocki ngs, and OCS .699 It has been submitted that the mentioned subsystems 
include different products and technologies and have different functionalities. 
Moreover, although in general the main signalling suppliers would have in their 
portfolio all of them, there would also be signalling suppliers which could offer only 
                                                 
695 Commission Decision in Case M.6843 – Siemens/Invensys Rail  (2013), recital 8.  
696  In case Alstom UK/Balfour Beatty/JV  (2007), the Commission considered a possible segmentation of 
railway signalling projects by project size, with three categories: small (value below EUR 8 million), 
medium -size (value between EUR 8 million and EUR 75 million) and large (value above EUR 75 
million) projects. In Siemens/Invensys Rail  the Commission also considered that a segmentation based on 
size could be justified and reflected in different prices and technical complexity required for small, 
medium and large projects; se e Commission Decision in Case M.4508 – Alstom UK/Balfour Beatty/JV  
(2007), recital 12 and Commission Decision in Case M.6843 – Siemens/Invensys Rail  (2013), recital 19.  
697 Commission Decision in Case M.6843 – Siemens/Invensys Rail  (2013), recitals 9, 19.  
698 Commission Decision in Case M.8677 – Siemens/Alstom  (2019), recital 699 . 
699 Q5, replies to question 5; Q6, replies to question 6; Q7, replies to question 5 . 
 
 
159 part of them. 700 Another competitor submitted that from the demand perspective, a 
substantial number of customers buys ATP, interlockings and OCS separately. From 
the supply perspective, each sub -system is highly complex and fundamentally 
different.701 
(C.i) ATP 
a) ATP wayside and OBU projects  
(770)  The Commission considers that ATP projects should be sub -segmented between 
ATP wayside and OBU projects, each constituting a separate product market , 
consistently with  the market definition adopted in Siemens/Alstom .702 
(771)  With regard to ATP, the market investigation confirms that wayside ATP and on -
board ATP equipment should be treated separately .703 The two are not substitutable 
neither from the demand or supply side; they have different functionality, are 
purchased by different customers, and can be supplied by different suppliers on a 
given network.  
(772)  OBUs and wayside ATP perform different functions.  While wayside ATP receives 
information from the interlocking and communicates this information to the passing 
trains, the OBU receives this information and transmits it to the train driver.  
(773)  OBUs and wayside ATP are generally procured separately from one a nother by 
different customers.  
b) Legacy and ETCS projects  
(774)  The Commission considers that , as found  in Siemens/Alstom ,704 ATP wayside and 
OBU projects should be segmented into legacy and ETCS projects, each constituting 
a separate product market . 
(775)  The vast maj ority of the respondents to  the market investigation also confirm that 
ATP projects , both wayside ATP and OBUs, should be further segmented between 
conventional/legacy systems and ETCS systems .705 
(776)  Such segmentation is justified because legacy systems are ess entially local and 
cannot fulfil  interoperability functionalities required by ETCS systems. ETCS 
present functionalities absent in  legacy  systems : continuous communications with 
the train, supervision of braking curves, in -cab signalling whereas legacy is more 
dependent on wayside equipment.706 ETCS and legacy standards are not 
interoperable and thus require different wayside and on -board equipment. As the 
underlying technology is different, there is no supply -side substitution.707 Moreover,  
                                                 
700  GCF Generale Costruzioni Ferroviarie ’s response to Q5, question 5.1  
701  Siemens ’ response to Q5, qu estion 5.1 . 
702 Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recital s 660-665. 
703 Q5, replies to question 6; Q6, replies to question 7; Q7, replies to question 6.  
704 Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recital s 666-669. 
705 Q5, replies to question 7; Q6, replies to question 8; Q7, replies to question 7.  
706  Thales’ response to Q5, question 7.1.  
707  Siemens’ response to Q5, question 7.1.  
 
 
160 the approval proced ures are different: while ETCS requires a Notified Body 
certification of ERTMS equipment, legacy (national) systems are approved in a 
national process. Further, for legacy (national) systems, there is usually no approval 
process for individual products. ET CS, being a new technology, is subject to a much 
more sophisticated testing process to get the system up and running. 708 
c) Re-signalling and overlay projects – ATP wayside  projects  
(777)  The Commission considers that , as found in Siemens/Alstom709 and contrary to the 
Notifying Party’s view,  ATP wayside projects should be distinguished in overlay 
and re -signalling projects, each constituting a separate product market . 
(778)  The vast majority of the respondents to the market investigation support such 
segmentation , due to complexities associated to the development of the interface to 
ensure compatibility of the system in overlay project s.710 The results of the market 
investigation show that o verlay ATP projects have more complex interfaces and can 
be executed also by signalli ng suppliers which have not developed interlocking s for 
the specific market . 711 Moreover,  tenders for overlay projects confer a significant 
incumbency advantage on the supplier with the installed base. Competing in an 
overlay project is much more costl y for a competitor that does not have the installed 
base advantage. On the contrary, such incumbency advantage does not exist for re -
signalling projects.712 
(779)  However, respondents to the market investigation have also indicated  that, from a  
technical  point of view,  signalling solutions for re -signalling or overlay projects do 
not differ much as the main components of the system remain the same and suppliers 
that are able to provide re -signalling projects can also offer overlay projects. As a 
result, the competitive conditions are similar for re -signalling and overlay projects 
with the same set of suppliers bidding for and winning both re -signalling and overlay 
projects. The main differentiator is a significant higher degree of complexity in 
overlay projects due to th e interfacing needs to the existing equipment installed.713 
(780)  In this respect, the Commission notes that the largest mainline signalling suppliers in 
Europe, including the Parties, are actively pursuing both types of projects. Their 
capacity to do so does not disprove, however, the differences between the two types 
of projects, in particular in terms of technical requirements for interfaces and overall 
technical complexity, or the specific customer demand for one or the other type of 
project, not least in view of the interface risk that procuring interlockings and ETCS 
ATP wayside separately entails for the customer.  
                                                 
708  Deutsche Bahn’s response to Q6, question 8.1.  
709 Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recital s 670-677. 
710 Q5, replies to question 8; Q6, replies to question 9.  
711  GCF Generale Costruzioni Ferroviarie’s response to Q5, question 8.1  
712  Progress Rail’s response to Q5, question 8.1  
713  Siemens’ response to Q5, question 8.1.  
 
 
161 d) OBUs for new rolling stock and OBUs for retrofitting existing rolling 
stock  
(781)  The Commission does not consider that a segmentation of OBUs into separate 
product markets based on installation, i.e. new rolling stock or retrofitting existing 
rolling stock,714 is warranted , as already found  in Siemens/Alstom .715 
(782)  The vast majority of competitors  consider that OBU projects should not be further 
segmented b etween (i) retrofitting rolling stock (i.e. replacing the OBU on an 
existing train) and (ii) installing OBU for new rolling stock, on the basis that both 
types of project cover the same products . 716 A respondent submitted that r etrofit and 
installation on-board new rolling stock projects are addressed with the same 
products, for the same customers.717 
(783)  Similarly,  customers confirmed that OBU projects should not be further segmented 
between (i) retrofitting rolling stock and (ii) installing OBU for new rolling s tock, as 
the OBU products are largely independent of installation conditions and can 
generally be used both for retrofit and in new rolling stock.718 
(784)  However, respondents  to the market investigation explained that certain elements of 
differentiation exist. I n particular : 
(a) for new rolling stock , OBU s are generally purchased as part of the rolling 
stock to be delivered and, thus, often selected by the rolling stock OEM. 
Conversely, the ability of a rolling stock operator to choose between the 
products of differe nt suppliers when retrofitting its existing fleet with OBU 
depends very much on the accessibility of technology and information that 
facilitate interfacing with other signalling sub -systems and train control 
equipment ;719 
(b) in retrofitting  projects , there is a significant dependence from the original 
supplier of the rolling stock , who can effectively frustrate a third party ETCS 
supplier. Hence, the market for retrofitting existing rolling stock would have 
other requirements for the supplier than th e market for OBUs for new rolling 
stock.720 Another competitor referred to the exceptional situation arising from 
the technological and regulatory shift to the ERTMS standard that is the 
reason for ETCS OBU retrofit projects: since each train platform is spe cific, 
the integration work will differ depending on the type of platform and the 
                                                 
714  Retrofit projects are organised by a rail operator to enable existing rolling stock to operate on routes with 
ETCS wayside signalling equipment. This requires the retrofitting (i.e. the installation) of an ETCS OBU 
on the train. A retrofit project does n ot involve the installation of a legacy OBU as the train is already 
equipped with it. However it may involve  replac ing the legacy OBU by a spec ial transmission module 
(“STM”). This is provided by the legacy supplier. For new build rolling stock the ETCS su pplier will 
need to purchase the legacy equipment and the relevant documentation , or alternatively an STM,  from the 
legacy supplier (see Form CO, Annex C.1.a – II.B.1  and retrofit analysis provided by Siemens on 11 May 
2020).  For more details see section 8.2.2  below.  
715 Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recital s 678-682. 
716 Q5, replies to question 9.  
717  Thales’ response to Q5, question 9.1.  
718 Q6, replies to question 10; Q7, replies to question 8. Banedanmark’s response to Q7, question 8.1 . 
719  Deutsche Bahn’s response to Q6, question 10.1.  
720  Stadler’s response to Q5, question 9.1.  
 
 
162 rolling stock supplier  must be closely involved in retrofit projects because of 
the need to integrate a new element into an existing design. Therefore, for the 
purposes of no n-horizontal analyses of retrofit projects, the supplier offering 
to retrofit the existing train with ETCS OBUs will need the cooperation of 
the original rolling stock supplier.721 
(785)  In this respect, the Commission considers that those elements, although relev ant, are 
not sufficient to contradict the clear result of the market investigation that a 
distinction between OBUs projects for new rolling stock and OBUs projects for 
retrofitting activities is not warranted. The Commission considers in particular that 
for both new rolling stock and retrofitting activities, suppliers, customers and 
products generally coincide. Nevertheless, the Commission acknowledges that in 
retrofitting activities there is a specific element – connected to the necessary 
interface of the OBU to be installed with the rolling stock to be retrofitted – that can 
have a certain impact on the competitive conditions. Although this does not seem to 
warrant the identification of a specific, distinct market, the Commission will 
consider this aspect in the competitive assessment of the market of ETCS OBUs.  
e) Segmentation by ETCS level  
(786)  The Commission considers that , as found in Siemens/Alstom ,722 there is no need to 
define separate product markets for ETCS wayside ATP and ETCS OBU projects 
based on ETCS  level (namely ETCS Level 1, ETCS Level 2  and ETCS Level 3 ).  
(787)  The vast majority of the participants to the market investigation , both competitors 
and customers,  submitted that ETCS wayside ATP and ETCS OBU projects based 
on different ETCS levels form part of the same market, in light of similar conditions 
for competition and supply -side substitution.723 The results of the market 
investigation also show that even though ETCS level 1 on the one hand and ETCS 
levels 2 and 3 on the other hand have different archi tectures, there are some 
similarities: (i) all pursue the same purpose: interoperability between systems; (ii) 
interfaces have similar complexity to handle; (iii) all three do answer to the same 
customers; and (iv) all suppliers are able to provide an ETCS  level 1 and 2 and are 
working on the development of ETCS level 3. Furthermore, being incumbent on 
ETCS level 1 appears to be a competitive advantage when upgrad ing to level 2, as 
the supplier has the knowledge of the interfaces with existing systems.724 
f) Segmentation by project size  
(788)  The Commission considers that there is no need to define separate product markets 
for ATP wayside overlay and re -signalling by project size , consistently with the 
market definition adopted in Siemens/Alstom .725 
(789)  In the market investigation, the majority of the competitors submitted that a 
distinction of the mentioned projects by size would not be necessary.726 It has been 
                                                 
721  Siemens’ response to Q5, question 9.1.  
722 Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recitals 683 -686. 
723 Q5, replies to question 10; Q6, replies to question 11; Q7, replies to question 9.  
724  Thales’ response to Q5, question 10.1.  
725 Commission Decision in Case M.8677 – Siemens/Alstom  (2019), recital 69 9. 
726 Q5, replies to question 11.  
 
 
163 argued that although the projects may vary in size, the market would be the same and 
that to quantify which o ne is a small project and which one a large project would be 
subjective to the clients view and any arbitrary value used to distinguish such 
projects would be unlikely to consider the specific complexities of an individual 
project.727 The difficulty to set a  precise threshold is confirmed by the fact that the 
only two participants to the market investigation in favour of a distinction between 
small and large projects, mentioned two very different thresholds (20 and 100 
million Euro).728 
(790)  With respect to customer s, none of them considered it necessary to define separate 
product markets for ATP wayside overlay and re -signalling by project size.729 
(C.ii)  Interlockings  
(791)  The Commission considers that , as found in Siemens/Alstom ,730 standalone 
interlocking projects constitute a s eparate product market, distinct from re -signalling 
projects involving the supply of both ETCS ATP wayside systems and interlockings . 
(792)  The majority of competitors that responded to  the market investigation, submitted 
that standalone interlocking projects co nstitute a separate product market , noting in 
particular that standalone interlocking projects can be undertaken by separate 
suppliers in a wider market than re -signalling projects as there are generally more 
suppliers with the relevant expertise available  to a client for these works .731 The 
result was mixed with respect to customers.732  
(793)  There exists, in fact, a distinct demand for standalone interlocking projects. The 
tender data submitted by the Parties indicates that in the period 20 10-2019, a 
significant number of standalone interlocking projects were tendered in a series of 
EEA countries.733 
(794)  The Commission also considers that there is no need to define separate product 
markets for standalone interlockings projects based the type of technology used.  The 
Commission has not received indications that the market for standalone interlocking 
projects should be further segmented between non -electronic technology and 
computer -based technology. The Commission notes, however, that non -electronic 
interlockings are b ecoming an outdated technology.  
(795)  The Commission also considers that there is no need to define separate product 
markets for standalone  interlockings based on project size, in line with the 
arguments presented in paragraphs  (788) -(789) . 
(C.iii)  OCS  
(796)  The Commission considers that OCS projects constitute a separate product market.  
                                                 
727  Ferrovial’s response to Q5, question 11.1.  
728  Thales’ and Progress Rail’s responses to Q5, question 11.1.  
729 Q6, replies to question 1 2. 
730 Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recital s 687-691. 
731 Q5, replies to question s 12 and 12.1 . 
732 Q6, replies to question 1 3. 
733 Form CO, Annex C.1.a –V.C.5.a . 
 
 
164 (797)  There exists a distinct demand for OCS projects. The tender data submitted by the 
Parties indicates that in the period 20 10-2019 , a significant number of OCS  projects 
were tendered in a series of EEA countries .734 
(798)  Furthermore, the results of the market investigation did not indicate that the market 
for OCS projects should be further segmented according to the different levels of 
OCS (sometimes referred to as ‘operational ’ or ‘control level ’ and ‘dispositive ’ or 
‘management level ’). As a result, no further market segmentation  based the 
type/level of OCS  is warranted .  
(799)  The Commission also considers that, at this stage, there is no need to define separate 
product markets for OCS projects based on project size, in line w ith the arguments 
presented in paragraphs  (788) -(789) . 
7.2.1.4.  Mainline signalli ng products  
(A) The Notifying Party’s views  
(800)  As mentioned in paragraph  (751) , the Notifying Party considers mainline signalling 
products separately from mainline signalling projects, for the purpose of the 
assessment of the Transaction . 
(801)  Furthermore, the Notifying Party has treated each type of signalling product as a 
separate product market.735 Concerning Euro -balises, the Notifying Party has 
considered a separate ma rket for Euro -balises as the narrowest plausible product 
segment.  
(B) The Commission’s decisional practice  
(802)  In Siemens/Invensys Rail , the Commission referred to the distinction between  
interlocking equipment and point machines and identified other products that  may 
constitute separate mainl ine signalling product markets, namely track circuits, track 
signals, conventional OBUs, relays, a nd balises. Regarding balises specifically, the 
market investigation suggested that ‘ETCS balises and conventional balises belon g 
to different markets ’ due to lack of substitutability  and ‘significant investment and/or 
lead time ’ required for switching from the production of conventional balises to 
ETCS balises. The Commission ultimately left the product market definition open  
with regard to all signalling products .736 
(803)  In Siemens/Alstom  the Commission considered that the different signalling products 
are not substitutable to each other , as each product is used for a different purpose by 
the customer .737 For the purpose of that specific case, it considered a separate 
product market for interlocking equipment .738 
                                                 
734 Form CO, annex C.1.a –V.C.5.a . 
735  Form CO, Chapter C.4.  
736  Commission Decision in Case M.6843 – Siemens/Invensys Rail  (2013), recitals 20 -23. 
737  Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recital 1201.  
738  Commission Decision in Case M.8677 – Siemens/Alstom  (2019), recital  1204.  
 
 
165 (C) The results of the market investigation and the Commission’s assessment  
(804)  The majority of respondents to the market investigation, both competitors and 
customers, have confirmed that the segmentation considered in Siemens/Alstom 
between mainline signalling projects and mainline signalling products remains 
valid.739 
(805)  The results of the market investigation did not depart from the Notifying Party's 
views and the Commission's most recent dec isional practice according to which each 
signalling product constitutes a separate market.  
(806)  The Commission further considers that there is no demand -side substitutability for 
the different signalling products since each is used for a different purpose. More over, 
there are different suppliers for different signalling products.  
(807)  Therefore, for the purposes of the present decision the Commission considers that 
each signalling product constitutes a separate product market.  
(808)  Regarding balises specifically, the Comm ission considers that, the reasons justifying 
a segmentation between conventional and ETCS ATP systems (see paragraph (776) ) 
are equally appl icable , as Euro -balises are an ERTMS  component  involving 
demanding performance requirements, high safety targets and a stringent 
authorisation procedure . The Commission, there fore, considers that  conventional 
balises and Euro -balises belong to different markets.  
7.2.1.5.  Conclusions on product market definitions in mainline signalling  
(809)  For the purpose of the assessment of the Transaction, the Commission's view is that 
mainline signallin g and urban signalling are separate markets. Within mainline 
signalling, signalling projects and products constitute separate markets.  
(810)  In addition, mainline signalling projects should be further segmented, with the 
following separate relevant product markets defined:  
– Legacy OBU projects;  
– ETCS OBU projects;  
– Legacy ATP wayside projects;  
– Standalone ETCS ATP wayside (so -called overlay) projects;  
– Standalone interlocking projects;  
– ETCS ATP wayside re -signalling projects (bundle of ETCS  ATP wayside 
and interl ockings);  
– OCS . 
                                                 
739  Q5 – Mainline signalling – Questionnaire to competitors, question 4; Q6 – Mainline signalling – 
Questi onnaire to customers, question 5.  
 
 
166 (811)  Finally, each mainline signalling product constitutes a separate market, with a further 
segment ation  in conventional balises and Euro -balises  being considered for the 
purposes of the present decision . 
7.2.2.  Geographic market definition  
7.2.2.1.  Mainline si gnalling projects  
(A) The Notifying Party's views  
(812)  As regards ETCS O BUs projects and  ETCS wayside projects , the Notifying Party 
submits that there would be a number of factors that plead in favo ur of a market 
including EEA and Switzerland : 
(a) Switzerland has also  adopted the ETCS standard. Switzerland was an early 
adopter of ERTMS, committing to an ERTMS strategy as early as 2000. 
More than 1000 trains are currently fitted with ERTMS to operate on the 
national network, and today ETCS on -board units are required fo r network 
access with Lev el 2 mandatory on certain lines;  
(b) Participation in tenders in Switzerland concerns broadly the same set of 
competitors as in the EEA.  
(813)  In any case, the Notifying Party submits that the exact delineation of the relevant 
geographic ma rket can be left open because the Transaction would not give rise to 
competitive concerns, regardless of the precise market definition adopted  for ETCS 
OBUs projects  and ETCS wayside projects  (i.e. EEA -wide or EEA with 
Switzerland) . 
(814)  With respect to interlo ckings , the Notifying Party submits that the exact delineation 
of the relevant geographic market can be left open because the Transaction would 
not give rise to competitive concerns, regardless of the precise market definition 
adopted  (i.e. EEA -wide or nat ional) . 
(815)  As regards OCS , the Notifying Party submits that several  factors plead in favo ur of a 
EEA -wide market:  
(a) Although OCS systems require adaptation to national specificities (each 
country having its own operational rules which need to be taken into acco unt 
by control and management systems), network operators usually seek to ease 
the entry of new suppliers in their respective national markets by organizing 
international tenders with flexible requirements, when possible, for 
developing the national specif ications. In some cases, countries even choose 
to swap to nation -wide OCS, thereby replacing the old infrastructure, which 
allows new players to enter with innovative solutions quite e asily and at fair 
conditions.  
(b) From a supply -side substitutability point of view, the same Baseline of OCS 
systems developed by the respective suppliers are used in each Member State 
after adaptation.  
(c) Market share data for OCS systems tenders across the EEA reveals the same 
set of competitors who typically have orders in  a numb er of EEA countries.  
 
 
167 (d) The Canonical Data Model ( ‘CDM ’) standardization initiative developed 
under Shift2Rail is expected to lower the cost of entry and expansion for new 
OCS suppliers. The CDM initiative aims to enable interoperability between 
different ser vices on the Traffic Management and Control level  and 
facilitating market entry.740 
(816)  The Notifying Party further submit s that there would not be national barriers to entry 
or national homologation that would prevent an OCS supplier with a particular 
solution competing in new countries in the EEA:  
(a) Prior homologation is not necessary to win or bid in OCS projects, as 
authorization typically takes place at a project level;  
(b) Suppliers have solutions that allow them to compete throughout the EEA.  
They bid and win i n multiple countries across the EEA;  
(c) Smaller or up and coming players have a demonstrated ability to expand 
outside of their home countries;  
(d) Customer requirements vary within a standard range of typical functions they 
would like within their OCS;  
(e) Variable  shares across countries are not an indication of very different 
competitive conditions in Member States, but a reflection of the increasing 
trend for single national OCS systems leading to one or two suppliers having 
solutions in place at any given time.  
(817)  The Notifying Party adds that the need to communicate with other signalling 
systems, notably interlockings, is not a barrier to entry at the national level and 
suppliers can and do, bid and win, in countries where they do not have interlocking 
installed:  
(a) OCS-interlockings interfaces will be more and more standardized;  
(b) Numerous examples show that suppliers can, and do, bid and win OCS 
projects without being the incumbent interlocking or OCS supplier;  
(c) Network operators can require standard OCS -interlockings i nterfaces or 
requiring that access to the interface specification is given to the OCS 
supplier;  
(d) Network operators can also attract entry by organizing large projects 
covering the entire country. Such projects attract new entry and competition 
from all majo r EEA signalling players.  
(818)  In any case, the Notifying Party submits that the exact delineation of the relevant 
geographic market can be left open because the Transaction would not give rise to 
competitive concerns, regardless of the precise market definitio n adopted  for OCS  
(i.e. EEA -wide or national) . 
                                                 
740  See also the Notifying Party’s response to RFI 20, question 1.  
 
 
168 (819)  With respect to legacy  ATP wayside and legacy OBU projects , the Notifying Party 
submits that the relevant markets are national in scope.  
(820)  From demand -side perspective, customers cannot easily switch to suppliers located 
elsewhere in the short term and at a negligible cost. In particular, national 
infrastructure managers do not purchase legacy systems used in another Member 
State, as they rely on different technolo gy and are not interchangeable.  
(821)  From a su pply-side perspective, a number of factors would suggest that markets 
should be defined at a national level. In particular:  
(a) Legacy systems are only available from specific suppliers (or often only a 
single supplier), largely due to historical reasons. The signalling principles 
and technology underlying legacy systems vary between countries, so that 
one is not typical ly substitutable for the other.  
(b) Suppliers offer different legacy systems across the EEA.  Legacy systems 
show strong variations in between count ries and are not interoperable and are 
built on  proprietary technology.  
(c) Suppliers cannot easily switch from one Member State to another in the short 
term without incurring significant additional cost or risk. A legacy solution 
used in one EEA Member State cannot be used in another EEA Member 
State since each state has its own rules and technical specifications.  
(B) The Commission's decisional practice  
(822)  In Thales/Alcatel Divisions Transport et Systèmes,  the Commission considered the 
geographic scope of a product  market that comprised both mainline and urban 
signalling. The Commission noted that the market investigation suggested that the 
geographic scope of this unified market for urban and mainline signalling projects 
was at least EEA -wide but ultimately left th e precise geographic market definition 
open.741 
(823)  In Alstom UK/Balfour Beatty/JV , the Commission considered the geographic scope 
of a unified market for urban and mainline rail signalling projects. In that case, the 
parties argued that the relevant geographic market was national because, in particular 
in the UK, standards are set by the national safety and standards authority. The 
Commission noted that, on the other hand, the market investigation in a previous 
case ( Thales/Alcatel ) suggested the relevant geogra phic scope was European -wide 
and ultimately left the precise geographic market definition open.742 
(824)  In Siemens/Invensys Rail , the Commission considered the geographic scope of a 
united product market comprising urban and mainline signalling projects. The 
Comm ission noted that during the market investigation some participants considered 
that railway signalling projects are comparable in the EEA or even worldwide due to 
similar technologies, comparable safety requirements, progressing standardisation 
and exchang e of information between customers. Other respondents however 
                                                 
741  Commission Decision in Case M.4337 – Thales/Alcatel Divisions Transport et Systèmes  (2006), recitals 
21-24. 
742  Commission decision in Case M.4508 – Alsto m UK/Balfour Beatty/JV  (2007),  recitals 22 -23 
 
 
169 indicated that customer preferences, national technical specifications, national safety 
standards and national authorisation processes were often mentioned in the market 
investigation as barrier s to entry. The precise geographic market definition was 
ultimately left open.743 
(825)  In Siemens/Alstom , the Commission considered that the relevant geographic market s 
for ETCS OBU projects, ETCS ATP wayside overlay projects  (standalone)  and 
ETCS ATP wayside re -signalling projects (bundle of ETCS ATP wayside and 
interlockings)  were  EEA -wide , noting in particular that the adoption of EU -wide 
authorisation procedures and standards, and in particular of ERTMS, was developing 
homogeneous conditions for competition be tween mainline signalling suppliers 
within the EEA.  From a supply -side substitutability point of view, the same Baseline 
ETCS platforms developed by the respective suppliers were used in each Member 
State after adaptation . The use of standard platform/products in tenders across 
different EEA countries provide d an indication that competitive conditions were 
similar across the EEA.   
(826)  Conversely, the Commission considered that the markets for interlockings  and 
legacy OBU projects were national in scope. In particular, with regard to 
interlockings, the Commission noted that while some factors point ed to an EEA -
wide geographic market for standalone interlocking projects, such as the use of 
similar platforms across countries, entrants bidding and winni ng and the presence of 
the same suppliers across a large number of EEA countries, other factors point ed to a 
national geographic scope, such as a more important presence of local suppliers in 
some EEA countries, the absence of EEA -wide standardisation with  the exception of 
the EULYNX initiative and a higher share of national adaptation costs relative to 
project value. 744  
(C) Results of the market investigation and the Commission's assessment  
(C.i) ETCS OBUs projects  
(827)  The vast majority of the participants to market investigation, both customers and 
competitors, confirmed that the market for ETCS OBUs projects should be 
considered EEA -wide in scope.745 ETCS projects respond to European standards and 
pan-European safety rules and can be considered to be EEA wide. ETCS OB U 
products are interoperable at  the European level.746 Several participants also pointed 
to the possibility of a market larger than EEA, as the ETCS standard would have 
been adopted also by countries outside EEA ( notably , Switzerland).747 
(828)  The Commission theref ore considers that the relevant geographic market for ETCS 
OBU projects is at least EEA -wide.  As for the inclusion of Switzerland, the question 
can be left open, as the competitive assessment would not change irrespective of the 
inclusion of Switzerland in  the relevant geographic market.  
                                                 
743  Commission Decision in Case M.6843 – Siemens/Invensys Rail (2013), recitals 2 4-27. 
744 Commission Decision in Case M.8677 – Siemens/Alstom  (2019), recitals  721-834. 
745 Q5, replies to question 14; Q6, replies to question 15 ; Q7, replies to question 11. 
746  CAF ’s response to Q 7, question 1 1.1. 
747  Siemens’, GCF Generale Costruzioni Ferroviarie’s and Stadler’s responses to Q5, question 14.1; Ferrovie 
dello Stato’s response to Q6, question 15.1; SBB’s response to Q7, question 11.1.  
 
 
170 (C.ii)  Legacy OBU projects  
(829)  The results of the market investigation confirm the Notifying Party's view that the 
relevant geographic market for legacy OBUs systems is national in scope.  
(830)  The vast majority of the participants to mark et investigation, both customers and 
competitors, confirmed that the market for legacy OBUs projects should be 
considered national  in scope748 It has been submitted that  national markets would 
present strong barriers to entry: (i) adaptation costs to meet the country specific 
operating rules; (ii) sufficient volume to cover the cost of country adaptation; and 
(iii) homologation processes. Furthermore, the  results of the ma rket investigation 
show that legacy OBUs  are not standardized , as they would differ from one country 
to another.749 
(831)  The Commission therefore considers that the relevant geographic market for legacy 
OBU projects is national.  
(C.iii)  Interlockings  
(832)  All respondents to t he market investigation confirmed that the relevant geographic 
market for standalone interlockings is national in scope.750 Notably, a customer 
submitted that the market is national because of unique demand -side considerations, 
such as installed base, accred itation, the need for a significant local workforce and 
premises and different technical/engineering requirements.751 The market 
investigation shows  that interlockings must be adapted to conform to national 
systems and signalling rules vary to some extent be tween countries. Authorization 
processes are also national. Moreover, different technology generations (mechanical, 
electro -mechanical, electrical, electronic and software  / cloud based types) of 
interlocking would be rolled out and operate in parallel. Th e degree of digitalization 
within the different countries would be very different.752 
(833)  The Commission t herefore  considers that the relevant geographic market  for 
standalone interlockings projects is national.  
(C.iv)  ETCS ATP wayside overlay projects (standalone)  
(834)  The majority of the participants to the market investigation , both customers and 
competitors,  submitted that the market for ETCS ATP overlay projects is EEA -wide 
in scope .753 Respondents again referred to European standards and pan -European 
safety rules, noting  that r equirements for ETCS are specified within EU Regulation 
and the TSIs which apply across the EEA.754  
(835)  However, the results of the market investigation also highlighted  factors  pointing 
towards national markets, including  the fact  that supplier s of ETCS system s need to 
create an interface to the installed interlockings and homologate the ir ETCS system s. 
                                                 
748 Q5, replies to question 15; Q6, replies to question 16; Q7, replies to question 12.  
749  Thales’ response to Q5, question 15.1.  
750 Q5, replies to question 16; Q6, replies to question 17.  
751  Network Rail’s response to Q 6, question 1 7.1. 
752  Siemens’ response to Q5, question 16.1.  
753 Q5, replies to question 17; Q6, replies to question 18.  
754  Ferrovial’s response to Q5, question 17.1.  
 
 
171 Moreover, in the case of overlay projects where the infrastructure manager chooses 
to keep the existing interlockings, the ETCS supplier must dev elop a (national 
specific) interface between  the existing interlockings and the ETCS system.755 
(836)  Nevertheless, on balance, on the basis of the observations in paragraph (827)  above 
and in line with the result s of the market investigation, t he Commission considers 
that the relevant geographic markets for ETCS ATP wayside overlay projects is 
EEA -wide.  
(C.v) ETCS ATP wayside re -signalling projects (bundle of ETCS ATP wayside 
and i nterlockings)  
(837)  The majority of competitors and all customers taking part to the market investigation 
submitted  that the relevant geographic market for ETCS ATP re -signalling projects 
(bundle of ETCS ATP wayside and interlockings) is EEA -wide in scope , for the 
same  reasons  mentioned with respect to ETCS ATP wayside overlay projects 
(standalone) .756 It has been added that m ost suppliers  can provide both interlocking 
and ETCS ATP wayside solutions across the EEA. 757 Similarly to ETCS ATP 
wayside overlay projects (standalone) , a competitor submitted that certain  factors 
point towards national markets, e.g. that the supplier has to homologate and 
customise their interlocking to comply with the applicable national standards which 
vary significantly between countries.758 
(838)  The Commission notes  that the need to interoperate with existing interlockings in a 
given country’ s mainline network is limited , as in re-signalling projects the 
interlocking s are also replaced and hence only the interface between neighbouring 
interlocking needs to be developed. In this respect t he Commission considers that 
any advantage to existing suppliers arising from being already supplying 
interlockings in a given country  is surmountable and therefore not leading to national 
geographic markets.  Adaptation costs that are country specific (e.g. interfacing with 
interlockings) can be surmountable, as they represent a relatively low share of the 
project's total value. For re -signalling projects, adaptation costs are even lower than 
for ETCS ATP wayside overlay projects or standalone interlockings projects if 
considered as a share of the overall value of the projects, as re -signalling projects are 
typically larger.759 
(839)   Therefore , on balance, on  the basis of the observations  in paragraph (827)  above and 
in line with the results of the market investigation, the Commission considers that 
the rele vant geographic markets for ETCS ATP wayside re -signalling projects is 
EEA -wide.  
(C.vi)  Legacy ATP wayside  projects  
(840)  The results of the market investigation confirm the Notifying Party's view that the 
relevant geographic market for legacy wayside  projects  is natio nal in scope.  
                                                 
755  Siemens’ response to Q5, question 17.1.  
756 Q5, replies to question 18; Q6, replies to question 19.  
757  Progress Rail’s response to Q5, question 18.1.  
758  Siemens’ response to Q5, question 18.1.  
759  Commission Decision in Case M.8677 – Siemens/Alstom  (2019), recital s 807 and 810.  
 
 
172 (841)  Most competitors and all customers responding to the market investigation submitted 
that the relevant geographic market for legacy ATP wayside  projects  is national in 
scope.760 It has been submitted that t here is no standardization of legacy AT P 
systems, they differ from one country to another.761 Legacy wayside systems would 
be purchased only by infrastructure managers and other national customers within a 
relevant country and are supplied by different suppliers.762 
(842)   The Commission therefore considers that the relevant geographic market for legacy 
wayside projects is national.   
(C.vii)  OCS   
(843)  The results of the market investigation do not fully confirm the  Notifying Party’s  
view that the market for OCS  is EEA -wide . 
(844)  The results of the market investigation are contrasted. According to about half of 
competitors that contributed to the market investigation, the market for OCS is 
worldwide in scope, while the rest submitted that it  is national in scope763: 
(a) Competitors point ing to a worldwide dimension submitted that OCS systems 
could  be quite easily adapted to any customers' specifications and that 
functionalities are generally similar in every country.764 One competitor  
stated that each nation may have their own technical req uirements , but it still 
considered that  the market is worldwide as these systems are used across the 
globe. 765 
(b) Competitors in favour of a national dimension submitted that there would not 
be any standard in human /machine interface: functionalities, operatio ns and 
information displayed are very different from one country to another, based 
on the operator and infrastructure manager choices. Adaptation times and 
costs are significant .766 Another competitor submitted that OCS systems 
require adaptation to national  specificities and different national customers 
have different strategies for OCS roll -out.767 
(845)  Customers also hold similarly contrasted views,  claiming that the market’s 
geographic scope could be worldwide768 or national. Most customers nevertheless 
point to a  national dimension because OCS s need to b e integrated with 
interlockings.769 
(846)  As a result, the market investigation remains inconclusive.  From a supply -side 
perspective , although suppliers tend to use the same Baseline OCS systems in each 
                                                 
760 Q5, replies to question 19; Q6, replies to question 20.  
761 Thales’ response to Q5, questi on 19.1.  
762 Siemens’ response to Q5, question 19.1.  
763 Q5, replies to question 20.  
764  GCF Generale Costruzioni Ferroviarie’ s response to Q5, question 20.1. 
765  Ferrovial response  to Q5, question 20.1. 
766  Thales’ response to Q5, question 20.1.  
767  Siemens’ response to Q5, question 20.1.  
768  Ferrovie dello Stato’ s response to Q6 , question 2 1.1. 
769  Trafikverket’s response to Q6, question 21.1.  
 
 
173 Member State , this common Baseline requires a specific adaptation, also including 
in connection with interlockings, a product which relevant geographic market is 
national in scope.  
(847)  Furthermore, m arket share data for OCS tenders across the EEA reveals a certain 
number of competitors active in different M ember States, but whose  respective 
market shares differ substantially across countries , suggesting the possibility of 
different competitive condition s and of national specificities. Although these 
differences could depend on t he fact that few tenders are organized for OCS in each 
countries, as submitted by the Notifying Party, at this stage it cannot be excluded 
that other factors, linked to specificities in each single country, determine this 
differentiation in the competitive  conditions.  
(848)  Finally, t he ongoing standardization initiative (see above at paragraph (815)(d) ) is 
still at an early stage and could not lead to substantial results in  the short/medium 
term.  
(849)  With respect to a possible worldwide dimension, the Commission does not consider 
that a worldwide market for OCS can be granted, as the competition conditions 
differ substantially in different continents and outside of the EEA a ser ies of 
different competitors are active, at local and international level.  
(850)  In sum and in light of the results of the market investigation, while several relevant 
factors point to an EEA -wide geographic market for OCS, other elements point to a 
national geo graphic scope. The Commission therefore considers that at this stage of 
the investigation it is not possible to definitively conclude on the exact geographic 
market definition and will assess the effects of the Transaction in the market for 
OCS at both EEA -wide and national level.  
7.2.2.2.  Mainline signalling products  
(A) The Notifying Party’s views  
(851)  The Notifying Party submits that data should be provided on a national basis due to 
the country -specific product characteristics, as well as authorization and 
homologation p rocesses which take place at national level.770  
(852)  Regarding specifically Euro-balises the Notifying Party submits that the following 
considerations plead in favour of an EEA -wide market for ETCS products  (including 
Euro-balises): (i) the products have to comp ly with the ERTMS standardization and 
as such, the y are authorized at the EU level and can be sold to customers across the 
EEA, without any need for prior authorisation or homologation at national level; and  
(ii) the same ETCS products developed by a signa lling supplier are used in each 
Member State .771 
(B) The Commission’s decisional practice  
(853)  In Alstom UK/Balfour Beatty , the Commission concluded that, whereas importation 
of railway signalling products, in particular point machines, is possible and 
                                                 
770 Form CO, Chapter C.4 .  
771 Replies  to RFIs 18 and 36.  
 
 
174 apparently oc curs to a limited ext ent, in the heavy rail segment the market for these 
machines appears to be national. However, the precise geographic market definition 
was left open .772 
(854)  In Siemens/Invensys Rail , the Commission could not exclude that the geographic 
scope  of the market for railway signalling products should be considered national, 
given that obtaining national authorisation for the railway signalling products is not 
easy since the authorisation processes are different in different Member States and 
can be time consuming. The Commission left the exact geographic market definition 
open.773  
(855)  In Siemens/Alstom , the Commission considered the market for interlocking 
equipment as national in scope, in particular because of the country -specific 
authorisation/homologa tion processes and the fact that the interlocking equipment is 
country -specific involving non -negligible investments and costs .774  
(C) The results of the market investigation and the Commission’s assessment  
(856)  The responses to the market investigation in relation to the relevant geographic 
scope of the supply of mainline signalling products were mixed.  
(857)  The majority  of the customers consider  that the appropriate market definition is 
national, while some of the customers consider the scope of the market to be EEA -
wide or even worldwide .775 The majority of the competitors consid er that the market 
for signalling products is worldwide.776 
(858)  For the purposes of the present decision, the Commission will carry out its 
competitive assessment at the narrowest national level , with the exception of Euro -
balises . 
(859)  Regarding Euro -balises specifically, the Commission considers that the following 
factors point to an EEA -wide scope of the relevant market for these products :  
(a) A Euro -balise is an ERTMS component complying with the ETCS standard; 
and, as a result, the same reasons pointing to an EEA -wide market for ETCS 
OBU and ETCS wayside projects (i.e. the adoption of EU -wide authorisation 
procedures and standards, resulting i n homogeneous conditions for 
competition between mainline signalling suppliers within the EEA ) are 
equally appl icable ; 
(b) A Euro -balise can be  used in various European countries on the basis of the 
same specification ; 
(c) Euro -balises manufactured in one EEA coun try are being sold in other EEA 
countries .   
                                                 
772 Commission Decision in Case M.4508 – Alstom UK/Balfour Beatty/JV  (2007), recitals 24 -26. 
773 Commission Decision in Case M.6843 – Siemens/Invensys Rail  (2013), recitals 28 -30. 
774  Commission Decision in Case  M.8677 – Siemens/Alstom  (2019), recital 1209.  
775  Q6, question 23.  
776  Q5, question 2 2. 
 
 
175 (860)  A competitor also notes in this respect that ‘Eurobalises are products fulfilling 
European standard requirements and are compliant and compatible with all ERTMS 
subsystems from all the suppliers ’;777 similarly another competitor highlights that a 
Euro -balise ‘is a standard product belonging to a system architecture of a European 
wide standard ETCS ’ and ‘is used in various European count ries on the basis of the 
same specification ’.778 
(861)  For the purpose s of the present d ecision, the Commission therefore  considers that the 
geographic scope of the market for Euro -balises is EEA -wide.  
8. COMPETITIVE ASSESSMENT – MAINLINE SIGNALLING  
8.1. Framework for the competitive assessment  
(862)  As regards the assessment of horizontal overlaps, refere nce is made to paragraphs 
(269)  to (273) . 
(863)  As regards the assessment of vertical relationships, the Commission Non -Horizontal 
Merger Guidelines distinguish between two main ways in which mergers between 
undertakings active on vertical ly related relevant markets may significantly impede 
effective competition, namely through input or customer foreclosure. Input 
foreclosure occurs where the merger is likely to raise the costs of downstream 
competitors by restricting their access to an imp ortant input. Customer foreclosure 
occurs where the merger is likely to foreclose upstream competitors by restricting 
their access to a sufficient customer base.  
(864)  According to paragraph 25 of the Non -Horizontal Merger Guidelines, ‘The 
Commission is unlikely  to find concern in non -horizontal mergers, be it of a 
coordinated or of a non -coordinated nature, where the market share post -merger of 
the new entity in each of the markets concerned is below 30% and the post -merger 
HHI is below 2 000’. 
8.2. Mainline signalli ng projects  
8.2.1.  Horizontal unilateral effects  
(865)  The Parties are both active in the EEA with offerings covering a  range of mainline 
signalling projects.  
(866)   Alstom’s mainlin e signalling offering includes:  
(a) ETCS OBU : Alstom is active in the ATP ETCS OBU segment with its Atlas 
ETCS on -board solutions.  
(b) ETCS wayside : Alstom is active in the ATP ETCS wayside segment with its 
Atlas trackside range solutions, including Atlas 100, 200, 400, and 500.  
                                                 
777  Reply to RFI 29.  
778  Reply to RFI 28 . 
 
 
176 (c) Interlockings : Alstom portfolio includes the Smartlo ck 400, VPI, and 
Electro logiX.  
(d) OCS : Alstom is active in OCS through ICONIS Mainline, RailEdge, and 
SSA.  
(e) Legacy OBUs : Alstom supplies on -board equipment for Legacy ATP 
systems in Belgium (TBL / TBL1+ / ATBL), France (KVB Autonom/STM), 
Netherlands (ATB / ATBL -NL), Italy (SSC / SCMT ), and the UK (TASS and 
TBL/GWML [Confidential information on Alstom’s suppy arrangements ]). 
Alstom is also developing [Information on Alstom’s R&D activities ]. 
(f) Legacy wayside : Alstom supplies wayside equipment for legacy ATP 
systems in Belgium, France, Netherlands, Italy, and the UK.  
(867)  Bombardier’s mainline signalling offering includes:  
(a) ETCS OBU : For ETCS OBU systems, Bombardier offers one major product 
within the EEA: EBI CAB 2000.  
(b) ETCS wayside : Bombardier is active through its Interflo solutions.  In 
particular, Bombardier offers three major products within the EEA: 
INTERFLO 250 (ETCS Level 1), 450 (ETCS Level 2), and 550 (ERTMS 
Regional/High Density).   
(c) Interlockings : Bombardier offers the EBI LOCK R4 950, a computer -based 
interlockings system in the EEA .  
(d) OCS : Bombardier is active in OCS through its EBISCREEN platform.  
(e) Legacy wayside : Bombardier offers wayside equipment for Legacy ATP 
wayside systems in Bulgaria (ATC), Portugal (ATC/Convel), France 
(ATC/KVB - licensing of balise technology to Alstom for  delivery for a 
national rollout), Sweden and Norway (ATC2), Finland and Spain (EBI  Link 
900), and Italy (SCMT).  
(f) Legacy OBU : Bombardier has standalone legacy systems (no STMs) in 
Bulgaria, Portugal, and Finland. Bombardier developed the following STMs 
in Europe: PZB/LZB, LZB/ES, ATB, SHP, TBL1+, and ATC -2, currently 
offered in Germany, Austria, the Netherlands, Poland, Spain, Belgium (in 
partnership), and Sweden.  
(868)  According to the market data provided by the Notifying Party, the Transaction gives 
rise to the  following horizontally affected markets in the mainline signalling projects 
sector :779 
                                                 
779  The parties’ overlaps in the remaining mainline signalling projects markets do not give rise to horizontally 
affected markets. With particular reference to legacy OBUs projects, t here are only two countries where 
both Parties’ produc ts are homologated, Belgium  and Netherlands (homologation overlap).  However, t he 
Transaction will not give rise to any actu al (order intake share) overlap. This is because in Belgium in the 
2010 -2019 period Alstom is the sole supplier to have won legacy OB U projects and Bombardier did not 
bid in the Netherlands in the last ten years. As most legacy OBUs are sold as products , they will be 
 

 
 
178 8.2.1.1.  ETCS OBUs  
(A) The Notifying Party’s view  
(872)  The Notifying Party submits that the Transaction will not give rise to competition 
concerns in the market for ETCS OBUs projects  in the EEA , for the following 
reasons:   
(a) The Transaction will not eliminate a significant player in the EEA. In 
Siemens/Alstom  the Commission acknowledged that Bombardier is a li mited 
constraint on the market , being at considerable distance from the market 
leaders (Siemens and Alstom ) in terms of bidding frequency and facing 
technical difficulties.  
(b) Approximately […]% of Bombardier’s sales are internal, dedicated to its own 
new rolling stock  and generally non -contestable. Bombardier’s primary focus 
is to supply its own internal requirements, while external sales and 
retrofit ting non-Bombardier rolling stock  is only a subsidiary activity . As a 
result,  Bombardier’s market share  of external supplies of ETCS OBUs are 
limited . 
(c) Bombardier is essentially a small local player with most of its external sales 
concentrated in Sweden, a country where it has a historical presence and 
where it does not compete head -to-head with Alstom.  Moreover, most of 
Bombardier’s sales in Sw eden are from non -contestable tenders.  Sweden, 
Poland and Norway are the only countries in which Bombardier was 
successful in equipping new non -Bombardier rolling stock  with its own 
OBUs and even there, Bombardier’s wins represent a very small pro portion 
of contestable projects.  
(d) Absent the Transaction, there is no reason to believe that Bombardier could 
have become an effective constraint on Alstom throughout the EEA. 
Bombardier’s ETCS OBUs have been plagued by technical difficulties , as 
noted by the Commi ssion in the Siemens/Alstom  decision.  Bombardier’s 
share of Baseline 3 projects (the future of ETCS OBUs) is small and again, 
largely concentrated in Sweden.  
(e) The merged entity will continue to face strong ETCS OBU rivals in the EEA : 
Siemens, Hitachi, CAF, Thales, Stadler and Mermec. Moreover, the threat of 
new entry /expansion in the ETCS OBUs segment by Asian players will 
continue  to exist.  
(B) The Commission’s assessment  
(873)  Table  29 below provide an overview of the Parties’ and their main competitors’ 
market shares in the market for ETCS OBUs projects in the EEA , including internal 
sales . 
  

 
 
180 (876)  Post-Transaction, considering external (merchant) sales only, the merged entity 
would be the market leader, with a market share between [50-60] and [60-70]%. 
However, the market share increment resulting from the Transaction would be 
limited, at about [5-10]%. Again, the main competitor would be Siemens, with a 
market share between [30-40]% and [40-50]%. Other minor suppliers will remain 
active in the market . 
(877)   The Notifying Party has provided market data also for the geographic market 
including EEA and Switzerland:  
(a) Including internal sales, in the period 2010 -2019 Alstom has a market share 
of [30-40]% and Bombardier of [10-20]% (combined [40-50]%). The main 
competitors are Siemens ([40-50]%), Hitachi ([0-5]%), CAF ([0-5]%), 
Mermec ([0-5]%) and Thales ([0-5]%); 
(b) Excluding internal sales, in the period 2010 -2019 Alstom has a market share 
of [50-60]% and Bombardier of [0-5]% (combined [50-60]%). The other 
competit ors are Siemens ( [30-40]%), Hitachi ( [0-5]%), Mermec ( [0-5]%)% 
and Thales ( [0-5]%). 
(878)  Those  market data show that the competitive situation does not change substantially 
in case Switzerland is included in the relevant geographic market. For simplicity, in 
the following analysis the Commission will refer to the EEA, but all conclusions are 
to be referred  also to a hypothetical  geographic market including EEA and 
Switzerland.  
(879)  The market data show that Alstom is the clear market leader and that this position 
will be reinforced by the Transaction. However, the data also confirms that 
Bombardier is primarily focus ed on supplies to its own rolling stock and has a 
limited  role in sales to third parties. In this respect its position is comparable to those 
of other minor players, in particular Hitachi.  
(880)  The result of the market investigation has been mixed with respect to the impact of 
the Transaction on the market for ETCS OBUs projects in the EEA.  
(881)  Several  competitors  submitted that the Transaction would create compe tition 
concerns in an EEA -wide market for ETCS OBUs projects by significantly 
enhancing Alstom’s market leading position by adding Bombardier’s ETCS OBU 
business:  
(a) Siemens  submitted that Bombardier is the most frequent bidder and winner 
after Alstom and Sie mens. Bombardier is also the second most frequent 
bidder and winner in contestable bids where Siemens or Alstom participated 
(after Alstom and Siemens, respectively).  Bombardier  won seven projects in 
2018 and 2019, including several projects for Baseline 3  ETCS OBUs. 
However, Siemens’ estimation confirmed that about […]% of Bombardier 
sales for ETCS OBUs are installed on Bombardier ’s rolling stock (internal 
sales) .781  
                                                 
781  Siemens’ submission of 21 April 2020, pages 79 -80. See also Siemens ’ response to Q5, question 60.1.  
 
 
181 (b) Stadler  submitted that the Transaction would lead to increased market 
concentration and would pose  a significant threat to competition in the 
emerging ETCS OBU markets. It will decrease  the number of suppliers 
which have successfully completed  the ETCS homologation process , leaving  
only three players that can offer homologated ETCS OBUs in a significant  
number of European countries. Given the market shares of the competing 
players, only Siemens might be able to exert any meaningful competitive 
constraint on the Combined Entity regarding ETCS OBUs, factually leading 
to a duopoly. In addition, the Parties may, based on their dominant market 
position, exert disproportionate influence in the UNISIG to achieve 
anticompetitive standard setting .782 
(c) Hitachi  submitted that the transaction will grant the merged entity significant 
market power in the ETCS -OBU  market at EEA and national level, in 
particular in Northern Europe. At EEA -level, the merged entity would benefit 
from a combination of dominant and monopolistic positions it could leverage 
by optimizing its pricing for exclusionary and entry -deterring pur poses.783 
(882)  Conversely, other participants , both competitors and customers,  submitted that the 
Transaction would not have negative effects in this market, in particular considering 
the limited role of Bombardier and its recent technical and commercial difficul ties. 
Several competitors acknowledged that Bombardier’s position has been decreasing 
as, in recent  years , it has faced competition not just from the market leaders (Alstom 
and Siemens) but also from smaller  competitors that are increasingly considered 
equals (Hitachi, Thales, CAF, Stadler/Mermec).784 As a result, Bombardier has lost 
contracts  in countries in which it held historical positions  (Sweden). Finally, 
Bombardier appears to be lagging against its comp etitors [Confidential information 
on Bombardier’s R&D activities ]. On balance, competitors submit that, even if the 
Transaction will reinforce the merged entity’s market presence, this would not 
significantly alter competition on the OBU market, given the Bombardier’s 
structural lack of co mpetitiveness and given its focus on captive sales.785  
(883)  These views are confirmed by several customers, for example:  
(a) DSB - Danske Statsbaner, t he Danish railway operator, submitted that it does 
not consider Bombardier a stro ng supplier of ETCS OBUs as they have less 
references and face certain issues with their deliveries (for example in 
Germany). Siemens and Alstom are currently considered the most important 
suppliers. Other players are emerging as credible suppliers  in the market, 
such as CAF that has already developed its own ETCS OBUs and Stadler that 
                                                 
782  Stadler’s submission of 4 May 2020, pages 11 -12. See also Stadler’s response to Q5, question 61.1 and 
Minutes of the call of 24 March 2020.  
783  Hitachi’s response to Q5, question 61.1. See also Hitachi’s submission of 2 July 2020.  
784  The increasing role of competitors other than Siemens is confirmed by the Notifying Party, that refers to 
the recent progresses in this market by CAF (active in UK, Spain, and the Netherlands ), Thales (that won 
a first project in 2016), and S tadler/Mermec (that in 2019 was already executing seven projects in six 
European countries ) (Form CO, Chapter C.1.a, paragraphs 93 -95). 
785  Responses to Q5, question 26.3  and 63.1.  
 
 
182 has started developing OBUs.  DSB thus considers that a competitive market 
for ETCS OBUs will remain available after the Transaction .786 
(b) The Belgian railway operator, SNCB, subm itted that the competition with 
other existing suppliers is sufficient to maintain a competitive market for the 
time being .787 
(c) NS Reizigers, the Dutch railway operator, submitted that Bombardier is 
already a minor player in the market and that its place could be taken by 
other suppliers .788 
(d) Similarly, Deutsche Bahn, the German railway operator, submitted that in 
their opinion the Transaction will not have a material impact on the OBU 
markets.789 
(884)  In general, most OBUs customers submitted that the Transaction w ould not have 
negative impacts on their activity in the procurement of OBUs.790 
(885)  The more limited  role currently played by Bombardier in the ETCS OBUs projects 
market and the technical difficulties it is facing are confirmed by its limited market 
shares in the latest baseline of ETCS OBUs ( baseline 3)791, namely  [5-10]% at EEA 
level. Taking into account only contestable sales, its market share drop s at [0-5]%. 
Moreover, all of Bombardier’s  external sales for new rolling stock are concentrated 
in Sweden . Excludin g Sweden , Bombardier’s external sales lead to a market share of 
less than  [0-5]%, regardless of the metric (contestable vs. non -contestable, all sales 
vs. external sale only) .792 
(886)  Siemens also acknowledges that Bombardier is behind its main competitors in the 
latest specification of ETCS OBUs , as Bombardier currently does not offer a 
Baseline 3 Release 2 ETCS OBU and does not yet have a Baseline 3 ETCS OBU in 
operation , unlike  other providers s uch as Alstom or Siemens. In addition, s ome 
customers have a preference for Siemens’ or Alstom’s ETCS OBUs. Moreover, 
Bombardier would not be able supply to the Baseline 3 ETCS OBU with an  ATO  
(Automated Train Operation)  functionality.793  
(887)  Banedanmark confir med that, in terms of development , Alstom and Siemens are 
close to the same maturity , while  Bombardier is less advanced in the delivery of 
Baseline 3 OBUs .794 Railpool  also submitted  that Bombardier is struggling with 
keeping the system constantly upgraded .795 
                                                 
786  DSB, minutes of the call o f 24 April 2020.  
787  SNCB’s response to Q7, ques tion 29.1.  
788  NS Reizigers’ response to Q7, question 63.1.  
789  Deutsche Bahn’s response to Q7, question 63.1.  
790  Q7, replies to question 62.  
791  For Baselines see paragraph (731) . 
792 Notifying Party’s response to RFI 20, 26 June 2020, question 12, tables 2 and 3.  
793 Siemens’submission of 21 April 2020, page 87.  
794 Banedanmark response to Q7, question 18.1.1.  
795 Railpool’s response to Q7, question 18.2.1.  
 
 
183 (888)  In terms of closeness of competition , most respondents to the market investigation 
submitted that Siemens is Alstom’s closest competitor, as the two companies are 
perceived as the clear market leaders. In general , at EEA level, in terms of product 
offerin g and technical capabilities Alstom, Siemens, Thales, Hitachi and Bombardier 
are considered all close competitors, as they all have similar technical capabilities 
and offer the full range of signalling subsystems and can participate on their own in 
tenders  for integrated signalling projects.796 
(889)  Participation and win /loss analysis confirm that in ETCS OBUs projects Bombardier 
is not Alstom’s closest competitor and that in any case other significant  suppliers are 
active in the market : 
(a) During the 2010 –2019 perio d, a total of […] contestable ETCS OBU tenders 
took place in the EEA and the Parties both bid on only […] of these projects 
([10-20]%). The Parties did not overlap in about [80-90]% of co ntested OBU 
projects in the EEA . 
(b) Other players compete d with Alstom m ore frequently than or as frequently as 
Bombardier: of the […] contestable projects on which Alstom bid, 
Bombardier was present in only […], compared to […] for Siemens, and […] 
for Hitachi. Thales was also present in […] of the contestab le projects on 
which Alstom bid . 
(c) In all tenders in which both Parties participated, at least […] other rivals were 
present. In the […] instances in which Alstom did face Bombardier in 
contestable ETCS OBU tenders, at least […] other rivals (apart from the 
Parties) were also  present.797 
(890)  The finding that Bombardier exercises a  limited competitive constraint in the ETCS 
OBU projects market in the EEA , and the issues of its offering , is consistent  with the 
conclusion reached in Siemens/Alstom , where it was observed that Siemens and 
Alstom were the closest competitors and that Bombardier could not  be considered a 
strong competitor of Siemens and Alstom,  due to  the lack of competitiveness of 
Bombardier's platform  and its  low market share and bidding activity.798 
(891)  In light of t he above, the Commission concludes that the Transaction does not give 
rise to serious doubts with regard to its compatibility with the internal market as a 
result of possible horizontal non -coordinated effects , either through the creation o r 
strengthening of a dominant position or otherwise significantly impeding effective 
competition , in the market for ETCS OBUs projects in the EEA.  
8.2.1.2.  ETCS Wayside  
(A) The Notifying Party’s view  
(892)  The Notifying Party submits that t he Transaction would not give rise to competition 
concerns in ETCS wayside projects . Since, according to the Notifying Party, the 
relevant market consists in  a single product market for ETCS wayside (including 
                                                 
796  Q5, replies to questions 24 -27: Q7, replies to  question 18.  
797 Form CO, chapter C.1.a, paragraph 89.  
798 Commission Decision in Case M.8677  – Siemens/Alstom  (2019), recitals 864 and 870 . 
 
 
184 both overlay and re -signalling projects), the Notifying Party provides a single 
assessment for th e whole ETCS wayside sector . The Notifying Party also  provid ed 
market data for ETCS wayside (overall) and for overlay and re -signalling separately.  
(893)  According to the Notifying Party, the Transaction would only result in a modest 
combined share in the EEA, w ith a relatively small market share increment 
attributable to  Bombardier . These market shares are even lower at the EEA level , 
including Switzerland . Post -Transaction, important  competitors will hold  significant 
market shares  and continue to exert a significant competitive constraint . 
(894)  With regard to overlay projects, the Notifying Party submits that the Parties’  market 
shares also overstate the Parties’ position , as Bombardier’s market  share in ETCS 
overlay largely results from projects in Poland, for which Alstom did not compete . 
The Notifying Party argues that the  Transaction is likely, if anything, to increase 
competition , as a t present, Siemens and Thales are ahead of the other players in the 
market  and the merged  entity is more likely to  be an eff ective competitor against  
these two large wayside players , notably in a series of Member States . 
(895)  Moreover, t he Notifying Party submits that the overlay sub -segment is small, with 
infrequent tenders, leading to significant share distortions resulting from w inning a 
small number of projects.  A focus on overlay projects would  not reflect likely future 
competitive dynamics in ETCS wayside signalling , as customers are expected to 
increasingly undertake r e-signalling projects in future.  
(896)  Moreover, the Notifying Pa rty considers that the m arket d ata suggest s that Thales, 
Siemens, and Hitachi  are closer competitors to Alstom  than Bombardier. In 
particular, t he Parties’ geographic footprint within EEA largely differs : at national 
level, the Parties’ activities, in term s of order intake, only overlap in […] Member 
States . In Siemens/Alstom , the results of the market investigation also supported the 
view that Siemens and Alstom, together with Thales, were the three main signalling 
players.  The Notifying Party explains that this conclusion is supported by 
participation  and win /loss analysis , which  demonstrate that Alstom and Bombardier 
have rarely faced or lost to each other in ATP wayside tenders, including for ATP 
wayside overlay projects.  
(897)  Finally, the Notifying Party notes that the  merged e ntity will continue to face strong 
ETCS wayside players in the EEA . 
(B) The Commission’s assessment  
(B.i) ETCS wayside ( overlay ) 
(898)  Table  31 below provide s an overview of the Parties’ and their main competitors’ 
mark et shares in the market for ETCS wayside overlay projects in the EEA . 
  


 
 
187 Siemens, Alstom, Hitachi , Thales and Bombardier , who  have similar product 
offerings and technical capabilities.803 Only one customer out of four has ranked 
Bombardier as the best alternative to Alstom, in terms of products, product ranges, 
competitiveness, quality, and innovation . 804 
(909)  Tender  participation and w in/loss analysis confirm that , in ETCS wayside tenders , 
the interaction between the Parties is limited, as the Parties did not compete against 
each other in over [70-80]% of the projects  (including both overlay and re -
signalling): the Parties faced each ot her in only […] projects out of […] and 
participate d jointly in a consortium in further […] projects  in the period 2010 -
2019 .805 
(910)  It can be added that the majority of the participants to the market investigation 
submitted that the Transaction would not have a ny negative impact on the mainline 
signalling markets and those who submitted that the Transaction would have 
negative impact either on their activity or on the mainline signalling markets referred 
to signalling markets other than the market for ETCS waysi de re -signalling projects 
in the EEA.806 
(911)  In light of the above, the Commission concludes that the Transaction does not give 
rise to serious doubts with regard to its compatibility with the internal market as a 
result of possible horizontal effects , either th rough the creation o r strengthening of a 
dominant position or otherwise significantly impeding effective competition , in the 
market for ETCS wayside re -signalling projects in the EEA.  
8.2.1.3.  Interlockings  
(A) Italy 
(A.i) The Notifying Party’s view  
(912)  The Notifying Party submi ts that the Transaction would not have any negative 
effects in the Italian market for interlockings, for several reasons: (i) t he merged 
entity will have a moderate  market  share ; (ii) Bombardier is a marginal player in 
Italy, with a modest market share; (iii) t he merged e ntity will continue to face several 
strong competitors , as t he Italian market is very competitive with many homologated 
suppliers; (iv) Hitachi  will remain the market leader, with a significant market share  
and t he merged entity  will also  continue to face the competition fro m several other 
                                                 
803 Q5, replies to question s 26.1 and 26.2; Q6, replies to questions  26.1 and 26.2.  
804 Q5, replies to question s 26.1 and 26.2; Q6, replies to questions 26.1 and 26.2.  
805  Form CO, Chapter C.1.b, paragraph 40 and figure 3.  
806 Q5, replies to question s 60 to 62; Q6, replies to questions 53 to 56. One competitor submitted that th e 
Transaction will turn a relatively competitive market into a more concentrated one as, collectively, the 
market leading competitors – the merged entity, Siemens, and Thales – would hold over 90% of the 
market, with market shares symmetrically distributed  across these three competitors. Moreover, the 
merged entity will achieve significant market shares in certain countries, in particular in Sweden and in 
the Scandinavian region  (Hitachi ’s submission of 2 July 2020 , pages 20 -21). The Commission notes that, 
besides the three main players, at least two other competitors will continue to be active in the EEA 
market and to take part in tenders for ETCS wayside re -signalling projects. Moreover, the relevant 
market has an EEA -wide dimension, in accordance with the  results of the market investigation . 
Therefore, any possible market share at national level is not per se  indicative of particular market power. 
Finally, no local wayside signalling customer has expressed any particular concern in this respect.  

 
 
189 (916)  Tender  participation and win /loss analysis confirm that , in interlockings tenders in 
Italy, Hitachi  is Alstom’s closest competitor:  during the 2010 –2019 period, a total of 
[…] contestable tenders  for standalone i nterlockings projects took place in Italy and 
the Parties both bid on […] of these projects (less than [40-50]%). Conversely, 
Hitachi  competed  with Alstom more frequently than with Bombardier: of the […] 
contestable projects on which Alstom bid, Hitachi  was present in […], compared to 
[…] for Bombardier .808  
(917)  Data on participation in interlockings tenders in Italy also confirm that other 
competitors consistently bid and even win interlo cking projects. In the […] 
contestable tenders in years 2010 -2015, Hitachi  bid in […] of them (winning […]), 
Progress Rail bid in […] of them (winning […]), Sirti bid in […] of them (winning 
[…]), Eredi Mercuri bid in […] of them (winning […]). In the same  period 
Bombardier bid in […] tenders (winning […]). In […] tenders there were three or 
more competitors.809 
(918)  [One Customer ] expressed some general concerns with respect to wayside signalling  
in Italy , including interlockings, explaining that it has a series of ongoing projects 
with both Alstom and Bombardier (with different technologies), referring to the 
possibility that one of the major technologies in use could disappear  and suggesting 
the adoption of safeguards aiming to pr otect the investments already realized. In 
light of this, it submits that it has concerns that the Transaction would lead to a 
considerable reduction of competition  for wayside systems and technologies.810 In 
this res pect, the Commission notes that several c ompetitors will remain active in 
Italy after the Transaction, in particular in the interlocking s market, although 
arguably using different technologies.  
(919)  As for the technologies currently in use, the market investigation provided no 
evidence that the Trans action’s competitive effects may give the Parties an incentive 
to discontinue wayside signalling technologies supplied to FSI . Moreover , the 
Commission takes note of [Information on the Parties’ future business strategy ].811 
(920)  Finally, n o other participant to the market investigation – including competitors of 
the Parties in Italy – submitted that the Transaction would have any negative impact 
on their activity or in the market for interlockings in Italy.812 
(921)  In light of the above, the Commission concludes that th e Transaction does not give 
rise to serious doubts with regard to its compatibility with the internal market as a 
result of possible horizontal non-coordinated effects , either through the creation o r 
strengthening of a dominant position or otherwise significantly impeding effective 
competition,  in the market for interlockings in Italy.  
                                                 
808  Form CO, chapter C.1.b, Table 5, figures 5 and 6.  
809  Elaboration on Form CO, chapter C.1.b, Table 5.  
810  Ferrovie dello Stato’s response to Q6, question 56 and Minutes of the call of 3 April 2020.  
811  [Document containing information on the Parties’ future business strategy ]. 
812 Q5, replies to question s 60 to 62; Q6, replies to questions 53 to 56.  

 
 
191 (926)  The limited role of Bombardier in this market is confirmed by the fact that during 
2010 -2019 it won only […] minor projects, one of which was non -contestable.813 
The Commission also notes that in the 2010 -2019  period  orders for interlockings in 
the Netherlands have been limited (for a total value of about […] Euro) and this lack 
of demand explains how Bombardier has a [5-10]% market share  with just […] 
minor orders.  
(927)  Furthermore, the Commission notes that  the Dutch infrastructure manager  (ProRail) 
launched  a tender procedure for wayside ERTMS equipment  in April 2020 . A 
negotiated procedure will follow and the intention  is to have a signed contract by the 
end of 2021. The objective  of this tender is to have  one supplier for the main 
components of the wayside ERTMS system ( includ ing interlockings ), for a period up 
to 12 years depending on planning and possible extensions. During this period, 
ProRail will source these systems for ERTMS from this sing le supplier. ProRail has 
confirmed that  Alstom , Bombardier , Siemens and Hima supply this technology  and 
that incumbent suppliers can have a certain  advantage in the process .814 In this 
respect the Commission notes that a tender procedure for ETCS re-signalling 
projects  (that includes interlockings) could also attract competition from other large 
players active in the EEA (se e previous table 32) and therefore competitive 
conditions in the Netherlands are in the process of being significantly contest ed. 
(928)  Finally, no respondent  to the market investigation – including competitors of the 
Parties in the Netherlands  – submitted that the Transaction would have any negative 
impact on their activity in the Netherlands  or in the market for interlockings in the 
Netherlands .815 
(929)  In light of the above, the Commission concludes that the Transaction does not give 
rise to serious doubts with regard to its compatibility with the internal market as a 
result of possible horizontal non-coordinated effects , either through the  creati on or  
strengthening of a dominant position or otherwise significantly impeding effective 
competition,  in the market for interlockings in the Netherlands . 
(C) Spain  
(C.i) The Notifying Party’s view  
(930)  The Notifying Party submits that the Transaction would not hav e any negative 
effects in the Spanish market for interlockings, for the following reasons:  (i) the 
merged entity  will have a moderate share with a small increment brought by Alstom; 
(ii) Alstom  is a small player in Spain. Moreover, a number of Bombardier’s  wins in 
Spain were in any event in consortia with other players, and those consortia partners 
would have the know -how to bid independently in the future ; (iii) The merged entity  
will continue to face several strong competitors , as t he Spanish  market is 
competitive , with six active interlockings suppliers; (iv) b idding data confirms  that 
the Parties are not particularly close competitors  and that Siemens competes with 
Alstom more frequently than Bombardier . 
                                                 
813  Form CO, chapter C.1.b, paragraph 63.  
814  Reply to RFI 19, 1 July 2020.  
815 Q5, replies to question s 60 to 62; Q6, replies to que stions 53 to 56.  

 
 
193 (936)  In light of the above, the Commiss ion concludes that the Transaction does not give 
rise to serious doubts with regard to its compatibility with the internal market as a 
result of possible horizontal non-coordinated effects , either through the creation o r 
strengthening of a dominant position or otherwise significantly impeding effective 
competition,  in the market for interlockings in Spain.  
8.2.1.4.  OCS  
(937)  Preliminarily, the Commission notes that  the EEA -wide market for OCS is not 
horizontally affected, as the Parties  have a [10-20]% combined market share at that 
level ( Alstom [5-10]%; Bombardier [0-5]% (2010 -2019, share order intake) ). The 
Parties hold a similar market share ( [10-20]%) in the period 2015 -2019 . 
(938)  At the national level , the Transaction leads to affected OCS markets in  Denmark, 
Italy and Sweden.  
(A) Denmark  
(A.i) The Notifying Party’s view  
(939)  The Notifying Party submits that the T ransaction would not give rise to any 
competition concerns in OCS projects in Denmark . 
(940)  In this respect, the Notifying Party argues that t he Pa rties’ very high combined 
market share for 2010 -2019 period would be an overstatement of the Parties’ actual 
market power  and it should be considered alon gside a number of other factors:  (i) 
there is no overlap between the Parties in the last five years, a nd the  overlap  only 
concerns  […] projects over the last ten years, for which at least  […] other major 
players bid; (ii) Alstom ’s sales resulted from  a follow -on order from an ETCS re -
signalling project (undertaken by both Thales and Alstom) which included an OCS 
part that has not been taken into account in the market share calculation. When 
including the OCS part of this ETCS re -signalling project, th e combined share of the 
Parties would drop significantly  (as also Thales’ share should be considered) , with a 
minimal increment  due to the Transaction; (iii) the Parties’ offerings are highly 
differentiated. According to the Notifying Party, [Confidential explanation on why 
the Parties’ respective solutions do not closely compete ].817 
(A.ii) The Commission’s assessment  
(941)  Table 36 below provide an overview of the Parties’ market shares in the market for 
OCS in Denmark.  
  
                                                 
817  See the Notifying Party’s reply to RFI 20, 26 June 2020, question 2.  

 
 
195 (947)  The result s of the market investigation confir m the absence of competitive concerns. 
Notably , Banedanmark, th e Danish infrastructure manager, confirmed that the offers 
received by Alstom and Bombardier were technically on a different level (in 
particular, that the Bombardier system platform was less advanced). Moreover, 
Siemens, Thales and Cactus were all identif ied as credible bidders for a full scope 
OCS solution. In the opinion of Banedanmark, post -Transaction the OCS market in 
Denmark would not be substantially changed and separate tenders for OCS would be 
expected to face unchanged competition.819 
(948)  In light of t he above, the Commission concludes that the Transaction does not give 
rise to serious doubts with regard to its compatibility with the internal market as a 
result of possible horizontal non-coordinated effects , either through the creation of 
strengthening of a dominant position or otherwise significantly impeding effective 
competition,  in the market for OCS in Denmark.  
(B) Italy 
(B.i) The Notifying Party’s view  
(949)  The Notifying Party submits that the T ransaction would not give rise to any 
competition concerns in OCS pro jects in Italy . 
(950)  In this respect, the Notifying Party argues that t he Parties’ very high combined 
market share for 2010 -2019 period are an overstatement of the Parties’ actual market 
power . The Notifying Party further a rgues that : (i) w hen considering conte stable 
projects, the  Parties market shares drop significantly in Italy  and there is no  overlap 
between the Parties in the last five years ; (ii) Bombardier’s market share in Italy 
reflect only […] projects, the largest  of which being non contestable; (iii) other 
major players regularly bid and win contracts in Italy; (iv) the Parties’ offerings is 
highly differentiated.  
(B.ii) The Commission’s assessment  
(951)  Table 37 below provide an overview of the Parties’ market shares in the market for 
OCS in Italy.  
  
                                                 
819  Banedanmark, submission of 7 July 2020.  


 
 
198 (963)  in the only […] contestable projects tendered in Sweden in 2010 -2019, the Parties’ 
faced each other only in […] of them for a standalone OCS project, […], and in that 
occasion two other bidders were present (S iemens and Hitachi). The other […] 
contestable tenders were awarded to Cactus and the Parties did not face each other. 
Bombardier has not won any single contestable tender in the last ten years.  
(964)  Second, the Parties’ offerings in OCS are differentiated, as already explained above 
in paragraph (944) . With specific reference to Sweden, [Confidential  information on 
Bombardier’s OCS offering and business strategy ].824  
(965)  The result of the market investigation has confirmed the absence of competi tive 
concerns. Notably Trafikverket, the Swedish Transport Administration, submitted 
that in general they purchase OCS, interlock ings and train protection system s within 
the same frame contract.  In general, Trafikverket has identified a series of  credible 
bidders and considers that post -Transaction, the remaining OCS suppliers would 
suffice to ensure that future tenders have a competitive outcome, particularly after 
the EULINX standard would be introduced.825 
(966)  In light of the above, the Commission concludes th at the Transaction does not give 
rise to serious doubts with regard to its compatibility with the internal market as a 
result of possible horizontal non-coordinated effects , either through the creation of 
strengthening of a dominant position or otherwise s ignificantly impeding effective 
competition,  in the market for OCS in Sweden . 
8.2.2.  Non-horizontal  effects  
8.2.2.1.  Introduction  
(967)  As regards non -horizontal effects, two broad types of mergers can be distinguished: 
vertical mergers and conglomerate mergers. Vertical mergers involve companies 
operating at different levels of the supply chain. Conglomerate mergers are mergers 
between firms that are in a relationship that is neither horizontal (as competitors in 
the same relevant market) nor vertical (as suppliers or cus tomers).  
(968)  The Commission guidelines on the assessment of non -horizontal mergers under the 
Council Regulation on the control of concentrations between undertakings (the 
‘Non-Horizontal Guidelines ’)826 indicate that while in the majority of circumstances 
conglo merate mergers will not lead to any competition problems, in certain 
circumstances they can lead to anticompetitive effects. One such example is when 
the combination of products in related markets would give the merged entity the 
ability and incentive to l everage a strong market position in one of the markets to the 
other market by means of tying or bundling. Where tying or bundling is likely to 
lead to a reduction in actual or potential rivals’ ability or incentive to compete it may 
reduce competitive pres sure on the merged entity, allowing it to increase prices.827 
                                                 
824  Form CO, annex C1b.III.B.8.  
825  Trafikverket, submission of 6 July 2020.  
826 Guidelines on the assessment of non -horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings, adopted on 28 November 2007 (OJ C265, 18.10.2008, p.6).  
827  Non-Horizontal Guidelines, paragraph 93.  
 
 
199 (969)  The main conglomerate  concern s in the present case  relate (i) to the required joint 
operation of rolling stock on the one hand, and of ETCS OBUs on the other hand, 
and (ii)  to the required joint o peration of ETCS OBUs on the one hand, and legacy 
systems  on the other hand. In this respect, some participants to the market 
investigation have submitted that : 
(a) the significant  market share of the merged entity in the installed base of 
rolling stock  will likely be leveraged into the market for ETCS OBU, in 
particular in retrofit tenders for existing fleets because rolling stock  OEMs 
would have an advantage in cost and time when offering a retrofit to its own 
rolling stock.  
(b) access to legacy OBU system s would be key to equip any rolling stock with 
homologated ETCS OBU systems. Alstom and Bombardier would combine 
two of the largest legacy OBUs portfolios in Europe which are moreover 
highly complementary. Therefore, the merged entity would have the abilit y 
and the incentive to profitably engage in an anti -competitive tying and/or 
bundling strategy to foreclose its competitors in the ETCS OBU market . 
8.2.2.2.  The Notifying Party’s views  
(970)  The Notifying Party submits in general that t he Transaction will not increase th e 
merged entity’s  ability or incentive to engage in foreclosure in relation to the supply 
of ETCS OBUs (or legacy OBUs/STMs) to suppliers of new rolling stock.  
(971)  With respect to the interface between  ROS and OBU , the Notifying Party refers to 
the following f actors:  
(a) both Alstom and Bombardier are already vertically integrated  and active in 
both rolling stock and mainline signalling ; 
(b) Bombardier will not materially strengthen Alstom’s positio n in either ETCS 
or legacy OBUs. Bombardier would be  a marginal player in ETCS OBU , 
overwhelmingly focused on internal supply;  
(c) Similarly, there would only be limited overlap s in the Parties’ legacy on -
board activities. In almost all countries where the Parties are present, there 
are alternativ e suppliers of ETCS OBUs / STMs;  
(d) Many rolling stock players already have their own ETCS and/or legacy 
OBUs  and relatively few rolling stock suppliers purc hase ETCS OBUs from 
the Parties ; 
(e) Strategic behaviour could be counteracted via various means of retaliation.828 
(972)  With respect to interface  between ETCS OBUs and legacy systems , the Notifying 
Party explains that:  
(a) Depending on the integration scenario , ETCS OBU supplier s do not 
necessarily need to access interface information : standalone legacy OBU s 
                                                 
828  Form CO, annex C.1.a – V.C.1 . 
 
 
200 and ETCS OBU s may operate in parallel.  Under  this scenario, the legacy 
OBU either does not need to be connected to the ETCS OBU or only requires 
basic connection to activate/deactivate the legacy system when needed . 
(b) An alternative scenario involves equipping a train with a device called an 
STM ( ‘specific transmission module ’) as well as an ETCS OBU. The STM 
allows the ETCS OBU to understand legacy signalling systems.829 Under this 
scenario, the STM provider typically delivers the STM equipment including 
special tools and documentation as well as the as sociated engineering support 
(commissioning) and trainings, where relevant. Regardless of the type of 
project, the STM supplier should provide the relevant interface details to the 
ETCS supplier.  This s cenario would be commonly the preferred scenario in 
new build projects, where an STM is readily available . 
(c) In another scenario, a train is equipped with a combined ETCS OBU and 
legacy system (integrated solution). In cases of combined solutions  the role 
of the combined OBU  supplier would be limited to basic i ntegration support  
to the rolling stock supplier/operator . 
(d) There is no  direct correlation between having access to the legacy system and 
shares in supplying ETCS OBU s. According to the Notifying Party, t his is  
demonstrated by the fact that suppliers common ly win ETCS OBU projects 
in countries where they are not the incumbent legacy system  supplier , and , 
conversely, legacy suppliers often fail to win ETCS OBU projects.830 
(973)  In any case, the Notifying Party submits that the merged e ntity will not have any 
increas ed ability or incentive to deny access to STMs or legacy systems interfaces to 
its rivals, nor to engage in a ny other exclusionary practices, for the following 
reasons:  
(a) Both parties already offer both ETCS OBUs and legacy OBUs/STMs. 
Alstom’s position would  therefore  not be appreciably strengthened as a result 
of the Transact ion. 
(b) Alternative suppliers are available in almost every country where even one of 
the Parties has a legacy solution. The only EEA Member State where the 
Parties are the sole suppliers a t present would be the Netherlands, where 
ProRail developed its own STM, which can be licensed to any supplier who 
requests it . 
(c) In EEA Member States where one of the Parties is the only supplier of the 
legacy systems, there would  not be any merger -specific  effects ; 
(d) If the merged entity were to attempt to engage in exclusionary conduct, 
customers and rival suppliers would be able to counter that strategy.  In 
particular: (a) infrastructure managers (i.e., the Parties ’ principal customers) 
have the ability and  legal responsibility to make legacy specifications 
                                                 
829  The Notifying Party explain s that an STM is not an interface between ETCS OBUs and legacy OBUs. 
Rather, it is an additional equipment that can be installed on a train together with an ETCS OBU in order 
to allow the train to communicate with legacy wayside  systems . 
830  Form CO, annex C.1.a – II.B.1, pages 1 -9 and a nnex to RFI 10 Q 2.1 . 
 
 
201 available; (b) rival signalling suppliers could retaliate by refusing access to 
their systems; and (c) rival suppliers can, and do, develop their own legacy 
STMs.  
(974)  As regard the issue connected with retrof itting the parties’ installed fleet with ETCS 
OBU , the Notifying Party explains that ETCS OBU has to interface with the Train 
Control and Management System ( ‘TCMS ’), which is responsible, to varying 
extents, for tasks such as controlling traction and brake s on a train. TCMS can be 
developed by rolling stock suppliers, third parties OEM or equipment suppliers.  
(975)  With respect to retrofit projects, the Notifying Party submits that it is necessary to 
distinguish between two scenarios, namely (i) the scenario wher e the TCMS uses a 
specific standardized ‘subset ’ and (ii) the scenario where interface information with 
the TCMS is the proprietary technology of a supplier. Between these two extreme 
scenarios, there would be  other cases where modifications of the TCMS ar e more 
limited and do not necessarily involve the cooperation of the original rolling stock 
supplier.  The Notify ing Party further explains the f ollowing:  
(a) Where TCMS interfaces are standardized  (scenario (i)), ETCS OBU using 
the so -called subset 119 can, in  principle, ‘plug and play ’ with a TCMS 
complying with the same standard interface. Therefore, the ETCS OBU 
complying with this subset  will be able to immediately interface with any 
TCMS using the same subset. Where compliance is not fully in place on both  
sides, additi onal works may be required;  
(b) Where  TCMS interfaces are not standardized  (scenario (ii)) , some 
engineering commonly has to be done to modify or to re -configure the TCMS 
in order to interface correctly with the ETCS OBU. This can be done in three 
main ways:  
– The customer may tender t he TCMS modification separately;  
– The ETCS OBU supplier may sub -contract this work to the rolling 
stock supplier.  Such modification would typically take  from […] 
months for the development and adaptations and an add itional period 
of […] months for [re] -certification and would involve  traditional 
engineering activities;  
– The ETCS OBU supplier may perform the modifications itself. In this 
regard, older ‘analog ’ TCMS systems would be more easily modified, 
without specifi c support or intervention from the original rolling stock 
supplier. Moreover, t he need for TCMS modifications could be 
reduced by the use of an intermediate gateway: no (or minimal) 
modification would be required from the rolling stock supplier.831 
(976)  For new -build rolling stock, rolling stock and ETCS OBU providers define the 
solution together and agree on a TCMS interface specification at the design phase. 
Standardized interfaces exist and can be adopted. In particular:  
                                                 
831  Form CO, annex C.1.a – II.B.1, pages 9 -13. 
 
 
202 (a) Subset 034 defines the list of signals t o be exchanged between the train and 
ETCS OBU . 
(b) Subset 119 standardizes the form of these signals, by setting a clearly defined 
format through which information will be provided. An ETCS OBU supplier 
can then directly interface with a TCMS that would be com pliant to subset 
119. TCMS equipped with this interface can seamlessly interface with any 
OBU compliant with that subset. The use of subset 119 means that access to 
rolling stock  suppliers’ proprietary technology is not required to do a retrofit 
project. A daptations from the rolling stock OEM will not be required on any 
rolling stock equipped with TCMS using subset 119.  
(977)  In any case, the Notifying Party submits that the merged e ntity will not have any 
increased ability or incentive to engage in exclusionary practice with respect to 
access to TCMS interfaces, for the following reasons:  
(a) Both Alstom and Bombardier already have rolling stock and signalling 
businesses. The Transaction will not bring about any change in this respect . 
(b) With regard to new rolling stoc k, interfaces between ETCS OBUs and TCMS 
are agreed at the design stage . 
(c) With regard to retrofit projects, for non -computerized TCMS (installed on 
older rolling stock), interfaces could be readily achieved without the 
collaboration of the rolling stock sup plier. Moreover, non -computerized 
TCMS are often modified over the years so that the original rolling stock 
manufacturer would likely not have a competitive advantage as they would 
need to conduct the same reviews / physical inspections in order to interfa ce 
with the TCMS.  
(d) For computerized TCMS, there would be a number of factors limiting the 
merged entity’s ability or incentive to engage in foreclosure:  
– Rivals have an incentive to co -operate , since they  would face 
retaliation if they attempted to engage in  strategic behaviour, as ETCS 
OBU retrofit projects are typically ‘mixed -fleet’. This is illustrated 
with data from Alstom’s own activities, showing that [80-90]% of 
Alstom’s ETCS OBU retrofit wins include retrofitting rivals’ rolling 
stock;  
– Customers woul d also be able to counteract any attempted strategic 
behaviour. In particular, the customer may choose to tender the 
TCMS modification separately ; 
– If a rolling stock supplier were to make it harder for its TCMS system 
to interface with rivals’ ETCS OBUs it  would likely significantly 
harm customer relationships.  
 
 
203 8.2.2.3.  The Commission’s assessment  
(A) Introduction  
(978)  Interoperability is required between the various subsystems (on -board, wayside and 
control system s) of a signalling system, both in mainline and in urban sign alling.  For 
the purposes of the present case, interoperability requirements may a rise where the 
rolling stock and the OBU manufacturer s are not the same .  
(979)  The p rocurement of signalling on -board equipment is normally part of the same 
tender as the rolling s tock.832 In tenders for rolling stock, interested suppliers are 
requested to offer a product which includes OBUs compatible both with 
conventional systems and ETCS and it is the responsibility of the rolling stock 
supplier to ensure that the on -board signalling wo rks seamlessly with the wider 
signalling solution deployed on the network. As a result, suppliers offering both the 
rolling stock and the ETCS OBU enjoy an advantage over competitors offering only 
one of the two products, as they have full control of the i ntegration proces s.833  
(980)  In this respect, the Commission notes that the merged entity will have a significant 
market share in the EEA in the ETCS OBUs market, amounting to  about [50 -60]% 
(see section 8.2.1.1). However, Bombardier’s contribution to that market  share  is 
limited (about [10-20]%) and a series of competitors, both integrated and not 
integrated, will remain active in the market.  
(981)  In addition,  both Parties are vertically integrated already pre -merger  and, in tenders 
including both rolling stock and on -board signalling, are able to supply (and 
generally supply) an integrated solution including both rolling stock and OBUs. This 
is particularly true for Bombardier, which is active in the ETCS OBUs projects 
market mainly for its internal purposes, i.e. to provide its rolling stock with OBUs , 
for participation in integrated tenders (see section 8.2.1.1). 
(982)  The result of the market investigation was mixed in this respect. In particular, 
although some participants submitted that the merged entity will have the ability 
(and the incentive) to require rolling stock customers to purchase both its rolling 
stock and  signalling solutions (in particular OBUs), it was confirmed that integrated 
players already have this ability and in general offer bundled packages.834 It was also 
submitted that this will not be a constraint  but rather  a benefit in terms of cost 
reduction and homologation time reduction .835 
(983)  These considerations  are also applicable  when considering a pure supplier/customer 
relationship between signalling and rolling stock suppliers (vertical aspects). In this 
respect  – and without prejudice to  the interoperabi lity issues explained below – the 
Commission considers that the Transaction does not appear to cause competitive 
concerns , as: 
                                                 
832 Q1, replies to question 56, Q2, replies to question 60; Q3, replies to question 69: Q4, replies to question 
54; Q5, replies to question 55.1; Q7, replies to question 56.1 . 
833 Q7, replies to questions 51.1 and 51.1.1 . 
834 Q1, replies to question 55, Q2, replies to question 61; Q3, replies to question 70: Q4, replies to question 
55; Q7, replies to question 56.1 . 
835  NTV response to Q2, question 61.1;  
 
 
204 (a) With respect to a possible input foreclosure  scenario , as confirmed in 
previous section 8.2.1.1 following the Transaction several  producers of ETCS 
OBUs will remain active in the market to supply rivals rolling stock operators 
(most of which are, in any event , already vertically integrated). Moreover, 
already today Bombardier is principally  focussed on internal supplies and has 
only limited  sales to third parties. With respect to legacy OBUs, the 
Transaction does not appear to cause any change in legacy OBU projects, as 
the Parties do not overlap. The Parties  only overlap in legacy OBU products  
in the Netherlands , and competitive eff ects in this regard are  addressed in 
following section 8.3.1.2 and the related commit ment.  
(b) With respect to a possible customer foreclosure  scenario , both Parties are 
already vertically integrated and do not constitute  relevant customers for 
OBUs suppliers.  
(984)  However, several respondents  to the market investigation raised  concerns with 
respect to retrofitting existing rolling stock with OBUs and in general with respect to 
the necessary interfaces between ETCS OBUs and other systems (legacy or train 
control sys tems). It was submitted that the mere fact that the rolling stock  OEM 
might have an incentive and the ability to equip new vehicles with its own OBUs is 
not an issue in itself, as it does not limit the customer ’s ability to purchase OBUs 
from different sup pliers at a later stage for the purposes of retrofitting/modernizing. 
However, this ability is limited in practice, as long as there are no standardized 
interfaces and/or obligations to disclose information and technology. Customer s only 
have  limited means  to address these issues.836 Similarly, it was submitted that  for 
new trains the situation should not change substantially following  the Transaction , 
but with respect to the later implementation of  the latest on -board signalling 
equipment in existing fleets the choice would  be limited (with adverse effect s on 
pricing) if the manufacturer  only supports its own equipment (as for re -
homologation purposes the rolling stock OEM is usually required to be involved).837 
(985)  Therefore, the assessment of non -horizontal effects  will focus on the two specific 
conglomerate issues raised  in the course of the market investigation: the risk of 
foreclosure of rival ETCS OBUs suppliers’  through practices related to (i) the 
interface  between ETCS OBUs and rolling stock (notably the TCMS ) in retrofit 
projects, and (ii)  the interface between ETCS OBUs and legacy systems . 
(B) ETCS OBU interoperability with legacy OBUs and rolling stock (notably 
TCMS ) 
(986)  Interoperability issues can emerge in ETCS retrofit projects, where existing rolling 
stock has to be equipped with ETCS OBUs that need to communicate and interact 
with both the legacy on -board system and the train control system s (e.g. traction, 
power and brakes) . However, interoperability with legacy OBUs can emerge also in 
projects involvin g new rolling stock . 
                                                 
836  Deutsche Bahn’s response to Q7, question 58.1;  
837  Alpha Trains Europa’s response to Q4, question 55.1;  
 
 
205 (B.i) Interoperability with TCMS  
(987)  In order to perform its tasks, an ETCS OBU must connect to the train control 
systems and thus to the rolling stock itself. The connection to the train interface and 
integration with the rolling stock is neces sary for the OBU to perform its safety -
critical functions and comprises a number of distinct interfaces between the existing 
train systems and the ETCS system.  
(988)  As the existing train interfaces are proprietary and not designed for interoperating 
with ETCS O BUs, the installation of ETCS OBUs  requires adap tations on the 
software and hardware side. For this reason, the ETCS OBU cannot simply be 
‘plugged into ’ a socket on the train since the train does not provide for an 
interoperable (let alone standardized) ph ysical/data interface. The ETCS OBU needs 
to be physically connected to the various parts/interfaces in order to perform its 
functions. Each interface can be different.  
(989)  The necessary adapt ations to the existing and proprietary train interfaces require the 
collaboration of the rolling stock OEM. As each train class and ETCS OBU is 
different and their seamless and flawless interoperability safety -critical, the 
integration with the train interface (physically and in terms of data flows) can be 
intricate and co mplex.  
(990)  With specific reference to retrofit projects, connecting the ETCS OBU to the train 
control system is a significant work stream. The ETCS OBU takes control over the 
train’s operations so that the ETCS OBU controls the train control system. This 
conne ction requires a deep understanding of the architecture of the train interface 
and the train software, including of the language, the design, the electrical 
connections, relays, and circuitry. As this information is unique and proprietary to 
each train cla ss and only available from the rolling stock  OEM, much of the work 
can in practice only be done in close collaboration with the rolling stock  OEM. The 
cooperation from the rolling stock  OEM is indispensable in order to retrofit rolling 
stock  with an ETCS O BU, regardless of the country and rolling stock  supplier. 
Moreover, the final installation of the ETCS OBU on the train must be 
homologated/certified, which requires the approval of the rolling stock  OEM.  
(B.ii) Interoperability with legacy OBUs  
(991)  The ETCS OBU must  also interact with one or more legacy system s, unless the train 
operates exclusively on routes fully equipped with ETCS wayside signalling 
equipment, which is currently very rare in the EEA. Given that the introduction of 
ETCS has not proceeded as fast as  planned, and current planning does not foresee a 
full rollout of ETCS across Europe before 2040, the integration of Class B systems is 
required in almost all European countries.  
(992)  The interface between the ETCS on -board systems and the legacy system  is 
gene rally obtained via an STM , which  enables the ETCS OBU to communicate with 
Class B systems. The STM and the legacy OBU are provided by the legacy 
technology provider and are not part of the ETCS OBU. The legacy OBU is not part 
of the equipment that is insta lled in a retrofit project, but the retrofit project 
comprises the integration of the ETCS OBU with the legacy OBU via the STM 
(which is part of a retrofit project). The STM consists of specific sensing elements to 
wayside equipment and an interface for ha rdware and logic adapting interface to the 
ETCS. The ETCS must have installed special software to translate legacy signals 
 
 
206 into unified internal ETCS communication. Through the STM, the driver is using the 
ETCS cab display equipment also on non -ETCS lines.  
(993)  An ETCS OBU cannot be connected to a legacy OBU by a simple plug -and-play 
connection. Rather , it requires software and hardware adaptations both on the side of 
the ETCS OBU and the STM.  
(994)  The a vailability of suitable STMs and in general of access to legacy OBUs is 
therefore vital for rolling stock/OBU manufacturers selling trains for use on both 
national and international routes – but STMs are in general subject to intellectual 
property rights and controlled by particular manufacturers. There is usuall y only one 
producer  of each legacy system , with a long -lasting experience in the legacy system 
and qualified in ETCS market, which produces the Member State -specific STM. 
During the transition phase in which ETCS will not be available throughout the 
entire  cross -border routes including last miles, alternative routes and nodes, STMs 
will determine the possibility to access a Member State network.  
(C) The results of the market investigation   
(995)  As mentioned above, a series of market participants expressed concerns i n relation to 
the mentioned interoperability issues and to the connected risk of foreclosure of 
rivals suppliers of ETCS OBUs.  
(996)  Siemens submitted that it expect s growing demand for retrofitting the existing 
Bombardier fleet with ETCS OBUs and further equipm ent. The merged entity will 
have the ability to foreclose competing ETCS OBU providers from these projects by 
denying access to its proprietary train interfaces. The merged entity will also have 
the incentive to adopt conduct that would undermine and forec lose rivals. Pre-
merger , Bombardier would have  shown openness to cooperate in ETCS retrofitting 
projects where Bombardier cannot provide the equipment requested by rail operators 
in retrofit projects in -house (or only pro vide less competitive equipment) . By 
contrast, post -merger, the merged entity will have a strong incentive to foreclose. 
This is because the merged entity benefits from retrofitting Bombardier’s stock with 
Alstom ETCS OBUs and further Alstom equipment  and may apply  inflated prices by 
shutti ng out competition. The loss of competition for retrofitting projects will not 
just harm rivals but will have a direct neg ative impact on train operators .838 The 
merged entity’s ability and incentive to engage in such foreclosure are examined 
below.  
(997)  Stadler submitted  that the Transaction would create a dominant supplier for ETCS 
OBUs retrofitting activities . Large parts of the market will be effectively closed for 
any competitors, due to the fact that Alstom and Bombardier hold a market share of 
almost 50% in  the installed base of rolling stock  in Europe and quasi -monopolies in 
specific countries. Due to the advantage for the OEM for signalling retrofit services, 
based on proprietary interfaces, Stadler expect s the merged e ntity to effectively 
foreclose compet itors from indispensable inputs. Consequently, Alstom and 
Bombardier would successfully leverage their high rolling stock  installed base 
market share together with their strong market position in ETCS OBUs – 
                                                 
838  Siemens’ submission of 21 April 2020, page 85.  
 
 
207 complemented by an extensive portfolio of Class B systems – for the signalling 
retrofit ting activities.839 
(998)  Stadler also submitted that post -Transaction, the merged  entity would  have access to 
a nearly complete portfolio of legacy systems and no other relevant international 
signalling player will have a comparable offer ing. Therefore, for several European 
countries, other ETCS OBU suppliers will be dependent on the Class B input from 
the merged entity to offer a homologated signalling solution (for both, new vehicles 
and retrofit). This will have a significant effect on the supply of ETCS OBUs. 
According to Stadler, the ability and the incentive of the merged entity to profitably 
engage in an anti -competitive tying and/or bundling strategy to foreclose its 
competitors will increase and a subsequent reduction in quality of supplier and 
product performance with significant financial risk for rolling stock manufacturers 
could be expec ted. Stadler also mentions relevant past examples of similar practices 
from the Parties. Stadler also expects increasing prices after the Transaction given 
the reduced competitive tension.840 
(999)  Similar concerns in relation to the competitive conditions of the ETCS OBU market, 
with particular regard to retrofitting activities and in relation to the availability of 
legacy systems, have been expressed by the European Rail Freight Association . 841 
(1000)  The result of the market investigation broadly confirms the competitiv e concerns 
expressed by the complainants. With respect to the ETCS OBU/ rolling stock  
interoperability : 
(a) Most respondents  to the market investigation confirmed that a rolling stock 
supplier has an advantage in a tender involving the installation of OBUs, as it 
is the gatekeeper to the train interface and has thus an advantage in installing 
the ETCS OBU.842 It has been submitted  that access to information can only 
be supplied either by the owner of the rolling stock or its original 
manufacturer and that this is a grey area, very sensitive in terms of risks, for 
any tender, especially for latest locomotives with digital interfaces ;843 
(b) Several  respondents to the market investigation also pointed to difficulties 
experienced in past tenders in securing access to information and resources 
necessary for the interface between ETCS OBU and TCMS .844 Banedanmark  
submitted t he lack of access to documentation is a generic issue related to the 
regulation of access to documentation in older train contracts and to 
protectionist behaviour of certain train manufacturers.845 Bane NOR  
confirmed  that cooperation between vendors is a significant  challenge .846 
Deutsche Bahn  submit ted that it currently operate s a large fleet of 
Bombardier rolling stock  and that Bombardier pursues a very restrictive 
                                                 
839  Stadler’s submission  of 4 May 2020, page 23 . 
840  Stadler’s submission of 4 May 2020, page 17. See also Stadler’s minutes of the call of 24 March 2020.  
841  ERFA – European Rail Freight Association ’s submission of 4 May 2020, page 17.  
842   Q5, replies to question 51.4; Q7, replies to question 51.1.  
843   Thales’ response to Q5, question 48 . 
844   Q5, replies to question 49; Q7, replies to question 48.  See also DSB, minutes of the call of 24 April  2020.  
845   Banedanmark’s response to Q7, question 48.  
846   Bane Nor ’s response to Q7, question 48.  
 
 
208 policy when it comes to disclosing information or  otherwise granting access 
to interfaces between the different type s of on -board equipment.847 
(c) As for t he role of customers (as tender  organizer s) in granting access  to 
interfaces , the result of the market investigation are mixed, with some 
respondents submitting that customers do not have a real role and others 
maintaining  that customers can and do intervene to grant this access.848 
However, Deutsche Bahn submitted that even if tender  organizers are willing 
to int ervene, in many cases, it is  not possible for a customer to grant access to 
data and technologies itself  or otherw ise to guarantee open interfaces, given 
that the relevant technologies remain  proprietary and the required 
authorization processes are run by the respective supplier.849  
(1001)  With respect to the ETCS OBU/Legacy OBU  interoperability : 
(a) Most respondents to the market investigation confirmed that a supplier of 
legacy OBUs has an advantage in a tender involving the installation of ETCS 
OBUs, as the integration between the two systems can be complex and in any 
case requires the cooperation of the original legacy su pplier ;850 
(b) Several  respondents to the market investigation also pointed to difficulties 
experienced in past tenders in securing access to STM/Class B systems 
necessary for the interface betw een ETCS OBU and legacy OBUs,851 
although the issue var ies across  coun tries. For instance,  SBB  (Switzerland)  
submitted that it encountered significant difficulties to access both the French 
and the Italian STM/Class B -system s. Thus, for  access to  the French Class B -
system it is currently  practically impossible to buy the ETC S system from a 
different supplier. For the Italian class B system the situation improved 
recently because of more competition between different suppliers of legacy  
system s;852  
(c) The role of customers (as tender organizer s) appears  limited in this respect, 
as in any case the potential supplier would have to negotiate with the original 
legacy supplier.853 Thales submitted that the organizer of the tender can 
specify in the requirement that the original OBU supplier facilitates access to 
the necessary technology a nd information to ensure interoperability with 
other signalling sub -systems, legacy OBU in particular. However, in practical 
terms, customer  assistance  would always be needed, as it plays a key role as 
referee and support for collaboration.854 Deutsche Bahn submitted that its 
role as a customer is generally limited to asking the legacy supplier to 
cooperate with other potential bidders and disclose information that is crucial 
                                                 
847   Deutsche Bahn’s response to Q7, question 29.1.  
848   Q5, replies to question 50; Q7, replies to question 49.  
849   Deutsche Bahn’s response to Q7, question 49.  
850   Q5, replies to question 51.3 ; Q7, replies to question 52.  See also Bane Nor, minutes of the call of 1 April 
2020.  
851  Q5, replies to questions 45-46; Q7, replies to question 44 . 
852  SBB’s response to Q7, question 44 . 
853   Q5, replies to question 47; Q7, replies to questions 43 and 45.  
854   Thales’ response to Q5, question 47.  
 
 
209 to enable interoperability. While certain  legacy suppliers appear  willing to 
offer s uch cooperation, others are more reluctant ;855 
(d) Furthermore, most competitors expect that the merged entity would not 
continue to give access to its legacy OBUs at reasonable commercial terms856 
and that customers could not establish sufficient safeguards, such  as open 
specifications, obligations to grant access, to guarantee supply of/access to 
signalling systems by a range of the Parties’ competitors.857 Customers have 
confirmed their limited role in this respect. 858 
(D) The Commission’s assessment  
(1002)  The Transaction wi ll endow the merged entity with the capacity to engage in 
foreclosure by impeding access to necessary legacy OBUs and TCMS  interfaces . 
(1003)  In this regard, t he Commission  observes that the Transaction will cause a significant 
increment of Alstom’s position both in terms of  its installed base of rolling stock and 
legacy OBUs : 
(a) With respect to the rolling stock  installed base, according to the results of the 
market investigation, the merged entity would have about [40-50]% of the 
installed base of locomotives and m ultiple units delivered since 2000 in 
Europe  (Alstom [10-20]%, Bombardier [30-40]%). The installed base of the 
merged entity would be even higher in Western Europe ( [50-60]%, of which 
Alstom [10-20]%, Bombardier [30-40]% and consortia Alstom/Bombardier 
[0-5]%) and in some of the major EEA countries:  Germany ([70-80]% of 
multiple units) , Italy ([60-70]% of multiple units), Sweden ([90-100]% of 
multiple units) and France ([90-100]% of multiple units) ;859  
(b) With respect to legacy OBUs, t he merg ed entity would hav e access to […]  
legacy OBUs in EEA countries  (Alstom […], Bombardier […], with one 
overlap in The Netherlands, where the Parties are the sole suppliers). The 
closest competitor, Siemens , has access to legacy OBUs in nine EEA 
countries . In […] EEA countries, the merged entity would be the sole 
supplier of legacy OBUs.  
(1004)  The merged entity ’s position  in retrofit tenders could also be reinforced when taking 
into account Bombardier’s current technical and financial difficulties with ETCS 
OBUs latest developments. As mentioned above in section  8.2.1.1, Bombardier has 
limited offering for ETCS OBUs Baseline 2 and 3. This implies  that, currently, in 
case of retrofit tenders for Bombardier’s fleet, rival suppliers could take advantage of 
this limited offe ring, as Bombardier would have less interest to deny access as its 
offer could not be competitive anyway. This would substantially change following 
the Transaction, as the merged entity could offer Alstom’s superior ETCS OBUs 
also with respect to Bombardie r’s fleet to be retrofitted.   
                                                 
855   Deutsche Bahn’s response to Q7, question 43.  
856   Q5, replies to questi on 53.3.  
857   Q5, replies to question 54.  
858   Q7, replies to question 55.  
859  Stadler’s submission of 4 May 2005, pages 20 -22. 
 
 
210 (1005)  Second, the Notifying Party’s arguments that cooperation from the original rolling 
stock /legacy OBU supplier would not be always necessary, for instance, (i) for 
TCMS: in older trains or when standard interfaces are adopted  (see above at 
paragraph (975) ); and (ii) for legacy  OBUs: when alternative suppliers of legacy 
OBUs or STMs are available  (paragraph (973) ) does not affect the conclusions of the 
Commission’s assessment . At this stage of the investigation , those situations do  not 
appear to be common in the EEA. In particular, as for  scenario (i), future retrofitting 
activities will involve a considerable share of trains with digital interfaces, where 
cooperation of the original rolling stock  supplier would be necessary; moreover, the 
adoption of standard interfaces (as subset 119) is not mandatory and is not used in a 
significant part of the rolling stock in use. As for  scenario  (ii), the availability of 
alternative legacy OBUs or STMs vary i n different EEA countries and monopoly 
situations would still exist in some  of them. Notably the merged entity appears to  be 
the only legacy OBU supplier in at least four  countries in the EEA (of which three  
contributed by Bombardier  (Bulgaria, Poland and Portugal ), and the other – The 
Netherlands – where only Alstom and Bombardier are currently present.860 
(1006)  Third, as concerns  the alleged absence of direct correlation between access to the 
legacy system and market shares in supplying ETCS OBU s (paragraph (972)(d) ), the 
Notifying Party ’s data  does not rule out the existence  of an advantage benefitting  
legacy OBU suppliers. With the exception of Alstom and Si emens – that are the 
market leader s in ETCS OBU and therefore, logically, also have significant  market 
shares in countries where they do not have legacy presence – ETCS suppliers have 
stronger positions  in countries where they are also lega cy suppliers. T his is the case 
for: 
(a) Bombardier, that has ETCS OBU activities  in six countries  (Austria, Czech 
Republic, Germany, Poland Sweden and UK) , in four of which (Austria, 
Germany, Poland and Sweden) it supplies  legacy  OBUs  (and in the other two 
its ETCS market sh are is limited  at about [20-30]%); 
(b) Hitachi , that has ETCS OBU activities  in five countries  (France, Italy, The 
Netherlands , Sweden and UK)  in four of which (France, Italy, Sweden and 
UK) it also supplies  legacy OBUs (and in the other one its ETCS market 
share is marginal , at about [0-5]%); 
(c) Thales, that has ETCS OBU activities  in one country  (UK) , where it also 
supplies  legacy;  
(d) ECM, that has ETCS OBU activities  in one country  (Italy) , where it also  
supplies  legacy  OBUs . 
(1007)  Finally, it should  be noted that in retrofit projects the correlation seems to exist for 
Siemens as well, as it has ETCS OBU activities  in four countries  (Austria, Germany, 
Spain and UK) , in three of which (Austria, Germany and Spain) it also  supplies  
legacy  OBUs . Similarly , in retrofit projects , Mermec has ETCS OBU activities  only 
in the country (Italy) where it also  supplies  legacy OBUs .861 Therefore, the data 
                                                 
860  Siemens’ submission of 21 April 2020, page 81.  
861  Form CO, annex to RFI 10 Q 2.1 . 
 
 
211 provided do not appear to disprove a certain correlation between ETCS OBU and 
legacy OBU business.  
(1008)  The merged entity  is also likely to have the incentive of engaging in foreclosure by 
impeding access to necessary legacy OBUs and TCMS interfaces.  
(1009)  In this regard, given the age structure of the installed base of rolling stock in the 
EEA and the long lifecycle of rolling st ock, spanning several decades for each 
vehicle, a large number of vehicles is foreseen to be retrofitted in the coming years, 
offering OEMs a significant revenue potential. According to data submitted by the 
Notifying Party, the total number of vehicles to  be retrofitted with ETCS OBUs in 
the next ten years (2021 -2030) in the EU should range from […] to […] and the cost 
of retrofitting a vehicle should range from EUR […] to EUR […] for serial on -board 
deployment and from EUR […] to EUR […] for vehicle prototypes. Accordingly, 
the value of retrofit projects in the next ten years in the EU should range from EUR 
[…] to EUR […].  
(1010)  As for the merged entity’s position in this respect, the Parties do not have data at 
EEA level but confirm their sign ificant role, as in Germany, which should account 
for around or more than […]% of the vehicles to be retrofitted in the EU in the 
coming years, […]% of trains concerned would be Alstom trains and around […]% 
would be Bombardier trains.862 As indicated in par agraphs (995)  et seq. above, the  
results of the market investigation confirm that the Parties will hold the largest 
installed base of rolling stock in  the EEA. The Parties’ EEA -wide market shares, in 
particular in mainline rolling stock, also confirm this assessment.  
(1011)  As a result, the likely benefits generate from the implementation of a foreclosure 
strategy are significant. They are all the more materia l that the merged entity would 
not likely incur any costs by adopting such conduct. Revenues generated from 
cooperating in retrofit projects by providing access to legacy OBUs and TCMS 
interfaces are necessarily lower than those generated by the full perfo rmance of the 
retrofit project.  
(1012)  Furthermore, the Notifying Party also submits that the merged entity would be 
discouraged  from engaging in foreclosure practices, because of the risk of retaliation, 
in the form of a reverse form of foreclosure by rival suppliers (paragraph (973)(d) ). 
However, to play a constraining role, the risk of retaliation would need to render the 
present conglomerate scenario unprofitable. In this respect, account must be taken of 
the fact that the merged entity will have the largest installed base of rolling stock in 
the EEA and an unmatched portfolio of legacy systems, with activities in fourteen 
EEA countries. The merged entity’s closest competitor would be Siemens, with 
legacy activities in nine countries. Accordingly, retaliation by competing suppliers, 
if any, will necessarily concern a much smaller proportion of projects than the ones 
affected by foreclosure. Moreover, partial foreclosure cannot be excluded, e.g. in 
respect of minor or non -integrated suppliers incapable or retaliation.  
                                                 
862  Notifying Party’s reply to RFI 20, 26 June 2020, pages 16 -17. Both Siemens and Stadler have provided 
their estimation in this respect, which although partially different from the estimation provided by the 
Notifying Party, confirms the significant dimension of the retrofit market in the next years and the 
prominent position of the merged entity. In particular Stadler assumes  a EUR 450,000 costs for an ETCS 
OBU retrofit , on the basis of public data, that would lead to a market of at least EUR 4 -6 billion in the 
upcoming decade  (submission of 4 May 20 20, page 23) . 
 
 
212 (1013)  As a result, the me rged entity is likely to have the ability and incentive to engage in 
foreclosure by impeding access to necessary legacy OBUs and TCMS interfaces. 
The impact of such conduct would be significant as it would be proportionate to the 
importance of the merged e ntity’s installed base of rolling stock in the EEA. That 
conduct would also have indirect effects in further reinforcing the merged entity’s 
leading position in ETCS OBUs, thus further impeding effective competition in that 
market.  
(E) Conclusion  
(1014)  In light of t he above, the Commission considers that the merged entity is likely to 
have:  
(a) an increased ability  to adopt foreclos ure strategies against rival ETCS OBUs 
suppliers, in particular considering the vast and unmatched legacy OBUs 
portfolio, and the enlarged an d unique rolling stock  installed base, and  
(b) an increased incentive  to adopt foreclos ure strategies against rival ETCS 
OBUs suppliers, in particular considering the improved offer for 
Bombardier’s installed base due to the superior Alstom’s ETCS OBU 
products  and the decreased impact on the merged entity of possible measures 
of retaliations . 
(1015)  Moreover, the implementation of foreclosure  strategies could have a significant 
impact on the competitive situation in the ETCS OBU projects market, in particular 
consider ing the dimension and the economic significance of the retrofit activities to 
be carried out in the EEA in the next years (see previous paragraph (1009) ). 
(1016)  The Commis sion therefore considers that the Transaction gives rise to serious doubts 
with regard to its compatibility with the internal market as a result of possible non-
horizontal  effects, which could create or strengthen a dominant position or otherwise 
impede ef fective competition, in the market for ETCS OBUs projects in the EEA.  
8.3. Mainline signalling products  
8.3.1.  Horizontal unilateral effects  
(1017)  The Transaction leads to horizontal ly affected markets  in the supply of track 
circuits863, legacy OBUs, interlocking equipment ,864 relays865 and Euro -balises and 
vertical ly affected markets  in the supply of track circuits , interlocking equipment  and 
relays  as an input for the downstream markets for mainline wayside signalling 
projects (see section 8.3.2  below).  
(1018)  The Notifying Party  notes that it has a limited visibility into signalling product areas, 
as the Parties’ activities mainly focus on signalling projects. The Parties do not have 
significant internal market intelligence in these areas and do not track competitive 
                                                 
863  Track circuits are devices indicating whether a given sector of railway track (a block) is vacant or 
occupied by a train.  
864  For details on interlockings see section 7.1.1  above . 
865  Relays are switches that open and close circuits electromechanically or electronically by responding to 
changes in current or voltage, often to control trackside components . 
 
 
213 dynamics as closely as they do for signalling projects. Additionally, public data in 
relation to signalling products , such as  data from the European rail supply industry 
association  (‘UNIFE ’), is not available.  
(1019)  In order to identify any horizontally affected markets, the Parties collected and 
analysed their order intake data and best estimates for rivals’ order intakes  for 
signalling products for 2017, 2018, and 2019 . In some instances,  in order to exclude 
competitive concerns , the Commission has requested , and the Parties have provided , 
market shares estimates also for longer periods . The Commission has cross -checked 
this data against s ubmissions by third parties when ever possible . 
(1020)  On the basis of this data, the Transaction will give rise to the following horizontally 
affected markets for standalone mainline signalling products:  
(a) The sup ply of track circuits in the UK;  
(b) The supply of legacy OBUs in the Netherlands;  
(c) The supply of interlocki ng equipment in the Netherlands;  
(d) The supply of relays in the Netherlands ; 
(e) The supply of Euro -balises in the EEA.  
8.3.1.1.  Track circuits - UK 
(A) The Notifying Party’s views  
(1021)  The Notifying Party notes that Alstom has had a negligible order intake in track 
circuits in the UK in the last three years, as Alstom’s track circuits [Information on 
Alstom’s production / process secrets ] and Alstom [Information on Alstom’s 
business strategy ]. Accordingly, all of Alstom’s  track circuit  sales [Information on 
Alstom’s business strategy ].866   
(1022)  Moreover, the Notifying Party submits that track circuits are expected to be phased 
out entirely in the coming years in the UK as they are already being replace d by axle 
counters. A xle counters serve the same purpose as track circuits but are based  on 
more advanced technology.867 As Network Rail , Great  Britain’s railway 
infrastructure  manager,  plans  to upgrade the technology of its railway in the coming 
years through re -signalling projects, by repl acing the existing wayside equipment 
                                                 
866  Form CO, Chapter C.4. Alstom has explained [Information on Alstom’s R&D activities ] (see reply to RFI 
36). 
867  Axle counters, like track circuits, are devices used to detect the presence of a train on the tracks . Axle 
counters function by detecting the presence and traveling direction of wheels at va rious points along the 
right of way. The right of way is broken into “blocks” with wheels (axles) being counted into and out of 
the block. If the same amount of axles is detected departing the block as were previously detected 
entering it, the block is con sidered vacant and the section is presumed to be clear for a second train. Axle 
counters are also capable of determining train speed and direction.  A track circuit is an electrical device 
used to detect the presence of a train on a single block and, option ally, to transmit information to the 
train. Each section of the railway forms part of an electric circuit, which runs a current from one rail to 
the other through a relay. Rails are used to link a power source at one end of a section with a relay at the 
other end. When a train runs on a section, it causes the current to bypass the relay, which tells the 
signalling system there is a train on the track . 

 
 
215 (1027)  Unipart Rail  is part of Unipart Group, a multinational company headquartered in the 
UK with operations in Europe, Nor th America, Australia and Japan. It is  active  
across a variety of sectors including rail, where they provide both rolling stock and 
signalling solutions.  
(1028)  These suppliers account for [50-60]% of the supplies in the track circuit market, for 
both the 2015 -2019 period and the 2017 -2019 period . 
(1029)  In addition , Network Rail has confirmed its strategy to replace track circuits by axle 
counters in the medium to long term .870 Network Rail notes in this respect that its 
signalling asset policy  requires all new projects to be deployed using axle  counters . 
Track circuits will be replaced as part of major signalling renewals in line with the 
timeframe for ETCS deployment, with life -extension in the interim  (even though  
Bombardier’s  track circuits as spare parts will still be needed for at least 20 years ).  
(1030)  Alstom has had limited sales of axle counters in 2017 -2019 in the UK (EUR […]) 
and Bombardier has had none. Network Rail also confirmed that it purchased no  axle 
counters from the Parties in the last three years.871 ORR, the regulator for Great 
Britain’s rail networks , has explained that the primary suppliers of axle counters in 
Great Britain  are Thales and Frauscher .872 [Confidential information on the Parties’ 
UK activities ].873 
(1031)  Finally, the market investigation did not reveal any particular concerns regarding the 
market of track circuits in the UK.  While ORR highlighted the track circuits as an 
area where the Commission should focus its analysis, this is essentially because of 
the market shares pres ented to the Commission in the Siemens/Alstom  case, where 
Bombardier was reported as holding a very significant  market share in track circuits 
in the UK . However, according to  the Notifying Party ’s best estimate  Bombardier’s 
market share  in track circuits decreased to below [40-50]%, both for the 2017 -2019 
and the 2015 -2019 period.874  
(1032)  In light of the above , the Commission concludes that the Transaction is unlikely to 
give rise to competition concerns as a result of non-coordinated horizontal effects , 
either through the creation of strengthening of a dominant position or otherwise 
significantly impeding effective competition , in the market for track circuits in the 
UK. 
8.3.1.2.  Legacy OBUs – Netherlands  
(1033)  There are two legacy ATP systems in the Netherlands: ATB -EG (first  generation)  
and ATB -NG ( new g eneration) . These are two separate legacy technologies that are 
not technically substitutable . 
                                                 
870  Reply to RFI 26.  
871  Reply  to RFI 26.  
872  ORR submission of 2 July 2020.  
873  Reply to RFI 45.  
874  The Parties submit that as they do not have the knowledge of the exact track circuits market size in the 
UK, they are not able to assess their market position with certainty . However, the Parties consider that 
the data provided in Siemens/Alstom  should not be used to inform the Commission’s conclusions as to the 
Parties’ posi tion in track circuits in the UK, as this data did not include Bombardier’s data, and the time 
period for which the data was provided in that case is 2015 -2017, and not 2017 -2019.  
 
 
216 (1034)  ATB -EG has been deployed and is being used by NS (the largest train operator in 
the Netherlands ) and by regional operators on all m ajor Dutch lines, including  
electrified lines (~2  500 km), notably because these lines recei ved priority at a time 
when ATB -NG was not available . ATB -NG is mainly  deployed on some regional 
lines (~350 km), which are not electrified .  
(1035)  Alstom and Bombardier are the only suppliers of ATB -EG OBUs in the Netherlands , 
while Alstom is the exclusive supplier of ATB -NG OBUs. Alstom has also 
developed a combined ATB -NL (ATB Netherlands) product which has both ATB -
EG and ATB -NG functionalities.  
(A) The Notifying Party’s v iews 
(1036)  The Notifying Party submits that even though the Parties are the only suppliers of 
legacy OBUs at present in the Netherlands, any supplier can obtain access to legacy 
interfaces through the Dutch infrastruc ture operator, ProRail.875 ProRail, in its role  as 
the coordinator of the ERTMS program in the Netherlands , has sought to develop a 
blueprint, based on the most recent Baseline, in order to enable the manufacturing of 
an STM for ATB -EG. A license to this blueprint  can be provided to any supplier 
who re quests it .876 
(1037)  Accordingly, any supplier can itself manufacture the STM  needed for ETCS OBUs 
to interface with  the ATB -EG technology  with much less effort or investment than 
would be necessary for a supplier to develop the STM on its own. The Notifying 
Party  estimates that a supplier would need  EUR 500  000 (to cover industrialisation 
and hardware qualification costs ) and 6 to 12 months for such manuf acturing . 
According to the Notifying Party, t hese efforts are compatible with participation in 
ETCS OBU tenders , namely a supplier may bid for a tender for ETCS  OBU and only 
launch the manufacturing of the STM for ATB -EG if its bid is successful.  
(B) The Commission’s assessment  
(1038)  Table  40 provides an overview of the market shares in the market for legacy OBUs 
in the Neth erlands for 2017 -2019 . 
  
                                                 
875  Form CO, annex C.1.a.II.B.1 and Parties’ replies to RFIs 18, 20 and 36.  
876  See: https://ertms -nl nl/dossiers/stm -atbeg/default.aspx   

 
 
218 behaviour of a sole supplier will have  a negative impact on sales prospects of all 
other OBU suppliers ’.883 
(1043)  Fifth, new entry in the market is unlikely because possible entrants have reduced 
incentives to invest (i) in a technology that can only be used in the Netherlands and 
(ii) will in any eve nt become obsolete when ETCS is fully rolled -out. 
(1044)  Sixth , even though the Netherlands  have ambitious plans for ETCS deployment, 
ATB  technology is likely to remain active for a number of  years. It will indeed take 
until 2050 before ERTMS is fully rolled out nationally . 
(1045)  Finally, and consistent with all of the above, the market investigation  revealed  
concerns  about the impact of the Transaction in the market for legacy OBUs in the 
Netherlands .884 And e ven though NS, the largest train operator in the Netherlands, 
does not express concerns about this market, it essentially explains that this is 
because ‘[d]uring retrofit, we remove the Legacy OBU and change it for an STM 
which is part of the ETCS -OBU ’.885 This means that competition in the market for 
legacy on -board s ystems in the future (at least for retrofit projects) will depend on 
the existence of an STM capable of replacing  the legacy OBU  on the train. 
Therefore, post -merger, competition will depend on the feasibility of developing an 
STM based on ProRail’ s bluepr int, since the only other alternative would be the 
merged entity’ s STM for ATB -EG. However, as explained in paragraph  (1041) , 
ProRai l’s blueprint is unlikely to constitute a credible alternative to the merged 
entity’ s product . 
(1046)  In light of the above, the Commission considers that the Transaction raises serious 
doubts  as to its compatibility with the internal market as a result of non -coordinated 
horizontal effects, either through the creation of strengthening of a dominant position 
or otherwise significantly impeding effective competition, in the market for legacy 
OBU s in the Netherlands.   
8.3.1.3.  Interlocking equipment – Netherlands  
(A) The Notifying Party’s views  
(1047)  According to the Notifying Party the Transaction will not give rise to competition 
concerns in the Dutch market for interlocking equipment for the following reasons : 
(a) The increment brought by the Transaction is de minim is. 
(b) Market shares for any period in the last 10 years are not representative of the 
Parties’ actual market power , due to the relatively small number of 
interlockings orders in the Netherlands  in this period . This is due to the fact 
that ProRail has been waiting to conduct a broad -scale ETCS roll out via re -
signalling that will involve the replacement of interlockings  (see also 
paragraph  (922)  above).  
                                                 
883  Reply to RFI 19.  
884  Q5, questions 35 and 46; submissions by Siemens (21 April 2020), Stadler (4 May 2020 ) and  ERFA - 
European Rail Freight Association (26 June 2020 ). 
885  Q6, questions 47 and 49.  
 
 
219 (c) The upcoming national roll -out in the Netherlands is likely to transform the 
competitive landscape by attracting significant competition. The setup of this 
project is expected to involve a combination of proc urement of smaller 
interlockings (for which smaller  players such as Hima would compete with 
engineering bureaus) and larger EULYNX -compliant interlockings, which 
will attract competition from all the major EEA players. Siemens and Thales 
will be particular ly well -placed to compete in this environment, whereas 
[Information on Alstom’s R&D activi ties]. 
(d) The Parties’ products are not easily substitutable. Bombardier supplies 
[Information on Bombardier’s business strategy ]886, while [Information on 
Alstom’s busine ss strategy ]. 
(e) The Parties will not risk the relationship with ProRail by raising prices for 
interlocking equipment. [Information on the Parties’ sales ]. 
(f) ProRail is the ultimate customer for both ETCS ATP wayside and 
interlockings projects, both of which ar e much larger in terms of value than 
signalling products orders. Thus, the Parties have no interest to raise prices 
for interlocking equipment post -Transaction as that would jeopardize the 
Parties’ relationship with ProRail, and endanger not only the Parti es’ future 
sales of signalling products but also any future award of mainline signalling 
projects in the Netherlands. Given the de minimis increment from 
Bombardier’s activities, there cannot reasonably be expected to arise any 
change to the merged entity’ s incentives in this respect.  
(B) The Commission’s assessment  
(1048)  Table  41 provides an overview of the market shares in the market for standalone 
interlocking equipment in the Netherlands for 2017 -2019  and for 2015 -2019 . 
  
                                                 
886  Projects concerning depots, where  trains  are stabled, serviced and maintained . 

 
 
221 projects is liable  to attract competition from other large players active in the EEA 
and consequently change the competitive conditions  for the supply of interlocking 
equipment in the Netherlands .891  
(1053)  In addition, t he Parties’ inter lockings do not appear to be  substitutable.  In the 
Netherlands, [Information on Alstom’s business strategy ], while [Information on 
Bombardier’s business strategy ].  
(1054)  As explained by the Parties, t o be used in mainline projects, [Confidential 
information on Bombardier’s interlockings ]. 
(1055)  Conversely, while Alstom’s mainline interlocking equipment  could [Confidential 
informat ion on the Parties’ production / process secrets ].892  
(1056)  Finally, the market investigation did not reveal any concerns regarding the market of 
interlocking equipment in the Netherlands.  
(1057)  In light of the above, the Commission concludes that the Transaction is unlikely to 
give rise to com petition concerns as a result  of non -coordinated horizontal effects, 
either through the creation of strengthening of a dominant position or otherwise 
significantly impeding effective competition , in the market for interlocking 
equipment in the Netherlands . 
8.3.1.4.  Relays – Netherlands  
(A) The Notifying Party’s views  
(1058)  The Notifying Party submits that the Transaction will not give rise to competition 
concerns in the Dutch  market for relays for the following reasons:  
(a) The increment brought by the  Transaction is de minims. The Parties’ 
combined share for 2017 –2019 is moderate ( [30-40]%), and the increment 
brought by the Transac tion is de minimis (below [0-5]%). Furthermore the 
Notifying Party submits that Alstom’s entire order intake for 2015 -2019 is 
attributable entirely to [Information on Alstom’s business strategy ]. 
Specifically, Alstom would receive purchase orders  from  [Information on 
Alstom’s business strategy ].893 
(b) Additionally, Alstom does not consider Bombardier to be a close rival in 
relays. Rather, its closest competitors for relays are Hima, Arteche  and Mors 
Smitt. These suppliers will continue to constra in the Parties post -Transaction . 
                                                 
891  The Parties note that the Netherlands’ re -signalling strategy implies that once ERTMS has been 
implemented on a track section, only ERTMS equipment can be us ed on this section. More than seven 
sections of track are expected to be equipp ed with ERTMS , starting as of 2022 and running until 2031 – 
see “ERTMS. Dossier Programmabeslissing - S1 Railmap” (“ERTMS. Programme decision file - S1 
Railmap”) of May 17, 2019, pp. 22 -23 and 27, available in Dutch at: 
https://www.rijksoverheid.nl/documenten/rapporten/2019/05/17/railmap -ertms -4-0  
892  The Notifying Party explains in particular that Information on Alstom’s business strategy ]. Nonetheless, 
[Informat ion on Alstom’s business strategy ] (see Parties’ reply to RFI 36).  
893 See reply to RFI 45 updating the assessment provided in Chapter C.4 of the Form CO.  

 
 
223 Netherlands . It has a negligible order intake of EUR […] in 2017 and EUR […] in 
2018, resulting from sales to one customer, namely […]. Bomb ardier has not had 
any relays order intake in the last year.   
(1061)  Furthermore, ProRail confirms its policy to  switch to electronic interlockings instead 
of relay based ones  during ‘end-of-life’ renewals or major wayside legacy signalling 
projects.897 ProRail fur ther explains that Bombardier’s relays are not substitutable to 
the relays used in the Netherlands  and that no relays purchased by RroRail in  the last 
three years for use in open wayside signalling systems , for minor alterations  to 
existing relay based interlockings , for new electronic interlockings  or for 
replacement as part of maintenance  were supplied by Alstom or Bombardier.898 
(1062)  Siemens confirm s that there is general trend among EEA customers to switch to 
electronic interlocking s instead of relay based ones which will likely lead to a 
decrease in the use of relays .899 
(1063)  Furthermore, the market investigation did not reveal any concerns regarding the 
market of relays in the Netherlands.  
(1064)  In light of the above, the Commission concludes t hat the Transaction is unlikely to 
give rise to competition concerns as a result of non -coordinated horizontal effects, 
either through the creation of strengthening of a dominant position or otherwise 
significantly impeding effective competition,  in the ma rket for relays in the 
Netherlands.  
8.3.1.5.  Euro -balises – EEA  
(A) The Notifying Party’s view  
(1065)  The Notifying Party submit s that no competition concerns should arise as a result of 
the Transaction due to the Parties’ moderate combined share and the existence of 
several suppliers will continue to exercise competitive constraint on the Parties post -
Transaction.  
(B) The Commission’s assessment  
(1066)  Table  43 illustrates the Parties and their competitors’ market shares in the EEA 
market for Euro -balises in 2017 -2019.  
  
                                                 
897  Reply to RFI 31.  
898  Reply to RFI 31.  
899  Reply to RFI 28.  

 
 
225 8.3.2.  Vertical effects  
8.3.2.1.  The Notifying Party’s views  
(1071)  The Notifying Party has identified  vertically affected markets i n the supply of track 
circuits  as an input for the downstream markets for mainline wayside signalling 
projects in the UK  and interlocking equipment  and relays as an input for the 
downstream markets for mainline wayside signalling projects  in the Netherlands.903  
(A) Track circuits - UK 
(1072)  The Notifying Party identifies vertical relationships between Bombardier’s upstream 
activities in the supply of track circuits in the UK and the Parties' downstream 
activities on the markets for interlocking projects (where Alstom represents [10-
20]% of the mar ket) and ETCS ATP wayside re -signalling projects. The Notifying 
Party submits that no input foreclosure concerns arise because (i) the increment in 
the upstream market is very low; (ii) track circuits are being replaced by axle 
counters which reduces the a bility of the merged entity to foreclose access to track 
circuits to its downstream rivals; (iii) neither Alstom nor Bombardier have had an 
ETCS wayside re -signalling project in the UK over the last ten years;904 (iv) any 
attempt to foreclose competition wou ld be neutralised by Network Rail who can 
purchase track circuits directly from the merged entity . 
(B) Interlocking equipment – Netherlands905 
(1073)  The Notifying Party submits that the Transaction gives raise to vertically affected 
markets as a result of the Parties’  upstream supply of interlocking equipment in the 
Netherlands and their downstream presence in the market for interlocking projects 
and ETCS wayside re -signalling projects . However, the Transaction cannot plausibly 
be expected to raise any competition c oncerns for the following reasons: (i) 
Bombardier is a marginal player with a de  minimis market share  in the upstream 
market ; (ii) Bombardier does not currently compete directly with Alstom as the  
[Bombardier ] interlockings  it supplies first, [Information on  Bombardier’s 
production / process secrets ], second, [Information on Bombardier’s business 
strategy ]; (iii) Bombardier is a marginal player in the downstream markets for 
interlockings projects and ETCS ATP wayside re -signalling ; (iv) national shares of 
ETC S wayside re -signalling projects are not relevant for this assessment as re -
signalling suppliers do not need to have nationally homologated interlockings to 
compete ; (v) s uppliers on the downstream market for mainline signalling projects 
typically source t heir interlocking equipment internally ; (vii) the upcoming ERTMS 
roll-out will change the competitive conditions in the Netherlands.  
                                                 
903  The m arket for ETCS OBU products sold on a standalone basis is also technically vertically affected at 
the EEA level on the basis of the Parties’ activities in the downstream market for ETCS OBU projects. 
Noneth eless, since the Parties’ ETCS OBU activities  mainly project -related and Bombardier’s order 
intake for ETCS OBUs sold as standalone products in the EEA in 2017 -2019 amounted only to EUR 
[…], this vertical relationship will not be examined further . 
904  Bomba rdier’s only ETCS wayside project in the UK was a EUR […] test project . This project is not a re -
signalling project, but a project to test products in a test track, and the train detection function is 
performed via axle counters . 
905  The Parties’ assessment  in Chapter C.4 of the Form CO was amended and completed by their reply to RFI 
45. 
 
 
226 (C) Relays – Netherlands  
(1074)  The Notifying Party identifies a vertical relationship between Alstom’s upstream 
supply of relays for mainline signalling and the Parties' downstream activities on the 
markets for mainline interlocking projects and ETCS ATP wayside re-signalling 
projects.  
(1075)  The Notifying Party submits that the merged entity will not have the ability or 
incentive to foreclos e access to relays in the Netherlands to downstream competitors 
or increase their costs  because (i) Alstom’s  order intake in relays in 2015 -2019 is 
attributable [Information on Alstom’s business strategy ]; as such it is not an 
upstream product for interloc kings projects or ETCS ATP w ayside projects ; (ii) the 
increment from  the proposed Transaction is de minimis , as Bombardier’s share is 
<[0-5]% in relays and its offering is not substitutable with the relays supplied by 
Alstom ; (iii) post-Transaction, there will be alternative suppliers that will continue to 
constr ain the Parties; (iv) downstream suppliers  typically source their relays 
internally ; (v) relays represent negligible a input into interlockings and ETCS A TP 
wayside re -signalling projects ; (vi) the Parties’ share in the EEA -wide market for re -
signalling projects  is only c.  [20-30]%, while Bombardier is a marginal player in the 
downstream markets for interlockings projects and ETCS ATP wayside re -signalling  
and the increment from the proposed Transact ion in the Netherlands i s very small (c. 
[5-10]%);906 (vii) the competitive picture in the Netherlands will change 
substantially as a result of the upcoming roll -out; (vii i) sophisticated customers 
exercise countervailing buyer power and could easily sanctio n any attempt to 
foreclose competition . 
(1076)  Furthermore, the merged entity will have neither the ability nor the incentive to 
engage in customer foreclosure practices, in particular by restricting its competitors 
on the upstream segment for relays from access to downstream customers . 
Bombardier currently sources its relays internally, while Alstom , which sources its  
relays externally, will still  have to rely on an external supplier to obtain relays for the 
relevant mainline signalling  post-Transaction as the Pa rties’ relays are not 
substitutable.  
8.3.2.2.  The Commission’s assessment  
(1077)  Table  44 provides an overview of the market shares of the Parties in both the 
upstream and downstream vertically affected markets, taking into account the 
appropriate product and geographic m arket definition .  
                                                 
906  The Notifying Party explains that the [70 -80]% order intake share in ETCS ATP wayside re -signalling 
projects in the Netherlands for 2010 -2019 derives from […] associated with an order intake of EUR […]. 
Following a conservative approach, all signalling order intake for this project was allocated to Alstom 
although it won this project in consortium with […]. Bombardier’s [5-10]% order intake share in ETCS 
wayside re -signall ing derives from […] associated with an order intake of EUR […]. 

 
 
228 this respect that its signalling asset policy requires all new projects to be deployed 
using axle counters. Track circuits will be replaced as part of major signalling 
renewals in line with the timeframe for ETCS deployment, with life -extension in the 
interim . 
(1082)  In addition, upstream suppliers will remain after the Transaction , such as Howells 
Railway Products and Unipa rt Rail , representing [50-60]% of the order intake in this 
market.  
(1083)  Moreover, the Parties activities’  in the downstream markets are limited. Alstom’s 
market share in interlocking projects in the UK is [10-20]% and Bombardier is not 
active in this market. ORR has explained  that while Bombardier is  one of a relatively 
small number of global suppliers that is capable of bidding for major signalling 
projects, its wayside mainline signalling business in Great Britain has historically 
been on a significantly small er scale than that of Alstom, with no control of an 
approved interlocking technology in the country . Furthermore even if, according to 
ORR, Alstom is one of the two holders of the intellectual property of the installed 
base of interlocking technology in Great Britain ((Smartlock), the other one being 
Siemens (with Westlock)),  Alstom’s market share in wayside signalling projects 
involving interlockings for 2010 -2019 are low.908 
(1084)  Regarding ETCS ATP wayside re -signalling projects, the Parties’ combined market 
share in the EEA is moderate ( [20-30]%). Their combined market share in re -
signalling projects  for the same period , if only the UK is considered, is [0-5]%.909  
(1085)  ORR has expressed concerns that , due to Bombardier’s strong presence in the track 
circuit market a nd Alstom’s strength in the downstream signalling projects market s, 
there is a risk that the merged Parties could restrict access to Bombardier’s track 
circuit product (EBI Track product) to suppliers that rely on it for signalling projects . 
(1086)   However this concern is mainly based on  the market shares presented to the 
Commission in the Siemens/Alstom case, where Bombardier was reported as 
holding a very significant  market share in track circuits in the UK. However, 
according to the Notifying Party ’s best estimate  Bombardier’s market share in track 
circuits has decreased to  below [40-50]%, both for the 2017 -2019 and the 2015 -2019 
period .910 Moreover, given the gradual replacement of track circuits by axle counters 
in the country, the existence of  alternative upstream suppliers and the Parties’ 
moderate market shares in the relevant downstream markets, the Commission 
considers that the Transaction will not lead to  any input or customer foreclosure 
post-Transaction . 
(1087)  Finally, no other concerns were raised during the market investigation with respect 
to possible  vertical effects of the Transaction on the upstream market for track 
                                                 
908  [10-20]% in interlocking projects, [0-5]% in legacy wayside ATP projects and 0% in ETCS ATP re -
signalling projects – see Form CO, annex C.1.b – III.B.1.  
909  Form C O, annex C.1.b – III.B.1 (Alstom: 0%, Bombardier [0-5]%). 
910  The Parties submit that as they do not have the knowledge of the exact track circuits market size in the 
UK, they are not able to assess their market position with certainty . However the Parties consider that the 
data provided in Siemens/Alstom should not be used to inform the Commission’s conclusions as to the 
Parties’ position in track circuits in the UK, as this data did not include Bombardier’s data, and the time 
period for  which the data was provided in that case is 2015 -2017, and not 2017 -2019.  
 
 
229 circuits in the UK and the downstream markets for interlocking projects and ETCS 
ATP wayside re -signalling projects.  
(A.ii) Custom er foreclosure  
(1088)  The Commission considers that the merged entity will not have the ability or the  
incentive to foreclose rival track circuit suppliers by restricting their access to a 
sufficient customer base , for several  reasons.  
(1089)  First, as explained , Bombar dier’s activities in the relevant downstream markets are 
limited, while Alstom has not been active in the ETCS ATP wayside re -signalling 
segment over the last ten years and [Information on Alstom’s business strategy ].  
(1090)  Second, s everal customers of track ci rcuits , such as Atkins  and Network rail , will 
remain post -Transaction.  
(1091)  Third , the market investigation did not reveal any concerns with respect to  the 
Parties’ ability or incentive to engage in customer foreclosure  post-Transaction.  
(A.iii)  Conclusion  
(1092)  In light of the above, the Commission  considers that the Transaction will not 
materially affect the ability or the incentive of the merged entity to engage in any 
input or customer foreclosure strategy post -Transaction . 
(B) Interlocking equipment – Netherlands   
(1093)  Mainline interlocking equipment is used as an input for interlocking projects and 
ETCS ATP wayside re -signalling projects . 
(B.i) Input foreclosure  
(1094)  The Commission considers that the Transaction will not give the merged entity the 
ability and incentive to forecl ose downstream signalling project competitors in the 
Netherlands , for the reasons set out below . 
(1095)  First, the merged entity ’s combined market share upstream  overall is moderate ([40-
50]%), while t he increment to the Notifying Party’s share is negligible ( [0-5]%) and 
is even smaller if the 2015 -2019 period is considered  [0-5]%. Bombardier’s total 
order intake of EUR […] over three years relates to the supply of [Bombardier’s ] 
electronic interlockings for yards projects to [Information on Bombardier’s business 
strategy ].911 
(1096)  Second, Alstom’s sales of interlocking equipment in the Netherlands in the 2015 -
2019 period are not [Information on Alstom’s business strategy ].912 
(1097)  Third, as explained in paragraph (1051)  the current market shares may not be 
representative of competitors’ market power due to the limited order intake for 
standalone interlocking projects in the Netherlands in the last ten years.  
                                                 
911 Form CO Chapter C.4 and Parties’ reply to RFI 45.  
912 Parties’ reply to RFI 45 and ProRail’s reply to RFI 46.  
 
 
230 (1098)  Fourth, alternative suppliers, including Siemens and Hima , will remain  post-
Transaction.  
(1099)  Fifth, as explained in paragraph s (1053)  to (1055) , the Parties interlocking products 
do not appear to be substitutable . Bombardier’s  […] interlockings [Information on 
Bombardier’s business strategy ], while [Information on Bombardier’s busines s 
strategy ]. 
(1100)  Sixth , ProRail has confirmed that it has started a tender procedure for wayside 
ERTMS equipment, including interl ockings. As explained in paragraph (927) , the 
goal of this tender is to contract one supplier for the main components of the 
wayside ERTMS system, including interlockings, for a period up to 12 years 
depending on planning and possibl e extensions . While ProRail acknowledges that 
Alstom, Bombardier and Siemens may have an incumbent’s advantage in this 
respect, the Commission notes that a tender procedure for ETCS re -signalling 
projects is liable to attract competition from other large p layers active in the EEA 
and consequently change the competitive conditions for the supply of interlocking 
equipment in the Netherlands . 
(1101)  Finally, the market  investigation did not reveal any concerns relating to vertical links 
arising due to the Parties pre sence in the upstream market for interlocking equipment  
in the Netherlands and the downstream markets for interlockings and ETCS ATP 
wayside re -signalling projects . 
(B.ii) Customer foreclosure  
(1102)  The Commission considers that the merged entity will not have the abil ity or the 
incentive to foreclose rival interlocking equipment  suppliers by restricting their 
access to a sufficient customer base, for the following reasons.  
(1103)  First, Bombardier is a minor player in the downstream market for interlocking 
projects in the Netherlands , with a [5-10]% market share for the 2010 -2019 
period .913 Indeed, d uring 2010 -2019 it won only […] projects, […] of which was 
non-contestable .914 
(1104)  Second, concerning the EEA market for ETCS ATP wayside re -signalling projects, 
the merged entity will have a relatively limited market share  (approximately [20-
30]%, which is even lower ([10-20]%), if the last five years are considered) , with an 
increment below [5-10]%. And while the Parties do have a significant market share 
based on order intake for ETCS ATP wayside re -signalling projects specifically in 
the Netherlands, the Commission notes  that the relevant market has an EEA -wide 
dimension, in accordance with the res ults of the market investigation. Therefore, any 
possible market share at national level  is not per se  indicative of particular  market 
power . This is also so,  due to the limited amount of tenders in  the last ten years in 
the Netherlands, pending the upcomi ng ERTMS roll -out.915  
(1105)  Finally, the market investigation did not reveal any concerns relating to vertical links 
arising due to the Parties presence in the upstream market for interlocking equipment 
                                                 
913 See paragraph (923)  above.  
914 Form CO, Chapter C.1.b., paragraph 63.  
915 Parties’ reply to RFI 45 and annex C.1.b -III.B.3. to Chapter C.1.b to the Form CO.  
 
 
231 in the Netherlands and the downstream markets for interlocki ngs and ETCS ATP 
wayside re -signalling projects.  
(B.iii)  Conclusion  
(1106)  In light of the above, the Commission considers that the Transaction will not 
materially affect the ability or the incentive of the merged entity to engage in any 
input or customer foreclosure str ategy post -Transaction . 
(C) Relays – Netherlands  
(1107)  Mainline relays are used as an input for interlocking projects and ETCS ATP 
wayside re -signalling projects.  
(C.i) Input foreclosure  
(1108)  The Commission considers that the Transaction will not give the merged entity the 
ability and incentive to foreclose downstream signalling project competitors in the 
Netherlands , for the  following reasons . 
(1109)  First, the Parties combined market share in the upstream market for relays is overall 
moderate ( [30-40]% for the 2017 -2019 period and [20-30]% for the 2015 -2019 
period)  and the increment brought about by the Transaction is minimal (below [0-
5]%).  
(1110)  Second, as already explained , the P arties’ relays are not considered substitutable.  
(1111)  Third, the Parties’ supplies to their competitors are alre ady very limited. In 
particular, in 2015 -2019, Alstom supplied relays in the Netherlands only to end -
customers, while Bombardier supplied relays to a single non -end customer ( […]) for 
a negligible order intake of approximately EUR […], which is reflective of its [0-
5]% order intake share over the last three years.  
(1112)  Fourth, there are multiple alternative sources of relays in the Netherlands, accounting 
for more than 60% of order intake . 
(1113)  Fifth, as the Parties explain , relays represent a negligible input into ETCS ATP 
wayside re -signalling projects from a commercial perspective. Generally, the 
average cost of relays is below  [0-10]% of the overall value of an ETCS wayside re -
signalli ng project and below [0-10]% of the overall value of an in terlockings projects 
in the Netherlands. 916 Thus, any hypothetical price increase for relays post -
Transaction would not improve the merged entity’s  competitive position on the 
downstream segment because it would not meaningfully increase the total costs of its 
downstream rivals . 
(1114)  Sixth, as mentioned in paragraph (926) , Bombardier has a limited role in this market , 
with only […] projects  in 2010 -2019, […] of which was non -contestable. Therefore 
the Transaction is not likely to change the Parties incentives to foreclose.  
                                                 
916 Reply to RFIs  36 and 45 . 
 
 
232 (1115)  Finally, the market  investigation did not reveal any concerns relating to vertical links 
arising due to the Parties presence in the upstream market for rel ays in the 
Netherlands and the downstream markets for interlockings and ETCS ATP wayside 
re-signalling  projects.  
(C.ii)  Customer foreclosure  
(1116)  The Commission considers that the merged entity will not have the ability or the 
incentive to foreclose rival relays  suppliers by restricting their access to a sufficient 
customer base, for the following reasons . 
(1117)  First, Bombardier is currently sourcing its relays [Information on Bombardier’s 
business strategy ], while Alstom is obtaining its relays [Information on Alstom ’s 
business strategy ]. However, as explained, the Parties’ relays are not considered 
substitutable.  Therefore Alstom will still need to rely on [Information on Alstom’s 
business strategy ] for the relevant downstream projects. Other customers will remain 
post-Transaction , such as ProRail.917 
(1118)  Second, as mentioned, the market  investigation did not reveal any concerns relating 
to vertical links arising due to the Parties presence in the upstream market for relays 
in the Netherlands and the downstream markets for interlockings and ETCS ATP 
wayside re -signalling projects . 
(C.iii)  Conclusion  
(1119)  In light of the above, the Commission considers that the Transaction will not 
materially affect the ability or the incentive of the merged entity to engage in any 
input or customer forec losure strategy post -Transaction . 
(D) Conclusion  on vertical effects  
(1120)  The Commission therefore considers that the Transaction will not materially affect 
the ability or the incentive of the merged  entity to engage in any input or customer  
foreclosure strategy post -Transaction . 
9. MARKET DEFINITION – URBAN SIGNALLING  
9.1. Introduction  
(1121)  Urban  (also known as ‘mass transit ’) signalling systems ( ‘urban signalling ’) provide 
safety controls for metro and light rail networks. They prevent collisions between 
trains and respond to other challenges faced by network operators such as network 
congestion, security, and capacity constraints. As such, urban signalling systems are 
increasingly designed not only to ensure safety, but also to allow operators to 
improve the utilisation of their networks by allowing more trains to move more 
quickly and efficiently . 
(1122)  Urban signalling is principally a project -based business. Projects typically include 
project specific engineering, development and project management, m anufacturing 
                                                 
917 The Parties have made no sales to ProRail in the las t three years.  
 
 
233 and/or procurement of equipment, installation and testing, and sometimes 
maintenance services. Projects typically comprise a signalling system including 
multiple subsystems as well as on -board and trackside units . 
(1123)  Urban signalling systems tend  to involve a complete system tendered together rather 
than subsystems tendered separately. This reflects the fact that in urban projects, (a) 
the customer is the same for both on -board and trackside elements; and (b) urban 
Signalling projects are typicall y procured for a line or group of lines in their entirety 
including all the necessary elements for that line.918 
(1124)  In urban transport there is no interoperability requirement between networks in 
different cities. Within a city network, trains typically run on self-contained lines, 
meaning that signalling systems also do not usually need to interoperate between 
lines. By contrast, tenders for the extension of a specific line on a given network 
need to be compatible with the existing line. A non -incumbent supplie r on this line 
would need either (i) to invest in an interface to interoperate with the signalling 
system existing on the line, or (ii) re -signal the entire line to compete for a line 
extension. 919 
(1125)   Urban signalling projects are based on conventional techno logy or communication -
based train control (or ‘CBTC ’).  
(1126)  Conventional urban signalling systems were developed and employed based on a 
fixed block system. Similar to mainline signalling systems, the track is divided into 
segments called ‘blocks ’. Sensors (ei ther track circuits or axle counters) are then 
placed on the track to determine whether any part of a train is occupying a block. 
Until such a block is free again, the next train cannot enter the block. This creates a 
fixed safety buffer between the train that is occupying the block and the following 
train. 920 
(1127)  Figure  3 illustrates how conventional technology works in metro. The sensors will 
detect whether a train is on any section of a block. The next train’s on -board unit will 
only be told to advance (known  as being given a ‘movement authority ’) when the 
upcoming block is completely vacant. This is because the system only recognises 
that the block is occupied but does not identify where the train is within the block. 
The following train will therefore be una ble to enter an entire block until the whole 
of the previous train has exited the block.921 
                                                 
918 Form CO, Chapter C.2, paragraph 5.  
919 Commission Decision in Case M.8677 – Siemens/Alstom  (2019), recital 597 and Form CO, Chapter C. 2, 
paragraph 6 . 
920 Commission Decision in Case M.8677 – Siemens/Alstom  (2019), recital 599 and Form CO, Chapter C. 2, 
paragraph 7 . 
921 Commission Decision in Case M.8677 – Siemens/Alstom  (2019), recital  600 and Form CO, Chapter C. 2, 
paragraph 8 . 
 
 
234 Figure 3: Urban signalling (Metro) – Conventional technology  
 
Source: Form CO, Chapter C.2, Figure 1.  
(1128)  CBTC systems are based on so -called ‘moving ’ blocks that interact with the train 
speed and surroundings. These systems rely on constant radio -based communication 
between the train and the track to identify with more precision where a train is 
located at a given moment in time. 922 
(1129)  The Institute of Ele ctrical and Electronics Engineers ( ‘IEEE ’) defines a CBTC 
system as a ‘continuous, automatic train control system utilising high -resolution 
train location determination, independent of track circuits; continuous, high -capacity, 
bidirectional train -to-waysi de data communications; and train -borne and wayside 
processors capable of implementing automatic train protection (ATP) functions, as 
well as optional automatic train operation (ATO) and automatic train supervision 
(ATS) functions ’923. IEEE publishes a CBTC ‘recommended practice ’ that lays out a 
number of key or minimum functionalities for the design and functional allocation of 
CBTC systems, without prescribing particular technical or engineering criteria.  
According to the recommendation, the main principles  of a CBTC system include, 
among others, (i) a high resolution train location determination; (ii) communication 
of this train location; (iii) determination of the movement authority for each CBTC -
equipped train, based on train location and inputs from exte rnal interlockings; and 
(iv) communication of the movement authority to the specific train. 924 
(1130)  As shown in Figure 4, the fixed block system is replaced by a system that calculates 
blocks based on the actual positions of the trains and the required braking d istance 
(plus a buffer) (the so -called ‘moving block ’ system).   
                                                 
922 Commission Decision in Case M.8677 – Siemens/Alstom  (2019), recital  601 and Form CO, Chapter C. 2, 
parag raph 9 . 
923 Form CO, Chapter C.2, paragraph 5; IEEE 1474.1 -2004, ‘IEEE Standard for Communications -Based 
Train Control ( CBTC ) Performance and Functional Requirements ’ at: 
https://www.techstreet.com/ieee/standards/ieee -1474 -1-
2004?gateway code=ieee&vendor id=3552&product id=1214446   
924 Commission Decision in Case M.8677 – Siemens/Alstom  (2019), recital 602. 

 
 
235 Figure 4: Urban signalling (Metro) – CBTC technology  
 
Source: Form CO, Chapter C.2, Figure 2.  
9.2. Relevant markets  
(1131)  Both Alstom925 and Bombardier926 are active in all main segments of the urban 
signalling projects market: (i) conventional metro signalling projects, (ii) metro 
CBTC signalling projects, and (iii) light rail signalling projects. They supply their 
respective urban signalling systems eithe r as standalone projects or with urban 
rolling stocks in bundled projects.  
(1132)  The Parties overlap in the following possible markets: (i) conventional metro  
signalling projects  at EEA -level; (ii) light rail s ignalling projects  at EEA -level and in 
Germany; (iii) standalone CBTC signalling projects for metros at EEA -level; and 
(iv) bundled CBTC solutions and urban rolling stock projects.  
(1133)  In the following section s, the Commission analyses the product and  geographic 
market definit ions in the sector of urban signalling.  
(1134)  The Parties overlap in the following possible markets: (i) conventional metro  
signalling projects  at EEA -level; (ii) light rail s ignalling projects  at EEA -level and in 
Germany; (iii) standalone CBTC signalling proje cts for metros at EEA -level; and 
(iv) bundled CBTC solutions and urban rolling stock projects.  
(1135)  In the following section s, the Commission analyses the product and  geographic 
market definitions in the sector of urban signalling.  
                                                 
925 Alstom’s offerings in conventional metro signalling includes the Urbalis 200. In metro CBTC signalling, 
Alstom’s portfolio includes the Urbalis 300 and 400, the Urbalis Fluence, and the OCTYS (for “Open 
Control of Trains, Interchangeable & Integrated System”) which is a particu lar CBTC system required on 
certain lines by RATP in Paris, and not offered by Bombardier. Alstom is active in the light rail signalling 
segment through its Pegasus 101 solution . 
926 Bombardier’s main metro CBTC signalling offerings include the CITYFLO 450, and CITYFLO 650. In 
conventional metro signaling solutions, Bombardier’s offerings include the CITYFLO 250, the CITYFLO 
350, and the CITYFLO 550.  Bombardier is active in the light rail signalling segment through CITYFLO 
150 and CITYFLO 250 and CITYFLO 650 . 

 
 
236 9.2.1.  Product market definition  
9.2.1.1.  Distinction between standalone conventional urban signalling projects for 
metro and standalone urban signalling projects for light rail.  
(A) The Notifying Party’ view  
(1136)  While the Notifying Party considers that standalone conventional urban signalling 
projects for  light rail are generally smaller in value and simpler than the standalone 
urban signalling projects for metro , it argues that the exact delineation of the relevant 
product markets can be left open as the Transaction would not give rise to 
competitive conc erns under any alternative market definition.927 
(B) The Commission’s decisional practice  
(1137)  In case Siemens/Invensys928, the Commission considered a possible distinction 
between signalling projects for metros and light rail due to differences in safety 
requirements and price but ultimately left the exact market definition open . 
(1138)  In case Siemens/Alstom929, similarly,  the Commission left the definition of the 
market for urban signalling open because the Notifying Party submitted 
commitments addressing the Commission’s competition concerns regarding urban 
signalling.  
(C) The Commission’s assessment  
(1139)  The market investigation confirmed that standalone urban signalling projects for 
metro are distinct from standalone urban signalling projects for light rail for several 
reasons. F irst, metro lines typically require special infrastructure and a more 
complex level of automation than light rail lines. They also use different principles 
and technologies. For instance, on tramways, conventional signalling is used only in 
the ‘manoeuvre zones ’ in a discontinued manner using a detection system of other 
trains called ‘transit zones ’ as opposed to the ‘blocks ’ system used on metro lines. 
Then, trams are run mainly on a ‘driving by sight ’ basis and aided by a road -type 
signalisation while a m etro signalisation system controls train movement 
continuously and results in controlled train operation. In addition,  in metro lines  
automation levels are superposed on the signalling system to assure increased 
security and increase operational performanc e. 
(1140)  Consequently higher levels of automation, lower dependence on the driver, higher 
level of security at higher speeds and continuous train control justify the 
segmentation between urban signalling systems for metro and urban signalling 
systems for light r ail. 
(1141)  Notwithstanding the above and in any event, the exact delineation of the signalling 
market projects can be left open as the Transaction will not give rise to competition 
concerns under any possible market definition . 
                                                 
927  Form CO, Chapter C. 3, paragraph 20. 
928  Commission Decision in Case M.6843 – Siemens/Invensys Rail  (2013), paragraph  13.   
929  Commission Decision in Case M.8677 – Siemens/Alstom , recital  1297.  
 
 
237 9.2.1.2.  Distinction between conventional a nd CBTC signalling for metros  
(A) The Notifying Party’s view  
(1142)  The Notifying Party considers that CBTC signalling for metros ( ‘Metro CBTC ’) 
would belong to a separate market from conventional signalling for metros .930 
(1143)  In particular , the Notifying Party argues that  CBTC provides added functionality not 
typically provided by conventional systems  such as (i) i mproved headway  (allowing 
for reduced interval between trains , known as ‘headway ’, and therefore more trains 
per minute and a significantly larger number of pass engers transported ), (ii) r educed 
wayside equipment  (as CBTC relies more heavily on train -to-train communication, it 
reduces the amount of wayside equipment that is required, which can lead to reduced 
maintenance costs ), (iii) i ncreased automation and more  sophisticated operations  
allowing higher levels of automation than conventional signalling systems  (in some 
cases entirely unattended train ), and (iv) i ncreased security  (continuous and 
automated monitoring and control of train speed, which allows higher safety 
requirements to be met  vs. reliance on individual drivers) . 
(1144)  Finally, the Notifying Party underlines that CBTC systems use more advanced and 
complex technologies and, as a result, tend to be more expensive  than conventional 
signalling systems (f or example, the average value of a CBTC project over the  2010 
2019 period was around EUR […], compared to around EUR […] for conventional 
projects ). 
(B) The Commission’s decisional practice  
(1145)  In Siemens/Alstom , the Commission left the market definition for urban si gnalling 
open, including as concerns metro CBTC and conventional signalling for metros. 931 
(C) The Commission’s  assessment  
(1146)  The respondents to the Commission’s market investigation confirm the Notifying 
Party’s view that m etro CBTC  signalling systems belong to a  separate market , 
distinct  from conventional signalling for metros  due to, among others, CBTC’s 
added functionalities, reduced wayside equipment, improved energy efficiency, 
increased security and its use of use more advanced and complex technologies which  
make CBTC systems more expensive than the conventional signalling equipment.932 
(1147)  However, the exact delineation of the metro signalling markets can be left open as 
the Transaction will not give rise to competition concerns under any possible market 
definition . 
                                                 
930  Form CO, Chapter C. 2, paragraph s 14 to 16.  
931  Commission  Decision in Case M.8677 – Siemens/Alstom , recital 1297.  
932  Q11 and Q12 , replies to question  3. 
 
 
238 9.2.1.3.  Distinction between markets for standalone urban signalling projects and 
bundled urban signalling projects.  
(A) The Notifying Party’ view  
(1148)  Urban signalling for project s that consist in the bundled procurement of urban rolling 
stock and signalling systems are referred to ‘bundled projects ’. The Notifying Party 
considers that segmenting the CBTC market according to whether projects are 
bundled or standalone would not be a ppropriate. Neither, according to the Notifying 
Party,933 would it be necessary to reach a view on this point in the present case given 
the lack of competition concerns under any alternative market segmentation.  
(1149)  To that effect, the Notifying Party explains t hat the provision of CBTC solutions is a 
project -based market and that, as a consequence, bright line distinctions between 
hypothetical segmentations between bundled and unbundled projects would not 
correspond to any competitive reality.934 
(1150)  The Notifying Party indicates that, in any event, the same solutions can be offered in 
bundled or unbundled projects and that all major CBTC players would be able to 
compete effectively in bundled or unbundled projects.935 Moreover, the Notifying 
Party argues that, on the  demand -side, c ustomers are typically free to choose 
whether to conduct their procure ment  in a bundled or unbundled manner.  
(B) The Commission’s decisional practice  
(1151)  In Siemens/Alstom936, the Commission left the definition of the market for urban 
signalling open because the Notifying Party submitted commitments addressing the 
Commission’s competition concerns regarding urban signalling.  
(C) The Commission’s assessment  
(1152)  The results of the  market investigation confirm that there is no distinct market for 
bundled CBTC sol utions and urban rolling stock projects , with the possible 
exception of CBTC solutions bundled with  automated people movers.  
(1153)  Indeed, while some respondents argue that it is beneficial from a technical and 
commercial/financial perspective to bundle the roll ing stock and the CBTC 
signalling solution, others consider that they remain free, and may sometimes prefer, 
for commercial and/or technical reasons, to issue separate tenders and purchase 
signalling and rolling stock products on an individual basis. Furth ermore, some 
respondents argue that there is no real downside in sourcing the bundled project’s 
components from different suppliers to the extent that their integration is well 
coordinated (among others, by their own engineering teams). Respondents also 
explain that separate procurement can be more beneficial in terms of control over the 
procurement process and the chosen technology. Finally, bidding data shows that, 
with the exception of automated people movers, CBTC and urban rolling stock  are 
not necess arily procured together in a single tender.   
                                                 
933  Form CO, Chapter C. 2, paragraph 21. 
934   Form CO, Chapter C. 2, paragraph 22. 
935  Form CO, Chapter C. 2, paragraph 24. 
936  Commission Decision in Case M.8677 – Siemens/Alstom , recital  1297.  
 
 
239 (1154)  As a result, there is no reason to consider a distinct relevant market for bundled 
CBTC solutions and urban rolling stock, with the possible exception of the 
automated people movers. In any event, any relevant a nalysis regarding the 
Transaction’s effects in bundled sales of CBTC and urban rolling stocks would be 
addressed, if required, in the only context of the assessment of possible 
conglomerate effects  concerning the bundled sales of CBTC solutions and urban 
rolling stock.  
(1155)  In contrast, the market investigation did not allow to exclude the possible existence 
of a market for bundled CBTC solutions and automated people mover projects. 
Indeed, the Parties’ bidding data shows that CBTC solutions and automated people  
movers are always  procured together. Accordingly, for the purpose of the present 
decision, a market for bundled CBTC solutions and automated  people movers cannot 
be excluded . 
(1156)  In any event, the relevant market definition of possible markets for, one the on e 
hand, bundled CBTC solutions and urban rolling stock, and, on the other hand, 
standalone CBTC solutions  can be left open as  the Transaction will not give rise to 
competition concerns under any possible market definition .  
9.2.2.  Geographic market definition  
(1157)  In the following paragraphs, the Commission analyses the relevant geographic 
markets in the potential markets in which the Parties overlap.  
9.2.2.1.  Conventional signalling projects for metros  
(A) The Notifying Party’s view  
(1158)  The Notifying Party argues937 that the relevant market for conventional signalling 
projects for metros is EEA -wide due to  (i) the absence of national homologation 
equivalent to that in mainline signalling and  (ii) the acceptance of references from 
across the EEA. However, the Notifying Party a dmits that national or local 
specificities  exist , such as the existence of SACEM in Paris, and the presence of 
certain players active on a more local or regional level . 
(1159)  Nevertheless, the Notifying Party argues that, i n any event,  the exact delineation of 
the relevant geographic market c ould be left open  as the Transaction w ould not give 
rise to competitive concerns under either of the alternative market definitions . 
(B) The Commission’s decisional practice  
(1160)  In Siemens/Alstom , the Commission left the market defin ition open.938 
(C) The Commission’s assessmen t 
(1161)  Most respondents to the market investigation consider that the market is at least 
EEA -wide due, to the absence of national homologation schemes, the acceptance of 
references from across the EEA or the ability to pro cure such systems from any 
                                                 
937  Form CO, Chapter C. 3, paragraph s 22 to 23.  
938  Commission Decision in Case M.8677 – Siemens/Alstom , recital 1297.  
 
 
240 supplier within the EEA.939  However the exact delineation of the relevant 
geographic market c an be left open  as the Transaction does not give rise to  
competiti on concern under any plausible geographic market whether EEA -wide, 
national or city -wide.  
9.2.2.2.  Light rail signalling  projects  
(A) The Notifying Party’s view  
(1162)  The Notifying Party argues that the market for light rail signalling projects is  EEA -
wide, due to  the absence of national homologation equivalent to that in mainline 
signalling, and the acceptance of references from across the EEA.940 
(1163)  The Notifying Party further argues that, i n any event,  the exact delineation of the 
relevant geographic market c ould be left open  as the Transaction w ould not give rise 
to competitive concerns even based on a narrower assessment at national or city 
level.  
(B) The Commission’s decisional practice  
(1164)  In previous cases the Commission never considered the geographic scope of the 
urban  signalling market separately but rather analysed a unified signalling market 
including both urban and mainline signalling projects.941 In Siemens/Alstom  the 
Commission left the market definition open.942 
(C) The Commission’s assessment  
(1165)  The results of the  market i nvestigation  did not lead to any different conclusion than 
the one suggested by the Notifying Party. In any event, the exact delineation of the 
relevant geographic market can be left open as the Transaction will not give rise to 
competitive concern even ba sed on a narrower assessment at national or city level.  
9.2.2.3.  CBTC signalling projects for metros  
(A) The Notifying Party’s view  
(1166)  The Notifying Party argues that the market for CBTC is at least EEA -wide , given  (i) 
the absence of relevance of the interoperability betw een CBTC networks at a 
national or inter -city level, (ii) the safety and quality requirements that are typically 
broadly consistent across EEA countries (no need to comply with complex national 
homologation systems as in Mainline Signalling), (iii) the acceptance by EEA 
customers of references from CBTC projects in other EEA countries, and (iv) the 
safety certification on a project -by-project basis .943 
                                                 
939  Q11 and Q12 , replies to question  12. 
940  Form CO, Chapter C. 3, paragraph s 22, 23 and 38.  
941 Commission Decision in Case M.4337 – Thales/Alcatel Divisions Transport et Systèmes  (2006), recitals 
21-24. Commission decision in Case M.4508 – Alstom UK/Balfour Beatty/JV  (2007), recitals 22 -23. 
Commission Decision in Case M.6843 – Siemens/Invensys Rail  (2013), recitals 24 -27. 
942  Commission Decision in Case M.8677 – Siemens/Alstom , recital  1297.  
943  Form CO, Chapter C. 2, paragraph  61. 
 
 
241 (B) The Commission’s decisional practice  
(1167)  In previous cases the Commission never considered the geographic scope of the 
urban signalling market separately but rather analysed a unified signalling market 
including both urban and mainline signalling projects .944 In Siemens/Alstom  the 
Commission left the market definition open.945 
(C) The Commission’s assessmen t 
(1168)  The results of the market investigation with respect to the geographic scope of 
CBTC signalling projects for metros are inconclusive: while some respondents to the 
Commission’s market investigation946 considered that standalone CBTC projects in 
different locations differ t o such a degree that a solution deployed in one city cannot 
be used in another city of the same Member State (and even less so in a city of a 
different Member State), others considered that the market is at least EEA -wide.  
(1169)  In any event , the exact delineati on of the geographic market  can be left open as, 
irrespective of the applicable geographic market definition, the Transaction will not 
give rise to any competitive concern on the possible market for Metro CBTC 
signalling  even based on a narrower assessment  at national or city level . 
9.2.2.4.  Bundled CBTC and urban rolling stock projects  
(A) The Notifying Party’s view  
(1170)  As in the case of the market for CBTC signalling projects for metros, the Notifying 
Party submits that, should there be a market for bundled urban signalli ng projects, it 
would be at least EEA -wide, for the reasons applicable to metro CBTC  signalling 
projects . 
(B) The Commission’s decisional practice  
(1171)  In Siemens/Alstom , the Commission left the market definition open.947 
(C) The Commission’s assessmen t 
(1172)  The results of th e market investigation  did not lead to any different conclusion than 
the one suggested by the Notifying Party. In any event, the exact delineation of the 
relevant geographic market can be left open as the Transaction will not give rise to 
competitive conce rn even based on a narrower assessment at national or city level . 
                                                 
944  Commission Decision in Case M.4337 – Thales/Alcatel Divisions Transport et Systèmes  (2006), recitals 
21-24. Commission d ecision in Case M.4508 – Alstom UK/Balfour Beatty/JV  (2007), recitals 22 -23. 
Commission Decision in Case M.6843 – Siemens/Invensys Rail  (2013), recitals 24 -27. 
945  Commission Decision in Case M.8677 – Siemens/Alstom , paragraph 1297.  
946  Q11 and Q12 , replies to question  11. 
947  Commission Decision in Case M.8677 – Siemens/Invensys Rail , paragraph 1297.  
 
 
242 10. URBAN SIGNALLING  – COMPETITIVE ASSESSMEN T 
(1173)  The Parties’ comb ined market shares remain below [ 10-20]% in all potential urban 
signalling markets in which the Parties overlap. As a result, the Transaction does not 
lead to horizontally affected markets.  
(1174)  However, the Parties are active in various urban rolling stock  markets  in which they 
hold market shares in excess of [30-40]% that are complementary to CBTC solutions 
in the sense that they are subject to bundled sales. As explained above , competition 
concerns can arise in circumstances where the combination of products in related 
markets would give the merged entity the ability and incentive to leverage a strong 
market position in one of the markets  concerned  to the other by means of tying or 
bundling  and where, in turn, such practices lead to a reduction in actual or potential 
rivals’ ability or incenti ve to compete , thereby reducing the competitive pressure on 
the merged entity  and allowing it to increase prices . As a result, the Commission has 
examined possible conglomerate effects in relation to CBTC and urban rolling stock.  
10.1. The Notifying Party’s view   
(1175)  The Notifying Party considers that there is no basis for competitive concerns  for the 
following main reasons:  
(a) While the Parties compete in steel wheel metros (with a limited increment of 
[10-20]% attributable to Bombardier), they do not compete  in either  
automated people movers or rubber tyre metros as Alstom is not active in the 
former and Bombardier is not active in the latter.  Furthermore, Bombardier 
has only won [a small number of project(s) ]. 
(b) As a result, r egardless of the exact market definition ad opted, the Parties are 
distant competitors for  bundled CBTC solutions and urban rolling stock 
projects due to  their different commercial focuses and existing portfolio . 
Bombardier and Siemens on the one hand  (in CBTC solutions and automated 
people movers b undles) , and Siemens and Alstom on the other  (in CBTC 
solutions and rubber tyre metros bundles) , are closer competitors than 
Bombardier and Alstom . 
(c) In addition, t he Parties will continue to face strong CBTC players already 
present in the EEA. Any integrate d or non -integrated supplier is able to 
supply equipment for CBTC signalling and urban rolling stock projects in the 
EEA and non -integrated suppliers can and do partner with others in consortia.  
(d) Finally , the Transaction will also not result in input forecl osure as neither 
Alstom nor Bombardier acted in consortium or as subcontractors to other 
suppliers for their bundled offers . 
 
 
243 10.2. The Commission’s assessment  
(1176)  The Merged Entity’s combined market shares in the possible EEA -wide948 markets 
relevant for the present assessment are as follows: (i) [30-40]% in steel wheel metros 
(with a [10-20]% market share increment attributable to Bombardier), (ii) [80-90]% 
in the rubber tyre metro segment (where there is no overlap, Alstom being the  sole 
Party active in this market), (iii) [40-50]% in the automated people mover segment 
(where there is no overlap, Bombardier being the sole Party active in this market), 
and (iv) [10-20]% of the Metro  CBTC signalling market (with [0 -5]% market share 
increment attributable to Bombardier).949 
(1177)  The Merged Entity’s combined market shares in the possible EEA -wide950 markets 
relevant for the present assessment are as follows: (i) [30-40]% in steel wheel metros 
(with a [10-20]% market share increment attributable to  Bombardier), (ii) [80-90]% 
in the rubber tyre metro segment (where there is no overlap, Alstom being the sole 
Party active in this market), (iii) [40-50]% in the automated people mover segment 
(where there is no overlap, Bombardier being the sole Party ac tive in this market), 
and (iv) [10-20]% of the Metro  CBTC signalling market (with [0-5]% market share 
increment attributable to Bombardier).951 
(1178)  After the Transaction, the merged entity will continue to face competitors on all 
markets concerned. As assessed a bove , in section  6.4, the merged entity will face 
competition from several suppliers in steel wheel metros. In rubber tyre metros and 
automated people movers, where the merged entity will hold higher market shares, 
the Parties do not overlap, so that the T ransaction will not generate a change in the 
market structure. On the Metro  CBTC  signalling  market , the merged entity will 
continue to be constrained  by Siemens and Thales who will remain the largest 
players, with market shares of [30-40]% and [30-40]%, re spectively over the 2010 -
2019 period. The merged entity will only be the third player overall and closely 
followed by Hitachi (with [10-20]%).   
(1179)  The results of the market investigation confirm that competitors will be able to 
replicate possible bundles off ered by the merged entity  either on a stand -alone basis 
or in consortia with other rolling stock and/or signalling suppliers. In that context, 
the results of the market investigation dismissed the concerns raised by one market 
participant regarding the absorption by Alstom, and he nce the argued 
‘disappearance ’ of Bombardier as a supplier of CBTC solutions for urban rolling 
stock , for the following main reasons:  
(a) The Parties  are already , pre-Transaction, integrated players that can compete 
in bundled projects with their own bundle d offers. In fact, between 2010 and 
                                                 
948  The Parties do not overlap in CBTC at national and city level. The Parties do not overlap either in rubber 
tyre metros and automated people movers, only in st eel wheel metros. The results of the market 
investigation confirmed the geographic definition of the steel wheel metros to be EEA -wide (including 
Switzerland) . 
949  See Section 6.4. Urban Rolling Stock.  
950  The Parties do not overlap in CBTC at national and c ity level. The Parties do not overlap either in rubber 
tyre metros and automated people movers, only in steel wheel metros. The results of the market 
investigation confirmed the geographic definition of the steel wheel metros to be EEA -wide (including 
Switzerland) . 
951  See Section 6.4. Urban Rolling Stock.  
 
 
244 2019, [Information on the Parties’ bidding strategy ]. Instead, [Information 
based on the Parties’ bidding data ]; 
(b) Moreover, e ven when excluding the merged  entity (which will, post -
Transaction, not represent more than [10-20]% of the Metro  CBTC signalling  
solutions market) , the remaining rolling stock -only competitors can , post-
Transaction , continue to team up with Thales, Hitachi  or Siemens ; 
(c) Finally, i n any event, the Transaction induces an extremely low market share 
incremen t in CBTC signalling for metros (i.e., [0-5]%) and therefore does not 
appear to materially affect the Parties incentives  to enter into consortia with 
rolling stock competitors when they are not in a position to offer a 
competitive offer on a standalone bas is, for instance, when their existing 
solutions do not meet the customers’ technical criteria and require substantial 
changes. The Transaction will consequently not impact the merged  entity’s 
incentive to enter into consortia with competitors .  
(1180)  In addition, counter strategies are available to customers who can switch suppliers 
when it comes to tendering bundled CBTC signalling and urban rolling stock 
projects given the typical absence of interoperability requirements between lines (or 
between urb an and mainline networks) as well as the absence of national 
homologation of the kind required in mainline signalling . The market investigation 
indeed confirmed that (i) customers can and do procure urban rolling stock and 
urban signalling solutions on a s eparate basis , and (ii) that customers will continue to 
be able to mix and match CBTC  signalling and urban rolling stock from different 
suppliers who would form partnerships to bid together.952  
(1181)  On that basis, the Merged Entity’s ability to engage in foreclo sure can be excluded. 
The Commission has therefore dismissed the possible conglomerate effects that 
could have arisen from the Transaction on the urban rolling stock and CBTC 
solutions markets.  
10.3. Conclusion  
(1182)  Based on the above analysis, the Commission’s asses sment is therefore that, 
irrespective of the market definition adopted , the Transaction does not raise serious 
doubts as to its compatibility with the internal market  as a result of  conglomerate 
effects , which could create or strengthen a dominant position  or otherwise impede 
effective competition,  in the market s for CBTC signalling and the supply of metros 
and automated people movers.   
11. PROPOSED COMMITMENTS  
11.1. Analytical Framework  
(1183)  When a concentration raises serious doubts as to its compatibility  with the inte rnal 
market , the parties may undertake to modify the concentration so as to remove the 
                                                 
952  Q12, replies to question  4 to 8 and 17 to 18.  
 
 
 
245 grounds for the serious doubts identified by the Commission  and thereby gain 
clearance of their merger  in phase I .953 
(1184)  It is for the parties to the concentration to put forward commitments.954 The 
Commission only has the power to accept commitments that are deemed capable of 
rendering the concentration compatible with the internal market.955 In phase I , 
commitments can only be accepted where the competition problem is readily  
identifiable and can easily be remedied. The remedies  therefore need  to solve the 
competition problem identified in a clear -cut manner, so that it is not necessary to 
enter into an in -depth investigation and that the commitments are sufficient to clearly 
rule out serious  doubts within the meaning of Article 6(1)(c) of the Merger 
Regulation. Where the assessment confirms that the proposed commitments remove 
the grounds for serious doubts on this basis, the Commission clears the merger in 
phase I.956 
(1185)  As concer ns the form of acceptable commitments, the Merger Regulation leaves 
discretion  to the Commission as long as the commitments meet the requisite 
standard.957  
(1186)  While  divestiture commitments are generally the best way to eliminate competition 
concerns resulting from horizontal overlaps, other structural commitments , such as 
access remedies, or other non -divestiture remedies  may be suitable to resolve 
concerns if they are equivalent to divestitures in their effects.958  
(1187)  In the ultimate assessment of  proposed commitments, the Commission considers all 
relevant factors including inter alia  the type, scale and scope of the proposed 
commitments, judged by reference to the structure and particular characteristics of 
the market concerned , including the posi tion of the parties and other participants on 
the market.959 The commitments must be capable of being implemented effectively 
within a short period.960 
11.2. Procedure  
(1188)  In order to remov e the serious doubts arising from the Transaction described in 
section s 6.2, 6.3,  8.2.2 and 8.3.1.2 and render the concentration compatible with the 
internal market, the Notifying Party  submitted a set of commitments under Article 
6(2) of the Merger Regulation on 9 July 2020 (the ‘Initial Commitments ’).  
(1189)  The Commission l aunched a marke t test of the Initial Commitments on 10 July 2020, 
seeking responses from customers and competitors of the Parties. The Commission 
                                                 
953 Commission notice on remedies acceptable under Council Regulation (EC) No 139/2004 an d under 
Commission Regulation (EC) No 802/2004 (the “Remedies Notice ”), OJ C 267, 22.10.2008, p.1, 
paragraph 5.  
954 Remedies Notice, paragraph 6.  
955 Remedies  Notice, paragraph 9.  
956 Remedies Notice, paragraph 81.  
957 Case T -177/04 easyJet v Commission  [2006] ECR II -1913, paragraph 197.  
958 Remedies Notice, paragraph 19.  
959 Remedies Notice, paragraph 12.  
960 Remedies Notice, paragraph 9.  
 
 
246 also received comments from national competition authorities , in particular from 
CMA , and rail regulators (ORR) . 
(1190)  The Commissi on informed the Parties of the results of the market test on 22 July 
2020.  
(1191)  Following the feedback received from market participants in the market test, the 
Parties submitted revised commitments on 30 July 2020 (the ‘Final Commitments ’), 
which are annexed t o this Decision and form an integral part thereof.  
11.3. Description of the proposed commitments  
11.3.1.  The Initial Commitments  
11.3.1.1.  The Very High -Speed Commitments  
(1192)  The Notifying Party  proposes to divest Bombardier’ scope of the Zefiro V300 
platform and, at the option of th e Purchaser, sell or lease its plant located in Vado 
Ligure, Italy (together, the ‘Very High -Speed Commitments ’).  
(1193)  Alstom commits to transfer the Very High -Speed Commitments  to an independent 
and unconnected party that has the financial resources, expertise, and incentive to 
maintain and develop the business as a viable and active competitive force in the 
EEA (the ‘Purchaser ’).   
(1194)  In particular, the Very High -Speed Commitments  comprises:  
 Zefiro V300 -specific IP and documentation. The Notifying Party offers to 
transfer all Zefiro V300 -specific IP rights and documentation relating to 
Bombardier’s scope. This includes all Zefiro V300 -specific platform - and 
component -related IP rig hts, IP rights relating to the overall train design, 
vehicle architecture and vehicle safety and the application layer of sub -
systems ; 
 Non-Zefiro V300 -specific IP and documentation. The Notifying Party offers 
a non -exclusive perpetual license of IP rights and documentation that are not 
Zefiro V300 -specific. This includes platform descriptions and all platform -
specific mechanical and electrical drawings and specifications necessary to 
fully understand and manufacture the platform and Zefiro V300 -specific sub -
systems and components ; 
 Engineering personnel. The Notifying Party offers to transfer a team of up to 
[…] from Bombardier’s Zefiro V300 product family capable of covering all 
key train design elements ; 
 Vado Ligure site. At the option of  the Purchaser, the  Zefiro V300 Remedy 
will include the sale or lease of its state -of-the-art facility at Vado Ligure and 
associated personnel to allow the Purchaser to benefit from the appropriate 
engineering, production, and aftermarket services facilities.  
(1195)  Alstom also off ers to transfer , at the option of the Purchaser :  
 The Zefiro brand, subject to a license back for the Zefiro Express;  
 
 
247  Its current stock of components and spare parts;  
 Up to […] personnel currently involved in providing maintenance services to 
Trenitalia fo r the Zefiro V300;  
 A non -exclusive license for its train maintenance diagnostic software tools 
limited to Zefiro V300 applications.  
(1196)  In addition, the Notifying Party offers to transfer, at the option of the Purchaser, and 
subject to customer consent  and applicable law , its contractual interest in supply and 
maintenance contracts for Zefiro V300 projects with Trenitalia and ILSA, including 
backlog (the ‘Existing Projects ’), and its interest  in any new agreements related to 
the exercise of options, cal l-offs, and any follow -on orders by Trenitalia or ILSA.  
(1197)  The Very High -Speed Commitments  also includes t he transfer, at the option of the 
Purchaser, of all supply agreements with external suppliers for main components or 
services for Bombardier’s scope of t he Zefiro V300 for the Existing Projects 
(including by transferring all relevant IP and procurement specifications), subject to 
any applicable consent rights .  
(1198)  Furthermore, the Notifying Party offers to put in place transitional arrangements 
(‘Transitional  Arrangements ’), including entering into temporary supply or licensing 
agreements with the Purchaser, in order to ensure a seamless transition, and a 
smooth transfer of all existing projects. The Transitional Arrangements would cover 
all ongoing projects, as well as (a) options, call offs or any follow -on very high -
speed  orders by existing customers, or future VHS orders placed by Trenitalia for 
which a call to tender was issued within […] years of closing of the dives tment; or 
(b) future very high -speed  bids by the Purchaser for new customers if submitted 
within […] years of closing of the divestment. The Transition Arrangements, which 
are designed to make the Purchaser independent as soon as possible by way of a 
transfer of IP rights, competencies and tech nology, would last until [Confidential 
details of duration of transitional arrangements offered ]. 
(1199)  For the duration of the Transitional Arrangements, the Notifying Party also offers to 
provide all such assistance and sub -system engineering support (e.g., know -how, 
training, secondments, etc.) as is necessary for the continued operation and eventual 
mastery by the Purchaser of Bombardier’s scope of the Zefiro V300.  
(1200)  In the event that Hitachi acquires the Very High -Speed Commitments , the Notifying 
Party commi ts, subject to customer consent, to terminate its cooperation with 
Hitachi, following the Transitional Arrangements to ensure a smooth transfer of all 
existing projects. In the event that a Purchaser other than Hitachi acquires the Very 
High -Speed Commitme nts, Bombardier commits, at the Purchaser’s option and 
subject to customer consent, to terminate its cooperation with Hitachi for existing 
projects. Alstom also undertakes to obtain Hitachi’s approval for such termination, 
and to facilitate in good faith t he Purchaser entering into a new, similar, cooperation 
arrangement directly with Hitachi thereby ensuring the continuation of the Zefiro 
V300 as a strong competing high-speed and very high -speed  offering in the EEA.  
(1201)  Finally, the  Very High -Speed Commitment s set out that they do  not include 
Bombardier’s interest in its ongoing bid (in partnership with Hitachi) for the HS2 
 
 
248 tender, and any related IP rights, know -how, documentation, personnel, and other 
tangible and intangible assets.  
11.3.1.2.  The Mainline Rolling Stoc k Commitments  
(1202)  The Commitments in mainline rolling stock consist of the divestment of (i) Alstom’s 
Coradia Polyvalent platform and the Reichshoffen plant (the ‘Coradia Polyvalent 
Divestment  Business ’) and (ii) Bombardier’s Talent 3 platform , and at the opti on of 
the Purchaser, the sale or lease of the Talent -3 specific carve -out of Bombardier’s 
Hennigsdorf site ( ‘Hennigsdorf Carve -Out Area ’), (together the ‘Talent 3 
Divestment  Business ’). The Coradia Polyvalent Divestment Business and the Talent 
3 Divestment  Business will be transferred to an independent and unconnected party 
that has the financial resources, expertise, and incentive to maintain and develop the 
business as a viable and active competitive force in the EEA (the ‘Purchaser ’). 
(1203)  The Coradia Polyval ent platform is a proven  mainline platform, currently 
manufactured in the Reichshoffen plant in France .961 To date, it has been sold at 
regional speeds […]. The Coradia Polyvalent has received homologation in France 
and Switzerland, and is currently undergoing homologation in Germany.  
(1204)  The Coradia Polyvalent Divestment  Business  includes the following:  
 Coradia Polyvalent -specific IP rights, including the transfer of the respective 
Coradia Polyvalent -specific platform - and component -related IP rights;  
 Coradia Polyvalent -specific documentation, including platform description 
and all platform -specific mechanical and electrical drawings and 
specifications necessary to fully understand and manufacture the platform 
and Coradia Polyvalent -specific sub -systems a nd components;  
 Non-exclusive license to manufacture the EMU and bimode traction systems, 
limited to Coradia Polyvalent application including, at the option of the 
Purchaser, supply agreem ents for the related components;  
 Access to existing components requir ed to manufacture and improve the 
Coradia Polyvalent platform, including (i) a non -exclusive license to 
documentation related to non -Coradia Polyvalent -specific components to 
enable the Purchaser to source from third parties and/or, at the option of the 
Purchaser, supply agreements for such components; and (ii) the transfer of 
procurement specifications including a list of suppliers for externally sourced 
main components962; 
                                                 
961  The Polyvalent is a versatile platform with a modular design allowing for a 3 - to 6-car configuration with 
different entrance heights and interior layout. It is available in both EMU and bi mode traction, and is the 
only low -floor bimode on the market.  
962 Alstom offers to use commercially reasonable efforts to transfer or assign all contracts, agreements or 
relationships and understandings with third -party component suppliers relating to the m ain components 
specific to the Coradia Polyvalent platform for which Alstom relies on third -party suppliers (subject to 
supplier consent), also including available stock relating to the Coradia Polyvalent . 
 
 
249  Coradia Polyvalent existing rolling stock contracts and associated backlog.  
Alstom of fers to transfer existing Coradia Polyvalent customer contracts and 
related options along with existing backlog, subject to customer consent ; 
 Supply and Transitional Agreements , at the option of the Purchaser, 
including for (i)  carbody shells, bogies, and traction systems; (ii) TCMS 
hardware & middleware; and (iii) provide transitional services agreements 
for warranty services and support functions that are currently provided by 
Alstom’s central organization.  
(1205)  The merged entity would retain certain R&D asset s, including the IP rights, 
documentation and prototypes for hybrid, hydrogen or BEMU traction systems for 
the Coradia Polyvalent platform and the Center of excellence for carbody shells,  
located at the Reichshoffen plant. The Commitments also exclude the Coradia brand 
(which is shared with other platforms not subject to the Commitments).  
(1206)  The Talent 3 platform Divestment  Business  comprises the following main items:  
 Talent 3 -specific IP rights, based on an ex clusive perpetual license (EEA and 
Switzerland) f or the marketing and sale of the Talent 3 pla tform and all 
related IP rights;  
 Talent 3 -specific documentation, including platform description and all 
platform -specific mechanical and electrical drawings and specifications 
necessary to fully understand, des ign and manufacture the respective 
platform and to enable the Purchaser to complete ongoing projects/future 
bids in a stand -alone manner ; 
 Talent 3 -specific non -exclusive license, limited to the Talent 3 project -
specific applications, subsystems documentati on currently shared with other 
Bombardier platforms  and the transfer of procurement specifications 
including a list of suppliers for externally sourced main components963 
 Additional assets. At the option of the Purchaser, the Parties offer a number 
of additional assets and services to facilitate the Purchaser’s manufacturing 
and testing of the Talent 3, including: (i) testing services and track access at 
Hennigsdorf; (ii) equipment for wheelset/bogies final assembly and car body 
erection; (iii) Talent 1  and Talent 2 platform -specific documentation, 
installed bases, existing service agreements and potential liabilities; and (iv) 
supply agreements for assembled bogies and propulsion, engineering support 
for subsystems including carbodies, and TCMS circuit boards production 
(including engineering support for ongoing projects and bug fixes/updates on 
middleware) for Talent 3 ; 
 Supply agreements and additional agreements, at the option of the Purchaser, 
including (i) assembled bogies and propulsion; (ii) engineering support for 
subsystems including carbodies and TCMS circuit boards production for the 
Talent 3. In addition, at the option of the Purchaser Bombardier offers to 
                                                 
963  Bombardier offers the same Commitment as Alstom  (set out in footnote 942) with regard to the transfer of 
third party supply agreements.  
 
 
250 provide the Purchaser with additional agr eements for (i) testing services and 
track access; (ii) equipment for bogies/wheelsets final assembly and car 
bodyshell erection; and (iii) Talent 1 and 2 documentation, installed -bases, 
together with existing service agreements and potential liabilities . 
(1207)  At the option of the Purchaser, the Commitment also includes the sale or lease  of the 
Hennigsdorf Carve -Out Area , including assets, equipment, and personnel. As  an 
option , during a transitional period of […], Bombardier will equip the Hennigsdorf 
Carve -Out Area  with facilities needed for the manufacturing of the Talent 3 platform 
and offers to act as a sub -supplier to the Purchaser.  
(1208)  The Coradia Polyvalent Divestment  Business  and the Talent 3 Divestment Business 
include, at the option of the Purchaser, engi neering support, supply agreements and 
the provision of specifications needed for the upgrade of the respective platforms to 
operate at speed above 160 km/h.  
11.3.1.3.  The OBU Commitments  
(1209)  The OBU Commitments comprise three sets of commitments  aiming to address the 
non-horizontal  concerns described in section 8.2.2  and the horizontal overlap 
concerning legacy OBUs in the Netherlands described in section 8.3.1.2 . 
(A) The STMs and Class B OBUs Commitments  
(1210)  Under the ‘STMs and Class B OBUs Commitments ’ the merged entity will provide, 
to any ETCS OBU supplier (the ‘Purchaser ’), in a timely manner and on fair, 
reasonable, and non -discriminatory terms:  
(a) Bombardier’s available standalone on -board equipment for  legacy ATP 
systems (defined as ‘Class Bs ’) or STMs ; 
(b) Reasonable technical support for integration of newly purcha sed Class Bs or 
STMs with the ETCS OBUs or rolling stock on which they are to be 
installed;  
(c) Interface Documentation964 for Class Bs for retrofit projects that require a 
Purchaser’s new ETCS OBU to interface with already -installed Class B 
equipment . 
(1211)  More spec ifically, Alstom will offer, to any Purchaser, on fair, reasonable, and non -
discriminatory terms, the following, for use in the EEA:  
(a) A supply agreement for Bombardier’s STMs for both retrofit projects and 
new rolling stock (related to the Netherlands,965 Spain, Poland, and Belgium). 
The supply of such STMs will include necessary documentation to facilitate 
integration with a Purchaser’s ETCS OBU. Given the rarity of orders and age 
                                                 
964 This is defined as follows: “ available information, documentation and specifications assisting Purchasers 
to interface an ETCS OBU system with Bombardier’s Class Bs ”. 
965 Regarding the Netherlands specifically, the STMs and Class B OBUs Commitments  include both the ATB -
EG solution and Alstom’s ATB -NL c lass B to cover the non -electrified part of the Dutch network . ATB 
NL [Information  on Alstom’s R&D activities ] class B solution which combines ATB EG and ATB NG 
[Information  on Alstom’s R&D activities ]. 
 
 
251 of some legacy systems, specific provisions to address obsolescence issues 
are included ; 
(b) A supply agreement for available Bombardier’s Class Bs. Where Class Bs 
have not been manufactured for many years and there is no alternative supply 
available and a redesign is required for the Bombardier Class B, Alstom 
commits to offer intereste d Purchasers a quotation for the work to create a 
new solution, at market rates calculated according to a formula indicated in 
the Commitments ; 
(c) Reasonable technical support to help integrate STM s / Class B s with the 
Purchaser’s ETCS OBU s or rolling stock a s part of a retrofit or new rolling 
stock order ; 
(d) Access to Interface D ocumentation on a standalone basis for existing Class 
Bs where required for retrofit projects that require interfacing a new ETCS 
OBU with already -installed Class B equipment (i.e., Port ugal, Finland, 
Austria, Croatia, Romania and Slovenia , Poland) where available.  
(1212)  The STMs and Class B OBUs Commitments exclude STMs where they are an 
integrated product with an ETCS OBU.  
(1213)  Alstom will enter into a n agreement with Purchasers substantially on t he terms 
provided in an annex to the OBU Commitments  (annex IV) . 
(1214)  Additional guarantees are foreseen in case Alstom ceases the production of STMs / 
Class Bs or where an STM is re -engineered for obsolescence reasons.  
(1215)  Access to Interface D ocumentation on a st andalone basis for existing Class Bs will 
be priced on fair, reasonable, and non -discriminatory terms.  
(1216)  Supply of Class Bs / STMs will be priced based on a benchmark of current pricing to 
be adjusted on a yearly basis according to a predefined pricing formu la. Alstom will 
offer quotations to re -design Class Bs / STMs that have not been manufactured for 
many years or face major obsolescence challenges at market rates, where there is no 
alternative available . 
(B) The TCMS Commitments  
(1217)  Under the ‘TCMS Commitments ’, the merged entity will provide, to any Purchaser, 
in a timely manner and on fair, reasonable, and non -discriminatory terms  
Interoperability Documentation966 and reasonable technical support for modifications 
to Bombardier’s TCMS for the execution of retrofit  ETCS OBU projects in the EEA . 
(1218)  More specifically , Alstom will offer , to any Purchaser, the following, for use in the 
EEA:  
                                                 
966 This is defined as follows: “T he communication of the drawing(s), interface protocol, and other 
specifications allowing the identification of the necessary signals  on the train schematics and cabling 
terminals, as well as any reasonably necessary ancillary technical clarifications which are necessary to 
ensure interface between Bombardier’s TCMS and Purchasers’ ETCS systems ”. 
 
 
252 (a) Available Interoperability Documentation to enable interface connections to 
pair TCMS installed on the Bombardier’s rolling stock for use in the EEA 
and Purchasers’ ETCS OBU, on fair, reasonable, and non -discriminatory 
terms ; 
(b) Where some reasonable adaptations to the TCMS are required to interface 
with the Purchaser’s ETCS OBU, Alstom commits to provide the technical 
support for the Purch aser to implement the interfaces with TCMS installed on 
Bombardier’s rolling stock for operation in the EEA on a cost -plus basis.  
(1219)  Alstom will only offer a quotation based on a complete written request, which, in 
order to allow Alstom to calculate the quota tion, must contain (i) a detailed 
description of the planning for deliveries; (ii) the quantities needed and the services 
requested; and (iii) mechanical, electrical, and functional specifications of the ETCS 
on-board system to be integrated , including arc hitecture documents with interfaces 
towards TCMS (functional and electrical) to allow Alstom to assess the necessary 
adaptations on the TCMS as well as on the signalling systems . 
(1220)  The TCMS Commitments shall be limited to the interface descriptions and the 
function description to be implemented in a TCMS. Alstom will not be obliged to 
offer support for unreasonable modifications of the TCMS.  
(1221)  Alstom commits to provide the Purchaser, on a cost -plus basis, reasonable support 
with obtaining homologation approval from the competent regulatory bodies. 
However, Alstom will neither be responsible for the new safety case of any train nor 
for the homologation of any trains that will result from such modifications. Alstom’s 
liability will be limited to the implementation  of the interface and the train functions 
that will be specified by the Purchaser. The Purchaser will remain responsible for 
homologation and for safety as it relates to ETCS OBUs.  
(C) The Netherlands Legacy OBU Commitments  
(1222)  Under the ‘Netherlands Legacy OBU Co mmitments ’, Alstom offer s to enter into a 
frame contract with the Dutch Infrastructure manager (the ‘Dutch Framework 
Agreement ’) to supply the Alstom Class B (ATB -EG) for a period of twelve years 
on predefined terms indicated in the Commitments. The terms of the frame work 
agreement  are outlined in an annex to the OBU Commitments (annex B).  
(D) Common provisions  
(1223)  The OBU Commitments will apply for twelve years from the date of completion of 
the Transaction.  The OBU Commitments also provide the appointment of a 
monitoring trustee and includes  a fast track dispute resolution procedure 
(arbitration) . 
(1224)  Moreover, Alstom will create the position of a Commitments Relationship Manager 
(the ‘CRM ’), that  will act as a contact point and will coordinate issues internally 
within Alstom. The CRM will be charged with assisting all interested parties in 
resolving any questions, issues, or concerns regarding the OBU Commitments . 
(1225)  Finally, specific common provisio ns are set out with respect to the STMs and Class 
B OBUs Commitments and TCMS Commitments : 
 
 
253 (a) Engineering services will be priced based on a predefined hourly rate as 
defined in the Commitments ; 
(b) Alstom offers to respond to requests for quotations within reaso nable and 
predefined time limits in order to allow Purchasers to prepare responses to 
customer request for proposals for ETCS OBU projects ; 
(c) The Purchaser will commit to  use information and products supplied by 
Alstom exclusively to supply the specific cont ract identified in the written 
request ; 
(d) Alstom’s obligations are subject to the Purchaser providing to Alstom all 
required information to undertake the required work.  
11.3.2.  Results of the market test  
11.3.2.1.  The Very High -Speed Commitments  
(1226)  The main goal of the proposed remedies  in relation to the Parties’ activities  in very 
high-speed rolling stock  is to preserve pre -merger competitive conditions and 
maintain a credible alternative supplier of very high -speed rolling able to  effectively 
compete against the merged entity’ s product portfolio in the EEA and at global level.  
(1227)  The results of the market test overall support the view that the divestiture of 
Bombardier’s scope in the Zefiro V300 very high -speed platform would be sufficient 
to preserve competition in the very high -speed rolling stock market after the 
Transaction at EEA and worldwide level.  
(1228)  In that regard, respondents generally considered that the scope of the Very High -
Speed  Commitment s transfers and licenses should enable the Purchaser to run a 
viable business th at can compete effectively with the merged entity on a lasting 
basis.967 In addition, some respondents pointed out that  the Zefiro V300 platform 
entails  significant ongoing backlogs orders with Trenitalia, which would endow  the 
Purchaser with the ability to actively compete with the merged entity.968  
(1229)  However, several respondents raised several issues in relation to the Very High -
Speed  Commitments, which relate to  its scope and the clarity of its provisions.  
(1230)  First, some respondents indicated that the Very High -Speed  Commitments would 
preserve competition in the very high -speed rolling stock market after the 
Transaction at EEA and worldwide level provided that the Purchaser is Hitachi , the 
platform’s  co-developer. A railway operator  indicated that Hitachi is  the only 
supplier with the necessary technical knowledge in relation to the Zefiro V300 
platform because it has designed, jointly with Bombardier, the main components of 
the platform and it has had a significant role in the development of the whole train,  
in particular for interface systems between Bombardier and Hitachi technologies. 
The respondent further explained that Hitachi has a strong incentive to further 
develop the platform, since the Zefiro V300 is its flagship very high -speed rolling 
stock in E urope. As a consequence, according to the results of the market test , 
                                                 
967  Q14, replies to questions 8, 9, 11 an d 14.  
968  Q14, replies to questions 15 and 16.  
 
 
254 Hitachi should be identified as an upfront buyer for the purpose of the Very High -
Speed Commitments scope.969  
(1231)  Second, several  respondents to the market tests as well as regulatory authori ties 
raised  concerns in relation to the exclusion of the ongoing HS2 tender  in the UK  of 
the scope from the  Very High -Speed  Commitments.970 
(1232)  Several  respondents explained that the absence  of transfer of Bombardier’s assets 
with respect to the HS2 Project  would prevent  Hitachi from becom ing a standalone 
supplier of very high -speed rolling stock in the UK. In this regard, the proposed 
remedies  would not restore effective competition condition s after the Transaction in 
the UK, since Alstom would retain  contr ol of 50% of the Zefiro platform  in the UK, 
in addition to its own very high -speed portfolio. In addition, Hitachi in dicated that 
the proposed remedies  do not allow the company to respond to possible upgrade or 
repeat orders demands of the Zefiro platform coming from HS2.971 
(1233)  In that regard, respondents to the market test indicated that  the proposed remed ies 
should include the transfer of Bombardier’s contribution to the joint Zefiro platform 
offered to HS2 in the same manner as what the Notifying Party appeared willing to 
divest, mutatis mutandis, for the Zefiro V300.  Such transfer, by making Hitachi the 
sole owner of the Zefiro platform in the UK , would also allow Hitachi to bid on a 
standalone basis in future projects in the UK.  
(1234)  The general concerns regarding the exclusion of the ongoing HS2 tender is 
supported by the CMA and O RR, which consider that the proposed remedies  fail to 
address  the potential  competitive harm that the Transaction could cause to the 
competitive conditions in the HS2 tender.  
(1235)  More specifically, they consider that the proposed remed ies do not protect  the 
continuity of the competitive process of the HS2 tender in the  case where the 
Transaction between the Parties is close d before the tender is awarded.  
(1236)  Pursuant to HS2’s tender rules , two bidders are prohibited to participate in the tender 
if they fall under  common ownership. Should a merger between two bidders  occur in 
the course of HS2 tender process, only one bid can remain and the concerned bidders 
are required to jointly  propose which of their bids  will continue in the procurement 
following such change  of control . The choice of the bid to withdraw is the 
responsib ility of the parties involved in the merger . In the present case, c onsidering 
the parallel timeframe of the Transaction and the HS2 tender, the Transaction will 
likely be closed before HS2 finalises the tender process.  
(1237)  In that regard, the CMA  and ORR  indicated that the proposed remed ies do not 
provide  clear rules concerning the choice of bid to withdraw. The lack of adequate  
provision in the proposed commitment , with not  procedure based on objective 
                                                 
969  Q14, reply to question 22.4.  
970  As explained by the Notifying Party, the currently envisaged split of work for the overall contract 
(including rolling stock and services) between Bombardier and Hitachi in  the context of the HS2 project is 
[…]. Bombardier’s rolling stock scope of work is approximately […]% [Information on Bombardier’s 
cooperation with Hitachi for HS2 ], and its maintenance scope of work is approximately […]% (Form  CO, 
Chapter B.1, paragraph 84). 
971  Q14, reply to question 25.  
 
 
255 criteria for selecting the best bids between the Par ties, would allow Alstom to 
unilaterally decide to withdraw Bombardier’s bid, regardless of which of the Parties’ 
bid is the best placed . This would significantly impede the competitive process of the 
HS2 tender.  
(1238)  In addition, the CMA and ORR expressed  concern in relation to  the provision 
regarding  Alstom’s involvement in the delivery  of the Zefiro platform to HS2, 
should HS2 select the Hitachi/Bombardier consortium . In that regard, they indicated 
that the proposed remed ies do not provide unequivocal guaran tees that Alstom  will 
take over Bombardier’s contribution with respect to  the rolling stock to be delivered 
to HS2. Absent  a clearer  provision, the CMA and ORR  consider that t he proposed 
remedy does not provide sufficient and concrete insurance with respec t to the scope 
of Alstom’s obligation vis-à-vis Hitachi and HS2 .  
(1239)  Third , several  respondents considered that the Very High -Speed  Commitment  does 
not foresee sufficient provisions in terms of homologations, certifications and 
authorisations issued by a governmental organisation  or other body, which are 
necessary for the delivery of the Zefiro V300 platform  under the current project with 
Trenitalia and for any future projects (ILSA and others). They explained that if a 
partial divestment of some subsystem s of the platform takes place, the continuance 
of the homologation process will require the use of the current manufacturing sites 
and the IP rights of the non -transferred subsystems and, as a result, the Purchaser 
will be obliged to be supplied by Alstom in the future. The development by the 
Purchaser of the referred subsystems would require time and costs and the initiation 
of a new homologation process for both each subsystem and the entire product.  
(1240)  In this respect, the Notifying Party would have to gua rantee the proper transfer of 
Bombardier's know -how and resources, so that the Purchaser would be able to 
effectively continue the homologation activities maintaining the timing of the 
projects.  
(1241)  Fourth , some respondents indicated that the Vado Ligure site  is not equipped to host 
very high -speed train final assembly and testing and that adapting the site to that 
purpose would be difficult because of its limited dimensions. However, some 
respondents consider that production assets and manufacturing units are  not strictly 
necessary if the Purchaser is a rolling stock manufacturer with experience in the 
development of very high -speed technologies and capabilities in engineering, 
manufacturing and testing of very high -speed products.  
(1242)  The Commission therefore con siders that in light of the result of the market 
investigation, the Initial Commitments are not sufficient to alleviate the competitive 
concerns raised in this decision in the market for very high -speed rolling stock at 
EEA and global level. The Notifying Party submitted the Final Commitments to 
address the concerns identified in the market test.  
11.3.2.2.  The Mainline Rolling Stock Commitments  
(1243)  The results of the market investigation support the view that the proposed 
Commitments provide the opportunity for  a new pl ayer to enter the market for self -
propelled mainline trains in France and Germany. Several market participants 
 
 
256 expressed interest in acquiring the Coradia Polyvalent Divestment Business  and the 
Talent 3 Divestment Business.972 
(1244)  The majority of the respondent s to the market test generally did not express concern s 
about the viability of the Divestment Business es or their  suitability to address 
competition concerns identified by the Commission, subject  to the additional items 
described in further details below .973 However, se veral respondents , including 
Siemens and Stadler,  considered  that the scope of the proposed Commitments is 
insufficient  to address the competitive concerns or to restore competition in the 
market for self -propelled mainline rolling stock. This is mainly due to insufficient 
capacity of the manufacturing sites and dependenc ies on other sites of Alstom and 
Bombardier, which would prevent the  Purchaser  from competing in large scale 
tenders. As regards the platforms, Coradia Polyvalent and Talent 3, these 
competitors  considered these platforms to be outdated and not competitive against 
the platforms of the main competitors such as Stadler, Siemens, Hitachi, CAF.974 
These respondents consider that other manufacturing sites or platforms of the Parties 
would be more suitable to address the identified competitive concerns.  
(1245)   The Commission however also notes that  some  competitors, including those that 
expressed interest in acquiring the Divestment Businesses, assess the overall scope 
of the divestment a s appr opriate to allow a rolling stock supplier to enter the market 
for se lf-propelled mainline trains in France, Germany, Austria975 and, Italy or to 
expand its current activities in these countries.  According to a customer: ‘this could 
be an opportunity for a sm aller rolling stock supplier to grow and step into new 
markets ’.976 Several respondents also consider that, albeit a challenging objective, 
the platforms can also be adapted and homologated in the medium -term for 
operation in neighbouring countries (e.g., Sp ain).977  
(1246)  A majority of c ustomers similarly considered that the platforms concerned and the 
manufacturing sites represent a viable business that would enable the Purchaser to 
effectively compete in the market for self -propelled trains in the countries where the 
platforms are currently being operated. Several customers confirmed that the 
platforms are competitive. They expressed the view that the Talent 3 platform is 
‘very important ’ and ‘a competitive product ’ for regional/commuter traffic in 
Germany978 and tha t the Coradia Polyvalent platform is ready for sale in France.979 
Respondents also point out that the Reichshoffen plant is a stand -alone business that 
will enable the Purchaser to manufacture the Coradia Polyvalent platform.980  
(1247)  As regards the Coradia Polyvalent Divestment Business and the Talent 3 Divestment 
Business, respondents generally point to the need to clarify the terms and conditions 
of the licences for non -platform specific sub -systems and components and the scope 
                                                 
972  Questionnaire 13 addressed to mainline rolling stock operators and customers (“Q13”), replies to 
questions 47 and 48.  
973  Q13, replies to questions 8 and 25.  
974  Q13, replies to questions 8 and 25.  
975  The results of the  market test indicated that homologation is still pending in Austria.  
976  Q13, replies to question  
977  Q13, replies to questions 8 and 25.  
978  Q13, replies to question 25.1.  
979  Q13, replies to question 8.1.  
980  Q13, replies to question 12.1.  
 
 
257 of transfer of IP rights (wh ether relevant documentation is included in the transfer ) 
ahead of their implementation . Respondents also referred to  further items that need 
to be clarified (e.g., better description of the facilities, profile of personnel to be 
transferred, etc.) .  
(1248)  The r esults of the market test also indicated that for the Divestment Businesses to be 
viable, the Commitments should include the divestiture of assets required to (i) 
upgrade the platforms to intercity speeds981 and (ii) upgrade to alternative energies 
(hydrogen , hybrid and battery)982.   
(1249)  With regard to the upgrade of the Coradia Polyvalent and Talent 3 platforms (to run 
at speed above 160 km/h), respondents indicated that the Commitments should 
include all necessary assets and documentation in order to carry out t he upgrade (and 
related processes, such as homologation).  
(1250)  With regard to hybrid, hydrogen, or BEMU traction systems , which are not Coradia 
Polyvalent -specific or Talent -3 specific, according to the results of the market 
investigation , the Commitment should  include (i) the transfer if IP rights, 
documentation, or prototypes for hybrid, hydrogen, or BEMU traction systems or (ii) 
or a clear commitment to forming a JV with the remedy taker to deliver upon 
SNCF’s demand.  Specifically for the Coradia Polyvalent p latform, this Commitment 
is required to enable the Purchaser to fulfil existing obligations under the contract 
with SNCF and to ensure the future competitiveness of the Purchaser.  
(1251)  The results of the market investigation further indicated that the transfer of 
component supply agreements is an important aspect underpinning  the future 
viability and competitiveness  of the Coradia Polyvalent Divestment and the Talent 3 
Divestment . Respondents indicated that the merged entity’s involvement should go 
beyond mere ‘commercially reasonable efforts ’ to obtain the transfer (that is subject 
to third parties’ consent). Alstom should commit to provide a solution in case this 
transfer cannot be obtained (i.e., supply components at cost ) because without those 
components the remedy taker will not be able to deliver on the platforms’ backlog . 
(1252)   Furthermore, the majority of competitors that expressed a view in the market test 
indicated that the transfer of customers’ existing backlog and contracts would enable 
the Purchaser in the short -term to generate profits and establish itself in France , 
Germany  and Austria . However, since the transfer of existing contracts is subject to 
customers’ consent, a majority of respondents indicated that an alternative solution 
should be provided in case customers refuse to grant consent for the cont ract 
transfer. The Commission notes, based on the results of the market test, that the 
successful transfer is likely to depend on the reputation of the Purchaser.983  
(1253)  Competitors that responded to the market test, including those that have expressed 
interest, indicated several items that would need to be included in the Commitments 
in order to ensure that the Purchaser can compete with the merged entity on a stand -
alone basis (e.g., homologation files , testing systems, software systems ). The 
Coradia Polyvalent Divestment Business and Talent 3 Divestment  Business should 
                                                 
981  Q13, replies to questions 11 and 28.  
982  Q13, replies to questions 8.1, 9.1, 12.1, 20.1, 21, 25.1.  
983  Q13, replies to questions 16 and 30.  
 
 
258 include all systems and documentation needed for manufacturing or testing the 
platform, and not only for final assembly.  With regard to T CMS, the Commitments  
should include more than the application software but all necessary software 
required to build, test, operate, maintain or upgrade the Coradia Polyvalent and 
Talent 3 platforms .984 
(1254)   Furthermore, the Coradia Polyvalent and the Talent 3 Co mmitments exclude from 
the scope of the Divestment Businesses certain sub -systems and components that are 
not specific to the platforms (TCMS, bogies, car body shell, traction system sub -
components, and software ). Respondents indicated that this is because  the divested 
sites depend  on other Alstom and Bombardier facilities  for the manufacture and 
delivery of those elements . 
(1255)  The Initial Commitments provide that Alstom will enter into supply agreements with 
the remedy taker for these elements. Respondents to the market investigation, 
including potential remedy takers, expressed the view that to ensure the viability and 
competitiveness of the Divestment Businesses, the Commitments should include an 
obligation on the merged entity to enter into long term supply agreements . Such 
supply agreements should be  under terms equivalent to Alstom’s internal pricing, in 
order to enable the remedy taker to both deliver under the existing backlog and 
compete for future contracts . According to the results of the market test, the 
Monitoring Trustee should oversee  the terms and conditions of the supply 
agreements and their implementation.  
(1256)  As concerns  the Henningsdorf Carve -Out Area , respondents considered that the 
optional measures, including the  commitment of the merged entity to equip the area 
with all necessary machinery to manufacture the Talent 3 platform and to act as a 
sub-contractor to the Purchaser during a transitional period are necessary to ensure 
the viability of the Talent 3 Divestment Business.985 Access to specific parts of the 
Henningsdorf plant such as track access on f air and non -discriminatory terms is also 
indicated as a  critical  element to ensure the viability and competitiveness of the 
Divestment Business.986 
(1257)  Respondents to the market test also indicated that th e identity of the Purchaser is 
important for the viability and competitiveness of the Divestment Business. A 
suitable Purchaser should be a rolling stock player with a presence and a proven 
track record in the EEA and a “solid understanding”  of the specifi cities in the EEA 
regarding “technology, regulatory matters, and sales complexity ”.987 In addition to 
being an established player in the EEA, the Purchaser should have the capacity not 
only to operate and exploit the acquired assets but also to further devel op and 
improve key components.988  
(1258)  The Commission therefore considers that in light of the result of the market 
investigation, the Initial Commitments are not sufficient to alleviate the competitive 
concerns raised in this decision in the market for self -propelled mainline rolling 
stock (and possible segmentation) in France and Germany. The Notifying Party 
                                                 
984  Q13, replies to questions 17 -24 and 36 -40. 
985  Q13, replies to questions 33 -34. 
986  Q13, replies to question 39.  
987  Q13, replies t o question 45.1.1.  
988  Q13, replies to question 45.1.1.  
 
 
259 submitted the Final Commitments to address the concerns identified in the market 
test. 
11.3.2.3.  The OBU  Commitments  
(1259)  The general view held by most respondents to the  market test is that access to 
Bombardier’s STMs /legacy systems  and TCMS  would be essential to ensure 
competition in the ECTS OBUs projects market in the EEA. However, amendments 
appear  needed to clarify the scope of the OBU  Commitments and to ensure that 
access conditions for any supplier are fair and non -discriminatory for a sufficient 
period of time.  In particular,  references to timely interventions and fair and 
reasonable terms were considered  too vague and could frustrate the  implementation  
of the reme dies. Moreover, a series of exceptions and reservations about the 
applicability of the commitments generate d uncertainty in relation to  the actual scope 
of application of the remedies. Furthermore, the required support for a uthorization 
and homologation was not defined and the commercial conditions in the supply 
agreements we re unclear.  Hitachi submitted that the competition concerns raised by 
the Transaction in the signalling markets would be better remedied by the divestment 
of one of the merging parties’  business lines.989 
(1260)  The CMA submitted that the OBU  Commitments suffer  from specification, 
circumvention and enforcement risks that would undermine their effectiveness , as it 
appeared to  lack details and leave scope for interpretation. Furthermore , the CMA 
indicated that the  scope of the proposed access remedy should include the UK, even 
after the end of transition period for the UK’s exit from the EU.990 
(1261)  Whilst the majority of the respondents to the market test confirmed  that the 
provisions of the OBU Commitmen ts are sufficiently clear to form a view as to their 
content ,991 the majority considered that they are not sufficiently clear to allow the ir 
effective implementation and to reduce to the minimum the risks linked to their 
implementation , in particular because  of the use of indefinite and vague terms and 
the inclusion of relevant exceptions and reservations .992 
(1262)  Most respondents submitted that the definitions included in the OBU Commitments 
are appropriate.993 Thales submitted that it would be important to have a br oad 
definition of Interoperability Documentation and clarifications on the meaning of 
‘reasonable technical support for integration ’ of STMs.994 SBB submitted that the 
definition of ‘Class B ’ was restric ted to products pre -dating ETCS, w hich could lead 
to relevant Class B systems being  excluded; moreover, the definition of 
Interopera bility D ocumentation  did appear  not sufficient and failed to  cover relevant 
parts like certificates, safety case etc.995 Deutsche Bahn submitted that the definition 
of ‘Purchaser s’ should be extended to train operating companies and other train 
owners , as they might carry out certain replacement/retrofit activities themselves  and 
might need access to interoperability documentation for the preparation and 
                                                 
989  Hitachi submission of 2 July 2020, page 32.  
990  CMA submission of 17 July 2020 . 
991  Questionnaire 15  addressed to signalling operators (“Q15”) , replies to questions 4, 7 and 10.  
992  Q15, replies to qu estions 5, 6, 8, 9, 11 and 12.  
993  Q15, replies to question 13.  
994  Thales’ response to Q15 , question 13.1.  
995  SBB’s response to Q15 , question 13.1.  
 
 
260 implementation of their pr ocurement procedures.996 Stadler similarly submitted that 
Purchasers  were defined too restrictively as the entity supplying the OBU is not 
necessarily the entity performing the retrofit and hence requiring the TCMS 
adaptations. Moreover, Class B products are  required also for non -ETCS projects 
(i.e., rolling stock that does not require an ETCS OBU). This kind of projects, in 
which no ETCS OBU supplier is involved, would not qualify for the OBU 
Commitments. The entitled beneficiaries, should thus include any party interested in 
a rolling stock  or ETCS retrofit project.997 Siemens  submitted that the definition of 
Purchasers should include vehicle manufacturers or vehicle integrators as well as 
anyone who has to integrate an STM or Class B -System into a new or existing 
vehicle . Moreover, Interface Documentation should at least include all existing 
information in latest status as well as certification and/or homologation documents. 
Siemens also listed a series of items that should be included in the Interoperabil ity 
Documentation.998 
(A) The STMs and Class B OBUs Commitments  
(1263)  Almost  half of the respondents submitted that the exclusion of Alstom’s STMs and 
Class B s from the OBU  Commitments is inappropriate.999 Stadler submitted that the 
merged entity will have access to a n early complete portfolio of European Class B 
systems, by complementing the systems of Alstom and Bombardier. Thereby, the 
ability and the incentive to profitably engage in an anti -competitive tying and/or 
bundling strategy to foreclose its competitors will  increase.1000 Deutsche Banh 
submitted that also legacy systems PZB/LZB (in use in Germany) should be covered 
by the obligation in question .1001 
(1264)  Close to  half of the respondents to the market investigation submitted that the offer 
by Alstom of (i) a supply agree ment for STMs for both retrofit projects and new 
rolling stock and (ii) a supply agreement for available Class Bs, including necessary 
documentation and reasonable technical support to help integration with ETCS OBU 
or rolling stock wa s adequate to ensure access to Bombardier’s legacy on -board 
signalling systems, for ETCS OBUs suppliers.1002 However, a series of respondents 
submitted that the provision need ed improvements. ERFA, t he European Rail 
Freight Association , submitted that the commitment wa s too vague , as it is not clear 
what is meant by the provision of ‘reasonable technical support ’, in particular for 
countries ( such as Portugal) where Bombardier no longer supplies the legacy ATP 
system (C onvel ) for new trains  and therefore this formula could mean  no support at 
all.1003 Thales also focused on the lack of clear definition of reasonable technical 
                                                 
996  Deutsche Bahn’s submission of 21 July 2020.  
997  Stadler’s response to Q15 , question 13.1.  
998  Siemens’s response to Q15 , question 13.1.  
999  Q15, replies to question 14.  
1000 Stadler’s response to Q15 , question 14.1.  
1001 Deutsche Bahn’s submission of 21 July 2020.  
1002 Q15, replies to question 15.  
1003 ERFA  – European Rail Freight Association ’s response to Q15 , question 15.1. See also ERFA’s 
submission of 26 June 2020. Regarding Portugal, further intervention was requested by Medway and the 
Portuguese infrastructure manager considering the current situation of obsolescence of Bombardier’s 
legacy system (Convel) ( Medway’s response to Q15, in particular questions 15.1 and 36 and 
Infraestructuras de Portugal response to Q15, in particular questions 15.1, 16.1 and 36, including a 
position paper).  
 
 
261 support and on the necessary inclusion of specific items in the documentation.1004 
Stadler submitted that it would be necessary to have access to the proprietary 
information and specifications to put a third -party supplier into a position to develop 
its own Class B OBUs . This would be particularly important for countries where 
Class B/STMs wou ld be required for a long time and where they are particularly 
inaccessib le for a third party , i.e., where these technologies are particularly complex  
and the ir knowledge is proprietary to Alstom/Bombardier (in particular France, 
Portugal, Netherlands and Finland).1005 
(1265)  The majority of the respondents to the market investigation su bmitted that the 
provisions rega rding obsolescence of the STMs were in adequate to ensure the 
effectiveness of the STMs and Class B OBUs Commitments.1006 Thales submitted 
that treatment of the obsolescence should be, as it is usually the case, the 
responsibili ty of the original supplier . Alstom , being the incumbent supplier,  should 
therefore negotiate the obsolescence treatment with the customer.1007 Stadler asked 
for an alternative mechanisms, such as sharing of all relevant knowhow, so that other 
players could d evelop a new product, and the inclusion of future OBUs developed by 
Alstom  in the Commitments .1008 The Portuguese Infrastructure Manager submitted 
that the provisions on obsolescence risk increasing the current problem in Portugal, 
where t he technology is exc lusively supplied by Bombardier and have a high degree 
of obsolescence .1009 
(1266)  Similarly, the majority of respondents to the market investigation submitted that the 
provisions relating to (i) Class Bs not manufactured for many years; and (ii) 
termination of prod uction of STMs/Class Bs, are not adequate to ensure availability 
of the relevant products, pointing to the discretion left to Alstom in such cases.1010 
SNCB submitted that such solutions might be very expensive, even at market rates 
and it would therefore be difficult to ensure that the quotation would be reasonable 
and interesting and not leading to extensive discussions. 1011 Thales submitted that 
the relevant pricing should be cost -based. 1012 Siemens submitted that Alstom could 
be induced to  cease t he production  of certain STMs/ Class Bs, in which case Alstom 
would be released from its obligation to supply these STMs /Class Bs after the last 
buy order notice. Purchasers should be granted an option to veto the discontinuation 
of production if futu re demand for the relevant STMs /Class Bs can be 
demonstrated.1013 
(1267)  The vast majority of the respondents to the market investigation also submitted that 
the exclusion of STMs integrated in ETCS OBUs from the scope of the 
commitments would not be justified.1014 Progress Rail submitt ed that this provision 
                                                 
1004 Thales’ response to Q15 , question 15.1.  
1005 Stadler’s response to Q15 , question 15.1.  
1006 Q15, replies to question 16.  
1007 Thales’ response to Q15 , question 16.1.  
1008 Stadler’s response to Q15 , question 16.1.  
1009 Portuguese Infrastructure Manager’s (Infraestructuras de Portugal) position paper submitted on 24 July 
2020.  
1010 Q15, replies  to questions 17 and 18.  
1011 SNCB’s response to Q15 , question 17.1.  
1012 Thales’ response to Q15 , question 17.1.  
1013 Siemens’ response to Q15, question 18.1.  
1014 Q15, replies to question 19.  
 
 
262 could limits the competition for the relevant projects. Alstom should also put at the 
disposal of other competitors or customers STMs where they are an integrated 
product, otherwise other players will not be able to compete in the re levant 
projects.1015 
(1268)  The majority of the respondents to the market investigation submitted that the 
provision regarding pricing of Interface Documentation, supply of Class Bs, STMs, 
and services based on fair, reasonable, and non -discriminatory terms were  not 
sufficiently clear.1016 Thales submitted that in principle, the pricing formula appear ed 
clear  but that, in order to  avoid misunderstandings  and ensure clarity, the 
Commitments should include  an annex with prices as of the effective date of the 
commitment, t o be communicated to the Purchaser at the moment of the quotation. 
Moreover, certain products and services should be cost -based.1017 Stadler submitted 
that there is currently  no market for most of OBUs because Bombardier or Alstom 
are the monopoly suppliers . Suggested a lternat ive mechanisms to r educe competitive 
concerns  include a fixed pricing for the standardized Class B/STM products (based 
on actually incurred costs), or a cost -plus approach (also based on actually incurred 
costs) when fixed prices are not applicable.1018 Similarly, Siemens submitted that the 
chosen approach, in a sector where no recent benchmark is available, was va gue and 
insufficient to effectively circumscribe the quoted price. It suggested that a  formula 
should  be defined and each of the l isted elements would have to be capped.1019 
(1269)  The majority of the respondents to the market investigation submitted that the terms 
offered by Alstom to provide quotations for deliveries relating to specific projects or  
requirements related to STMs/ Class B syste ms and to provide additional information 
are neither adequate nor in line with the commercial practice in the sector.1020 
However, some participants submitted that the terms are rather standard.1021 In 
general, it was observed that some details regarding the nec essary information and 
additional services would be missing.  
(1270)  Finally, the majority of the respondents to the market investigation submitted that a 
twelve year duration would not be sufficient, in particular in view of the 2050 time 
limit in the EU ERTMS im plementation plan. A term of at least 20 years was 
suggested  as more appropriate .1022 
(B) The TCMS Commitments  
(1271)  The majority  of the respondent s to the market investigation submitted that Alstom’s 
commitment to offer, to any Purchaser, (i) Interoperability Documentation to 
connect Bombardier’s TCMS and ETCS OBU of the Purchaser, on FRAND terms; 
and (ii) technical support to implement the interface s with the said TCMS would not 
                                                 
1015 Progress Rail’s response to Q15, question 19.1.  
1016 Q15, replies to questi on 20.  
1017 Thales’ response to Q15, question 20.1.  
1018 Stadler’s response to Q15, question 20.1. See also  the Portuguese Infrastructure Manager’s submission of 
24 July 2020.  
1019 Siemens’ response to Q15, question 20.1.  
1020 Q15, replies to question 21.  
1021 SNCB’s and Thales’ response to Q15, question 21.1.  
1022 Q15, replies to question 22.  
 
 
263 be adequate to ensure access to Bombardier’s TCMS, for ETCS OBUs suppliers.1023 
Thales submitted that in case of any doubts on quality of documentation, the 
purchaser should be allowed to escalate it to the Monitoring Trustee, w hich should 
work with some experts to evaluate these documents. Alternatively, the Monitoring 
Trustee should have some technical expertise on the railway industry.1024 SBB 
submitted that the TCSM adaptations Alstom commits to provide technical support 
for do not cover the  usually necessary modifications.1025 Stadler submitted that the 
Commitments  should ensure  that ‘Bombardier Rolling Stock ’ would not be 
interpreted in a restrict ive sense and it should include all rolling stock that 
Bombardier supplied in a conso rtium and for which the knowledge and 
documentation is now acquired by Alstom.1026 Siemens submitted that Alstom would 
have to commit to carrying out all work -streams in retrofit projects that only the 
rolling stock OEM could carry out efficiently in practice .1027 
(1272)  Similarly, the majority  of respondents submitted that the time limits within which 
Alstom would provide quotation with regard to Interoperability Documentation or 
technical support for TCMS modifications were inadequate and not in line with the 
commercial practice in the sector.1028 Thales submitted that the standard tender 
response time is, in average, around sixty  days and that reasonable timing should not 
exceed half of the tender response time, otherwise t he Purchaser would not be able to 
integr ate this quotation in the very short bid timeframe. 1029 Siemens submitted that 
the relevant provision would give rise to several loopholes which could undermine 
the TCMS Commitments .1030 
(1273)  The majority of respondents to the market investigation submitted that the  provision 
regarding the completeness of a written request for quotation is proportionate and in 
line with the market practice.1031 Siemens however submitted that the requirements 
for a complete request would be excessive and unclear. The requirement of a 
detailed description of the planning for deliveries would leave room for 
interpretation and this could create a risk that Alstom would not provide any support 
in retrofit projects based on the excuse that a request would be incomplete.1032 NS 
confirmed  that a maximum reaction time of forty working days is too long.1033 
(1274)  The slight majority  of the respondents to the market investigation submitted that the 
provisions regarding the modalities to provi de reasonable technical support / 
consultation with regard to  TCMS modifications and homologation we re not in line 
with the market practice.1034 Stadler submitted that many TCMS adaptations 
excluded from the  commitment were, in fact,  standard in retrofit project s, such as, 
                                                 
1023 Q15, replies to question 23.  
1024 Thales’ response to Q15, question 23.1.  
1025 SBB’s response to Q15, question 23.1.  
1026 Stadler’s response to Q15, question 23.1.  
1027 Siemens’ response to Q15, question 23.1.  
1028 Q15, replies to question 24.  
1029 Thales’ response to Q15, question 24.1.  
1030 Siemens’ response to Q15, question 24.1.  
1031 Q15, replies to question 25.  
1032 Siemens’ response to Q15, question 25.1.  
1033 NSReizigers’ response to Q15, question 25.1.  
1034 Q15, replies to question 26.  
 
 
264 e.g., update s of the TCMS hardware needed for obsolescence reasons or because the 
old hardware is not able to perform the new tasks.1035 
(1275)  Finally, the majority of the respondents to the market investigation submitted that a 
twelve year duration would not be sufficient, in particular in view of the 2050 ti me 
limit in the EU ERTMS implementation plan.1036 SBB submitted that a general roll -
out of ETCS in Europe would  not be finished within twelve years and therefore a 
twelve year duration would be too short.1037 Stadler noted, however, that the next 
twelve  years sh ould be sufficient to cover significant parts of the market and gain 
knowledge about the old rolling stock.1038 Similarly, Network Rail submitted that the 
UK Long -Term Deployment Plan for ETCS suggests that the last retrofit activity in 
the country would occu r in 2033  and therefore considered that a twelve years  
duration would likely be sufficient based on the current plan.1039 
(C) The Netherlands Legacy OBU Commitments  
(1276)  Respondents concerned by the Netherlands Lega cy OBU Commitments did not 
dismiss  in principle the a dequacy of this remedy to address the competition 
concerns, but were concerned about the remedy’s duration and lack of clarity, in 
particular regarding the commercial conditions of the ‘Dutch Framework 
Agreement ’ to be signed between Alstom and ProRail.1040 NS submitted that the 
supply o f the Alstom ’s class B ATB -NG and /or related interface information should 
also be provided .1041 
(1277)  The majority of the relevant respondents submitted that the 12 -year duration of the 
Commitments is inadequate. They suggest a durati on more in line with the 
timeframe for the ERTMS roll -out in the Netherl ands, namely at least 20 years.1042 
(1278)  As for the Dutch Framework Agreement , ProRail in particular agreed in principle 
with the main conditions of the agreement outlined in annex B to the OB U 
Commitments but suggested  a series of amendments  on various provisions, from the 
Commitment’s duration to the applicable national law,  that it  consider ed essential to 
render the agreement acceptable.1043 
(D) Common provisions  
(1279)  Almost  half of the respondents to t he market investigation submitted that the 
provision regarding the obligations by the Purchaser to provide Alstom with all 
required information to undertake the required work and to provide the necessary 
and accurate information were  not clear, adequate or in line with the commercial 
practice in the sector.1044 Stadler submitted that the duty to first describe all the 
                                                 
1035 Thales’ response to Q15, question 26.1. See also NS’ response to Q15, question 26.1.  
1036 Q15, replies to question 27.  
1037 SBB’s response to Q15, question 27.1.  
1038 Stadler’s response to Q15, question 27.1.  
1039 Network Rail’s response to Q15, question 27.1.  
1040 Q15, replies to question s 28, 28.1 and 34.2 . 
1041 NS’ response to Q15, question 2 8.1. 
1042 Q15, replies to question s 29 and 29.1 . 
1043 ProRail’s submission of 21 July 2020 . 
1044 Q15, replies to question 30. 
 
 
265 ETCS specifications and interfaces, as required in the written request, is not 
proportionate. The process should be the opposite, with Alstom pr oviding the 
necessary specifications of the relevant interfaces and the potential purchaser 
responding . Moreover, Alstom should  commit to providing a TCMS adaptation that 
creates a standard interface for the TCMS according to the relevant UNISIG 
standards,  to which then a third party ETCS OBU could connect.1045 
(1280)  The vast majority of the respondents to the market investigation submitted that the 
provisions regarding the Commitments Relationship Manager were adequate to 
facilitate dealing with requests related to  the OBU Commitments. Some respondents 
asked for more clarity on the position and role of this manager.1046 
(1281)  Similarly, the vast majority of the respondents to the market investigation submitted 
that the provisions of the Commitments regarding the monitoring t rustee and the fast 
track dispute resolution were sufficient to ensure the proper functioning of and 
compliance with the Commitments.1047 Thales submitted that the monitoring t rustee 
should have some technical background.1048 Siemens submitted that due to the 
critical importance of timing during the bidding procedure and the complex technical 
nature of potential disputes regarding price and implementation, the Commission 
should also appoint an expert to assist the monitoring t rustee and to ensure a swift 
resolution of disputes.1049 
(E) Conclusion  
(1282)  Overall, the majority of the respondents to the market investigation did not consider  
the OBU  Commitments , as drafted,  suitable to effectively remove the Commission's 
serious doubts resulting  from the Transaction in t he market for ETCS OBUs projects 
in the EEA  and the market for legacy OBUs in the Netherlands , mainly because of 
their insufficient duration  and scope , and lack of clarity. 1050 
11.3.3.  The Final Commitments  
11.3.3.1.  The Very High -Speed Commitments  
(1283)  The final version of the Very High -Speed Commitments  entails several substantial 
improvements by including provisions related to the HS2 issues raised  by the 
respondents to the market test.  
(1284)  Under the final version of the proposed remedies , the commitments in relation to the 
HS2 Project1051 and the supply of very high -speed rolling stock in the UK co nsist of 
the following.  
                                                 
1045 Stadler ’s response to Q15, question 30.1. 
1046 Q15, replies to question s 31 and 31.1 . 
1047 Q15, replies to question s 32, 32.1, 33 and 33.1 . 
1048 Thales’  response to Q15, question 32.1. 
1049 Siemens’ response to Q15, question 32.1.  
1050 Q15, replies to question  34.1 and 34.1.1 . 
1051 The HS2 Project refers to Bombardier’s scope of and interest in its ongoing joint bid (in partnership with 
submission by Bombardier and Hitachi) pursuant to a consortium agreement dated June 5, 2019 in respect 
of the ongoing tender procedure by HS2 for the HS2 tender, and any related IP rights, know -how, 
documentation, personnel, and other tangible  design and intangible assets. Should HS2 award the tender 
 
 
 
266 (1285)  First, in order to ensure  the continuity of the competitive process of the HS2 tender, 
if the Transaction is completed before the tender is awarded, the Notifying Party 
offers to put in place a mechanism whereby [Confidential details of the objective 
bid-selection mechanism that A lstom commits to put in place if the Transaction 
closes before the HS2 tender is awarded ].  
(1286)  Second, the Very High -Speed Commitments  also contain [Confidential information 
on Alstom’s commitments vis -a-vis Hitachi and HS2 that apply in the event that the 
Bombardier/Hitachi consortium wins the tender ]. 
(1287)  Third , if Bombardier /Hitachi  consortium wins the HS2 tender,  the Notifying Party 
offers, at the Purchaser’s option, to grant a [Confidential information on the 
licensing of Bombardier HS2 Project IP and Documen tation and Transfer of 
Technology in the event that the Bombardier/Hitachi consortium wins the HS2 
tender ]-wide license covering all IP rights and documentation relating to 
Bombardier’s scope for the HS2 Project for use in future very high -speed projects, to 
the extent such IP rights and documentation are not covered by the Very High -Speed 
Commitments . This option could be exercised [Confidential details on the three 
alternative periods/dates when Hitachi can exercise the option for the Licence of 
Bombardie r HS2 Project IP and Documentation and Transfer of Technology ] 1052. If 
the option is exercised under (i) or (ii), i t also offers to provide engineering support 
(e.g., through training, secondments, etc.) in respect of Bombardier’s scope of the 
HS2 Project fo r up to […] years following the delivery of the first train to HS2  and 
on commercially reasonable terms.  
(1288)  Finally, o ther provisions in the Very High -Speed Commitments  remained mainly 
unchanged , with the exception of the Transitional Arrangements which include 
Bombardier’s explicit engagement to continue to carry out all ongoing homologation 
activities for Existing Projects and all requested homologation for ongoing and 
future  projects1053 until su ch projects have been completed .  
11.3.3.2.  The Mainline R olling Stock  Commitments  
(1289)  The Final Commitments consist of a revised version of the Initial Commitments. The 
Final Commitments represent a series of amendments and improvements which 
address the issues raised in the market test regarding the competitiveness and 
                                                                                                                                                      
to manufacture of 54 very high -speed trains for operation on the UK’s new very high -speed rail network 
between London, Birmingham and Northern England, together with the maintenance of that fleet for a 
minimum period of 12 years; and in any manufacturing, supply, or other agreements that may be entered 
into direc tly as a result of the Bombardier/Hitachi co nsortium (or, if awarded after bid being selecting as 
the winning bidder by HS2 (including any options, call -offs or repeat orders to the extent provided for in 
agreements for the initial order of up to 54 very h igh-speed trains) (the “HS2 Project”).  
1052 If the option is exercised at this stage, the closing of the licensing agreement (i.e., making the relevant IP 
available to the Purchaser) will be conditional upon the delivery of the first train to HS2.  
1053 Transitio nal Arrangements will be provided for (i) the exercise of options, calls offs or any follow -on 
orders if the request to supply is issued by Trenitalia or ILSA within […] years of the c losing  of the 
Transaction ; (ii) future very high -speed orders for which Trenitalia (or any consortium in which Trenitalia 
will be the operator) issues a call for tender within […] years of  the c losing  of the Transaction , and (iii) 
any new very high -speed tenders for which the Purchaser has submitted a complete technical and 
commercial bid (with any customer other than Trenitalia or ILSA) based on the Zefiro V300 Platform 
within […] years of the c losing  of the Transaction.  
 
 
267 viability of the Coradia Polyvalent Divestment and Talent 3 Divestment as described 
in the Initial Commitments.  
(1290)  In order to ensure that the Purchaser will be able to run a viable business  post-
Transaction, the Notifying Party amended the Initial Commitments and in cluded the 
following conditions . 
(1291)  First, t he Final Commitments provide c larifications  on th e scope  of the IP rights and 
documentation, sub -systems, components and explanation  on the profile of the 
personnel  to be transferred . They also specify that all homologation documentation 
for the two platforms  at train - and subsystem - level  form part of the Commitments.  
The Final Commitments will ensure that the  combination of (i) the Coradia 
Polyvalent Platform Divestment and the Reichshoffen Plant Divestment  and (ii) the 
Talent 3 platform and the Henningdorf Carve -Out Area  will allow the P urchaser to 
effectively manufacture, test, and homologate the platforms  (and are not limited only 
to final assembly ). 
(1292)  Furthermore, the Final Commitments include engineering facilities and assets, 
(including the necessary computer sys tems used in the develo pment and 
maintenance),  documentation, and personnel.  
(1293)  Second, w ith regard to the assets needed to carry out an upgrade to speed above 160 
km/h for the Coradia Polyvalent and the Talent 3 platforms, the Final Commitments 
have been significantly improved.   
(1294)  For the Coradia Polyvalent Divestment, all designs for the  upgrade , including related 
documentation, drawing and calculations  for the [Information on Alstom’s R&D 
activities ]1054 will be transferred to the Purchaser . The Final Commitments specify 
that the Cora dia Polyvalent Plant Divestment and the Reichshoffen Plant Divestment 
include the necessary assets and engineering know -how to autonomously upgrade 
such components and subsystems or procure the necessary upgraded components 
and subsystems from third -party suppliers . At the option of the Purchaser, Alstom 
offers to enter into supply agreements for components and subsystems designed by 
Alstom  for the [Information on Alstom’s R&D activities ] and to provide engineering 
support for components and subsy stems that  fall outside the current competencies of 
the Reichshoffen Plant Divestment . In addition, at the option of the Purchaser, the 
Final Commitments include warranty services for the [Information on Alstom’s R&D 
activities ]. 
(1295)  For the Talent 3 Divestment, the Fin al Commitments include similar provisions, 
except for the design of an upgrade to operate at speed above 160 km/h (and 
components and subsystem  accordingly ) because such an upgrade has not been 
foreseen for the Talent 3 platform.   
(1296)  Third, t he Final Commitme nts state that if SNCF [Confidential considerations for 
alternative energy ].  
(1297)  Fourth, i n relation to the concerns raised in the market test that the transfer of the 
existing customer backlog and third party supply agreements require customers’ and 
                                                 
1054 The preliminary design of the 200 km/h ver sion of the Coradia Polyvalent is called the [Information on 
Alstom’s R&D activities ]. 
 
 
268 supplier s’ consent, the Final Commitments include the following improvements: (i) 
if component agreements cannot be transferred to the Purchaser , the Parties  will 
supply components at cost ,1055 and (ii) [Confidential information on contract 
transfer ] . 
(1298)  Fifth , at the option of the Purchaser, the Parties commit  to enter into supply  
agreements for components and sub-systems not divested (because they are not 
specific to the Coradia and Talent 3 platforms) . Such supply agreements  will be for 
the duration of the un derlying agreements with customers  (transferred as part of the 
existing backlog) . For new tenders  awarded within five years of the date of the 
Transaction, the merged entity will enter into supply agreements for a duration of 
three years from initial purch ase under  the relevant supply agreement.  The supplies 
will be at cost . The Monitoring Trustee will oversee the terms and conditions of the 
supply agreements and their implementation.  
(1299)  Sixth, t he Talent 3 Divestment, as amended in the Final Commitments, provides at 
the option of the Purchaser testing services together with the possibility to access the 
track infr astructure for the next […] at Bombardier’s internal p roject cost . 
Furthermore, as indicated by the results of the market test, t he Purchaser will have 
the right at any point in time to move trains through the retained Bombardier area  at 
Henningsdorf  to reach the testing facilities and the public infrastructur e. The 
transition period during which Bombardier commits to act as a sub -contractor to the 
Purchaser has been extended from […]. The terms and conditions include (i) 
compliance with the delivery schedules agreed with the customers and (ii) 
commercial terms with Bombardier offering the services at zero margin.  
(1300)  Seventh, w ith regard to Purchaser cri teria, the Final Commitments include the 
condition that the suitable buyer for the divested rolling stock  assets will be 
determined in light of its ‘proven expertise will be assessed in light of experience 
and track record as a supplier of rolling stock in  the EEA, as evidenced, inter alia, 
by prior sales and references ’. 
11.3.3.3.  The OBU Commitments  
(1301)  The revised OBU Commitments present a series of amendments and improvements  
to address the issues raised by market participants in the market test regarding the 
Initial  Commitments.  
(1302)  First, i n order to limit Alstom’s discretion and reduce uncertainty, all services and 
products offered under  the OBU Commitments (other than the provision of 
documentation for which fixed fees are provided) will be priced on a cost -plus basis . 
(1303)  Second, t he definitions contained in the OBU Commitments have  been clarified in 
order to limit issues of interpretation. In particular:  
(a) The definition of Class B standalone on -board equipment is amended to 
include all systems in use in the EEA other than  ETCS (and  not only those 
pre-dating ETCS ); 
                                                 
1055 The Notifying Party commits to support the Purchaser in the negotiations with third parties . 
 
 
269 (b) the definition of Purchaser is amended in order to include not only ETCS 
OBU suppliers but also other suppliers responsible for the execution of an 
ETCS OBU project, such as vehicle manufacturers or vehicle integ rators;  
(c) the definition of Interoperability Documentation is amended in order to 
include all existing documentation necessary to interface a Purchaser’s ETCS 
system with Bombardier’s TCMS. Homologation certificates and safety case 
are expressly included;  
(d) the definition of Interface Documentation is detailed with a non -exhaustive 
list of documents that would be made available.  
(1304)  The following sections examine more specifically  the amendments to each of the 
three sets of commitments included in the OBU Commitm ents. 
(A) The STM and Class B OBUs  Commitments  
(1305)  The geographic scope is extended to […]. The duration is extended to […]. 
(1306)  The provisions on obsolescence are substantially reduced: where redesign of an STM 
would be required or in case of renewal due to absence of regular purchase orders, 
Alstom will offer to conduct such redesign provided that it is compensated by the 
infrastr ucture manager of the relevant country or countries (consistently with their 
legal obligation under EU law) or by a Purchaser on an amortized basis.  
(1307)  Special provisions are included for Portugal and Finland, [Information on 
Bombardier’s production / process  secrets ]. In particular for Portugal , Alstom will 
commit to provide available Interface Documentation to ensure that other suppliers 
are placed on a comparable footing if the Portuguese infrastructure manager were to 
issue an open tender for a new legacy OBU solution. Pricing for such documentation 
will be approved by the monitoring t rustee and the Commission.  
(1308)  The exclusion of STMs that are integrated with an ETCS OBU is maintained, but 
limited to those existing at the closing date , in order to avoid circu mvention . 
(1309)  The terms for Alstom to reply to request s for quotations are generally shortened , 
with some exceptions as to protect Alstom from unreasonable requests . It is further 
provided that in case of an incomplete request, Alstom will nevertheless provide  an 
initial quotation, to be then confirmed or amended once the request is completed.  
(1310)  Liquidated damages for late delivery are still limited, but s pecific performance 
(‘exécution forcée ’) will be available in case of non -performance  by either party of 
its obligations.  Liquidated damages, other than for late delivery, will be agreed in 
line with  standard market practice.  
(1311)  The possibility for Alstom to cease the production of STMs / Class Bs is maintained 
but a general provision on non -circumvention is include d, in accordance to which 
Alstom undertakes not to circumvent the Commitments by deliberately ceasing 
production of Bombardier STMs or Class B’s covered by these Commitments 
without offering an alternative.  
 
 
270 (B) The TCMS Commitments  
(1312)  The geographic scope is exte nded to […]. It is further clarified that the 
Commitments will apply also to rolling stock supplied in consortium where 
Bombardier supplied the TCMS for the relevant train s. 
(1313)  The TCMS Commitments will be applicable to TCMS supplied by third parties, in 
case the supply of TCMS by the third party was done upon request by Bombardier 
and within the overall responsibility of the vehicle or if the property rights are within 
Bombardier.  
(1314)  It is clarified that the offer will include sufficient rights to allow the Purc haser to use 
the documents and information for bid preparation and project execution including 
the right to disclose th ese information and documents to external partners on a need -
to-know basis for the purpose of prepar ing a bid and execut ing the project.  
(1315)  The deadlines  for Alstom to reply to request s for quotations are generally shortened. 
A specific procedure is envisaged for particular, non -standard TCMS modification 
requests.  
(C) The Netherlands Legacy OBU Commitments  
(1316)  The duration of the remedy is extended t o […] including the possibility for ProRail 
to further extend the Dutch Framework Agreement  by […] on the same terms at the 
end of the Netherlands Legacy OBU Commitments . 
(1317)  The Dutch Framework Agreement will allow for rolling stock suppliers and/or 
ETCS OBU suppliers authorized by ProRail (‘the Authorised Third Parties ’) to place 
orders for Alstom’s ATB -EG Class B at the same pricing and on the same terms as 
agreed with ProRail . 
(1318)  Under the Dutch Framework Agreement, Alstom will provide Authorized Third 
Parties  with Interface Documentation for Alstom’s ATB -EG Class B for a fixed fee 
of EUR […] per cab, adjusted on a yearly basis , as approved by the Monitoring 
Trustee.  
(1319)  Under the Dutch Framework Agreement, pricing will be agreed between Alstom and 
ProRail , taking as a starting point current existing benchmark pricing for Alstom’s 
ATB -EG Class B sales on a product basis and open book principles and will be 
adjusted on a yearly basis following the revision formula applicable to the supply of 
STMs and Class B OBUs set  out in annex A of the OBU Commitments. Authorized 
Third Parties will be entitled to order Alstom’s ATB -EG Class B on the basis of the 
pricing agreed with ProRail  and otherwise subject to the principal terms of the Dutch 
Framework Agreement.  
(1320)  The same pricing terms, as set out in annex A to th e OBU Commitments,  regarding 
redesign of STMs due to a major obsolescence shall also apply to the Dutch 
Framework Agreement . 
(1321)  If redesign of the ATB -EG would be required due to major o bsolescence or need to 
renew the industrial file due to absence of regular purchase orders leading to no 
manufacturing hav ing taken place for […], Alstom will offer ProRail , on 
substantially the same terms as those set out in annex A to the OBU  Commitments, 
 
 
271 at Alstom’s sole discretion , either  to develop a standalone ATB -EG STM or to 
redesign Bombardier’s ATB -EG STM.  
(1322)  The Dutch Framework Agreement will be governed by Dutch  law, as will any 
disputes arising out of or in connection with the Dutch Framework Agreement. It 
will be subject to the fast track dispute resolution procedure  applicable to all OBU 
Commitments  and the agreements implementing them (described in annexes E and F 
of the OBU Commitments) . 
(D) Common provisions to the OBU  Commitments  
(1323)  A fast track expert dispute resolution mechan ism is added, in accordance to which 
the monitoring t rustee will appoint potential experts, with qualified experience in the 
sector, which will adjudicate disputes related to the OBU  Commitments with a fast 
procedure.  
(1324)  Moreover, the monitoring t rustee will have the possibility to review at any moment 
the principal terms of supply outlined in the OBU  Commitments to verify in 
particular whether (i) fixed prices for documentation are reasonable justified and in 
line with market practice in the industry, (ii) ot her prices are based on the actually 
incurred costs for the provision of the requested services/products and (iii) net 
margins are calculated in line with market practice in the industry.  
11.4. The Commission’s assessment  
11.4.1.  Assessment of the Final Commitments  
(1325)  The Commission considers that the Final Commitments are sufficient to remove the 
serious doubts regarding the compatibility of the Transaction with the internal 
market outlined in section s 6.2, 6.3, 8.2.2 and 8.3.1.2 . 
11.4.1.1.  The Very High -Speed Commitments  
(A) Suitable P urchaser  
(1326)  As a preliminary condition, the Commission considers that Hitachi is the only 
suitable remedy -taker for the Very High -Speed Commitments .  
(1327)  The Very High -Speed Commitments  aims at making  a credible competitive 
alternative to the merged entity in the market for very high -speed rolling stock, on 
the basis of the divestiture of Bombardier’s scope of work and assets related to the 
very high -speed platform Zefiro V300.  
(1328)  In that regard, Hitachi  is the only remedy taker that would allow to set up a credible 
standalone competitor on the basis of the Zefiro V300 and create satisfactory 
competitive conditions in the market for very high -speed rolling stock  for the 
following reasons .  
(1329)  First, as expre ssed by some respondents to the market test, Hitachi is the only 
supplier who has the technical and commercial knowledge of the Zefiro V300 
platform.  
 
 
272 (1330)  Hitachi is Bombardier’s partner in the development and manufacture of the Zefiro 
V300 platform at the out set. Bombardier and Hitachi’s consortium has been 
established in the context of the 2010 Trenitalia tender. More recently, t hey also 
jointly participated in the 2018 ILSA/Trenitalia project . As explained above in this 
decision, Hitachi’s contribution relat ed to the 2010 Trenitalia project and the 2018 
ILSA project  accounts for c. […]% of the scope of the platform, and c. […]% of the 
context of the ongoing HS2 tender.1056 In addition, Hitachi and Bombardier 
presented a common bid in the ongoing HS2 tender, with  a revised version of the 
platform. Therefore, Hitachi is the leading partner in the consortium with 
Bombardier, and its contribution includes fundamental aspects of the platform 
supply such as the customer relationship, the final assembly, the  delivery, a nd the 
contract and project management. As a consequence , considering Hitachi’s 
involvement in the Zefiro V3 00 and its revised version presented in the HS2 tender , 
no other supplier but Hitachi has a comparable knowledge and know -how of the 
development, pr oduction and commercialisation processes of the platform.  
(1331)  Following Hitachi’s knowledge of the platform , the Commission further considers 
that making Hitachi as remedy taker of the Very High -Speed Commitments  would 
allow a more efficient and prompt implem entation of the remedy.  
(1332)  Second , the Commission considers that Hitachi is the supplier with the strong est 
incentives to further develop and operate the Zefiro V300 platform  and its revised 
version in the UK .  
(1333)  The Zefiro V300 is the only very high -speed platform currently operated by Hitachi  
in the EEA. Based on Hitachi’s contribution in the technical development and the 
manufacture of the platform, the company spent considerable investments in the 
platform  for the past 10 years. The Commission notes that  Hitachi’s investments in 
the platform should not decrease in a foreseeable future. The Zefiro V300  holds a 
very strong track -record in the EEA , representing a  [20-30]% market share in the 
past 10 years . Furthermore, the ILSA project , where ILSA’ sharehold er Trenitalia 
selected the Zefiro V300 as its operating platform in Spain , further  demonstrates that 
the Zefiro V300 remains a highly competitive platform and a commercial ly attractive 
supply alternative, especially in the context of liberalized very high -seep markets in 
the EEA . Thus , for instance, the platform is key to  Trenitalia’s development strategy 
in Europe . In addition, the Hitachi/Bombard ier’s bid in the ongoing  HS2 tender 
show s that Hitachi intends to continue investing in the platform.   
(1334)  Third, the Commission notes that Hitachi is the unique supplier with whom 
Bombardier and the Notifying Party had contacts in relation to the Very High -Speed 
Commitments . In that regard, the Commission notes that Hitachi has expressed its 
interest in being the rem edy taker and that the discussion between the Parties and 
Hitachi are well advanced. [Confidential details on ongoing sale negotiations 
between the Parties and Hitachi ].  
(1335)  It follows from the above that the Commission considers that Hitachi is the only 
suitable remedy taker with respect to the Very High -Speed Commitments . The 
proposed remedies  would allow Hitachi to become a credible bidder and supplier of 
very high -speed ro lling on a  standalone basis, concerning the ongoing as well as 
                                                 
1056 Including rolling stock and maintenance.  
 
 
273 future projects. It would also ensure business and development continuity for 
Trenitalia.  
(1336)  As a result , the Commission considers that the proposed remedies  allow to dismiss 
the competitive conc erns identified in the market for very high -speed rolling stock at 
EEA and worldwide level  if Hitachi is selected as Purchaser .  
(B) The restoration of competitive conditions  
(1337)  The Commission considers that the Very High -Speed Commitments  will allow to set 
up sufficient  competitive conditions in the market for very high -speed in the EEA 
(including Switzerland) and at global level.  
(1338)  The implementation of the  Very High -Speed Commitments  would remove the 
overlap between the Parties activities in very high -speed roll ing stock , both at EEA 
(including Switzerland) and worldwide level. By providing Hitachi  with the 
necessary assets and rights in relation to Bombardier’s scope of work for the Zefiro 
V300 platform, the proposed remedies  will ensure Hitachi’s ability to com pete on a 
standalone basis with a platform representing [20-30]% of the market at EEA level 
(including Switzerland) and [10-20]% at global level  (outside Japan, China and 
South Korea) . Hitachi will thus become the second most important supplier in the 
mark et for very high -speed rolling stock , behind the merger entity , whose market 
share will remain the same as Alstom’s market share prior to the Transaction.   
(1339)  With respect to its technical scope  of the proposed remedies , the Commission 
considers that the fin al version of the Very High -Speed Commitments  will allow 
Hitachi  to obtain the necessary assets, IP rights and documentation to become a 
standalone supplier for ver y high-speed rolling stock on a perpetual basis. It also 
address the issues raised by market  participants during the market test.   
(1340)  In that regard, the Commission notes that the Very High -Speed Commitments  
include s necessary assets to allow Hitachi to operate on a standalone and perpetual 
basis in the market for very high-speed rolling stock.  
(1341)  The final version of the proposed remedies  indeed include s the transfer  of all Zefiro 
V300 -specific IP rights and documentation relating to Bombardier’s scope for the 
Existing Projects  and grants  access to non -Zefiro V300 -specific IP and 
documentation , throug h a non-exclusive, irrevocable, and perpetual license . It also 
include s the transfer, at the option of the Purchaser and subject to any applicable 
consent rights of such suppliers, of  the supply agreements with external suppliers for 
main components or ser vices for Bombardier’s scope of the Zefiro V300 .  
(1342)  In addition, the Very High -Speed Commitments  ensure the economic viability of the 
Zefiro V300 platform, by transfer ring Bombardier’s interest in  any contracts, 
options, call -offs or follow -on orders (includ ing orders not yet exercised) with 
existing customers, i.e., Trenitalia and ILSA.1057  
                                                 
1057 In that regard, the Notifying Party notes that, as indicated in the Form RM, confirmed ex isting order 
backlogs in relation to the Bombardier’s scope for the Trenitalia project amount to more than EUR […] 
for rolling stock delivery and almost EUR […] for maintenance services. It is also expected that the 
consortium Hitachi/Bombardier will be aw arded with the ILSA project for the supply of 23 Zefiro V300 
 
 
 
274 (1343)  The final version of the proposed remedies  also allows  the Purchaser to obtain 
operational assets which may be important for a suitable manufacture and operation 
of the Zefiro V300 platform.  
(1344)  The Notifying Party offers, a t the Purchaser’s option, the sale or lease of Vado 
Ligure facility, including engineering, production, and aftermarket servic es 
capabilities. In that regard, the Commission considers that , contrary to the claims of 
certain market participants,  there is no ground for dismissing the suitability of the 
Vado Ligure plant. The Notitfying Party offers to take charge of significant cha nges 
in the current site in order to allow the assembly of the Zefiro V300 bogies and 
wheelsets and the testing of very high -speed rolling stock. In addition, the 
Commission notes that some respondents consider that the sale or lease of the Vado 
Ligure sit e may not be necessary, depending on the Purchaser’s current industrial 
footprint and capacities.  
(1345)  The Notifying Party  also offers to transfer other assets, including employees, the 
Zefiro brand (subject to a license back for the Zefiro Express), its curren t stock of 
components and spare parts and a non -exclusive license for its train maintenance 
diagnostic software tools limited to V300 Zefiro applications.  
(1346)  With respect to the implementation of the Very High -Speed Commitments , the 
Notifying Party offers to put in place Transitional A rrangements,  whereby the 
merged entity will be entitled to perform its current supply obligations for all 
Existing Projects  in order to ensure a seamless transition  until Hitachi becomes  a full 
standalone supplier . The Transitio nal Arrangements [Confidential details on the 
specific services covered by and the duration of such trans itional arrangements ]. In 
addition, the Notifying Party provided in the final version of the remedy further 
clarity on the homologation process. The Very High -Speed Commitments  now 
explicitly state  that the Notifying Party will continue to carry out all ongoing 
homologation activities for Existing Projects and all requested homologation for 
future projects  occurring during the transitional period.  
(1347)  In addition, the Transitional Arrangements will also apply for future projects and 
orders as they will include  (i) any options, calls offs or any follow -on orders if the 
request to supply is issue d by Trenitalia or ILSA within […]  years of the c losing  of 
the divestment ; (ii) future very high speed orders for which Trenitalia (or any 
consortium with Trenitalia) issues a call for tender within […] years of the c losing  of 
the divestment , and (iii) any new very high speed tenders for which the Purchaser 
has submitted a complete technical and commercial bid (with any customer other 
than Trenitalia or ILSA) based on the Zefiro V300 Platform within […] years of the 
closing of the divestment to . The Commission considers that the duration of these 
provision , which have been agreed between the Parties and Hitachi  in the MoU,  are 
sufficient to allow Hitachi to get the necessary knowledge related to the transferred 
and licenced asse ts, IP rights and documentation.  
                                                                                                                                                      
platforms and a […] year maintenance contract, for a total value in relation to the Bombardier’s scope of 
almost  EUR […] (EUR […] for the rolling stock delivery and €[…] for the maintenance cont ract). 
Furthermore, the Notifying Party indicates that a delivery of […] Zefiro V300 platforms valued at EUR 
[…] in relation to Bombardier’s scope and an expected […] year contract maintenance contract valued at 
EUR […] in relation to Bombardier’s scope is  currently under negotiation between Bombardier, Hitachi 
and Trenitalia.  
 
 
275 (1348)  Furthermore,  the final version  of the proposed remedies  provide s commitments with 
respect to the HS2 Project . 
(1349)  As explained at paragraph  (1231) , the Commission notes that Hitachi, the CMA and 
ORR submitted in the course of the market test that the initial remedy failed to 
preserve the competitive condition of the ongoing HS2 tender. T hey consider that 
the most appropriate remedy in the context of the HS2 tender would be the 
divestiture of Bombardier’s contribution in the platform to develop in partnership 
with Hitachi, should the consortium Hitachi/Bombardier win the tender.  
(1350)  However, the Commission considers that the divestiture of all Bombardier’s IP 
rights and documentation related to the very high -speed platform presented by the 
consortium Hitachi/Bombardier in the HS2 tender is not a viable and appropriate 
remedy  as it is for the T renitalia and the ILSA projects.  
(1351)  Indeed, the Trenitalia project relies  on a version of the Zefiro V300 platform already 
developed and in operation  in Italy .1058 To the contrary, the  technicalities of the 
platform presented by the consortium in the context of  the HS2 tender differs  
significantly and its related assets, IP rights and documentation do not fully  exist yet. 
As a consequence, a potential divestiture of Bombardier’s contribution to the benefit 
of Hitachi would necessarily entail s very limited assets , making Hitachi’s ability to 
develop the platform on a standalone basis unlikely.  
(1352)  In addition, a divestiture of Bombardier’s scope of work [Confidential details on the 
nature of the commitments in res pect of the HS2 tender ]. The Commission considers 
that, given their respective time frame, the Transaction will most likely be closed 
before the HS2 tender is awarded, meaning that the remedy will have to be 
implemented prior to the final result of the HS2 tender. In that context , [Confidential 
details on th e nature o f the commitments in res pect of the HS2 tender ].  
(1353)  Therefore , the  final version of the  Very High -Speed  Commitment ensur es the 
continuity of the most poss ible competitive process in the ongoing  HS2 tender  and 
provides guarantees concerning Alstom’s  contribution  in the supply of the platform 
to HS2  in the event that  the Bombardier /Hitachi  consortium wins the tender . It also 
intends to allow Hitachi to become a standalone supplier of very high -speed rolling 
stock in the UK after the HS2 tender in a fo reseeable future. In that regard, the final 
version of the Very High -Speed Commitments addresses  the issues raised by market 
participants in relation to the ongoing HS2 Project .  
(1354)  First, if the Transaction closes before the merger is awarded, [Confidential details of 
the objective bid -selection mechanism that Alstom commits to put in place if the 
Transaction closes before the HS2 tender is awarded ].  
(1355)  Second, the final version of the remedy contains [Confidential information on 
Alstom’s commitments vis -a-vis Hitachi and HS2 that apply in the event that the 
Bombardier/Hitachi consortium wins the tender ].  
(1356)  Third, the Notifying Party’s proposal to grant a [Confidential information on the 
licensing of Bombardier HS2 Project IP and Documentation and Transfer of 
Technology in the event that the Bombardier/Hitachi consortium wins the HS2 
                                                 
1058 The platform that will be operated by ILSA is close to the one currently operated by Trenitalia in Italy.  
 
 
276 tender ]-wide license covering all IP rights and documentation relating to 
Bombardier’s scope in the HS2 Project for the use of future very high -speed projects 
appears adequate and pro portionate. It will ensure Hitachi’s ability to bid on a 
standalone and perpetual basis  in future tenders issued by HS2 or other very high -
speed customers in the UK . In addition, the Commission considers that t he non -
exclusive n ature of the license is appropriate , since it will ensure Alstom’s incentives 
to actively invest in the IP rights and related documentation, as the merged entity 
will be able to use these IP -rights for other rolling stock platforms of its portfolio. 
Furthermore, the licence can be ac tivated upon publication of a request for 
qualification for a new very high -speed rolling stock tender in the UK, which will 
allow Hitachi a submit a bid with the guarantee to have access to the necessary IP 
rights and documentation relating to Bombardier’ s scope .  
(1357)  Finally, ORR highlighted that “ it is imperative that any commitments that the Parties 
make towards Hitachi would span all of Bombardier’s legacy obligations, and/or 
would enable Hitachi to compete both for future orders and maintenance 
competitio ns including encompassing all aspects of both IP and maintenance ”.1059 In 
respect of maintenance aspects of the HS2 Project, the Very High -Speed 
Commitments provide for the continued availability of production and maintenance 
facilities, resources, technology  and expertise of Bombardier Transportation UK 
Limited currently envisaged for use on the HS2 Project . Moreover, the HS2 project 
entails the construction of a new maintenance depot near Birmingham, to be owned 
by HS2. The winning bidder of the HS2 tender w ill operate the depot for the 
duration of the initial 12 -year maintenance contract.1060 At the end of such 12 -year 
maintenance contract, HS2 has the option to (i) extend the maintenance contract, or 
(ii) transfer maintenance activities, including access to th e depot, to a new provider 
(such as the train operator, or the winning bidder/rolling stock OEM of a subsequent 
phase of the HS2 project). Maintenance arrangements in all future tenders are 
expected to follow the same model whereby HS2 would own, and contr ol access to, 
the necessary maintenance depots.   
(1358)  In view of the above, the Commission considers that the Very High -Speed 
Commitment s are a viable remedy which will ensure competitive condition in the 
market for very high -speed rolling stock after the Trans action. The proposed 
remedies  include relevant and necessary assets and licences, which will allow 
Hitachi to become a standalone player in a foreseeable future  and able to compete 
with the merged entity.  
11.4.1.2.  The Mainline Rolling Stock Commitments  
(1359)  The Commission considers that the Final  Commitments match the geographic scope 
of the competitive concerns in the market for self -propelled mainline rolling stock , 
i.e., France and Germany.   
(1360)  In line with the  approach adopted in Bombardier/ADTranz , the Comm ission 
considers it appropriate to assess the impact of the Commitments also based on 
market shares excluding consortia. Such an analysis focuses only on the merger -
                                                 
1059 ORR email submission to the case team of 28 July 2020, point 3.  
1060See hs2inbi rmingham.commonplace.is/schemes/proposals/washwood -heath -depot/details . Further 
maintenance depots may be constructed during later phases, which would also be owned by HS2.  
 
 
277 specific overlaps in the Parties’ activi ties and provides an informative view on the 
reduct ion of the Parties’ market position in the markets where the Commission raises 
serious doubts as to the compatibility of the Transaction with the internal market.1061 
(1361)  If trains jointly sold by the Parties in consortia before the merger  are excluded, the 
Final  Commitments represent the complete  merger -specific  overlap in France. In 
Germany, while they do not cover the full overlap, the Final Commitments  lower the 
Parties’ market share to below 50%  in the overall market for self -propelled trains 
and in the marke t for regional trains .  
(1362)  The Commission notes that some respondents to the market test expressed the view 
that the Coradia Polyvalent and Talent 3 platforms and the proposed manufacturing 
sites in France and Germany are not sufficient or capable of addressi ng the 
competitive concerns raised by the Transaction. As regards the manufacturing sites, 
this is due to the lack of sufficient capacity or dependencies on other manufacturing 
sites of the Parties. These respondents also considered that the platforms offered are 
outdated and different platforms of the Parties would have been more suitable to 
restore competition and allow the Purchaser to compete with the merged entity post -
Transaction.  
(1363)  Pursuant to paragraph 85 of the Commission notice on remedies , “the Co mmission 
will review whether the commitments submitted by the parties are proportionate to 
the competition problem when assessing whether to attach them as conditions or 
obligations to its final decision ”. Therefore, when assessing the scope of the 
propose d Commitments, the Commission must observe the principle of 
proportionality and accept Commitments strictly necessary to restore competition in 
the markets concerned. In the present case, the Final Commitments fully remove the 
merger -specific overlap  in Fr ance. Similarly, in Germany, the Parties’ market shares 
are reduced to below 50% under all plausible segmentations. The Commission thus 
considers that the Final Commitments are proportionate to the competitive concerns 
identified in the market for self -propelled trains (and possible segmentations) and in 
France and Germany.  
(1364)  As regards the suitability of the Final Commitments, the Commission considers that 
the divestiture of manufacturing sites and platforms in France and Germany is 
suitable to address the c ompetitive concerns consisting in high barriers to entry in 
these countries . In particular, the Final Commitments include two manufacturing 
sites in the countries where the Commission has identified a strong correlation 
between local manufacturing presence  and the ability to win contracts. Furthermore, 
barriers to entry are also raised by the complex homologation process in Germany 
and France. The Final Commitments include two homologated platforms that have 
already been sold in these countries. The Coradia  Polyvalent platform has been sold 
to SNCF and the Hello Paris consortium and the Talent 3 platform to Abellio,  
Netinera, and SWEG in Germany, ÖBB  in Austria , and STA in Italy . The results of 
the market investigation confirmed that the Coradia Polyvalent platform is ready for 
sale in France and c ustomers perceive the Talent 3 platform as competitive and 
important in the market for regional trains in Germany.  
                                                 
1061 Commission decision in case M.2139 - Bombardier/ADTranz  (2001), recitals 44 and 5 0.  
 
 
278 (1365)  The Commission thus considers that the Final Commitments would enable a rolling 
stock supplier to e ffectively enter the market for self -propelled trains in France and 
Germany and to exercise a credible competitive constraint on the merged entity post -
Transaction.   
(1366)  As regards the viability of the Commitments and competitiveness of the business to 
be dive sted, the results of the market investigation indicated that the Initial 
Commitments did not include all assets and know -how to ensure that the Purchaser 
will be able to effectively manufacture, operate, maintain, and further develop the 
Coradia Polyvalent  and Talent 3 platforms , or did not provide sufficient information 
in that regard . 
(1367)  In the Commission’s assessment, the scope of the Final Commitments addresses the 
issues identified in the market test.  
(1368)  In terms of clarity, the Commission considers that th e Final Commitments include 
detailed information regarding the IP rights, documentation to be transferred to the 
Purchaser as well as the profile of the personnel at the Reichshoffen site and the 
Henningsdorf Carve -Out Area.  
(1369)  The Final Commitments ensure t hat the combination of (i) the  Coradia Polyvalent 
Platform Divestment and the Reichshoffen Plant Divestment  and (ii) the Talent 3 
platform and the Henningsdorf Carve -Out Area  will allow the Purchaser to 
effectively manufacture, test, and homologate the respective platforms for the 
following reasons.  
(1370)  First, the Commission notes that the Coradia Ployvalent platform is already being 
manufactured at the Reichshoffen plant, which includes the relevant personnel and 
assets.  For components and sub -systems exclude d from the scope of the Final 
Commitments, because they are not Coradia Polyvalent -specific or do not fall within 
the scope of the competencies of the Reichshoffen plant, the merged entity commits 
to enter into supply agreements , at the option of the Purch aser. Under the terms and 
conditions of the supply agreements , components and sub -systems will be supplied 
to the Purchaser at Alstom’s internal costs, which ensures that cost of manufacturing 
the Coradia Polyvalent platform will not increase a fter the Tra nsaction. Furthermore, 
the duration of the  supply agreements will match the duration of underlying 
agreements included in the existing backlog and will be sufficiently long for new 
tenders (during a period of […] after closing of the Transaction and for a period of 
[…] from the initial order under the awarded contract). This will ensure not only that 
the Purchaser will be able to comply with its contractual obligations for the existing 
backlog but also that it will be able to compete in future tenders.  
(1371)  Seco nd, the Commission considers that the existing assets at the Henningsdorf 
Carve -Out Area, together with the additional commitments during the transitional 
period , at the option of the Purchaser,  will enable the Purchaser to continue to supply 
the Talent 3 platform. In addition to supply agreements identical to those provided 
for the Coradia Polyvalent platform, Bombardier offers to act as sub -contractor 
under conditions ensuring the competitiveness and quality of the platform. In 
response to the results of the market investigation, the transitional period has been 
extended to 36 months and the period for the access to testing tracks ( […] years) is 
considered sufficiently long.  
 
 
279 (1372)  Third, w ith regard to the tr ansfer of the existing backlog and existing supply 
agreements  with third party suppliers , the Final Commitments include provisions in 
case third parties (customers and suppliers) do not grant their consent. These 
Commitments are considered sufficient to enable the Purchaser to fulfil its 
obligations under the  existing contracts for the supply of rolling stock. This in turn 
will ensure that the Purchaser’s entry in France and Germany will be effective and it 
will be able to establish an installed base.   
(1373)  Another important aspect of the Final Commitments is the m erged entity’s 
commitment i f [Confidential considerations for alternative energy ]. The 
Commission thus considers that the Final Remedies are designed to ensure that the 
Purchaser will successfully comply with its contractual obligations under the 
existing contract with SNCF.  
(1374)  Furthermore, the Commission considers that the assets to be transferred as part of the 
Final Commitments, including existing designs, engineering support and supply 
agreements, will enable the Purchaser to upgrade the Coradia Polyvalent and Talent 
3 platfo rms to carry out an upgrade of the Coradia Polyvalent and Talent 3 platform  
at speed above 160 km/h. As previously indicated , the Coradia Polyvalent and Talent 
3 platforms are currently operating as regional trains, but either already have a built -
in capac ity to run at intercity speeds (Coradia Polyvalent) or [Information on 
Bombardier’s production / process secrets ]. The upgrade facilitated by the Final 
Commitments will allow the Purchaser to compete in future tenders also for intercity 
trains (where the T ransaction does not lead to overlaps in France and Germany)  with 
the Parties’ and their competitors.  
(1375)  Finally, the Final Commitments impose strict Purchaser criteria which ensure that a 
suitable Purchaser is an established player with a track record of sup plying rolling 
stock in Europe . The Commission considers that this will ensure not only the 
viabilit y and competitiveness  of the Divestment Businesses but also  a timely entry in 
France and Germany that will effectively  constraint the merged entity post -
Transaction.   
(1376)  In view of the above, the Commission considers that the Final Commitments are 
sufficient to eliminate the serious doubts as to the compatibility of the Transaction 
with the internal market identified in the market  for self -propelled mainline tra ins 
(and possible segmentations )  in France and Germany.  
11.4.1.3.  The OBU  Commitments  
(A) The STMs and Class B OBUs Commitments  and the TCMS Commitments  
(1377)  The Commission notes that several  competitors expressly requested access to the 
merged entity ’s TCMS and/or legacy OBUs, in order to eliminate the risk of rivals’ 
foreclosure in the market for ETCS OBU projects:  
(a) Siemens  submitted that o ffering access to Bombardier’s proprietary interface 
would be to the benefit of train operators  as it would allow ETCS OBU 
 
 
280 providers to  compete on a level playing field for retrofitting projects, which 
results in competitive terms for ETCS OBUs and further components ;1062 
(b) Stadler  submitted that any remedy measure shall include access to the 
merged e ntity’s installed base of rolling stock  in Europe for any signalling 
retrofit in the foreseeable future:  the merged e ntity should give access to all 
relevant documentation and interface information required to conduct ETCS 
and Class B retrofit works . Stadler also submitted that i n the absence of a full 
disposal  of the signalling business , access to both ETCS OBU as well as 
Class B technology for dependent rail OEMs would be requested to allow a 
minimum level of competition.1063 
(1378)  The result s of the market investigation, summarized in previous section 11.3.2.3 , 
confirm ed that access to Bombardier’s STMs /Class Bs  and TCMS is considered  
critical  to ensure competition in the ECTS OBUs projects market in the EEA. 
Therefore, an access remedy  as the one proposed by the Notifying Party, if properly 
designed and implemented, appears able to address the competitive concerns  
emerged in the course of the investigation. In this respect, the Commission considers 
that the am endments and the improvements submitted by the Notifying Party 
following the result of the market test are able to address the main issues identified 
by the respondents  to the market investigation . 
(1379)  First of all, the geographic scope of application has been  extended to the UK and 
Switzerland, in line with the requests of CMA and of other ETCS suppliers.  
(1380)  The definition of ‘Purchaser ’ has been amended as well, to include all suppliers 
responsible for the execution of an ETCS OBU project, such as vehicle 
manufa cturers or vehicle integrators, in order to capture situations where the entity 
supplying the OBU is not the entity performing the work/ retrofit and hence requiring 
the TCMS adaptations.  Conversely, further broaden ing the scope of application, in 
order to include other operators in the railway sector, would be disproportionate as 
the competitive concern emerged in the course of the investigation relates to the 
market for ETCS OBUs projects.  
(1381)  With respect to the STMs and Class B OBUs Commitments the eliminati on to the 
reference to ATP systems ‘pre-dating ’ the ETCS system avoids possible issues in 
case of future releases of legacy systems.  The inclusion of Alstom STM/Class B 
systems, as requested by some respondents to the market test, would not be 
proportionat e, as it does not relate to the incremental advantage brought about by  the 
Transaction.   
(1382)  The limitation of the exclusion from the scope of the remedy of integrated 
STM/ETCS OBUs to those existing at the closing date is adequate as well, as it 
would avoid a  situation where Alstom would reengineer currently available STMs or 
Class B’s as integrated products in an attempt to exclude them from the scope of the 
Commitments. On the other hand, a general inclusion of integrated products would 
not be proportionate , as the purpose of the remedy is to facilitate entry of competing 
                                                 
1062 Siemens’ submission of 21 April 2020, paragraph 88.  
1063 Stadler’s submission of 4 May 2020, page 32.  
 
 
281 ETCS OBUs suppliers.  For the same reason, the exclusion of certain STM/Class B 
in countries where alternatives  are available from competitors  appears justified.  
(1383)  With respect to the TCMS Comm itments, it has been further clarified that it will 
apply also to rolling stock supplied in consortium where Bombardier supplied the 
TCMS for the relevant train.  Moreover it will apply also  to TCMS supplied by third 
parties, in case the supply of TCMS by the third party was done upon request by 
Bombardier and within the overall responsibility of the vehicle or if the property 
rights are within Bombardier.  These clarifications should allow th e inclu sion of  all 
cases where Bombardier is substantially responsible for the TCMS, irrespective of 
any different formal role.  Similarly to the STM/Class B OBU  Commitments, access 
to Alstom’s TCMS would not be proportionate, as it would go beyond merger -
specific concerns.  
(1384)  The duration of the Commitments is adequate:  
(a) The STMs and Class B OBUs Commitments will remain in force for […], as 
requested by most respondents to the market test in order to broadly 
correspond to  the time limit in the EU ERTMS implemen tation plan;  
(b) The TCMS Commitments will remain in force for twelve years. In this 
respect, the Commission considers that this duration appears proportionate: 
although the EU ERTMS implementation plan will not be completed in […], 
it is to be noted that the ETCS OBUs retrofit of old rolling stock should be 
largely completed by 2030, as confirmed also by some respondents to the 
market test.  
(1385)  The Commission further notes that the Final Commitments have substantially 
limited Alstom’s discretion in the implementat ion of the OBU  Commitments  and 
have reduced the vagueness of a series of definitions and concepts . In particular : 
(a) The definitions of Interoperability Documentation and of Interface 
Documentation have been amended and detailed, with the inclusion of 
specifi c items indicated by market participants  in the course of the market 
test; 
(b) The reference s to ‘reasonable ’ support or modifications have been largely 
deleted , in order to avoid limiting principles subject to interpretation;  
(c) All services and products offered  (other than the provision of documentation 
for which fixed fees are provided) will be priced on a cost -plus basis . The 
Final Commitments thus do not include references to market prices , 
considered inadequate by most respondents to the market test ; 
(d) For STMs and Class B s, the provision s on obsolescence have been 
substantially reduced  and the provision relating to ceased production has 
been reformulated to limit Alstom’s discretion. In any case a specific 
provision to avoid circumvention of the Commitments  is included, in 
accordance to which Alstom would be forced to offer alternatives.  A specific 
provision has  been included for Finland and Portugal, [Information on 
Bombardier’s production / process secrets ]. The Commission notes that for 
Portugal Alstom expressly commit s to provide available interface 
documentation for its legacy system at a price approved by the monitoring 
 
 
282 trustee, to ensure that other suppliers can compete in case of an open tender 
for a new solution organized by the infrastructure mana ger; 
(e) For TCMS, the exclusions have been simplified and clarified ; 
(f) In order to exclude possible delaying tactics, Alstom would be obliged to 
provide a quotation also in case of incomplete requests  from ETCS suppliers . 
(1386)  Most terms for Alstom to reply to reque st for quotations are shortened, again in line 
with the results of the market test, with some exceptions aimed at protect ing Alstom 
from unreasonable requests.  Similarly, the provision s on damages have been aligned 
with the market practice. In sum , the Final Commitments impose  no burden on third 
parties liable  to impede  access compared to what is usual market practice.  
(1387)  The Commission considers that the procedures for monitoring and dispute resolution 
are clear and consistent  with the Commission’s precedents . The Commission notes 
in particular the role of the fast track expert dispute resolution mechanism, which 
would allow a rapid resolution of all disputes with the help of an industry  expert , 
before the possible recourse to arbitration. Furthermore, the monitoring t rustee, with 
the help of the expert, would be also able to review the main terms and conditions – 
in particular pricing – of the Commitments , thus further limiting Alstom’s discretion 
in determining the conditions applicable to Purchasers . 
(1388)  The Com mission further notes that the divestiture of the entire ETCS OBUs projects 
business, as requested by other market participants, would be (i) neither 
proportionate, as the Transaction does not raise serious doubts with respect to 
horizontal unilateral effe cts in the ETCS OBUs market, in particular considering 
Bombardier’s limited position in this market ( section 8.2.1.1 ), (ii) nor adequate, as it 
would not solve the issue connected to the availability for the merged entity of an 
enlarged rolling stock installed base and unmatched legacy OBUs portfolio in the 
EEA.  
(1389)  In summary, t he STMs and Class B OBU and the TCMS Commitments , through 
access to STMs / Class B equipment, interfaces, or TCMS interoperability 
documentation or modifications support , provide a level playing field in the market 
for ETCS OBUs projects in the EEA and allow ETCS OBU providers to compete 
more effectively . 
(1390)  The Commission therefore considers that the STMs and Class B OBUs 
Commitments  and the TCMS Commitments are sufficient to eliminate the serious 
doubts as to the compatibility of the Transa ction with the internal market identified 
in the market  for ETCS OBUs projects in the EEA.  
(B) The Netherlands Legacy OBU Commitments  
(1391)   The final version of the Netherlands Legacy OBU Commitments covers the issues 
raised during the market test, as described in  paragraphs (1276)  to (1278)  above.1064 
In particular:  
                                                 
1064 Regarding the concern raised during the market test about access to the AT B-NG system in the 
Netherlands, even though not strictly merger -specific, it was already taken into account in the Initial 
 
 
 
283 (a) The duration of the com mitments has been extended to […], offering the 
possibility to ProRail to request a further extension of […] on the same terms.  
This is in line with the timeframe for the roll -out of the ERTMS in the 
Netherlands ; 
(b) The Dutch Framework Agreement will largely  include the amendments 
requested by ProRail , notably on duration  and pricing .  
(1392)  Furthermore, all relevant amendments to the common provisions of the OBU 
Commitments equally apply here. These include clarifications of relevant definitions  
and amendments to  the fast track dispute resolution and the pricing in case of 
redesign of STMs due to a major obsolescence . 
(1393)  Moreover, while the Commission recognises that divestiture commitments are 
generally the best way to eliminate competition concerns resulting from ho rizontal 
overlaps, it considers that a divestiture would not be the optimal solution in the 
specific circumstances of the  present case  and could be difficult to implement . A 
divestiture of Alstom’s or Bombardier’s legacy OBU business in the Netherlands  
would risk not attracting  suitably buyers , as these assets correspond to  a 
disappearing market in view of the ERTMS roll -out. 
(1394)  In summary , these commitments will limit  the merged entity’s market power  in the 
market for legacy OBU products  in the Netherlands  and allow  ETCS suppliers and 
rolling stock competitors  in the Netherlands to obtain supplies of legacy OBUs  at 
fair conditions . 
(1395)  The Commission therefore considers that the Netherlands Legacy OBU 
Commitments are sufficient to eliminate  the serious doubts as to the compatibility of 
the Transaction with the internal market identified in the market  for legacy OBUs in 
the Netherlands.  
11.4.1.4.  Conclusion  
(1396)  For the reasons outlined above, the commitments entered into by the undertakings 
concerned are suffic ient to eliminate the serious doubts as to the compatibility of the 
transaction with the internal  market.  
(1397)  Under the first sentence of the second subparagraph of Article 6(2) of the Merger 
Regulation, the Commission may attach to its decision conditions and  obligations 
intended to ensure that the undertakings concerned comply with the commitments 
they have entered vis -à-vis the Commission with a view to rendering the 
concentration compatible with the internal market.  
(1398)  The fulfilment of the measures that give rise to the structural change of the market is 
a condition, whereas the implementing steps that are necessary to achieve this result 
are generally obligations on the parties. Where a condition is not fulfilled, the 
Commission's decision declaring the conce ntration compatible with the internal 
market is no longer applicable. Where the undertakings concerned commit a breach 
of an obligation, the Commission may revoke the clearance decision in accordance 
                                                                                                                                                      
Commitments whereby Alstom included its newly developed Class B solution combining ATB EG and 
ATB NG and replacing the obsolete ATB -NG (ATB -NL) in the STMs and Class B OBUs Commitments . 
 
 
284 with Article 6(3) of the Merger Regulation. The undertak ings concerned may also be 
subject to fines and periodic penalty payments under Articles 14(2) and 15(1) of the 
Merger Regulation.  
(1399)  In accordance with the basic distinction between conditions and obligations 
described in the preceding paragraph, t he commitments in (i) sections B and C of the 
Rolling Stock Commitments  and (i i) section B of the OBU Commitments  of the 
Annex  constitute conditions attached to this decision, as only through full 
compliance therewith can the structural changes in the rele vant markets be achieved. 
The other commitments set out in the Annex constitute obligations, as they concern 
the implementing steps which are necessary to achieve the modifications sought in a 
manner compatible with the internal market.  
12. CONCLUSION  
(1400)  For the above reasons, the Commission has decided not to oppose the notified 
operation as modified by the commitments and to declare it compatible with the 
internal market and with the functioning of the EEA Agreement, subject to full 
compliance with the condition s in (i) section s B and C of the Rolling Stock 
Commitments and (i i) section B of the OBU Commitments, annexed to the present 
decision and with the obligations contained in the other sections of the said 
commitments. This decision is adopted in application of Article  6(1)(b) in 
conjunction with Article 6(2) of the Merger Regulation  and Article 57 of the EEA 
Agreement . 
For the Commission  
 
 
(Signed)  
Margrethe VESTAGER   
Executive Vice -President
 
 
1 July 30, 2020  
Case M.9779 – Alstom/Bombardier Transportation  
COMMITMENTS TO THE EUROPEAN COMMISSION  
Pursuant to Article 6(2), of Council Regulation (EC) No 139/2004 (the Merger 
Regulation ), Alstom S.A. ( Alstom , or the  Notifying Party ) hereby enters into the following 
Commitments (the Commitments ) vis-à-vis the European Commission (the Commission ) 
with a view to rendering its proposed acquisition of sole control over Bombardier 
Transportation (Investment) UK Ltd, the holding entity for  Bombardier Transportation 
(Bombardier Transportation  and, together with Alstom, the Parties ), the global rail 
solutions division of Bombardier Inc. ( Bombardier ), (the  Concentration ) compatible with 
the internal market and the functioning of the EEA Agreem ent. 
This text shall be interpreted in light of the Commission’s decision pursuant to Article 
6(1)(b) of the Merger  Regulation to declare the Concentration compatible with the internal 
market and the functioning of the  EEA Agreement (the Decision ), in the general 
framework of European Union law, in particular in  light of the Merger Regulation, and by 
reference to the Commission Notice on remedies acceptable  under Council Regulation 
(EC) No 139/2004 and under Commission Regulation (EC) No 802/2004  (the Remed ies 
Notice ). 
The Commitments shall take effect upon the Effective Date, provided that if the 
completion of the Concentration does not subsequently take place for whatever reason and 
is thereby abandoned, the Notifying Party shall not be bound by these Comm itments.  
SECTION A.  DEFINITIONS  
1. For the purpose of the Commitments (including the Schedules), the following terms 
shall have the following meaning:  
Affiliated Undertakings : undertakings controlled by the Parties and/or by the 
ultimate parents of  the Parti es, whereby the notion of control shall be interpreted 
pursuant to Article 3 of the  Merger Regulation and in light of the Commission 
Consolidated Jurisdictional Notice under  Council Regulation (EC) No 139/2004 on 
the control of concentrations between under takings (the  Consolidated Jurisdictional 
Notice ). 
Assets: the assets as owned or held by Alstom or Bombardier (and their respective 
Affiliated Undertakings) that contribute to the current operation or are necessary to 
ensure the viability  and competitiveness of the Divestment Businesses as described 
in the Schedules.  
 
 
2 Closing : the transfer of the legal title to the Divestment Businesses to the 
Purchaser(s).  
Closing Period : the period of […] months from the approval of the Purchaser(s) and 
the te rms of sale  by the Commission.  
Confidential Information : any business secrets, know -how, commercial 
information, or any  other information of a proprietary nature that is not in the public 
domain.  
Conflict of Interest : any conflict of interest that impairs  the Trustee’s objectivity 
and independence in discharging its duties under the Commitments.  
Coradia Polyvalent Divestment Business : as defined in Schedule 2.  
Coradia Polyvalent Divestment Business Hold Separate Manager : the person(s) 
appointed by the Noti fying Party to manage the  day-to-day business of the Coradia 
Polyvalent Divestment Business under the supervision of the Monitoring Trustee.  
Divestment Businesses : the businesses listed in Section B, and defined in full in 
Schedules 1 -3 (including, for the  avoidance of doubt, those Assets which are offered 
at the option of the Purchaser(s)), which the Notifying Party commits to divest, 
namely (i) the Very High Speed Divestment Business, and (ii) the Mainline 
Divestment Businesses.   
Divestiture Trustee : one or more natural or legal person(s) who is/are approved by 
the Commission and appointed by the Notifying Party and who has/have received 
from the Notifying Party the exclusive Trustee  Mandate to sell any of the Divestment 
Businesses to one or more Purchaser s at no minimum price.  
Effective Date : the date of adoption of the Decision.  
First Divestiture Period : the period of […] months from the Effective Date.  
Hold Separate Manager(s) : the person(s) appointed for the Divestment Businesses 
to manage the  day-to-day business under the supervision of the Monitoring Trustee, 
namely (i) the Coradia Polyvalent Divestment Business Hold Separate Manager, (ii) 
the Talent 3 Divestment Business Hold Separate Manager and (iii) and the Zefiro 
V300 Divestment Business Hold Sep arate Manager.  
Key Personnel : the relevant personnel employed by Alstom or Bombardier (and 
their respective Affiliated Undertakings) necessary to maintain the viability and 
competitiveness of each of the  Divestment Businesses, as listed in the Schedules, 
including the Hold Separate Manager(s) of each of the Divestment Businesses.  
 
 
3 Mainline Divestment Businesses : (i) the Coradia Polyvalent Divestment Business, 
and (ii) the Talent 3 Divestment Business.  
Monitoring Trustee : one or more natural or legal person(s ) who is/are approved by 
the Commission and appointed by the Notifying Party, and who has/have the duty to 
monitor the Notifying Party’s compliance with  the conditions and obligations 
attached to the Decision.  
Personnel : staff currently employed by Alstom or Bombardier (and their respective 
subsidiaries) in connection with the Divestment Businesses, as defined in the 
Schedules.  
Purchaser(s) : the entities approved by the Commission as acquirers of (one or more) 
the Divestment Businesses in  accordance with th e criteria set out in Section D.  
Purchaser Criteria : the criteria laid down in paragraph 15 of these Commitments 
that the  Purchaser(s) must fulfil in order to be approved by the Commission.  
Reasonable Best Efforts : in relation to commitments to seek any necessary consents 
under customer contracts forming part of the Divestment Businesses, reasonable best 
effort obligations shall be interpreted in lig ht of the Commission’s decision pursuant 
to Article 6(1)(b) of the Merger Regulation to declare the Concentration compatible 
with the internal market and the functioning of the EEA Agreement, the Merger 
Regulation and the general principles of EU law, prov ided that reasonable best 
efforts shall not require Bombardier and/or Alstom to assume liability for any project 
undertaken by, or any product or service delivered by, the Purchaser(s).  Any 
interpretation that may be given to this term under the law of ot her jurisdictions is 
not relevant solely for the purpose of interpreting and/or implementing the 
Commitments.  
Sale and Purchase Agreement : a binding sale and purchase agreement for the sale 
of one or more of the Divestment Businesses, or the combination o f (i) a binding 
offer letter signed by a potential purchaser (including an agreed draft sale and 
purchase agreement) for the acquisition of one or more of the Divestment Businesses 
and (ii) an exclusivity letter executed by the Notifying Party, the Parties , and/or their 
Affiliated Undertakings, granting the Notifying Party, the Parties, and/or their 
Affiliated Undertakings an irrevocable option to enter into a sale and purchase 
agreement for the sale of one or more of the Divestment Businesses to the potent ial 
purchaser once the opinion of Alstom’s or Bombardier’s (as the case may be) 
relevant employee representative bodies has been delivered.  
Schedules : the schedules to these Commitments describing more in detail the 
Divestment Businesses.  
Talent 3 Divestment Business : as defined in Schedule 3.  
 
 
4 Talent 3 Divestment Business Hold Separate Manager : the person(s) appointed 
by Bombardier Transportation, after having consulted with and given due 
consideration to the views (if any) of the Notifying Party, t o manage the  day-to-day 
business of the Talent 3 Divestment Business under the supervision of the 
Monitoring Trustee.  
Trustee(s) : the Monitoring Trustee and/or the Divestiture Trustee as the case may be.  
Trustee Divestiture Period : the period of […] months  from the end of the First 
Divestiture Period, or from any rejection of a proposed purchaser (provided that the 
Notifying Party has submitted a Purchaser approval request under Section D of these 
Commitments to the Commission during the First Divestiture P eriod), whichever is 
later.  
Very High Speed Divestment Business : the Zefiro V300 Divestment Business and 
the HS2 VHS Commitment, as defined in Schedule 1.  
Zefiro V300 Divestment Business Hold Separate Manager : the person(s) 
appointed by Bombardier Transpor tation, after having consulted with and given due 
consideration to the views (if any) of the Notifying Party, to manage the  day-to-day 
business of the Zefiro V300 Divestment Business under the supervision of the 
Monitoring Trustee.  
SECTION B. THE COMMITMEN TS 
Commitment to divest  
2. In order to maintain effective competition, the Notifying Party commits to divest, or 
procure the divestiture of:  
(a) the Very High Speed Divestment Business, consisting of the Zefiro 
V300 Divestment Business and the HS2 VHS Divestment  Business, 
as defined in Schedule 1, and  
(b) the Mainline Divestment Businesses, consisting of (i) the Coradia 
Polyvalent Divestment Business, as defined in Schedule 2, and (ii) 
the Talent 3 Divestment Business, as defined in Schedule 3,  
by the end of the Trus tee Divestiture Period to one or more Purchaser(s) and on 
terms of sale approved by the Commission in accordance with the procedure 
described in paragraph 15 of these Commitments.  To carry out the divestiture, the 
Notifying Party commits to find one or more Purchaser(s) and to enter into Sale and 
Purchase Agreement(s) with each Purchaser for the sale of the Divestment 
Businesses within the First Dive stiture Period.  If the Notifying Party has not entered 
into such agreement(s) at the end of the First Divestiture Period, the Notifying Party 
shall grant the Divestiture Trustee an exclusive mandate to sell any Divestment 
Businesses that have not been sol d in accordance with the procedure described in 
paragraph 28 in the Trustee Divestiture Period.  
 
 
5 3. The Notifying Party shall be deemed to have complied with these Commitments if:  
(a) by the end of the Trustee Divestiture Period, the Notifying Party or the 
Divestiture Trustee has entered  into Sale and Purchase Agreement(s) and the 
Commission approves the  Purchaser(s) and the terms of sale as being 
consistent with the Commitments in  accordance with the procedure 
described in paragraph 15; and  
(b) the Closing of the sale(s) of the Divestment Businesses to the Purchaser(s) 
takes place within  the Closing Period.  
4. In order to maintain the structural effect of the Commitments, the Notifying Party 
shall, for a period of 10 years after Closing, not acquire, whether directly or 
indirectly, the  possibility of exercising  influence (as defined in paragraph 43 of the 
Remedies Notice, footnote 3)  over the whole or part of the Divestment Businesses, 
unless, following the submission of a reasoned  request from the Notifying Party 
showing good cause and accompanied by a report f rom the  Monitoring Trustee (as 
provided in paragraph 57 of these Commitments), the Commission finds  that the 
structure of the market has changed to such an extent that the absence of influence 
over the Divestment Businesses is no longer necessary to render the proposed 
concentration compatible  with the internal m arket.  
Structure and definition of the Divestment Businesses  
5. The legal and functional structures of the relevant parts of the Divestment Businesses 
are described in  Schedules 1 -3.  Each Divestment Business includes all  assets and 
Personnel that are necess ary to ensure the viability and  competitiveness of such 
Divestment Business, as described in full in Schedules 1 -3, and include, as 
applicable:  
(a) tangible and intangible assets (including intellectual property rights);  
(b) licences, permits and authorisations i ssued by any governmental 
organisation for  the benefit of such Divestment Business;  
(c) contracts, leases, commitments and customer orders of such Divestment 
Business;  
(d) customer, credit and other records of such Divestment Business; and  
(e) Personnel.  
6. In addition,  as described in more detail in Schedules 1 -3, the Divestment Businesses 
include  the benefit of certain arrangements under which the Parties or their Affiliated 
Undertakings will supply products or services to the  Divestment Businesses, 
including as set ou t in the HS2 VHS Commitment.   The Monitoring Trustee will 
 
 
6 monitor these arrangements for their duration.  Strict firewall procedures will be 
adopted so as to ensure that any competitively sensitive  information related to, or 
arising from such supply arrang ements (for example, product roadmaps)  will not be 
shared with, or passed on to, anyone outside the relevant business  unit/division of the 
Parties /Combined Entity providing the product/service.  
SECTION C. RELATED COMMITMENTS  
Preservation of viability, marketability and competitiveness  
7. From the Effective Date until Closing, the Parties shall preserve or  procure the 
preservation of the economic viability, marketability and competitiveness of the  
Divestment Businesses, in accord ance with good business practice, and shall 
minimise as far as  possible any risk of loss of competitive potential of the 
Divestment Businesses.  In particular the Parties  undertake:  
(a) not to carry out any action that might have a significant adverse impact o n 
the value,  management or competitiveness of the Divestment Businesses or 
that might alter the  nature and scope of activity, or the industrial or 
commercial strategy or the investment  policy of the Divestment Businesses;  
(b) to make available, or procure to m ake available, sufficient resources for the  
development of the Divestment Businesses, on the basis and continuation of 
the existing  business plans;  
(c) to take all reasonable steps, or procure that all reasonable steps are being 
taken,  including appropriate in centive schemes (based on industry practice), 
to encourage all  Key Personnel to remain with Divestment Businesses, and 
not to solicit any  Personnel to the Parties’ remaining business.  Where, 
nevertheless, individual members of the  Key Personnel exceptiona lly leave 
the Divestment Businesses, the Parties  shall provide a  reasoned proposal to 
replace the person or persons concerned to the Commission and  the 
Monitoring Trustee.  The Parties must be able to demonstrate to the 
Commission that the  replacement is well suited to carry out the functions 
exercised by those individual  members of the Key Personnel.  The 
replacement shall take place under the  supervision of the Monitoring 
Trustee, who shall report to the Commission.  
Hold -separate obligations  
8. The Parties commit, from the Effective Date until Closing, to keep the Divestment 
Businesses separate from the business(es) they are retaining and to ensure that unless 
explicitly permitted under these Commitments: (i) management and staff of the 
business(es) retained  by the Parties have no involvement in the Divestment 
Businesses; (ii) the Key Personnel and Personnel of the Divestment Businesses have 
 
 
7 no involvement in any business(es) retained by the Parties and do not report to any 
individual outside the Divestment B usinesses.  
9. Until Closing, the Parties shall assist the Monitoring Trustee in ensuring that the 
Divestment Businesses are  managed as distinct and saleable entities separate from 
the business(es) which the Parties are retaining.   As promptly as practicable a fter the 
adoption of the Decision, the Parties shall appoint one or more Hold Separate 
Managers.  The  Hold Separate Manager(s), who shall be part of the Key Personnel, 
shall manage the Divestment  Businesses independently and in the best interest of the 
business with a view to ensuring their  continued economic viability, marketability 
and competitiveness and their independence from the  business(es) retained by the 
Parties .  The Hold Separate Manager(s) shall closely cooperate with and report to  the 
Monitorin g Trustee and, if applicable, the Divestiture Trustee.  Any replacement of 
(any of) the Hold  Separate Manager(s) shall be subject to the procedure laid down in 
paragraph 7(c) of these  Commitments.  The Commission may, after having heard the 
Notifying Party, require the Notifying Party to replace the Hold  Separate 
Manager(s).  
Ring -fencing  
10. To the extent possible, without impeding the proper functioning o f the Divestment 
Businesses, the Parties shall implement, or procure the implementation of, all 
necessary measures to ensure that they do not, after the Effective Date, obtain any 
Confidential Information relating to the Divestment Businesses and that any such 
Confidential Information obtained by the Parties before the Effective Date will be 
eliminated and not be used by the Parties.  To the extent applicable, this includes 
measures vis -à-vis the Parties’ appointees on the supervisory board(s) and/or 
board( s) of directors of the Divestment Businesses.  In particular, the participation of 
the Divestment Businesses in any central information technology network shall be 
severed to the extent possible, without compromising the viability of the Divestment 
Busines ses.  The Parties may obtain or keep information relating to the Divestment 
Businesses which is reasonably necessary for the divestiture of the Divestment 
Businesses or the disclosure of which to the Parties is required by law.  
Non-solicitation clause  
11. The Parties undertake, subject to customary limitations, not to solicit, and to procure 
that Affiliated Undertakings do not solicit, the Key Personnel transferred with the 
Divestment Businesses  for a period of two years after Closing.  
Due diligence  
12. In order t o enable potential purchasers to carry out a reasonable due diligence of the 
Divestment  Businesses, the Parties shall, subject to customary confidentiality 
assurances and dependent on the stage of  the divestiture process:  
 
 
8 (a) provide to potential purchasers su fficient information as regards the 
Divestment  Businesses;  
(b) provide to potential purchasers sufficient information relating to the 
Personnel and  allow them reasonable access to the Personnel.  
Reporting  
13. The Parties shall submit written reports in English on potential purchasers of the 
Divestment Businesses and  developments in the negotiations with such potential 
purchasers to the Commission and the  Monitoring Trustee no later than 10 days after 
the end of every month following the Effective  Date (or otherwise  at the 
Commission’s request).  As from the Effective Date, the Parties shall submit a list of 
all potential purchasers  having expressed interest in acquiring the Divestment 
Businesses to the Commission at each stage of the divestiture process, as well as a 
copy of all offers made by potential  purchasers within five days of their receipt.  
14. Subject to the second sentence of this paragraph, as from the Effective Date, the 
Parties shall inform the Commission and the Monitoring Trustee on the preparation 
of the data room  documentation and the due diligence procedure and shall submit a 
copy of any final information  memorandum to the Commission and the Monitoring 
Trustee before sending the memorandum out  to potential purchasers.  
SECTION D. THE PURCHASER (S) 
15. In order  to be approved by the Commission, the Purchaser(s) must fulfil the 
following criteria:  
(a) The Purchaser(s) shall be independent of and unconnected to the Notifying 
Party and its Affiliated Undertakings (this being assessed having regard to 
the situation  following the divestiture.  
(b) The Purchaser(s) shall have the financial resources, proven expertise and 
incentive to maintain and develop the Divestment Businesses as a viable 
and active competitive force in competition with the Parties and other 
competitors.  The Purchaser(s) proven expertise will be assessed in light of 
its experience and track record as a supplier of rolling stock in the EEA, as 
evidenced, inter alia, by prior sales and references;  
(c) The acquisition of the Divestment Businesses by the Purchaser  must neither 
be likely to create,  in light of the information available to the Commission, 
prima facie competition concerns nor  give rise to a risk that the 
implementation of the Commitments will be delayed.  In particular, the  
Purchaser(s) must reasonabl y be expected to obtain all necessary approvals 
from the relevant  regulatory authorities for the acquisition(s) of the 
 
 
9 Divestment Businesses.  
16. The Sale and Purchase Agreement(s) (as well as ancillary agreements) relating to the  
divestment of any of the Dive stment Businesses shall be conditional on the 
Commission’s approval.  When  the Notifying Party, or the Parties as applicable, 
have reached an agreement with a Purchaser(s), they shall submit a fully documented 
and reasoned  proposal, including a copy of the  final agreement(s), within one week 
to the Commission and the  Monitoring Trustee.  The Notifying Party, or the Parties 
as applicable, must be able to demonstrate to the Commission that the Purchaser(s) 
fulfils  the Purchaser Criteria and that the Divestmen t Business(es) are being sold in a 
manner consistent with  the Commission’s Decision and the Commitments.  For the 
approval, the Commission shall verify  that the proposed purchaser fulfils the 
Purchaser Criteria and that the Divestment Business(es) are bein g sold in a  manner 
consistent with the Commitments including their objective to bring about a lasting  
structural change in the market.  The Commission may approve the sale of the 
Divestment  Business(es) without one or more Assets or parts of the Personnel,  or by 
substituting one or more  Assets or parts of the Personnel with one or more different 
assets or different personnel, if this  does not affect the viability and competitiveness 
of the Divestment Business(es) after the sale, taking  account of the propos ed 
purchaser.  
SECTION E. TRUSTEE  
I. Appointment procedure  
17. The Notifying Party shall appoint one or more Monitoring Trustee(s) to carry out the 
functions specified in these Commitments  for a Monitoring Trustee(s).  The 
Notifying Party commits not to close the  Concentration before the appointment of a 
Monitoring Trustee(s).  
18. If the Notifying Party, or the Parties as applicable, has not entered into Sale and 
Purchase Agreement(s) regarding any of the Divestment Businesses one month 
before the end of the First Dive stiture Period or if the Commission has  rejected any 
purchaser proposed by the Notifying Party, or the Parties as applicable, at that time 
or thereafter, the Notifying Party shall appoint one or more Divestiture  Trustee(s).  
The appointment of the Divestit ure Trustee(s) shall take effect upon the 
commencement of  the Trustee Divestiture Period.  
19. The Trustee(s) shall:  
(i) at the time of appointment, be independent of the Parties and their Affiliated 
Undertakings;  
(ii) possess the necessary qualifications to carry out its mandate, for example 
have sufficient  relevant experience as an investment banker or consultant or 
 
 
10 auditor; and  
(iii) neither have nor become exposed to a Conflict of Interest.  
20. The Trustee(s) shall be remunerated by the Notifying Party in a way that does not 
impede the  independent and effective fulfilment of its mandate.  In particular, where 
the remuneration package  of a Divestiture Trustee(s) includes a success premium 
linked to the final sale value of any of the  Divestment Businesses, such success 
premium m ay only be earned if the divestiture takes place  within the Trustee 
Divestiture Period.  
Proposal by the Notifying Party  
21. No later than two weeks after the Effective Date, the Notifying Party shall submit the 
name or names of one or more natural or legal per sons whom the Notifying Party 
proposes to appoint as the Monitoring Trustee(s) to the  Commission for approval.  
No later than one month before the end of the First Divestiture Period  or on request 
by the Commission, the Notifying Party shall submit a list of one or more persons 
whom the Notifying Party proposes to appoint as Divestiture Trustee(s) to the 
Commission for approval.  The proposal shall  contain sufficient information for the 
Commission to verify that the person or persons proposed as  Trustee(s) fulfil the 
requirements set out in this paragraph and shall include:  
(a) the full terms of the proposed mandate, which shall include all provisions 
necessary to  enable the Trustee(s) to fulfil its duties under these 
Commitments;  
(b) the outline of a work plan whic h describes how the Trustee(s) intends to 
carry out its  assigned tasks;  
(c) an indication whether the proposed Trustee(s) is to act as both Monitoring 
Trustee(s) and  Divestiture Trustee(s) or whether different trustees are 
proposed for the two functions.  
Appro val or rejection by the Commission  
22. The Commission shall have the discretion to approve or reject the proposed 
Trustee(s) and to  approve the proposed mandate subject to any modifications it 
deems necessary for the Trustee(s) to  fulfil its obligations.  If o nly one name is 
approved, the Notifying Party shall appoint or cause to be appointed the  person or 
persons concerned as Trustee, in accordance with the mandate approved by the  
Commission.  If more than one name is approved, the Notifying Party shall be free to 
choose the Trustee(s) to be  appointed from among the names approved.  The 
Trustee(s) shall be appointed within one week of the  Commission’s approval, in 
accordance with the mandate approved by the Commission.  
 
 
11 New proposal by the Notifying Party  
23. If all the proposed Trustees are rejected, the Notifying Party shall submit the names 
of at least two more natural or  legal persons within two weeks of being informed of 
the rejection, in accordance with paragraphs  19 and 24 of these Commitments.  
Trustee nominated by the Commission  
24. If all further proposed Trustees are rejected by the Commission, the Commission 
shall nominate one or  more  Trustee(s), whom the Notifying Party shall appoint, or 
cause to be appointed, in accordance with a trustee mandate  approved by the 
Commission.  
II. Functions of the Trustee  
25. The Trustee(s) shall assume its specified duties and obligations in order to ensur e 
compliance with  the Commitments.  The Commission may, on its own initiative or at 
the request of the Trustee(s) or  the Notifying Party, give any orders or instructions to 
the Trustee(s) in order to ensure compliance with the  conditions and obligations 
attached to the Decision.  
Duties and obligations of the Monitoring Trustee  
26. The Monitoring Trustee(s) shall:  
(i) propose in its first report to the Commission a detailed work plan describing 
how it  intends to monitor compliance with the obligations and conditions  
attached to the  Decision.  
(ii) oversee, in close co -operation with the Hold Separate Manager(s), the on -
going management  of the Divestment Businesses with a view to ensuring 
their continued economic viability,  marketability and competitiveness and 
monitor comp liance by the Parties with the conditions and  obligations 
attached to the Decision.  To that end the Monitoring Trustee(s) shall:  
(a) monitor the preservation of the economic viability, marketability and  
competitiveness of the Divestment Businesses, and the ke eping 
separate of the  Divestment Businesses from the business retained by 
the Parties, in accordance with  paragraphs 8 and 9 of these 
Commitments;  
(b) supervise the management of the Divestment Businesses as distinct 
and saleable  entity(ies), in accordance with paragraph 10 of these 
Commitments;  
(c) with respect to Confidential Information:  
 
 
12  determine all necessary measures to ensure that the Parties do 
not after the  Effective Date obtain any Confidential Information 
relating to the  Divestment Businesses,  
 in particular strive for the severing of the Divestment 
Businesses’ participation  in a central information technology 
network to the extent possible, without  compromising the 
viability of the Divestment Businesses,  
 make sure that any Confidential Information relating to the 
Divestment  Businesses obtained by the Parties before the 
Effective Date is eliminated and will not  be used by the Parties, 
and 
 decide whether such information may be disclosed to or kept by 
the Parties as the  disclosure is reasonably necess ary to allow the 
Parties to carry out the divestiture or  as the disclosure is 
required by law;  
(d) monitor the splitting of assets and the allocation of Personnel between 
the Divestment Businesses and the Parties or Affiliated Undertakings;  
(iii) propose to the Part ies such measures as the Monitoring Trustee(s) considers 
reasonably necessary to ensure  the Parties’ compliance with the conditions 
and obligations attached to the Decision, in  particular the maintenance of the 
full economic viability, marketability or com petitiveness  of the Divestment 
Businesses, the holding separate of the Divestment Businesses and the non -
disclosure of competitively sensitive information;  
(iv) review and assess potential purchasers as well as the progress of the 
divestiture process  and verify  that, dependent on the stage of the divestiture 
process:  
(a) potential purchasers receive sufficient and correct information relating 
to the  Divestment Businesses and the Personnel in particular by 
reviewing, if available, the  data room documentation, the inf ormation 
memorandum(a) and the due diligence  process, and  
(b) potential purchasers are granted reasonable access to the Personnel;  
(v) act as a contact point for any requests by third parties, in particular potential 
purchasers, in  relation to the Commitments;  
(vi) provide to the Commission, sending the Notifying Party a non -confidential 
copy at the same time, a  written report within 15 days after the end of every 
 
 
13 month that shall cover the operation  and management of the Divestment 
Businesses as well as the splittin g of Assets and the  allocation of Personnel 
so that the Commission can assess whether the business is held in  a manner 
consistent with the Commitments and the progress of the divestiture process 
as well as potential purchasers;  
(vii) promptly report in writing t o the Commission, sending the Notifying Party a 
non-confidential copy at the  same time, if it concludes on reasonable grounds 
that the Parties are failing to comply with these  Commitments;  
(viii) within one week after receipt of the documented proposal referred t o in 
paragraph 18 of these Commitments, submit to the Commission, sending the 
Notifying Party a non -confidential copy at  the same time, a reasoned opinion 
as to the  suitability and independence of the proposed  purchaser(s) and the 
viability of the Divestment Businesses after the sale and as to whether the  
Divestment Businesses are sold in a manner consistent with the conditions 
and obligations  attached to the Decisio n, in particular, if relevant, whether the 
sale of the Divestment  Businesses without one or more Assets or not all of 
the Personnel affects the viability of the  Divestment Businesses after the sale, 
taking account of the proposed purchaser(s);  
(ix) assume the o ther functions assigned to the Monitoring Trustee(s) under the 
conditions and  obligations attached to the Decision.  
27. If the Monitoring and Divestiture Trustee(s) are not the same legal or natural 
persons, the  Monitoring Trustee(s) and the Divestiture Truste e(s) shall cooperate 
closely with each other during and  for the purpose of the preparation of the Trustee 
Divestiture Period in order to facilitate each  other's tasks.  
Duties and obligations of the Divestiture Trustee  
28. Within the Trustee Divestiture Period,  the Divestiture Trustee(s) shall sell at no 
minimum price any Divestment Businesses that have not been sold to one or more 
Purchasers, provided that the Commission has approved both the  Purchaser(s) and 
the Sale and Purchase Agreement(s) (and ancillary ag reements) as in line  with the 
Commission's Decision and the Commitments in accordance with paragraphs 16 and 
17 of these Commitments.  The Divestiture Trustee(s) shall include in the Sale and 
Purchase Agreement(s)  (as well as in any ancillary agreements) such terms and 
conditions as it reasonably considers appropriate for  an expedient sal e in the Trustee 
Divestiture Period.  In particular, the Divestiture Trustee(s) may  include in the Sale 
and Purchase Agreement(s) such customary representations and warranties and  
indemnities as are reasonably required to effect the sale.  The Divestiture Trustee(s) 
shall protect the  legitimate financial interests of the Parties, subject to the Parties’ 
unconditional  obligation to divest at no minimum price in the Trustee Divestiture 
 
 
14 Period.  
29. In the Trustee Divestiture Period (or otherwise at the Commission’s request), the 
Divestiture  Trustee(s) shall provide the Commission with a comprehensive monthly 
report written in English on  the progress of the divestiture process.  Such reports 
shall be submitted within 15 days after the end  of every month w ith a simultaneous 
copy to the Monitoring Trustee and a non -confidential copy to  the Notifying Party . 
III. Duties and obligations of the Parties  
30. The Parties shall provide and shall cause their advisors to provide the Trustee(s) with 
all such co -operation,  assis tance and information as the Trustee(s) may reasonably 
require to perform its tasks.  The Trustee(s)  shall have full and complete access to 
any of the Parties’ or the Divestment Businesses’ books, records,  documents, 
management or other personnel, faciliti es, sites and technical information to the 
extent reasonably deemed necessary  for fulfilling its duties under the Commitments 
and the Parties and the Divestment Businesses shall provide  the Trustee(s) upon 
request with copies of any such document or record .  The Parties and the Divestment 
Businesses shall  make available to the Trustee(s) one or more offices on their 
premises and shall be available for  meetings in order to provide the Trustee(s) with 
all information reasonably considered necessary for the pe rformance of its  tasks.  
31. The Parties shall provide the Monitoring Trustee(s) with all managerial and 
administrative support that it  may reasonably request on behalf of the management 
of the Divestment Businesses.  This shall  include all administrative suppo rt functions 
relating to the Divestment Businesses which are  currently carried out at headquarters 
level.  The Parties shall provide and shall cause its advisors to provide  the 
Monitoring Trustee(s), on request, with the information submitted to potential 
purchasers, in  particular give the Monitoring Trustee(s) access to the data room 
documentation and all other  information granted to potential purchasers in the due 
diligence procedure.  The Parties shall inform the  Monitoring Trustee(s) on possible 
purchas ers, submit lists of potential purchasers at each stage of the selection process, 
including the offers made by potential purchasers at those stages, and keep the 
Monitoring Trustee(s) informed of all developments in the divestiture process.  
32. The Parties sha ll grant or procure Affiliated Undertakings to grant comprehensive 
powers of attorney, duly  executed, to the Divestiture Trustee(s) to effect the sale 
(including ancillary agreements), the Closing  and all actions and declarations which 
the Divestiture Trus tee(s) reasonably considers necessary or appropriate  to achieve 
the sale and the Closing, including the appointment of advisors to assist with the sale  
process.  Upon request of the Divestiture Trustee(s), the Parties shall cause the 
documents required for  effecting the sale and the Closing to be duly executed.  
33. The Parties shall indemnify the Trustee(s) and its employees and agents (each an 
 
 
15 Indemnified Party ) and  hold each Indemnified Party harmless against, and hereby 
agrees that an Indemnified Party shall  have no liability to the Parties for, any 
liabilities arising out of the performance of the Trustee(s)’s duties  under the 
Commitments, except to the extent that such liabilities result from the wilful default,  
recklessness, gross negligence or bad faith o f the Trustee(s), its employees, agents or 
advisors.  
34. At the expense of the Parties, the Trustee(s) may appoint advisors (in particular for 
corporate finance or  legal advice), subject to the Parties’ approval (this approval not 
to be unreasonably withheld o r delayed)  if the Trustee(s) reasonably considers the 
appointment of such advisors necessary or appropriate for the  performance of its 
duties and obligations under the Mandate, provided that any fees and other  expenses 
incurred by the Trustee(s) are reason able.  Should the Parties refuse to approve the 
advisors  proposed by the Trustee(s) the Commission may approve the appointment 
of such advisors instead,  after having heard the Parties.  Only the Trustee(s) shall be 
entitled to issue instructions to the adv isors.   Paragraph 34 of these Commitments 
shall apply mutatis mutandis .  In the Trustee(s) Divestiture  Period, the Divestiture 
Trustee(s) may use advisors who served t he Parties during the Divestiture Period if  
the Divestiture Trustee(s) considers this in the best interest of an expedient sale.  
35. The Parties agree that the Commission may share Confidential Information 
proprietary to the Parties with the  Trustee(s).  The Trustee(s) shall not disclose such 
information and the principles contained in Article 17 (1) and (2) of the Merger 
Regulation apply mutatis mutandis . 
36. The Parties agree that the contact details of the Monitoring Trustee(s) are  published 
on the website of the Commission's Directorate -General for Competition and they 
shall  inform interested third parties, in particular any potential purchasers, of the 
identity and the tasks  of the Monitoring Trustee(s).  
37. For a period of 10 years from the Effec tive Date the Commission may request all 
information  from the Parties that is reasonably necessary to monitor the effective 
implementation of these  Commitments.  
IV. Replacement, discharge and reappointment of the Trustee(s)  
38. If a Trustee ceases to perform its functions under the Commitments or for any other 
good cause,  including the exposure of the Trustee to a Conflict of Interest:  
(a) the Commission may, after hearing the Trustee and the Notifying Party, 
require the Notifying Party to replace the Trustee; or  
(b) the Notifying Party may, with the prior approval of the Commission, replace 
the Trustee.  
39. If a Trustee is removed according to this paragraph of the Commitments, the Trustee 
 
 
16 may be  required to continue in its function until a new Trustee(s) is in place to whom 
the Trustee has  effected a full hand over of all relevant information.  The new 
Trustee(s) shall be appointed in  accordance with the procedure referred to in 
paragraphs 18-25 of these Commitments.  
40. Unless removed according to paragraph 39 of these Commitments, a Trustee shall 
cease to act as  Trustee only after the Commission has discharged it from its duties 
after all the Commitments  with which the Trustee has been entrusted have been 
implemen ted.  However, the Commission  may at any time require the reappointment 
of the Monitoring Trustee if it subsequently appears  that the relevant remedies might 
not have been fully and properly implemented.  
SECTION F.  FAST-TRACK DISPUTE RESOLUTION PROCEDURE  
41. At the option of the Purchaser(s), any disputes which may arise between either or 
both Parties and the Purchaser(s) (or any of them) (each a Company and jointly the 
Companies ) relating to the Commitments and the agreements implementing the 
Commitments for each of the Divestment Businesses as set out in Schedules 1 -3 (the 
Agreements ) will be subject to a fast -track dispute resolution procedure (the Fast-
Track Dispute Resolution  Procedure ) described in this Section F.  
42. If a Company wishes to avail itself of the Fast -Track Dispute Resolution Procedure 
(the Requesting Company ), it must notify the other Company in writing (with a copy 
to the Monitoring Trustee) setting out in detail the reasons leading that Company to 
believe that the other Company is failing to comply with the Agreements (the 
Notice ). 
43. The Companies will attempt in fair dealing and good faith to resolve all differences 
of opinion and settle all disputes that may arise  through cooperation and consultation 
within a reasonable period of time which shall not exceed fifteen (15) business days 
after receipt of the Notice, which may be extended by mutual consent.  The 
Monitoring Trustee shall present its own proposal for reso lving the dispute within 10 
business days after receipt of the Notice specifying in writing the action, if any, to be 
taken by the Parties in order to ensure compliance with the Commitments, and be 
prepared, if requested, to facilitate the settlement of th e dispute.  
44. Any disputes under the Fast -Track Dispute Resolution Procedure arising out of or in 
connection with the Agreements which are not resolved pursuant to the preceding 
paragraph, or in respect of the HS2 VHS Commitment, which are also not resolved, 
in a subsequent step, pursuant to the HS2 Fast -Track DR Procedure (as defined in 
Schedule 1), shall be finally settled in accordance with the Rules of Arbitration of the 
International Chamber of Commerce ( ICC) by an arbitral tribunal consisting of three 
arbitrators (the Arbitral Tribunal ). 
45. Should the Companies fail to resolve their differences of opinion through 
 
 
17 cooperation and consultation as provided for in the previous paragraph, the 
Requesting Company shall file arbitration proceedings with the ICC and nominate 
one arbitrator.  
46. The other Company shall, within two (2) weeks of receiving notification in writing 
of the appointment of the Requesting Company’s arbitrator, nominate a second 
arbitrator and provide to the Requesting Company in writing detailed re asons for its 
challenged conduct.  
47. The arbitrators nominated by the Companies shall, within one (1) week from both 
arbitrators having been nominated, agree to appoint a third arbitrator.  If the 
arbitrators nominated by the Companies cannot agree on the nom ination of a third 
arbitrator, they shall ask the President of the ICC to appoint the third arbitrator.  
48. The arbitrators shall be instructed to make a preliminary ruling on the contested 
issues within one (1) month of the appointment of the third arbitrator , which may be 
extended, if necessary, by the unanimous agreement of all three arbitrators.  The 
preliminary ruling shall be applicable immediately and until the final decision is 
issued.  The final decision which shall be ultimately binding on the Compani es shall 
be taken by the arbitrators within six (6) months of the appointment of the third 
arbitrator, which may be extended, if necessary, by the unanimous agreement of all 
three arbitrators.  Each Company waives any right, which it may have to seek a 
preliminary ruling on any point of law from a court of law.  An oral hearing shall, as 
a rule, be established within two (2) months of the confirmation of the Arbitration 
Tribunal.  
49. The seat of arbitration shall be Paris (France).  The arbitration shall be in English and 
conducted pursuant to the Rules of Arbitration of the ICC.  Any order for the 
production or disclosure of documents shall be limited to the documents on which 
each party of the arbitration specifically relies in its submission(s).  
50. The arbitrato rs shall agree in writing to keep any confidential information and 
business secrets disclosed to them in confidence.  The Arbitration Tribunal may take 
the measures necessary for protecting confidential information in particular by 
restricting access to co nfidential information to the Arbitration Tribunal, and outside 
counsel and experts of the opposing party.  The arbitrators shall be instructed not to 
disclose confidential information and to apply the standards attributable to 
confidential information and  business secrets by European Union competition law.  
51. The Commission shall be allowed and enabled to participate in all stages of the 
procedure by:  
(a)  Receiving all written submissions (including documents and reports, etc.) 
made by the Companies;  
 
 
18 (b)  Receiving all orders, interim and final awards and other documents 
exchanged by the Arbitral Tribunal with the Companies (including Terms of 
Reference and procedural time -table);  
(c)  Being given the opportunity to file amicus curiae briefs; and  
(d)  Being p resent at the hearing(s) and being allowed to ask questions to 
parties, witnesses and experts.  
52. The Arbitral Tribunal shall forward, or shall order the Companies to forward, the 
documents mentioned to the Commission without delay.  
53. In the event of disagreeme nt between the Companies regarding the interpretation of 
the Commitment, the Arbitral Tribunal may seek the Commission’s interpretation of 
the Commitment before finding in favour of any Company and shall be bound by the 
interpretation.  
54. In the event of disa greement between the Companies regarding the interpretation of a 
Commitment, the Arbitration Tribunal shall inform the Monitoring Trustee and may 
seek the Monitoring Trustee’s interpretation of the Commitment before finding in 
favour of any Company.  
55. The Ar bitration Tribunal shall decide the dispute on the basis of the Commitment 
and the Decision.  The Commitment shall be construed in accordance with the 
Merger Regulation, EU law, and general principles of law common to the legal 
orders of the Member States without a requirement to apply a particular national 
system.  
56. Nothing in the above -described arbitration procedure shall affect the powers of the 
Commission to take decisions in relation to the Commitment in accordance with its 
powers under the Merger Regul ation and the Treaty on the Functioning of the 
European Union.  
SECTION G.  THE REVIEW CLAUSE  
57. The Commission may extend the time periods foreseen in the Commitments in 
response to a  request from the Notifying Party or, in appropriate cases, on its own 
initiative.  Where the Notifying Party requests an extension of  a time period, they 
shall submit a request to the Commission no later than one month before  the expiry 
of that period, showing good cause .  This request shall be accompanied by a report 
from  the Mo nitoring Trustee(s), who shall, at the same time send a non -confidential 
copy of the report to  the Parties.  Only in exceptional circumstances shall the 
Notifying Party be entitled to request an extension  within the last month of any 
period.  
 
 
19 58. The Commission  may further, in response to a request from the Notifying Party  
showing good cause waive, modify or substitute, in exceptional circumstances, one 
or more of the  undertakings in these Commitments.  This request shall be 
accompanied by a report from the  Moni toring Trustee(s), who shall, at the same time 
send a non -confidential copy of the report to the  Parties.  The request shall not have 
the effect of suspending the application of the  undertaking and, in particular, of 
suspending the expiry of any time perio d in which the  undertaking has to be 
complied with.  
SECTION H. ENTRY INTO FORCE  
59. The Commitments shall take effect upon the date of adoption of the Decision.  
 
 
 
20 SCHEDULE 1  
 
The Very High Speed Divestment Business  
 
A. Description of the Very High Speed Divestment Business  
1.1 The Very High Speed Divestment Business consists of the Zefiro V300 Divestment 
Business and the HS2 VHS Commitment.  
1.2 The Zefiro V300 Divestment Business  consists of Bombardier’s entire scope of the 
Zefiro V300 Platform, as follows:  
(a) Zefiro V300 Platform.  The exclusive right to develop, improve, manufacture 
and commercialise  Bombardier’s scope of the Zefiro V300 platform as currently 
manufactured for and o perated by Trenitalia (and, in the near future, ILSA) (the 
“Zefiro V300 Platform ”1065). 
(b) Engineering personnel.  The transfer of up to […] Zefiro V300 engineers and, 
at the option of the Purchaser, sub -system engineering support ( e.g., through 
training, secondments, etc.).  
(c) Vado Ligure site.  At the Purchaser’s option, the sale or lease of Vado Ligure 
facility, including engineering, production, and aftermarket services capabilities.  
(d) Additional assets.  At the option of the Purchaser:  
a. Zefiro brand.  The Ze firo brand, subject to a license back for the Zefiro 
Express.  
b. Stock.  Bombardier’s current stock of Zefiro V300 -specific components 
and spare parts.  
c. Maintenance personnel.  Up to […] maintenance execution personnel and 
up to […] maintenance engineering, cu stomer service and support staff 
currently involved in providing maintenance services to Trenitalia for the 
Zefiro V300.  
d. Maintenance diagnostics software.  A non -exclusive license for 
Bombardier’s train maintenance diagnostic software tools limited to V300  
Zefiro applications.  
(e) Zefiro V300 projects and associated backlog with existing customers.  
Bombardier1066 offers to transfer, subject to customer consent, its contractual 
                                                 
1065  The Zefiro V300 Pl atform means the Zefiro V300 train configuration committed or existing in respect 
of the Trenitalia Projects and the ILSA Project (as defined below) existing at the date of Closing (as defined 
in the Commitments), together with such further modifications a s may be agreed with the Purchaser such as 
in respect of any updates required for TSI 2019 compliance.  
1066  Any reference to Bombardier in this Schedule shall be read to mean Alstom as of closing of the 
Concentration (as defined in the Commitments).  
 
 
21 interest in supply and maintenance contracts for Zefiro V300 projects with 
Trenitalia a nd [ a likely future customer ], including backlog (the “ Existing 
Projects ”), and its interest in any new agreements related to the exercise of 
options, call -offs, and any follow -on orders by Trenitalia or [ a likely future 
customer ]. 
(f) Supply agreements.  The transfer, at the option of the Purchaser, of all supply 
agreements with external suppliers for main components or services for 
Bombardier’s scope of the Zefiro V300 for the Existing Projects (including by 
transferring all relevant IP and procurement specif ications), subject to any 
applicable consent rights;  
(g) Transitional arrangements.  Bombardier offers to put in place transitional 
arrangements, including (i) continuing to perform its supply obligations for all 
Existing Projects, and (ii) entering into tempo rary supply or licensing 
agreements with the Purchaser in respect of (a) options, calls offs or follow -on 
orders by Trenitalia or [ a likely future customer ], or future very high speed1067 
orders for which Trenitalia (or any consortium in which Trenitalia will  be the 
operator) issues a call for tender within […] years of Closing and (b) future very 
high speed bids submitted within […] years of Closing.  (the “ Transitional 
Arrangements ”, as described in Section 5 below).  The Transitional 
Arrangements will last  [Confidential details of duration of transitional 
arrangements offered ], as further described in Section 5 below.  
as further described in Section B below.  
1.3 The HS2 VHS Commitment consists of the following:  
(a) [Bid-selection mechanism ].  Alstom and Bombardier offer to put in place a 
mechanism whereby [Confidential details of the bid -selection mechanism that 
Alstom commits to put in place if the Transaction closes before the HS2 tender 
is awarded ]; 
If the HS2 Project (as defined in Section C below) is awarded to  the 
Bombardier/Hitachi consortium:  
(b) Ongoing and future obligations towards Hitachi and HS2. [Confidential 
information on Alstom’s commitments vis -a-vis Hitachi and HS2 that apply in 
the event that the Bombardier/Hitachi consortium wins the HS2 tender. ] 
(c) Licence of Bombardier HS2 Project IP and Documentation and Transfer of 
Technology.   
a. The Parties offer, at the Purchaser’s option (such option to be exercised 
within […] months from the first train delivery to HS2):  
i. to grant a [ Confidential information on the licensing of Bombardier 
HS2 Project IP and Documentation and Transfer of Technology in 
the event that the Bombardier/Hitachi consortium wins the HS2 
                                                 
1067  Very high speed means projects or tenders, as applicable, involving the supply of trains that are 
required to be certified for operation at speeds of at least 300 km/h.  
 
 
22 tender .] license covering all IP rights and documentation relating to 
Bomba rdier’s scope for the HS2 Project for use in future very high 
speed projects, to the extent such IP rights and documentation are 
not covered by the Zefiro V300 Divestment Business;  
ii. to provide engineering support ( e.g., through training, 
secondments, etc.) in respect of Bombardier’s scope of the HS2 
Project for up to […] years following the exercise of this option 
and on commercially reasonable terms.  
b. If the Purchaser opts not to exercise the above option, u pon completion of 
the full performance of all of Bo mbardier’s obligations in respect of the 
HS2 Project, Alstom offers to grant a [ Confidential information on the 
licensing of Bombardier HS2 Project IP and Documentation and Transfer 
of Technology in the event that the Bombardier/Hitachi consortium wins 
the HS2 tender .] license covering all IP rights and documentation relating 
to Bombardier’s scope for the HS2 Project for use in future very high 
speed projects.  
as further described in section C below.  
B.  The Zefiro V300 Divestment Business  
1. The Zefiro V300 Pla tform consists of the following:  
Zefiro V300 -specific IP and documentation  
1.1 A transfer of all Zefiro V300 -specific IP rights and documentation relating to 
Bombardier’s scope for the Existing Projects.  The transfer will cover:  
(a) Train design .  All the Zefiro V300 -specific IP rights and documentation 
(including all homologation -related documentation1068) relating to the overall 
train design, vehicle architecture and vehicle safety for Existing Projects.  At the 
Purchaser’s option, the exclusive and perpetual licen se can be replaced by a 
sale.  
(b) Bogies.  All IP rights and documentation (including engineering bill of materials 
(E-BoM), technical drawings and specifications) for Zefiro V300 -specific 
applications of the […] bogies platform for the Trenitalia Project.   
(c) PPC (Traction components and software).  All IP rights and documentation 
(including engineering bill of materials (E -BoM), technical drawings and 
specifications,) for Zefiro V300 -specific applications for the Trenitalia Project.   
(d) TCMS.  All IP rights and documentation for Zefiro V300 -specific […] software 
project applications for the Trenitalia Project, including source code.    
                                                 
1068  Including type tests, submission dossiers and responses.  


 
 
25 valued at €[…] (Bombardier’s sc ope), as part of a new contract which is 
currently under negotiation between Bombardier, Hitachi and Trenitalia.   
3. Supply agreements  consists of the following:  
3.1 The transfer, at the option of the Purchaser, of any or all supply agreements with 
external supp liers for main components or services for Bombardier’s scope of the 
Zefiro V300 (including by transferring all relevant IP and procurement 
specifications), subject to any applicable consent rights of such suppliers.  For 
agreements that relate to component s used in several Bombardier platforms, 
Bombardier offers to carve out the Zefiro V300 -specific supply perimeters and 
transfer them to the Purchaser.  
3.2 An overview of the main external suppliers for Bombardier’s scope of the Zefiro 
V300 is included in Annex  1 below.  
4. Transitional arrangements  consists of the following:  
4.1 Bombardier offers to continue to perform its supply obligations for all Existing 
Projects, including putting  in place the Transitional Arrangements set out in Table 6 
below.  
Table 6: Proposed  Transitional Arrangements for Existing Projects  
 
[Confidential details on the specific services covered by the transitional arrangements. ]1070 
4.2 The Transitional Arrangements will cover manufacturing and engineering services, as 
well as more administrative tas ks, and will last until [ Confidential details of duration 
of transitional arrangements offered ].   
4.3 The Transitional Arrangements will also be provided for (i) the exercise of options, 
calls offs or any follow -on orders if the request to supply is issued by  Trenitalia or 
ILSA within […] years of Closing; (ii) future very high speed orders for which 
Trenitalia (or any consortium in which Trenitalia will be the operator) issues a call for 
tender within […] years of Closing, and (iii) any new very high speed te nders for 
which the Purchaser has submitted a complete technical and commercial bid (with any 
customer other than Trenitalia or [ a likely future customer ]) based on the Zefiro V300 
Platform within […] years of Closing.   
4.4 The Transitional Arrangements exclu de any options, calls offs or any follow -on orders 
of such future orders, save to the extent provided in the contractual documentation.   
4.5 The Transitional Arrangements will last [ Confidential details of duration of 
transitional arrangements offered ].  At the option of the Purchaser, these Transitional 
Arrangements may be terminated at an earlier date.  
                                                 
1070  [Confidential details on the  specific services covered by the  transitional arrangements ]. 
 
 
26 Transitional provision of maintenance services  
 
4.6 The Transitional Arrangements will only cover initial assistance and training with 
regard to maintenance for Bombardier’s scope of the Zefiro V300 Platform , and the 
Purchaser will entirely take over maintenance work as soon as possible after Closing, 
withi n a period of no more than […] months.  
5. Vado Ligure site consists of the following:  
5.1 At the option of the Purchaser, the Zefiro V300 Divestment Business will include the 
sale or lease of Bombardier’s plant located in Vado Ligure, Italy.   
5.2 The plant includes :  
(a) All Vado Ligure engineering services for the Zefiro V300 and associated 
personnel.  The plant could potentially be equipped to host very high speed train 
final assembly and testing by, for example, the changes proposed under (c) 
below.  
(b) All Vado Ligure a ftermarket services assets, including warehousing facilities.  
(c) At the option of the Purchaser, Bombardier offers to (i) set up production assets 
for final assembly of the Zefiro V300 bogies and wheelsets in Vado Ligure; (ii) 
adapt Vado Ligure’s final assem bly lines and testing infrastructure to very high 
speed rolling stock; and (iii) sell or lease a software lab for propulsion testing in 
Zurich (Switzerland).  
5.3 The complete list of manufacturing and testing assets be transferred as part of the 
Vado Ligure si te is provided in Annex 2  below.  
5.4 A breakdown of FTE estimates for 2020 for the Zefiro V300 for personnel employed 
at the Vado Ligure site (prepared prior to the Covid -19 outbreak) is provided in Table 
7 below.1071   
  
                                                 
1071   Bombardier notes that these FTE es timates for 2020 are likely to be significantly overstated due to the 
Covid -19 outbreak and related lockdown measures in place in Italy.  

 
 
28 C. The HS2 VHS Commitment  
1. The HS2 VHS Commitment consists of the following:  
1.1 The HS2 Project refers to Bombardier’s scope of and interest in a joint bid submission 
by Bombardier and Hitach i pursuant to a consortium agreement dated [ …] in respect 
of the ongoing tender procedure by High Speed Two Limited (“ HS2”) for the design 
and manufacture of 54 very high speed trains for operation on the UK’s new very high 
speed rail network between London, Birmingham and Northern England, together 
with the maintenance of that fleet for a minimum period of 12 years; and in any 
manufacturing, supply, or other agreements that may be entered into directly as a 
result of the Bombardier/Hitachi consortium1072 bid being selecting as the winning 
bidder by HS2 (including any options, call -offs or repeat orders to the extent provided 
for in agreements for the initial order of up to 54 very high speed trains) (the “ HS2 
Project ”).  
2. [Bid-selection mechanism ]  
2.1 If the tender for the HS2 Project has not been awarded prior to closing of the 
Concentration, [Confidential details of the bid -selection mechanism that Alstom 
commits to put in place if the Transaction closes before the HS2 tender is awarded ].   
2.2 [Confidential det ails of the bid -selection mechanism that Alstom commits to put in 
place if the Transaction closes before the HS2 tender is awarded ], Alstom and 
Bombardier offer to, [ Confidential details of the bid -selection mechanism that Alstom 
commits to put in place if  the Transaction closes before the HS2 tender is awarded ]: 
(a) put in place a mechanism whereby [Confidential details of the bid -selection 
mechanism that Alstom commits to put in place if the Transaction closes before 
the HS2 tender is awarded ]; and  
(b) [Confiden tial details of the bid -selection mechanism that Alstom commits to put 
in place if the Transaction closes before the HS2 tender is awarded ]. 
                                                 
1072  Any reference to the Bombardier/Hitachi consortium in this Schedule shall be read to mean 
Alstom/Hitachi consortium as of closing of the Concentration (as defined in the Commitments).  
 
 
29 2.3 [Confidential details of the bid -selection mechanism that Alstom commits to put in 
place if the Transaction closes before the HS2 tender is awarded ].  
3. Ongoing and future obligations towards Hitachi and HS2   
3.1 If HS2 awards the HS2 Project to the Bombardier/Hitachi consortium (and only 
provided that the HS2 Project is awarded to the Bombardier/Hitachi consortium): 
[Confi dential information on Alstom’s commitments vis -a-vis Hitachi and HS2 that 
apply in the event that the Bombardier/Hitachi consortium wins the tender. ] 
4. Licence of Bombardier HS2 Project IP and Documentation and Transfer of 
Technology  
4.1 If HS2 awards the HS2 Project to the Bombardier/Hitachi consortium (and only 
provided that the HS2 Project is awarded to the Bombardier/Hitachi consortium), the 
Parties offer to the Purchaser an option to purchase a [Confidential information on the 
licensi ng of Bombardier HS2 Project IP and Documentation and Transfer of 
Technology in the event that the Bombardier/Hitachi consortium wins the HS2 
tender .] license (based on an upfront lump -sum royalty to be agreed with the 
Purchaser) covering all IP rights and  documentation owned by Bombardier relating to 
Bombardier’s scope for the HS2 Project (including IP rights and documentation that 
are not specific to the HS2 Project) for use in future very high speed projects, which 
can be exercised at the following times :  
[Confidential details on the three alternative periods/dates when Hitachi can exercise 
the option for the Licence of Bombardier HS2 Project IP and Documentation and 
Transfer of Technology .] 
in each case the option may be exercised within 4 weeks of occu rrence of the relevant 
event.  
4.2 If the option is exercised under 4.1(a), the closing of the licensing agreement ( i.e., 
making the relevant IP available to the Purchaser) will be conditional upon 
[Confidential information on Alstom’s commitments vis -a-vis Hi tachi and HS2 that 
apply in the event that the Bombardier/Hitachi consortium wins the tender. ] 
4.3 If the option is exercised under 4.1(a) or (b), Alstom offers to provide the Purchaser 
with engineering support ( e.g., through training, secondments, etc.) in re spect of 
Bombardier’s scope of the HS2 Project for a period of up to […] years following the 
delivery of the first train to HS2, on commercially reasonable terms.  
4.4 Monitoring Trustee and dispute resolution .  As set out in paragraph 6 of the 
Commitments, t he Monitoring Trustee will monitor Alstom and Bombardier’s 
compliance with the HS2 VHS Commitment for the duration of Alstom’s obligations 
towards HS2 and Hitachi as part of the HS2 Project.   
4.5 In addition to the Fast -Track Dispute Resolution Procedure incl uded in the 
Commitments, at the option of the Purchaser and with the consent of HS2, any 
disputes which may arise between either or both Parties and the Purchaser or HS2 
relating to the HS2 VHS Commitment will be subject to a dedicated fast -track dispute 
 
 
30 resolution procedure (the “ HS2 Fast -Track DR Procedure ”) as described in Annex 3  
below.  
D. Common Provisions Applicable to the Zefiro V300 Divestment Business and the 
HS2 VHS Commitment  
1. Future bids  
1.1 Nothing in this Schedule or in the Commitments shall prevent A lstom or the 
Purchaser from participating, directly or indirectly, in any future bid for the supply of 
very high speed trains.  In the event that the rules applicable to such bids prohibit or 
limit the ability to act both as a supplier to another bidder an d as an independent 
bidder, each of Alstom and the Purchaser shall make an independent determination in 
its sole and absolute discretion as to whether to submit a stand -alone bid or to bid in 
collaboration with another party (subject, in respect of the Zef iro V300 Divestment 
Business, to the terms of the  [Confidential details on ongoing sale negotiations 
between the Parties and Hitachi ]). 
2. Information barriers  
2.1 In reference to their obligation under paragraph 6 of the Commitments, in relation to 
the VHS HS2 Commitment, the Parties commit to:  
(a) Implement  and respect  strict  separation  rules  (such  as information barriers) 
between the  teams  involved in the Bombardier/Hitachi consortium bid and the 
teams involved in the Alstom bid for the HS2 Project as required un til the 
earlier of: [ Confidential information on information barriers to be put in place 
for the HS2 Project. ] 
(b) Put in place all necessary and appropriate safeguards and protections to ensure 
that any competitively sensitive information of the Purchaser in relation to the 
Existing Projects, the HS2 Project (if awarded to the Bombardier/Hitachi 
consortium), and any new very high speed project or tender for which the 
Parties may provide Transitional Arrangements to the Purchaser, could not be 
used in any of th e Parties’ other projects.  
3. The Very High Speed Divestment Business shall not include:  
(a) Any personnel of the Combined Entity, other than expressly included;  
(b) Any production facilities, manufacturing units, or R&D facilities, other than 
expressly included;  
(c) Tangible and intangible assets (including intellectual property rights) which do 
not contribute to the current operation of the Zefiro V300 Divestment Business 
or the envisaged future operation of the HS2 VHS Commitment;  
(d) Tangible and intangible assets (inc luding intellectual property rights) that are 
shared between  the Zefiro V300 Divestment Businesses, the HS2 VHS 
Commitment and Alstom’s retained business other than expressly included;  
 
 
31 (e) Any IP, know -how, copyright relating to components that the Purchaser might 
procure from Bombardier other than expressly included;  
(f) The Zefiro brand for use as part of the Zefiro Express, Bombardier’s company 
name, mark or logo in any form;  
(g) Bombardier’s existing supply agreements for non -critical, commodity (non -
rolling -stock specific) components and  
(h) Any sub -supply or maintenance agreements between Bombardier and other 
rolling stock suppliers or operators in respect of non -Zefiro V300 (very) high 
speed trains;  
(i) All books and records to be retained pursuant to any statute, rul e, regulation or 
ordinance, provided  that Bombardier will provide copies of such documents 
necessary of the Very High Speed Divestment Business to the Purchaser upon 
request;  
(j) General books of account and books of original entry that comprise Combined 
Entit y or any of its Affiliated undertakings’ permanent accounting or tax records 
provided that Combined Entity will provide copies of such documents necessary 
for the Very High Speed Divestment Business to the Purchaser, upon request; 
and 
(k) Any other rights, ass ets or interests not expressly included.  
 
 
32 Annex 1  
Overview of main external suppliers for Bombardier’s scope of the Zefiro V300  
 
[Confidential information on Bombardier’s external suppliers. ] 
 
  
 
 
33 Annex 2  
  
Overview of Vado Ligure Manufacturing and Testing Assets  
1. The complete list of manufacturing and testing assets that are located in Vado Ligure is as 
follows: [ Confidential information on Vado Ligure manufacturing and testing assets. ] 
  
 
 
34 Annex 3  
  
HS2 Fast Track -DR Procedure  
 
1. This HS2 Fast -Track DR Procedure is available, at the option of the Purchaser and 
with the consent of HS2, to resolve any disputes which may arise between either or 
both Parties and the Purchaser or HS2 (each a Company and jointly the Companies ) 
relating t o the HS2 VHS Commitment .  
2. This HS2 Fast -Track DR Procedure is only available after the Companies attempted to 
resolve any differences pursuant to paragraph 43 of the Commitments and before one 
of the Companies initiating arbitration provided for in paragr aph 44 of the 
Commitments.  
3. If a Company wishes to avail itself of the HS2 Fast -Track DR Procedure (the 
Requesting Company ), it must notify the other Company in writing (with a copy to 
the Monitoring Trustee) setting out in detail the reasons leading that Company to 
believe that the other Company is failing to comply with the HS2 VHS Commitment 
(the Notice ). 
a. THE PROCEDURE  
4. At the latest a month after the approval by the Commission of the Monitoring Trustee, 
Alstom shall propose a list of names for the Monito ring Trustee and the Commission 
to consider as potential experts to adjudicate in disputes (the “ Experts ”). The Experts 
shall be independent, suitably qualified, and shall have the necessary experience, 
competence, and qualifications in relation to very hi gh speed rolling stock projects.  
5. Where paragraph 43 of the Commitments applies, the Monitoring Trustee shall 
appoint one of the Experts to adjudicate on the dispute within 5 working days of 
expiry of the period set out in paragraph 43 of the Commitments.  
6. The process shall be conducted in private and shall be confidential. The language of 
the process shall be in English.  
7. The Expert shall act on the following basis:  
(a) the Expert shall act fairly and impartially;  
(b) each party shall submit to the Expert its brief and its submission in relation to the 
matter in dispute within 10 working days of the Expert's appointment;  
(c) Each party shall assist and provide such documentation as the Expert reasonably 
requires to consider the matters referred to it;  
(d) the Expert’s determ ination shall be given within a maximum period of 20 working 
days of the Expert’s appointment;  
 
 
35 (e) the Expert's determination in relation to any matter pursuant to paragraph 43 of the 
Commitments shall (save for manifest error or fraud) be final and binding on  the 
Parties and the Requesting Party;  
(f)  any challenge to the Expert’s determination in accordance with the clause above 
shall be made according to the arbitration procedure provided for in the 
Commitments;  
(g) each party shall carry out the actions required to  comply with the obligations set 
out in the Expert’s determination in relation to any matter pursuant to paragraph of 
the Commitments within any time -limits specified by the Expert; and  
(h) the Requesting Party shall pay the Expert’s costs if the Expert’s dete rmination 
upholds the Parties’ claims. Alstom will pay the Expert’s costs if the Expert’s 
determination upholds the Requesting Party’s claims. The Expert shall otherwise 
determine how and by whom the costs of the determination are to be paid.  
b. INVOLVEMENT OF THE COMMISSION  
8. The Commission shall be allowed and enabled to participate in all stages of the 
procedure by:  
(a) receiving all written submissions (including documents and reports, etc.) made 
each party to the procedure;  
(b) receiving all documents exchanged b y the Expert with the parties to the procedure;  
(c) filing any written submissions; and  
(d) being present at the hearing(s) and being allowed to ask questions to the parties.  
9. The Expert shall forward, or shall order the parties to forward, the documents 
mentione d in the previous paragraph to the Commission without delay.  
10. The Monitoring Trustee shall receive copies of:  
(a) all submissions made by the parties to the procedure in relation to the matters they 
wish to have resolved by the Expert, on the day when these ha ve been submitted 
to the Expert;  
(b) all other documentation provided by the parties, on the day when these have been 
submitted to the Expert; and  
(c) the determination made by the Expert, on the day when the determination has been 
provided to the parties.  
 
 
 
36 SCHEDULE 2  
The Coradia Polyvalent Divestment Business  
 
1. Description of the Coradia Polyvalent Divestment  Business  
1.1 The “Coradia Polyvalent Divestment Business” consists of Alstom’s Coradia 
Polyvalent Platform, the Reichshoffen plant and related activities, including:  
(a) Coradia Polyvalent Platform Divestment .  The exclusive right to develop, 
adapt, manufacture and commer cialise  the Coradia Polyvalent regional EMU 
and bimode mainline platform (the “ Coradia Polyvalent Platform” ), including 
related Polyvalent -specific subsystems and components and perpetual non -
exclusive licenses for subsystems and components that are not sp ecific to the 
Coradia Polyvalent Platform.  
(b) Coradia Polyvalent Contracts and Associated Backlog .  Alstom offers to 
transfer all existing Coradia Polyvalent backlog, subject to customer consent, 
including:  
(i) The delivery of […] Coradia Polyvalent trainsets as part of the 2009 frame 
contract with SNCF, valued at €[…], and existing options for […] 
trainsets subject to [ Confidential considerations for alternative energy ]; 
and 
(ii) The delivery of […] Coradia Polyvalent trainsets as part of the 2019 
contract with the Hello Paris Consortium (consisting of RATP and 
Keolis ), valued at €[…].  
(c) The Reichshoffen Plant Divestment .  Alstom offers, through a transfer, the 
divestment of its ent ire Reichshoffen manufacturing plant located in Bas -Rhin, 
France, consisting of: (i) engineering and manufacturing facilities for various 
types of rolling stock (newbuild and renovation), warehousing facilities, and 
testing facilities, together with associ ated permanent onsite personnel ( […]  
FTEs); and (ii) subject to customer consent, the transfer of the MI84 renovation 
project (with a backlog of €[…]), and a subcontract for the carbody shell 
manufacturing for Metro de Lille (with a backlog of €[…]), whic h are currently 
undertaken at the Reichshoffen plant .   
(d) Supply and Transitional Agreements.   At the option of the Purchaser , Alstom 
offers to (i) supply carbody shells, bogies, and traction systems; (ii) supply 
TCMS, hardware & middleware ; (iii) supply com ponents and subsystems 
designed by Alstom for [Confidential upgrade ]; and (iv) provide transitional 
services agreements for warranty services and support functions that are 
currently provided by Alstom’s central organization .  
(e) [Confidential upgrade ].1  At the option of the Purchaser , Alstom also offers to 
                                                 
1  [Confidential upgrade ]. 


 
 
39 the Coradia Polyvalent Platform for which Alstom relies on third -party suppliers 
(subject to supplier consent), including in relation to available stock relating to 
the Coradia  Polyvalent; or   
(b) support the Purchaser in negotiations with third -party component suppliers to 
obtain similar terms and conditions for the procurement of components specific 
to the Coradia Polyvalent Platform for which Alstom relies on third -party 
supplie rs.  
2.6 Absent supplier consent, Alstom will continue to procure the relevant components 
from third -party suppliers for the duration of the Coradia Polyvalent Contracts and 
transfer the components to the Purchaser at cost to the extent allowed in Alstom’s 
existing procurement agreements with the third -party suppliers.   
2.7 If there is any asset or personnel which is not be covered by paragraph 2 of this 
Schedule but which is both used (exclusively or not) in the Divestment Business and 
necessary for the continued  viability and competitiveness of the Divestment Business, 
that asset, adequate substitute, or support (including supply or service agreements) 
will be offered to the Purchaser, which will oversee the process.  
3. The Coradia Polyvalent Contracts and Associate d Backlog consists of the 
following:  
Contracts and Backlog  
3.1 Alstom offers to transfer, subject to customer consent, all existing rolling stock 
contracts for Coradia Polyvalent with SNCF and the Hello Paris Consortium 
(consisting of RATP and Keolis ), includ ing all backlog and options:  
(a) The delivery of […] remaining Coradia Polyvalent trainsets (consisting of EMU 
and bimode versions) ordered to date as part of the 2009 contract with SNCF, 
valued at € […] as of March 30, 2020, and existing options for […] train sets 
subject to [ Confidential considerations for alternative energy ].  
(b) The delivery of […] mainline EMU Coradia Polyvalent trainsets as part of the 
2019 contract with RATP and Keolis, valued at € […].  
3.2 Absent customer consent, […].   
4. [Confidential considerations for alternative energy ] 
4.1 […].  [Confidential considerations for alternative energy ]   are without prejudice to 
the Purchaser’s ability to: (i)  integrate its own (or externally sourced) BEMU traction 
system to the Coradia Polyvalent Platform f or any demands for a BEMU version 
(including […]); and (ii) integrate its own (or externally sourced) hybrid or hydrogen 
fuel-cell traction for any future demands outside the […].   
5. The Reichshoffen Plant Divestment consists of the following:  
5.1 The Reichsho ffen Plant Divestment will include the divestment of: (i) the site; 
including related assets (such as tools/jigs etc.); (ii) personnel; and (iii) existing 


 
 
42 6. Supply and Transitional Agreements  consist of the following:  
Supply agreements  
6.1 At the option of the Purchaser,  Alstom  offers to provide the following supply 
agreements to the Purchaser to: (i) effectively manufacture and deliver the remaining 
backlog and additional options under the existing contracts with SNCF and the Hello 
Paris without any degradation in quality or le ad time; and (ii) participate in new 
tenders with the Coradia Polyvalent Platform on competitive terms.   
(a) Subject to being granted a back -license to enable such supply, Coradia 
Polyvalent -specific components and subsystems , for which Alstom already 
offers the transfer of all relevant intellectual property rights and 
documentation,including:  
(i) Carbody shell subsystem parts.   Including carbody sub -assemblies roof, 
cabin and end wall.   
(ii) Bogies subsystem.   Including frames, wheels, axles, and wheelsets.  
(b) Non-Cora dia Polyvalent  specific components and subsystems, for which Alstom 
already offers non -exclusive licences to the Purchaser, including:  
(i) Traction systems.   Complete EMU or bimode traction system or 
components such as ESS converter, traction and auxiliary co nverter 
(power modules & electronics), HV components.  
(ii) Components.   Including non -Coradia Polyvalent -specific components for 
bogies (such as PMM motors and dampers), traction, and TCMS.  
(c) Additional  components and subsystems that do not fall under the scope o f the 
Coradia  Polyvalent Platform Divestment, including:  
(i) BEMU traction system.   Complete BEMU traction system or components 
such as ESS converter, traction and auxiliary converter (power modules & 
electronics), HV components.   
(ii) TCMS hardware & middleware.   Support, including engineering support, 
for TCMS Middleware evolution.  
(iii) [Confidential upgrade ]-specific components and subsystems,  for 
components and subsystems designed by Alstom and which do not fall 
under the Reichshoffen Plant Divestment’ competencies .  
6.2 Supply agreements for the purpose of fulfilling obligations or potential options under 
the existing SNCF and Hello Paris Consortium agreements will be concluded for a 
duration equal to the duration of the underlying agreements with the customers.  For 
these agreements, Alstom will offer to supply the relevant components and 
subsystems to the Purchaser based on its existing internal pricing arrangements.  
6.3 Supply agreements concerning  trains to be supplied for new tenders will be limited to 
new tenders awarded within five years of Closing and will last for a duration of three 
years from initial purchase under the relevant supply agreement. For these 
 
 
43 agreements, Alstom will offer to sup ply the relevant components and subsystems to 
the Purchaser at cost.   
Transitional services agreements  
6.4 At the option of the Purchaser , Alstom will provide the Purchaser with transitional  
services agreements to cover warranty services for the Coradia Polyva lent Platform 
under the existing agreements with SNCF and Hello Paris Consortium and provide 
central functions at the Reichshoffen plant.  
(a) Warranty services.   Alstom offers to provide an optional transitional services 
agreement for the warranty  services  for the SNCF and the Hello Paris 
agreements, including for the [Confidential upgrade ].   
(b) Central functions.   Alstom offers to supply temporary transitional services for 
support functions that are currently provided by Alstom’s central organization 
(including, sourcing, supply chain, Finance, HR, IT, and legal).  
Monitoring Trustee  
6.5 The Monitoring Trustee appoint ed for the Commitments will monitor Alstom’s 
compliance with the Supply and Transitional Services Agreements for their duration.  
7. [Confidential upgrade ] consists of the following:  
7.1 [Details on confidential upgrade ] 
7.2 [Details on confidential upgrade ]  
7.3 [Details  on confidential upgrade ]. 
7.4 For components and subsystems that are not part of Reichshoffen Plant Divestment’s 
current competencies but that are necessary for the [confidential upgrade ], Alstom 
offers to, at the option of the Purchaser , provide engineering  support to the Purchaser 
for the [confidential upgrade ] required for all components and subsystems.  
8. The Coradia Polyvalent Divestment Business shall not include any right, title 
and/or interest in (the “ Carve -Out Assets ”):  
(a) intellectual property rights, documentation, or prototypes for hybrid, hydrogen, 
or BEMU traction systems;  
(b) APTIS’s rented area and activities, except for the lease and the Service Level 
Agreement;  
(c) the transfer of Alstom’s agreement with Lille Metropole fo r the supply of 
metros;  
(d) Center of excellence for carbody shells, including any related intellectual 
property rights, know -how, documentation, tangible and intangible assets, and 
 
 
44 related personnel ([…] FTEs);9  
(e) the Train Control and Management Systems divis ion, including any related 
intellectual property rights, know -how, documentation, tangible and intangible 
assets, and related personnel that is not specific to the Coradia Polyvalent ( […] 
FTEs);10  
(f) PMCO personnel that is not specific to the to the Coradia P olyvalent ( […] 
FTEs);11 
(g) shared  administrative  personnel ( […] FTE);  
(h) any p ersonnel  of the Combined Entity, other than expressly included above;  
(i) the Coradia brand, Alstom’s company name, mark or logo in any form;  
(j) intellectual property rights related to engine ering design & calculation of the 
bogies subsystem, the PMM motor and dampers;  
(k) TCMS software application layer proprietary  tools to compile and test the code -
tools;  
(l) existing supply agreements for non -Coradia Polyvalent -specific commodity 
components;  
(m) intellectual property rights  related to TCMS hardware and middleware;  
(n) intellectual property rights related to traction system subcomponents (ESS 
converter, traction converter, and auxiliary converter’s subcomponents (power 
module and electronics, HV compon ents) and software (traction and auxiliary 
software as well as tooling to compile and validate the code);  
(o) any production assets, manufacturing units, or R&D facilities, other than 
expressly included above;  
(p) tangible and intangible assets (including intellec tual property rights) which do 
not contribute to the current operation of the Coradia Polyvalent Divestment 
Business;  
(q) tangible and intangible assets (including intellectual property rights) that are 
shared between  the Coradia Polyvalent Divestment Business es and Alstom’s 
retained business other than as expressly included above;  
                                                 
9  The remaining […] FTEs is included in the Coradia Polyvalent Divestment Business.  
10  The Train Control and Management Systems division that is specific to the Cor adia 
Polyvalent, including any related  intellectual property rights, know -how, documentation, 
tangible and intangible assets, and related personnel ( […] FTEs) is included in the Coradia 
Polyvalent Divestment Business.  
11  The remaining […] FTEs is included in the Coradia Polyvalent Divestment Business.  
 
 
45 (r) any IP, know -how, copyright relating to components that the Purchaser might 
procure from Alstom other than as expressly included above;  
(s) all books and records to be retained pursuant to any statute, rule, regulation or 
ordinance, provided  that Alstom will provide copies of such  documents 
necessary of the Coradia Polyvalent Divestment Business to the Purchaser upon 
request;  
(t) general books of account and books of original entry that comp rise Combined 
Entity or any of its Affiliated undertakings’ permanent accounting or tax records 
provided that Combined Entity will provide copies of such documents necessary 
for the Coradia  Polyvalent Divestment Business to the Purchaser, upon request; 
and 
(u) any other rights , assets or interests not expressly included.  
* * *  
  
 
 
46 [Confidential annex ] 
 
 
47 SCHEDULE 3  
The Talent 3 Divestment Business   
 
1. Description of the Talent 3 Divestment Business  
1.1 The “Talent 3 Divestment Business” consists of Bombardier’s Talent 3 Platform, and 
at the option of the Purchaser , the sale or lease of the Talent -3 specific carve -out of 
Bombardier’s Hennigsdorf site (the “ Hennigsdorf Carve -Out Area ”), including:  
(f) Talent 3 Platform Divestment .  The exclusive right  to develop, adapt, 
manufacture, and commercialise  the Talent 3 regional EMU platform (the 
“Talent 3 Platform ”), including related Talent 3 -specific subsystems and 
components and perpetual n on-exclusive licenses for subsystem documentation 
shared with other Bombardier platforms , including bogies, propulsion, and 
TCMS subsystem  
(g) Talent 3 Contracts and Associated Backlog .  Bombardier offers to transfer all 
existing rolling stock agreements (including future options w orth €[…]) with 
Abellio, Netinera, SWEG, STA, and ÖBB for the Talent 3 Platform and 
associated backlog valued at €[…]:1 
(i) the delivery of […] trains as part of three supply contracts under a 2016 
frame agreement with ÖBB valued at € […], and existing options for 
[…]trains;  
(ii) the delivery of […] Talent 3 trains as part of the 2019 contract with 
STA, valued at € […], as well as options for […] additional trains and 
[potential contract ]; 
(iii) the delivery of […] trains as part of the 2016 contract with Abellio, 
valued at  €[…];2   
(iv) the delivery of […] trains as part of the 2017 contract with Netinera, 
valued at € […]; and  
(v) the delivery of […] trains as part of the 2017 contract with SWEG, 
valued at € […]. 
(h) Hennigsdorf Carve -Out Area Divestment.   Bombardier offers, at the option  of 
the Purchaser , to sell or lease3 the production and services areas covering 
[square metres]  (Hall 221 ) and warehouse ( Hall 222 ) of its Hennigsdorf site 
located in Germany, consisting of: (i) engineering and manufacturing facilities 
as will be equipped  by Bombardier during the Transition Period (as defined 
                                                 
1  Subject to customer consent rights.  Backlog is defined as the total order intake value of trains 
remaining to be delivered  as of end of FY19.  Bombardier has since delivered […] trains to Abellio .   
2  As of end of FY19.  Bombardier has since delivered […] of the […] trains to Abellio.   
3  On the terms (including duration) and conditions  which will be agreed between the Purchaser and 
Bombardier . 


 
 
50 Procurement Specifications  
2.3 Bombardier will offer to make available to the Purchaser the build -to-print 
procurement specifications for externally sourced key components and sub -
components which Bombardier sources from third -party suppliers for use in the 
Talent 3 Platform.  
2.4 Bombardie r will use commercially  reasonable efforts to:  
(c) transfer  or assign all contracts, agreements or relationships and understandings; 
or with third -party component suppliers relating to the components specific to 
the Talent 3 Platform for which Bombardier relies on third -party suppliers 
(subject to supplier consent ), including in relation to available stock relating to 
the Talent 3; or   
(d) support the Purchaser in negotiations with third -party component suppliers to 
obtain similar terms and conditions for the procurement of  components specific 
to the Talent 3 Platfor m for which Bombardier relies on third -party suppliers.  
2.5 Absent supplier consent, Bombardier will continue to procure the relevant 
components from third -party suppliers for the duration of the Talent 3 Contracts and 
transfer the components to the Purchaser  at cost to the extent allowed in Bombardier’s 
existing procurement agreements with the third -party suppliers.   
2.6 If there is any asset or personnel which is not covered by paragraph 2 of this Schedule 
but which is both used (exclusively or not) in the Dive stment Business and necessary 
for the continued viability and competitiveness of the Divestment Business, that asset 
adequate substitute or support (including supply or service agreements) will be 
offered to the Purchaser, which will oversee the process.  
3. The Talent 3 Contracts and Associated Backlog consists of the following:  
3.1 Bombardier offers to transfer, subject to the customer consent, all existing rolling 
stock contracts for Talent 3 with Abellio, Netinera, and SWEG in Germany, ÖBB in 
Austria, and STA  in Italy, including all backlog and options (“ Talent 3 Contracts ”):11  
(a) the delivery of […]trains as part of […] supply contracts under a 2016 frame 
agreement with ÖBB valued at € […], and existing options for […] trainsets;  
(b) the delivery of […] Talent 3 trai ns as part of the 2019 contract with STA, valued 
at €[…], existing options for […] trains and [potential contract ] 
(c) the delivery of […] trains as part of the 2016 contract with Abellio, valued at 
€[…];12   
(d) The delivery of […]  trains as part of the 2017 cont ract with Netinera, valued at 
€[…]; and  
(e) The delivery of […]  trains as part of the 2017 contract with SWEG, valued at 
                                                 
11  As of end of FY19.  
12  As of end of FY19.  Bombardier has since delivered […] of the […] trains to the customer.  
 
 
51 €[…]. 
3.2 Absent customer consent, […]   
 
4. The Hennigsdorf Carve -Out Area Divestment consists of the following:  
4.1 The Hennigsdorf Carve -Out Area  Divestment will include, at the option of the 
Purchaser , the sale or lease of (i) the Talent -3 specific carve -out of Bombardier’s 
Hennigsdorf site (“ Hennigsdorf Carve -Out Area ”) (Germany) and (ii) personnel; 
subject to the Carve Out Assets described in Section 7 below:  
4.2 The combination  of the Talent 3 Platform Divestment and the Hennigsdorf Carve -Out 
Area Divestment will allow the Purchaser to effectively manufacture, test, and  
homologate the Talent 3 Platform.  
Assets and equipment   
4.3 The Hennigsdorf Carve -Out Area Divestment  assets located at the Hennigsdorf site 
include dedicated facilities for production and services areas covering [square metres] 
(Hall 221 ) and a warehouse hosting more than 80 workplaces ( Hall 222 ).   
4.4 The assets include:  (i) warehousing and office facilities and assets; (ii) engineering 
facilities and assets ( incl. the necessary Bombardier proprietary computer systems 
used in the development and maintenance of the Talent 3 Platform);  and 
(iii) manufacturing facilities and assets for rolling stock (incl. pre -assembly, fitting, 
train final assembly and homologation) as will be equipped by Bombardier for Talent 
3 production during a 12 -36 month transition period  (“Transition Period ”) including:  
(a) the transfer  of Talent -3 specific machineries to the Hennigsdorf Carve -Out 
Area;  
(b) the transfer  of Talent 3 -specific jigs, equipment and toolings to the Hennigsdorf 
Carve -Out Area;  
(c) the establishment  of a fully equipped lin e for fit -out 2 operations; and  
(d) the building  of a partition wall between production lines, including the 
separation of office building.  
4.5 Bombardier offers to, continue manufacturing the Talent 3 as a subcontractor to the 
Purchaser during the Transition Peri od in compliance with the delivery schedules 
agreed with the customers.  The subsupply for the Transition Period will occur on 
current commercial terms, and Bombardier would offer the service at zero margin.  
Personnel  
4.6 The Hennigsdorf Carve -Out Area Divestment includes the transfer of personnel 
experienced  in the engineering and manufacturing of the Talent 3 Platform, including 
(i) a team of up to […] product engineers and specialists specific to the Talent 3 
Platform; (ii) a team of […] Talent 3 -specific TCMS IT engineers; and (iii) at the 

 
 
53 5. Supply and Additional Agreements consist of the following:  
Supply  agreements  
5.1 At the option of the Purchaser , Bombardier offers to provide the following supply 
agreements:  
(a) Supply  agreements for: subsytems that are not specific to the Talent 3 
Platform:    
o Assembled bogies and EMU and BEMU propulsion , including engineerin g 
support to complete subsystem outstanding design -work for ongoing and/or 
future bids;  
o Engineering support for carbodies  to complete subsystem outstanding 
design -work for ongoing and/or future  bids;  
o TCMS circuit boards for Talent 3 , including engineering support on the 
integration of Talent 3 -specific application with for TCMS middleware for 
ongoing projects and update/bug fixes on the middleware to the extent that 
will be developed.   
(b) Supply agreements in relation to the [ Confident ial upgrade ] 
o Components and subsystems necessary for [Confidential upgrade ], for 
components and subsystems designed by Bombardier and which do not fall 
under the Hennigsdorf Carve Out Area Divestment’s competencies.  
5.2 Supply agreements for the purpose of ful filling obligations or potential options under 
the existing Talent 3 Contracts  will be concluded for a duration equal to the duration 
of the underlying agreements with the customers.  For these agreements, Bombardier 
will offer to supply the relevant compo nents and subsystems to the Purchaser based 
on its existing internal pricing arrangements.  
5.3 Supply agreements concerning trains to be supplied for new tenders will be limited to 
new tenders awarded within five years of Closing and will last for a duration of three 
years from initial purchase under the relevant supply agreement.  For these 
agreements, Bombardier will offer to supply the relevant components and subsystems 
to the Purchaser at cost.  
Additional agreements  
5.4 At the option of the Purchaser , Bombardi er also offers to provide the following 
agreements on exact terms and conditions to be agreed with the Purchaser based on 
the Purchaser’s capabilities and needs to allow the viability of the Talent 3 Platform 
Divestment : 
(a) Testing services and track access  to existing  testing services and track 
infrastructure at the Hennigsdorf plant.  At the option of the Purchaser , 
Bombardier will provide the Purchaser with testing services together with the 
possibility to access the track infrastructure within 10 years of Closing.  The 
cost for testing services will be calculated based on Bombardier’s internal 
project cost.  The P urchaser will have the right at any point in time to move 
 
 
54 trains through the retained Bombardier area to reach the testing facilities and 
the public infrastructure;  
(b) The sale or lease of equipment for bogies/wheelsets final assembly and car 
body erection  to be placed  into a suitable industrial facility in the Greater 
Berlin Area;  
(c) Talent 1 and Talent 2 platform -specific documentation  including platform 
description and all platform -specific mechanical and electrical drawings, 
corresponding installed -bases, tog ether with existing service agreements and 
potential liabilities.  
Monitoring trustee  
5.5 The Monitoring Trustee appointed for the Commitments will monitor Bombardier’s 
compliance with the Supply and Additional Agreements for their duration.  
6. [Confidential upgrade ]:  
6.1 […].  
6.2 […].  
 
(a) […] 
(b) […] 
7. The Talent 3 Divestment Business shall not include any right, title and/or interest 
in:  
(a) any resources , assets, personnel, and specific industrial means and equipment 
residing in Bombardier’s Hennigsdorf plant, other than expressly included in 
the above and that will be moved into the Hennigsdorf Carve -Out Area during 
the Transition Period;  
(b) rolling stock testing and track infrastructure located at the Hennigsdorf plan;  
(c) any production assets , manufacturing units, or R&D faci lities, other than 
expressly included above;  
(d) tangible and intangible  assets (including intellectual property rights) which do 
not contribute to the current operation of the Talent 3 Divestment Business;  
(e) tangible and intangible assets (including intellectua l property rights) that are 
shared between  the Talent 3 Divestment Business and Bombardier’s retained  
business other than as expressly explained above;  
(f) any IP, know -how, copyright relating to components that Purchaser might 
procure from Bombardier  
(g) any p ersonnel  of the Combined Entity, other than expressly included above;  
 
 
55 (h) Bombardier’s supply agreements relating to non -critical, commodity, non -
rolling stock specific  components;  
(i) all books and records to be retained pursuant to any statute, rule, regulation or  
ordinance, provided  that Bombardier  will provide copies of such  documents 
necessary of the Talent 3 Divestment Business to the Purchaser upon request;  
(j) general books of account and books of original entry that comprise Combined 
Entity or any of its Affili ated undertakings’  permanent accounting or tax 
records provided that Combined Entity will provide copies of such documents 
necessary for the Talent 3  Divestment Business to the Purchaser, upon request; 
and 
(k) any other rights , assets  or interests not expressl y included.  
*** 
  
 
 
56 [Confidential annex ] 
 
 
 
 
 
 
 
 
 
57 Case M.9779 – Alstom/Bombardier Transportation  
COMMITMENTS TO THE EUROPEAN COMMISSION  
Pursuant to Article 6(2), of Council Regulation (EC) No 139/2004 (the “ Merger 
Regulation ”), Alstom S.A. (“ Alstom ”, or the  “Notifying Party ”) hereby enters into the 
following Commitments (the “ Commitments ”) vis-à-vis the European Commission (the 
“Commission ”) with a view to rendering its proposed acquisition of sole control over 
Bombardier Transportation (Investment) UK  Ltd, the holding entity for Bombardier 
Transportation (“ Bombardier Transportation ” and, together with Alstom, the “ Parties ”), 
the global rail solutions division of Bombardier Inc. (“ Bombardier ”) (the  “Proposed 
Transaction ”) compatible with the internal ma rket and the functioning of the EEA 
Agreement.   
This text shall be interpreted in light of the Commission’s decision pursuant to Article 
6(1)(b) of the Merger  Regulation to declare the Concentration compatible with the internal 
market and the functioning of the  EEA Agreement (the “ Decision ”), in the general 
framework of European Union law, in particular in  light of the Merger Regulation, and by 
reference to the Commission Notice on remedies acceptable  under Council Regulation 
(EC) No 139/2004 and under Com mission Regulation (EC) No 802/2004  (the “ Remedies 
Notice ”). 
The provisions in the Commitments as to the appointment of the Monitoring Trustee shall 
take effect upon the date of entry into force of the Decision (the “ Effective Date ”), 
although the obligati ons to supply Purchasers and ProRail (as explained below) will only 
take effect as of completion of the Proposed Transaction (the “ Closing Date ”) provided 
that if the completion of the Proposed Transaction does not take place for whatever reason 
and is the reby abandoned, the Notifying Party shall not be bound by these Commitments.  
 
The OBU Commitments  
 
A. DEFINITIONS  
1. For the purpose of these Commitments, the following terms shall have the following 
meaning:  
Class B:  standalone on -board equipment for an Automatic Train Protection (“ ATP ”) 
system in use in the EEA other than ETCS, a “ Legacy ATP System ”.  
Complete  STM/Class B Request:  a request comprising all required information 
necessary to undertake the required work and to provide the necessary and accurate 
information, including specifically:  
 A detailed description of the planning for deliveries;  
 The quantities needed and the services requested;  
 
 
58  Description of the project for which the inputs are requested from Al stom, 
including the necessary technical specification of the EVC and necessary details 
of the train types concerned;  
 Necessary specification of the interfaces and information communicated by the 
ETCS OBU EVC; and  
 Confirmation that no additional requirement s will be exported to the STM or 
Class B.   
Conflict of Interest: any conflict of interest that impairs the Monitoring Trustee’s 
objectivity and independence in discharging its duties under the Commitments.  
Fast-Track Dispute Resolution Procedure:  the proc edure provided for in Sections E 
and F of these Commitments.  
Infrastructure Manager: manager of rail infrastructure.  
Initial Quotation: quotation based on industry standard assumptions made if a 
Complete STM/Class B request is not provided, non -binding if those assumptions are 
ultimately not validated in that particular case.  
Interoperability Documentation: copies of  all existing documentation necessary to 
interface a Purchaser’s ETCS system with Bombardier’s TCMS, including non -
exhaustively, when available: FFF -Interface Specifications, drawing(s), interface 
protocol, and other specifications allowing the identificati on of the necessary signals 
on the train schematics and cabling terminals, copies of homologation certificates and 
safety case, as well as any reasonably necessary ancillary technical clarifications 
which are necessary to ensure interface between Bombardie r’s TCMS and Purchasers ’ 
ETCS systems.1   
Interface Documentation: copies of  all available information, documentation and 
specifications assisting Purchasers to interface an ETCS OBU system with 
Bombardier’s Class Bs, including non -exhaustively: copies of certification and/or 
homologation documents, in its latest status, as well as available operating manual, 
installation specifications, application conditions, training specifications, generic and 
specific application safety cases, and maintenance manuals, and FFF -Interface 
Specifications.2  
Master Agreement: an agreement substantially based on the draft agreement 
provided in Annex IV  that will be offered by Alstom upon request.  
Major Obsolescence:  obsolescence that is not Minor Obsolescence.  
Minor Obsolesc ence:  arises when components with same mechanical and electrical 
interfaces are available on the market and no mechanical or electrical redesign are 
                                                 
1  For the avoidance of doubt, this shall not include a right to documents or data that are not reasonably 
necessary to interface an ETCS OBU with the TCMS (including transfer of sou rce code or other intellectual 
property concerning the hardware or other design intellectual property rights relating to the TCMS).  
2  For the avoidance of doubt, this shall not include a right to transfer of any source code or other intellectual 
property  rights concerning the hardware or other design intellectual property rights relating to the STM or 
Class B.  
 
 
59 needed (same form, fit and function of the replacement parts); and there is no product 
type test or certifi cation to perform.  
Monitoring Trustee: one or more natural or legal person(s) who is/are approved  by 
the Commission and appointed by Alstom, and who has/have the duty to  monitor 
compliance with the Commitments in accordance with Section D and Annex III . 
Non-Standard TCMS : TCMS that do not have a train communication network based 
on a standardized interface (MVB, Ethernet TRDP) or not based on Bombardier’s 
[Confidential information on Bombardier’s platform ] platform.  
OBU Commitments: set of commitments comprising the  STMs and Class B OBUs 
Commitments, the TCMS Commitments, and the Netherlands Legacy OBU 
Commitments.  
Purchasers:  ETCS OBU suppliers or other suppliers responsible for the execution of 
an ETCS OBU project, such as vehicle manufacturers or veh icle integrators.  
Required TCMS Information:  the services requested; a description of the planning 
for activities; and electrical and functional specifications of the ETCS on -board 
system, including architecture documents with interfaces towards TCMS (fun ctional 
and electrical), to the extent this is strictly necessary to allow Alstom to assess 
adaptations needed on the TCMS as well as modifications to be made by the 
signalling supplier to the ETCS OBU system.  
Standard TCMS: TCMS with a train communication  network based on a 
standardized interface (MVB, Ethernet TRDP) and using a Bombardier [ Confidential 
information on Bombardier’s platform ] platform.  
STM:  specific transmission module, a specific configuration of a legacy ATP which 
allow direct interface w ith ETCS OBUs.  
TCMS:  Digital Train Control & Management Systems.  
C. COMMITMENTS  
2. Alstom will provide, to any Purchaser, in a timely manner and on fair, reasonable, and 
non-discriminatory terms, the following, for use in the EEA, Switzerland, and the UK:  
 Suppl y of Bombardier’s available Class Bs or STMs;3 
 Technical support for integration of newly purchased Class Bs or STMs with the 
Purchaser’s ETCS OBU or rolling stock on which it is to be installed.  In 
particular:  
o Technical support for integration of newly purchased Class Bs or 
STMs covers support for the interface of Class Bs or STMs with ETCS 
                                                 
3  All references to Class B, On -board ATP legacy systems, or STMs refer to existing Bombardier solutions 
on the Closing Date, provided that for t he Netherlands, Alstom retains the option to offer, at its sole 
discretion, the Alstom Class B ATB -EG solution instead of the Bombardier solution.  Alstom also commits 
to offer its ATB -NL Class B to cover the non -electrified part of the Dutch network.  
 
 
60 OBU but shall not be constructed as extending to support for the 
engineering of the interface as per ETCS OBU specification s. 
 Interface Documentation for Class Bs for retrofit projects that require a 
Purchaser’s new ETCS OBU to interface with already -installed Class B 
equipment;  
(together, the “ STMs and Class B OBUs Commitments ”) 
 Interoperability Documentation and technical s upport for modifications to 
Bombardier’s TCMS for the execution of retrofit ETCS OBU projects in the 
EEA, Switzerland, and the UK as explained in more detail below (together, the 
“TCMS Commitments ”).4 
3. In addition, Alstom will offer to enter into a frame co ntract with the Dutch 
Infrastructure manager to supply the Alstom Class B (ATB -EG) for a period of twenty 
(20) years substantially on terms outlined in Annex B (the “ Netherlands Legacy 
OBU Commitments ”). 
4. The STMs and Class B OBUs Commitments will apply  for twenty (20) years from the 
Closing Date or until the ERTMS roll out is completed (whichever is shorter).  
5. The TCMS Commitments  will apply for twelve (12) years from the Closing Date or 
until the ERTMS roll out is completed (whichever is shorter).  
6. The Neth erlands Legacy OBU Commitments will apply for a period of twenty (20) 
years from the Closing Date.  
7. A Fast Track Dispute Resolution Procedure (including pre -dispute escalation and 
expert resolution) and Monitoring Trustee for a period of twelve (12) years a nd fast -
track dispute resolution via arbitration for the remainder of the Commitments will 
ensure compliance.  
1. STM S AND CLASS B OBU S   
8. Scope of the STMs and Class B Commitments.  Alstom will  offer, to any Purchaser, 
on fair, reasonable, and non -discriminatory terms, the following, for use in the EEA, 
Switzerland, and the UK :   
 STMs .  A supply agreement for STMs for both retrofit projects and new rolling 
stock (ATB -EG, LZB -ES, SHP, TBL1+ related to the Netherlands, Spa in, 
Poland, and Belgium) .  The supply of such STMs will include reasonably 
necessary documentation to facilitate integration with a Purchaser’s ETCS OBU.   
Where redesign of an STM is required (due to lack of availability of third -party 
components ( i.e., obsolescence ) or need to renew the industrial file due to 
                                                 
4  The TCMS Commitments exclude (i) anything relating to TCMS which is sold to a third -party in other 
remedy packages for the purpose of the Proposed Transaction; and (ii) TCMS supplied by third parties for 
Bombardier trains or modified by third parties, with  the exception of the case where the supply of TCMS by 
the third party was done upon request by Bombardier and within the overall responsibility of the vehicle or 
if the property rights are within Bombardier.  
 
 
61 absence of regular purchase orders leading to no manufacturing having taken 
place for [...]), Alstom will offer to conduct such redesign provided that it is 
compensated by the Infrastructure Manager  of the relevant country or countries 
(consistently with their legal obligation under EU law to maintain the availability 
of STMs) or by a Purchaser on an amortized basis (on the terms outlined in 
Annex A ).   
o Specific provisions for the Netherlands and Bel gium:  
 If necessary, Bombardier’s STM ATB -EG can be either redesigned, or 
substituted by Alstom ATB -EG Class B at Alstom’s sole discretion.  
Alstom also commits to offer its ATB -NL Class B to cover the non -
electrified part of the Dutch network.5  
 [Confidential information on Bombardier STMS in the Netherlands and 
Belgium ] and the commitments are subject to continued availability of 
that hardware.  Alstom will make reasonable commercial efforts to 
ensure such continued availability until the ETCS OBU  roll-out is 
complete in Belgium.  
 Class Bs . A supply agreement for available Class Bs ( i.e., PZB) on cost -plus 
terms as set out in Annex A .  
 Technical support  to help integrate an STM / Class B with the Purchaser’s 
ETCS OBU or rolling stock as part of a r etrofit or new rolling stock order.6  
9. Interface Documentation  on a standalone basis for existing Class Bs where required 
for retrofit projects that require interfacing a new ETCS OBU with already -installed 
Class B equipment ( i.e., existing Interface Docume ntation for Convel (Portugal), JKB 
(Finland), PZB (Austria, Germany, Croatia, Romania and Slovenia)7, and SHP 
(Poland)).8  
10. Portugal and Finland, special provision .  In Portugal and Finland, [ Confidential 
information on Bombardier’ solution in Portugal and Finland ].  This is the case 
because there is an alternative STM developed for Finland (from Hitachi -Ansaldo) 
and because in Portugal, the age of the product and lack of orders for many years 
[Confidential information on Bombardier’ solution in Portugal ].  As such, Alstom 
will commit to provide available Interface Documentation for the Convel (Portugal) to 
                                                 
5  ATB NL [Confidential details on ATB NL ]combi nes ATB EG and ATB NG and replaces [ Confidential 
details on ATB NL ].  For the avoidance of doubt, this solution is not an integrated solution ( i.e., has no 
ETCS OBU functionality).  
6  Technical support for integration of newly purchased Class Bs or STMs c overs support for the installation 
and interface requirements for the ETCS OBU and rolling stock but shall not be construed as extending to 
support for the engineering of the interface as per the rolling stock specifications or installation activities 
into rolling stock.   
7  The scenario where trains are already equipped with a standalone legacy OBU and need to be 
connected to the ETCS OBU or to operate in parallel is no longer accepted for new trains nor for 
retrofit projects in Germany.  Alstom will, howe ver, offer the PZB for markets outside Germany, or 
projects in Germany for which PZB only is required such as regional trains with no need for ETCS.   
8  [Confidential information on available Bombardier’s interface documentation ]. 
 
 
62 ensure that other suppliers are placed on a comparable footing if the Portuguese 
Infrastructure Manager were to issue an open tender for a new Convel solu tion.  If 
considered necessary by the Infrastructure Manager despite the presence of an 
alternative STM already existing in Finland (from Hitachi -Ansaldo), Alstom would 
also offer available Interface Documentation for the JKB (Finland).  Pricing for such 
documentation to be approved by the Monitoring Trustee and Commission.  
11. Table 1  below provides an overview of the availability of Bombardier’s Class Bs / 
STMs and how they will be addressed by the STMs and Class B OBUs 
Commitments:  
Table 1: [ Confidential inf ormation on available Bombardier’ solutions ]9 10 11 12 13 
12. As the STM and OBU Commitments are aimed at ensuring competition in the market 
for supply of ETCS OBUs, the STMs and Class B OBUs Commitments exclude 
STMs where they are, at the Closing Date, an integra ted product with an ETCS 
OBU.14   
13. Principal terms of supply .  Alstom will enter into a Master Agreement with 
Purchasers substantially based on the draft agreement attached as Annex IV (the 
“Master Agreement ”), as well as individual transaction documents for each order.  
The following provides an overview of the principal conditions under which access 
will be given.  
14. Pricing of Interface Documentation, supply of Class Bs, STMs, and services  will all 
be based on t he conditions outlined in Annex A . 
15. Responsiveness and co -operation:  
 Alstom will enter into a Master Agreement on request and will provide quotations 
for deliveries relating to specific projects or requirements for STMs / Class B 
systems within thirty (30) working days of a Complete STM/Class B Request.15  
 If a written request does not fulfil the requirements of a Complete STM/Class B 
Request, Alstom will inform the Purchaser and request complete information 
within ten (10) working days.  
                                                 
9  […]. 
10  […].  
11  […].  
12  […].  
13  […].  
14  This affects the PZB/ETCS, LZB/ETCS or ATC -2/ETCS solutions.  Alstom will offer a supply agreement 
for the PZB Class B (relevant for Austria, Croatia, Germany, Romania, and Slovenia) for both retrofit 
projects and new rolling stock.  
15  For the purposes of these Commitments, working day or business day shall mean a day on which banking 
institutions are open for regular business in France, which shall not be a Saturday, a Sunday, a legal 
holiday, or other day on which banking institutions are authorized or obligated by law to close in France.  
 
 
63  In any event, if a C omplete STM/Class B Request is not provided by the 
Purchaser, Alstom will, within thirty (30) working days of receipt of any written 
request that at least specifies the STM or Class B requested and the quantity 
thereof, provide an Initial Quotation based o n industry standard assumptions 
(including as to the use of standard interfaces such as Profibus).  This Initial 
Quotation will be binding on Alstom if the assumptions are validated once a 
Complete STM/Class B Request is provided.  The quotation will be su bject to 
revision if a Complete STM/Class B Request subsequently reveals that the 
assumptions on which the original quotation was based are not valid.  
 The Master Agreement shall include appropriate provisions ensuring that 
Purchasers would receive any add itional reasonably necessary information 
requested or an adequate reasoned response explaining why the information is not 
available within twelve (12) working days from receipt by Alstom of a written 
request.  
 The Purchaser shall accept, reject, or propose a modification to the offer by 
sending a written notice of its acceptance, rejection, or proposed reasonable 
modification to Alstom.  
 Delivery of the product and services offer under the STMs and Class B OBUs 
Commitments will be made in a timely manner and according to a predefined 
schedule, in line with reasonable end -customer requirements (frozen at the time of 
a purchase order filed in good time) and standard industry practice.   
 Liquidated damages , for late delivery by Alstom, if any, shall be limited to  […]per 
delayed week and a maximum of […] of the value of the delayed equipment.  
 Specific performance (“ exécution forcée ”) will be available in case of non -
performance by either party of its obligations in accordance with French Law.   
 Liquidated damages,  other than for late delivery, are to be agreed in line with 
standard market practice, substantially in accordance with the terms contained in 
Annex IV .  
 If Alstom anticipates Major Obsolescence of STMs / Class Bs as delivered, it will 
inform the Purchaser s as soon as possible.  In that case, Alstom will send a last 
buy order notice to the Purchaser with a minimum period of six (6) months to 
allow for additional orders.   
 The STMs and Class B OBUs Commitments concern existing equipment, based 
on the existing safety case.  Alstom will not support changes that result in 
re-opening the safety case, changes to the core product, or take responsibility for 
higher level integration and safety cases.  Where an STM is redesigned for 
obsolescence reasons, the r elevant product -specific new safety case and associated 
design documentation will be produced.  
 Any request or question concerning the STMs and Class B OBUs Commitments 
should be first addressed to the CRM as defined in section 3 below.  
 The Purchaser represents and warrants that it will use information and products 
supplied by Alstom exclusively to supply the specific contract identified in the 
written  request.   
 
 
64  Alstom represents and warrants that it will use information supplied by the 
Purchaser exclusively to supply the specific contract identified in the written 
request.   
 Any dispute arising in connection with the STMs and Class B OBUs 
Commitments shall be governed by (a) the Fast Track Dispute Resolution 
Procedure contained in Sections E and F; and (b) in accordance with French Law.  
16. Prior  to any disclosure of information to the potential Purchaser, the said Purchaser 
shall enter into a confidentia lity agreement with Alstom substantially in the form 
provided in Annex  II.  
17. Non-circumvention. Alstom undertakes not to circumvent or attempt to circumvent 
these Commitments by deliberately terminating availability of Bombardier STMs or 
Class B’s covered b y these Commitments without offering an alternative.  For the 
avoidance of doubt, where STMs or Class B’s face obsolescence or require redesign 
in the ordinary course of business, this will not be regarded as a circumvention of the 
Commitments but will be addressed according to the provisions on redesign contained 
herein.   
2. TCMS   
18. With respect to TCMS, Alstom  will offer, to any Purchaser, the following, for use in 
the EEA, Switzerland, and the UK : 
 Interoperability Documentation to enable interface connections to pair TCMS 
installed on the Bombardier’s rolling stock including that supplied in consortium 
where Bombardier supplied the TCMS for the relevant train for use in the EEA, 
Switzerland, and the UK  and Purchasers’ ETCS OBU, o n fair, reasonable, and 
non-discriminatory  terms including as defined in Annex A .  
 Where adaptations to the TCMS, as defined below, are required to interface with 
the Purchaser’s ETCS OBU, Alstom commits to provide necessary technical 
support for the Purch aser to implement the interfaces with TCMS installed on 
Bombardier’s rolling stock for operation in the EEA, Switzerland, and the UK  on 
a cost -plus basis (and subject to the limitations described below).  
19. More specifically, Alstom will take the following st eps to support the installation of 
Purchasers’ ETCS OBUs on Bombardier’s rolling stock.16 
20. Interoperability Documentation and estimates for basic services .  Within thirty (30) 
working days of any written request for quotation with regard to Interoperability 
Documentation or technical support for TCMS modifications in connection with a bid 
                                                 
16  The TCMS Commitments cover Bombardier’s rolling stock in operation in the EEA, Switzerland, and the 
UK.  For the avoidance of doubt, the TCMS Commitments are limited to digital TCMS (or informatics -bus-
based TCMS) as the integration with wiring TCMS can be successfully managed by ETCS OBU integrator 
without support from the original supplier.  The TCMS Commitments exclude (i) anything relating to 
TCMS which is sold to a third -party in other remedy pa ckages for the purpose of the Proposed Transaction; 
and (ii) TCMS supplied by third parties for Bombardier trains or modified by third parties. In any event, the 
responsibility for the homologation and safety case of the modified rolling stock will remain on the 
Purchaser.    
 
 
65 for an ETCS OBU retrofit project on Bombardier’s rolling stock, Alstom will provide 
a quote for the following:  
 Delivery of any necessary and existing interface specifications and 
documentation that exist on the relevant rolling stock, including the Train Wide 
Functions;17   
 Sufficient rights to allow the Purchaser to use the documents and information for 
bid preparation and project execution including the right to  (i) disclose those 
information and documents to external partners ( e.g., consortium partners, 
engineering partners etc.) on a need to know basis and (ii) to use such documents 
and information for the purpose to prepare a bid and to execute the project;  
 [Confidential information on Bombardier’s intellectual property rights ];18 
 A technical meeting to determine what, if any, TCMS modifications are required 
to enable interoperability of the requesting Purchaser’s ETCS OBU and the 
relevant Bombardier’s TCMS; an d  
 Technical support for modifications on Standard TCMS and demonstration that 
the modifications made correctly interface to the Standard TCMS ( i.e., joint test 
on the train to validate the proper implementation the interfaces).  
21. Quotation for technical sup port for modifications on Non -Standard TCMS and 
adaptation of documents for vehicle re -homologation.  Within five (5) working days 
of a written request, Alstom will propose a date for a technical meeting to clarify any 
requirement related to required techn ical support for modifications.  
22. Following that meeting, within a further forty (40) working days (with Alstom making 
all commercially reasonable efforts to reply within thirty (30) working days if 
possible), and subject to receipt of the Required TCMS Info rmation, Alstom will offer 
a quotation for:  
 Technical support for modifications to Non -Standard TCMS; and  
 Demonstration that the modifications made correctly interface to the Non -
Standard TCMS ( i.e., joint test on the train to validate the proper implemen tation 
of the interfaces, vehicle regression tests (multi -traction, mixed coupling, etc.)). 
23. Provision of quotations subject to receipt of written requests.   Alstom will only offer 
a binding quotation for documents and services under the TCMS Commitments on  
receipt of the Required TCMS Information.   
24. Where required, Alstom will provide technical support / consultation with 
regard to TCMS modifications  as explained in these Commitments.  In particular:  
 Adaptation and testing support.  Alstom offers to suppor t Purchasers regarding 
all necessary adaptation and/or configuration works to implement an interface 
with the Purchaser’s ETCS OBU on trains equipped with Bombardier’s TCMS.  
                                                 
17  Sample documentation that will be provided to the signalling supplier to ensure compatibility on electrical 
and protocol level are provided in Annex I.1 to Annex I.7.   
18  [Confidential information on Bombardier’s intellectual proper ty rights ]. 
 
 
66 Alstom will offer to jointly perform a test on the train to validate the proper 
implementation of the interfaces.  This support will be offered on a cost -plus 
basis as defined in Annex A .  
 Necessary modifications to the TCMS to interface with the ETCS OBU .  
Alstom will provide technical support for TCMS modifications that must be done 
on the TCMS side in order to interface Bombardier’s TCMS with a Purchaser’s 
ETCS OBU ( i.e., interface descriptions and the function description to be 
implemented in a TCMS) .  
 TCMS supplied by Bombardier, unless designed or modified by a third 
party .  Where the TCMS on the relevant Bombardier rolling stock was provided 
by a supplier not controlled by Bombardier, Alstom will provide the Purchaser 
with contact details for that supplier (where available) and Interoperability 
Documentation to the extent that it is within Bombardier’s possession and subject 
to the relevant third -party’s consent.   
 Exclusion of divested TCMS .  The TCMS Commitments exclude anything 
relating to TCMS which is sold to a third -party in other remedy packages for the 
purpose of th e Proposed Transaction (or where train types rely on TCMS systems 
wholly or partially divested as a result of the Proposed Transaction).   
 Compliance with good practice and timeline .  Alstom undertakes to carry out 
the technical support for TCMS modificati ons required to interface with an ETCS 
OBU, in accordance with good industry practice, including as regards timing and 
responsiveness.  Alstom commits to provide support for the necessary adaptations 
on Bombardier’s TCMS within a reasonable period of time (usually not 
exceeding thirty -six (36) months after receiving the complete set of information 
needed from the Purchaser).3  
25. Homologation support.  Alstom commits to provide, the Purchaser, on a cost -plus 
basis, necessary support with obtaining homologation  approval from the competent 
regulatory bodies.  In particular, Alstom will provide the Purchaser or the regulatory 
body with the relevant information requested by that regulatory body, at the 
Purchaser’s cost.  Support for recertification will be limited to the TCMS compliance 
with CENELEC standards.  
26. Responsibility for homologation.  Alstom will neither be responsible for the new 
safety case of any train nor for the homologation of any trains that will result from 
such modifications.  Alstom’s liability w ill be limited to the implementation of the 
interface and the train functions that will be specified by the Purchaser.  The 
Purchaser will remain responsible for homologation and for safety as it relates to 
ETCS OBUs, but all necessary certificates and doc uments relating to the TCMS that 
are necessary to ensure a re -homologation of the vehicle that can only be provided by 
Alstom shall be so provided on a cost plus basis (subject to cost structure for services 
in Annex A ).  
27. Refusal of work, rectification, te rmination, penalties.  If the Purchaser cannot 
accept a deliverable due to lack of performance or delay, the Purchaser will notify 
Alstom in writing within seven (7) to ten (10) working days.   
 Alstom will provide rectified, correct, and complete deliverab les back for 
acceptance within twenty -five (25) working days.  
 
 
67  If Alstom is not in a position to provide expected standard of deliverables within 
twenty -five (25) working days, the Purchaser has the right to terminate the 
contract and to perform the work it self or source it from another supplier (at the 
Purchaser’s cost).  
 Liquidated damages , for late delivery by Alstom, if any, shall be limited to 
[…]per delayed week and a maximum of […] of price charged.  
 Specific performance (“ exécution forcée ”) will be av ailable in case of non -
performance by either party of its obligations in accordance with French Law.   
 If the Purchaser decides to transfer the work to another supplier, both parties will 
cooperate to achieve effective handover.    
28. Close Cooperation .  Alsto m’s obligations under the TCMS Commitments are subject 
to the Purchaser providing Alstom with all information reasonably required to 
undertake workarounds and to provide the necessary Interoperability Documentation, 
including technical clarifications and a ssistance under the same conditions as Alstom.  
The Purchaser’s written request shall include all the mechanical, electrical, and 
functional specifications of the system to be integrated, including architecture 
documents with interfaces towards TCMS (funct ional and electrical), to the extent it is 
strictly necessary to allow Alstom to assess the necessary adaptations on the TCMS as 
well as on the signalling systems.  
29. Proper use of information and products .  Alstom and the Purchaser represent and 
warrant that  they will use information supplied by the other party exclusively to 
supply the specific contract identified in the written request.  The Purchaser represents 
and warrants that they will use the products supplied by Alstom exclusively to supply 
the specif ic contract identified in the written request.  
30. Prior to any disclosure of Interoperability Documentation to a potential Purchaser, 
such Purchaser shall enter into a confidentiality agreement with Alstom substantially 
in the form provided in Annex II .  
 
 
68 3. NETHERLANDS LEGACY OBU  COMMITMENTS  
31. In addition, Alstom will enter into a frame contract with the Dutch Infrastructure 
manager to supply the Alstom Class B (ATB -EG) and / or related interface 
information for a period of twenty (20) years from the Closing Da te substantially on 
terms outlined in Annex B .   
D. COMMITMENTS RELATIONSHIP MANAGER  
32. To facilitate dealings with requests from Purchasers and ProRail, Alstom will create 
the position of EEA -wide Commitments Relationship Manager (the “ CRM ”).  The 
CRM will act as a contact point for Purchasers and ProRail, and will coordinate issues 
internally within Alstom.  The CRM will be charged with assisting Purchasers and 
ProRail in resolving any questions, issues, or concerns regarding the OBU 
Commi tments.   
33. All requests in connection with the OBU Commitments must be directed to the CRM 
and any communications not directed to the CRM will not be taken into account to 
determine whether time limits in the OBU Commitments have been complied with.  
34. After the Closing Date, Alstom will give adequate publicity ( i.e., publishing on its 
website or on such other channels as per current market practice) to the main elements 
of the OBU commitments and in particular should communicate promptly and clearly 
to the ma rket the role and the contact details of the CRM and of the Monitoring 
Trustee.  
E. MONITORING TRUSTEE  
35. Alstom shall appoint a Monitoring Trustee to carry out the functions specified in the 
OBU Commitments for a Monitoring Trustee for a period of twelve (12) ye ars from 
the Closing Date.  Alstom commits not to close the Proposed Transaction before the 
appointment of a Monitoring Trustee.  The procedure for appointment of the 
Monitoring Trustee is contained in Annex III .  
36. At the end of the twelve (12) year period,  the appointment and the functions of the 
Monitoring Trustee can be extended for a further period of up to eight (8) years. The 
decision in this respect will be taken by the Commission, upon the receipt of 
submissions from Alstom and the Monitoring Trustee , to be provided no later than 
three months before the expiration of the twelve (12) year period, in due consideration 
of the situation at that time and the functioning of the OBU Commitments.  
F. FAST TRACK DISPUTE RESOLUTION : PRE-DISPUTE ESCALATION AND EXPER T 
37. At the option of a Purchaser and ProRail, any disputes which may arise between either 
or both Parties and the Purchaser or ProRail relating to the OBU Commitments and 
the agreements implementing the OBU Commitments will be subject to a fast -track 
dispute  resolution procedure (the “ Fast-Track Dispute Resolution Procedure” ) 
described in this Section E and Section F.  
 
 
69 a. PRE-DISPUTE ESCALATION  
38. If Alstom or a Purchaser, or Customer (each a “ Company ” and jointly the 
“Companies ”) wishes to avail itself of the Fast Track Dispute Resolution Procedure 
(the “ Requesting Party ”), it must notify the other Company in writing (with a copy to 
the Monitoring Trustee) setting out in detail the reasons leading that Company to 
believe that the other Company is failing to comply w ith the OBU Commitments (the 
“Notice ”). 
39. The Companies will attempt in fair dealing and good faith to resolve all differences of 
opinion and settle all disputes that may arise through cooperation and consultation 
within a reasonable period of time which sha ll not exceed fifteen (15) business days 
after receipt of the Notice, which may be extended by mutual consent.  The 
Monitoring Trustee shall present its own proposal for resolving the dispute within 10 
business days after receipt of the Notice specifying i n writing the action, if any, to be 
taken by the Parties in order to ensure compliance with the OBU Commitments, and 
be prepared, if requested, to facilitate the settlement of the dispute.  
b. FAST TRACK EXPERT DISPUTE RESOLUTION MECHANISM  
40. At the latest a mont h after the approval by the Commission of the Monitoring Trustee, 
Alstom shall propose a list of names for the Monitoring Trustee and the Commission 
to consider as potential experts to adjudicate in disputes (the “ Experts ”). The Experts 
shall be independen t, suitably qualified, and shall have the necessary experience, 
competence, and qualifications in relation to Legacy OBU projects, ETCS OBU 
installation and retrofit projects and their pricing, ETCS OBU technology, and TCMS 
technology.  
41. Where paragraph 38 applies, the Monitoring Trustee shall appoint one of the Experts 
to adjudicate on the dispute within 5 working days of expiry of the period set out in  
paragraph 39. 
42. The process shall be conducted in private and shall be confidential. The language of 
the process shall be in English or French.  
43. The Expert shall act on the following basis:  
(i) the Expert shall act fairly and impartially;  
(j) each party shall submit to the Expert its brief and its submission in relation to the 
matter in dispute within 10 working days of the Expert's appointment;  
(k) Each part y shall assist and provide such documentation as the Expert reasonably 
requires to consider the matters referred to it;  
(l) the Expert’s determination shall be given within a maximum period of 20 working 
days of the Expert’s appointment;  
(m) the Expert's determination in relation to any matter pursuant to paragraph 38 shall 
(save for manifest error or fraud) be final and binding on Alsto m and the 
Requesting Party;  
(n)  any challenge to the Expert’s determination in accordance with the clause above 
shall be made according to Section G below; 
 
 
70 (o) each party shall carry out the actions required to comply with the obligations set 
out in the Expert’s determination in relation to any matter pursuant to paragraph 
38 within any time -limits specified by the Expert; and  
(p) the Requesting Party shall pay the Expert’s costs if the Expert’s determination 
upholds Alstom’s claims. Alstom will pay the Expert’s costs if the Expert’s 
determination upholds the Requesting Party’s claims. The Expert shall otherwise 
determine how and by whom the costs of the determination are to be paid.  
c. INVOLVEMENT OF THE COMMISSION  
44. The Commission shall be allowed and enabled to participate in all stages of the 
procedure by:  
(e) receiving all written submissions (including documents and reports, etc.) made by 
each party to the procedure;  
(f) receiving all documents exchanged by the Expert with the parties to the procedure;  
(g) filing any written submissions; and  
(h) being present at the hearing(s) and being allowed to ask questions to the parties.  
45. The Expert shall forward, or shall order the parties to forward, the documents 
mentioned in the previous paragraph to the Commission without delay.  
46. The Monitoring Trustee shall receive copies of :  
(d) all submissions made by the parties to the procedure in relation to the matters they 
wish to have resolved by the Expert, on the day when these have been submitted 
to the Expert;  
(e) all other documentation provided by the parties, on the day when these hav e been 
submitted to the Expert; and  
(f) the determination made by the Expert, on the day when the determination has been 
provided to the parties.  
d. REVIEW OF THE TERMS AND CONDITIONS  
47. At any moment for the entire duration of the Commitments, the terms and condit ions 
of supply outlined in Annex A  and Annex IV  shall be subject to the review of the 
Monitoring Trustee who shall establish in particular whether (i) prices set for 
documentation are justified and in line with market practice in the industry, (ii) costs 
and fees used to determine pricing are justified based on the incurred costs for the 
provision of the requested services/products and (iii) net margins are calculated in line 
with market practice in the industry.  Alstom commits to making all necessary 
accounts, financial indicators and other appropriate information available to the 
Monitoring Trustee for the purpose of the present review.  
48. The Monitoring Trustee’s review does not preclude nor pre -empt dispute resolution 
procedures provided for under Sections  E and F, and shall be conducted in due regard 
of these procedures if applicable.  
 
 
71 49. In this respect, the Monitoring Trustee could act on its own initiative or following 
instructions by the Commission or on the basis of submissions received from 
Purchasers an d may appoint Experts who would support the Monitoring Trustee in its 
review.  
G. FAST TRACK DISPUTE RESOLUTION : ARBITRATION  
50. Any disputes arising out of or in connection with the Commitments which are not 
resolved pursuant to the previous Section E shall be finally settled in accordance with 
the Rules of Arbitration of the International Chamber of Commerce ( ICC) by an 
arbitral tribunal consisting of three arbitrators (the Arbitral Tribunal ). 
51. Should the Companies fail to resolve their differences of opinion through cooperation 
and consultation as provided for in the Section E, the Requesting Company shall file 
arbitration proceedings with the ICC and nominate one arbitrator.  
52. The other Company shall, within two (2) weeks of receiving notification in writing of  
the appointment of the Requesting Company’s arbitrator, nominate a second arbitrator 
and provide to the Requesting Company in writing detailed reasons for its challenged 
conduct.  
53. The arbitrators nominated by the Companies shall, within one (1) week from b oth 
arbitrators having been nominated, agree to appoint a third arbitrator.  If the 
arbitrators nominated by the Companies cannot agree on the nomination of a third 
arbitrator, they shall ask the President of the ICC to appoint the third arbitrator.  
54. The ar bitrators shall be instructed to make a preliminary ruling on the contested issues 
within one (1) month of the appointment of the third arbitrator, which may be 
extended, if necessary, by the unanimous agreement of all three arbitrators.  The 
preliminary r uling shall be applicable immediately and until the final decision is 
issued.  The final decision, which shall be ultimately binding on the Companies shall 
be taken by the arbitrators within six (6) months of the appointment of the third 
arbitrator, which may be extended, if necessary, by the unanimous agreement of all 
three arbitrators.  Each Company waives any right which it may have to seek a 
preliminary ruling on any point of law from a court of law.  An oral hearing shall, as a 
rule, be established wit hin two (2) months of the confirmation of the Arbitral 
Tribunal.  
55. The seat of arbitration shall be Paris (France).  The arbitration shall be in English and 
conducted pursuant to the Rules of Arbitration of the ICC.  Any order for the 
production or disclosur e of documents shall be limited to the documents on which 
each party of the arbitration specifically relies in its submission(s).  
56. The arbitrators shall agree in writing to keep any confidential information and 
business secrets disclosed to them in confiden ce.  The Arbitral Tribunal may take the 
measures necessary for protecting confidential information in particular by restricting 
access to confidential information to the Arbitral Tribunal, and outside counsel and 
experts of the opposing party.  The arbitra tors shall be instructed not to disclose 
confidential information and to apply the standards attributable to confidential 
information and business secrets by European Union competition law.  
57. The Commission shall be allowed and enabled to participate in all stages of the 
procedure by:  
 
 
72 (a)  Receiving all written submissions (including documents and reports, etc.) 
made by the Companies;  
(b)  Receiving all orders, interim and final awards and other documents 
exchanged by the Arbitral Tribunal with the Companies (including Terms of 
Reference and procedural time -table);  
(c)  Being given the opportunity to file amicus curiae briefs; and  
(d)  Being present at the hearing(s) and being allowed to ask questions to 
parties, witnesses and experts.  
58. The Arbitral Tribunal sh all forward, or shall order the Companies to forward, the 
documents mentioned to the Commission without delay.  
59. In the event of disagreement between the Companies regarding the interpretation of 
the Commitment, the Arbitral Tribunal may seek the Commission’ s interpretation of 
the Commitment before finding in favour of any Company and shall be bound by the 
interpretation.  
60. In the event of disagreement between the Companies regarding the interpretation of a 
Commitment, the Arbitral Tribunal shall inform the Mon itoring Trustee and may seek 
the Monitoring Trustee’s interpretation of the Commitment before finding in favour of 
any Company.  
61. The Arbitral Tribunal shall decide the dispute on the basis of the Commitment and the 
Decision.  The Commitment shall be constru ed in accordance with the Merger 
Regulation, EU law, and general principles of law common to the legal orders of the 
Member States without a requirement to apply a particular national system.  
62. Nothing in the above -described arbitration procedure shall affec t the powers of the 
Commission to take decisions in relation to the Commitment in accordance with its 
powers under the Merger Regulation and the Treaty on the Functioning of the 
European Union.  
H. GENERAL PROVISIONS  
63. The STMs and Class B OBUs Commitments are l imited to the EEA, Switzerland, and 
in the UK and shall remain in effect for twenty (20) years as from the Closing Date or 
until the ERTMS roll -out is complete in the EEA (whichever is shorter).  
64. The TCMS Commitments are limited to the EEA, Switzerland, an d in the UK and 
shall remain in effect for twelve (12) years as from the Closing Date or until the 
ERTMS roll -out is complete in the EEA (whichever is shorter).  
65. The Netherlands Legacy OBU Commitments will apply for a period of twenty (20) 
years from the Cl osing Date.  
66. Subject to Sections E and F, any dispute arising out of or in connection with the STMs 
and Class B OBUs Commitments will be governed by and construed in accordance 
with French Law, while any dispute arising out of or in connection with the he 
Netherlands L egacy OBU Commitments will be governed by Dutch Law.  
 
 
73 I. THE REVIEW CLAUSE  
67. The Commission may extend the time periods foreseen in the Commitments in 
response to a request from Alstom or, in appropriate cases, on its own initiative.  
Where Alstom requests an extension of a time period, they shall submit a request to 
the Commission no later than one month before the expiry of that period, showing 
good cause.  This request shall be accompanied by a report from the Monitoring 
Trustee(s), who shall, at the same ti me send a non -confidential copy of the report to 
the Parties.  Only in exceptional circumstances shall Alstom be entitled to request an 
extension within the last month of any period.  
68. The Commission may further, in response to a request from Alstom showing good 
cause waive, modify or substitute, in exceptional circumstances, one or more of the 
undertakings in these Commitments.  This request shall be accompanied by a report 
from the Monitoring Trustee(s), who shall, at the same time send a non -confidential 
copy of the report to Alstom.  The request shall not have the effect of suspending the 
application of the undertaking and, in particular, of suspending the expiry of any time 
period in which the undertaking has to be complied with.   
  
 
 
74 J. ENTRY INTO FORCE  
69. The provisions in the Commitments as to the appointment of the Monitoring Trustee 
shall take effect upon the Effective Date , although the obligations to supply 
Purchasers (as explained above) will only take effect as of completion of the Proposed 
Transaction ( the “ Closing Date ”) provided that if the completion of the Concentration 
does not take place for whatever reason and is thereby abandoned, the Notifying Party 
shall not be bound by these Commitments.  
 
Signature pages follow.  
 
 
 
__________________________  
[Signed by ] 
duly authorised for and on behalf of Alstom S.A.  
 
 
__________________________  
[Signed by ] 
duly authorised for and on behalf of Bombardier Transportation (Investment) UK 
Ltd and Bombardier Inc.  
 
 
 
75 Annexes I.1 to I.7  
 
[Confidential ] 
  
 
 
76 Annex II — Non-Disclosure Agreement — Principal Clauses  
1. Definitions  
1.1 “Affiliate ” means any entity with respect to which either party owns or controls, 
directly or indirectly, greater than fifty percent (>50%) of the outstanding voting 
securities (but an entity shall remain an Affiliate only so long as it meets such 
ownership requirements).  
1.2 “Confidential Information ” means all information of any nature relating directly or 
indirectly to the Disclosing Party, including its Affiliates, shareholders, products, and 
activities, which may be supplied, whether oral or written, and regardless of the 
manner or form of the disclosure, to the Receiving Party, by or on behalf of the 
Disclosing Party, as the case may be.   
1.3 Confident ial information includes all notes, reports, memoranda, analyses, 
compilations, studies, forecasts, interpretations, or other documents or materials in 
whatever medium prepared by the Disclosing Party or on its behalf which contain, 
reflect or are based up on, in whole or in part, the information described in paragraph 
1.2 above or referring to or derived from such information.  
1.4 Notwithstanding the above, the following information shall not be considered as 
Confidential Information:  
a) information that is, was or has become generally available to the public other than 
as a result of a disclosure by any of the Parties or their Representatives in breach 
of this Agreement or any other confidentiality obligations; or  
b) information that the Receiving Party can establis h was known at the time of 
disclosure to such Receiving Party or its Representatives, free of restriction and 
evidenced by documentation in the Receiving Party’s possession from a source 
other than the Disclosing Party or its Representatives, provided that  such source 
was not bound at the time of the disclosure by any obligation to keep such 
information confidential and did not obtain such information unlawfully or 
pursuant to a breach of a confidentiality obligation; or  
c) information that the Receiving Party  can establish was lawfully obtained after the 
date hereof by the Receiving Party or its Representatives, free of restriction and 
evidenced by documentation in the Receiving Party’s possession from a source 
other than the Disclosing Party or its Representa tives, provided that such source 
was not bound at the time of the disclosure by any obligation to keep such 
information confidential and did not obtain such information unlawfully or 
pursuant to a breach of a confidentiality obligation.  
1.5 “Disclosing Party ” means the owner of the Confidential Information, the Party 
disclosing Confidential Information to the Receiving Party.  
 
 
77 1.6 “Governmental Authority ” means any international, foreign, domestic, federal, 
territorial, state, or local body with executive, legislat ive, judicial, regulatory or 
administrative authority, including any supra -national Governmental Authority, as 
well as any individual or entity having received delegated authority from any of the 
foregoing.  
1.7 “OBU Commitments ” has the meaning set out in the commitments attached to the 
European Commission’s decision  in Case M.9779 – Alstom/Bombardier.  
1.8 “Receiving Party ” means the Party receiving the Confidential Information owned 
and disclosed by the Disclosing Party.  
1.9 “Representatives ” means, in respect of a Pa rty to this Agreement, the Affiliates of 
that Party and the directors, officers, partners, managers, and employees of that Party 
and its Affiliates.  
1.10 “Parties ” means the Parties to this Agreement, the Receiving and the Disclosing 
Party, and Party shall mean  either of them (as the context requires).  
2. Use of Confidential Information   
2.1 The Receiving Party shall handle, use, treat, and utilize such Confidential Information 
as follows:  
a) hold all Confidential Information received from the Disclosing Party in strict  
confidence;  
b) use such Confidential Information only for the purposes identified in the Master 
Agreement;  
c) reproduce such Confidential Information only to the extent necessary for such 
purpose;  
d) restrict disclosure of such Confidential Information to its e mployees with a need 
to know (and advise such employees of the obligations assumed herein); and  
e) except as set forth in paragraph Error! Reference source not found.  herein, do 
not d isclose such Confidential Information to any third party, including (but not 
limited to) any vendor, customer, manufacturer, or independent contractor, 
without prior written approval of such Disclosing Party.  In addition, with respect 
to any equipment, co mponent, software, or other item delivered to the Receiving 
Party by the Disclosing Party, the Receiving Party shall not reverse engineer, 
disassemble, decompile, or otherwise analyse the physical construction of any 
such items; and  
 
 
78 f) undertake to take all n ecessary and appropriate measures in order to ensure the 
protection of the confidentiality of the Confidential Information and any copies of 
it and to prevent theft, hacking (of electronic data), misappropriation, or 
unauthorized access or use of such Conf idential Information and copies.  
2.2 The restrictions on the Receiving Party’s use and disclosure of Confidential 
Information as set forth above shall not apply to any Confidential Information which 
the Receiving Party can demonstrate:  
a) is wholly and independe ntly developed by the Receiving Party without the use of 
Confidential Information of the Disclosing Party; or  
b) is approved for release by written authorization of the Disclosing Party, but only 
to the extent of, and subject to, such conditions as may be imposed in such 
written authorization; or  
c) is disclosed in response to a valid order of a Governmental Authority, but only to 
the extent of, and for the purposes of, such order; provided, however, that if the 
Receiving Party receives an order or request to  disclose any Confidential 
Information by a court of competent jurisdiction or a governmental body, then 
the Receiving Party agrees:  
i. if not prohibited by the request or order, to inform the Disclosing Party, prior 
to disclosing any Confidential Informatio n in writing of the existence, terms, 
and circumstances surrounding the request or order;  
ii. to consult with the Disclosing Party on what steps should be taken to avoid 
or restrict the disclosure of Confidential Information;  
iii. to give the Disclosing Party the chance to defend, limit, or protect against 
the disclosure and not to oppose any such action; and if disclosure of 
Confidential Information is lawfully required, to supply only that portion of 
the Confidential Information which is legally necessary and und ertake to 
take all necessary and appropriate measures in order to obtain confidential 
treatment for any Confidential Information required to be disclosed; and   
iv. if disclosure of Confidential Information is lawfully required, to supply only 
that portion of the Confidential Information which is legally necessary and 
undertake to take all necessary and appropriate measures in order to obtain 
confidential treatment for any Confidential Information required to be 
disclosed.  
2.3 For the avoidance of doubt, this clause 2.2 above shall not prevent either Party 
disclosing information  to the European Commission or the Monitoring Trustee 
appointed under the OBU Commitments.   
 
 
79 3. Designation of Confidential Information   
3.1 Confidential Informat ion shall be subject to the restrictions of paragraph 2 if it is in 
writing, or another tangible form, and clearly marked as proprietary or confiden tial 
when disclosed to the Receiving Party or, if not disclosed in tangible form, clearly 
identified as confidential or proprietary at the time of disclosure.  The Parties agree to 
use reasonable efforts to summarize the content of oral disclosures which a re 
proprietary or confidential, but failure to provide such a summary shall not affect the 
nature of the Confidential Information disclosed or detract from the protection 
afforded under this Agreement if such Confidential Information was identified as 
confidential or proprietary when orally disclosed.  
4. Disclosure of Confidential Information to Affiliates  and other third parties with 
a Need to Know   
4.1 This Agreement does not permit either Party to disclose Confidential Information to 
any third party (including , without limitation, that Party’s Affiliates).  
Notwithstanding the foregoing, either Party may re -disclose Confidential Information 
to its Affiliates or any third party identified in the written request, and solely to the 
extent stated in this written re quest, who have a need to know and shall treat such 
Confidential Information in a manner that is consistent with the confidentiality 
obligations of the Receiving Party in this Agreement, and such Affiliates may re -
disclose Confidential Information to other  such Affiliates and to a Party hereto.  
Either Party’s Affiliates may also disclose Confidential Information to the other Party 
hereto and to such other Party’s Affiliates.  In such event, the other Party hereto, and 
such other Party’s Affiliates, shall t reat such Confidential Information in accordance 
with the provisions of this Agreement as if such Confidential Information was 
disclosed directly by the Disclosing Party, and the Disclosing Party and/or its 
Affiliates shall have the right to enforce the pr ovisions of this Agreement against the 
other Party hereto and against such other Party’s Affiliates in connection with any and 
all breaches or violations of this Agreement with respect to such Confidential 
Information by the other Party hereto and by such other Party’s Affiliates.  Either 
Party’s Affiliates may also receive Confidential Information from the other Party 
hereto and from such other party’s Affiliates.  In such event, the Affiliate receiving 
such Confidential Information shall be responsible to  treat such Confidential 
Information in accordance with the confidentiality obligations set forth in this 
Agreement.  The Parties hereto shall be responsible for any improper disclosure or use 
by its Affiliates or by any third party identified in the writt en request of such 
Confidential Information to the same extent as if that party had received such 
Confidential Information directly and made the same disclosure or use of such 
Confidential Information as did its Affiliates.    
5. No License  or Representations    
5.1 All Confidential Information shall remain the property of the Disclosing Party.  No 
license to a Party of any trademark, patent, copyright, mask work protection right, or 
any other intellectual property right is either granted or implied by this Agreeme nt or 
any disclosure hereunder, including, but not limited to, any license to make, use, 
import, or sell any product embodying any Confidential Information.  In this regard, 
 
 
80 the Receiving Party undertakes not to claim any intellectual and/or industrial pro perty 
rights regarding the Disclosing Party’s Confidential Information and not to request, 
directly or indirectly, any patents, trademarks, models, or any other intellectual and/or 
industrial property rights regarding the Disclosing Party’s Confidential In formation.  
No representation, warranty, or assurance is made by either Party with respect to the 
non-infringement of trademarks, patents, copyrights, mask protection rights, or any 
other intellectual property rights or other rights of third persons.  
6. No Obligation   
6.1 Neither this Agreement nor the disclosure or receipt of Confidential Information shall 
be construed as creating any obligation for a Party to provide Confidential 
Information to the other Party other than Alstom’s obligations contained in the O BU 
Commitments or to enter into any agreement or relationship with the other Party with 
respect to mutual business.  
7. Return / destruction of Confidential Information   
7.1 All Confidential Information shall remain the sole property of the Disclosing Party.  
Except as may be otherwise required by applicable law, regulation, legal, or judicial 
process, the Receiving Party shall make all reasonable efforts to promptly return or 
destroy (which shall include all reasonable steps to erase from any computer or other 
digital device on which it is held) all materials containing any such Confidential 
Information (including all copies made by the Receiving Party), upon request 
following termination or expiration of this Agreement or the Receiving Party’s 
determination that it no longer has a need for such Confidential Information.  Upon 
request of the Disclosing Party, the Receiving Party shall deliver to the Disclosing 
Party a letter signed by a duly authorized officer confirming that all such materials 
have been returned t o the Disclosing Party or destroyed.  Notwithstanding the above, 
the Receiving Party may retain copies of Confidential Information stored on backup 
disks or in backup storage facilities automatically produced in the ordinary course of 
business.  Any Confid ential Information so retained will be held subject to the 
confidentiality and use limitations of this Agreement, which shall continue to apply 
for so long as the Confidential Information is so retained, and access thereto shall be 
limited to individuals o r entities required to have access for purposes of such 
compliance.  
7.2 Notwithstanding the return or destruction of the Confidential Information, the 
Receiving Party will continue to be bound by its obligations hereunder for the 
duration of this Agreement.  
8. Notification of breach  
8.1 The Receiving Party will inform the Disclosing Party promptly of any breach by such 
Receiving Party and/or its Representatives or Affiliates of the terms of this Agreement 
of which such Party may become aware and undertake to provide,  at its expense, all 
reasonable assistance to minimize the effects of such breach.  
 
 
81 9. Remedy for breach  
9.1 The Receiving Party acknowledges that any breach of the provisions of this 
Agreement may result in serious prejudice being sustained by the Disclosing Part y 
and its Affiliates, its business, and/or its shareholders and that damages alone may not 
be adequate remedy for such breach and, accordingly, without prejudice to any other 
rights or remedies that the Disclosing Party and/or their Affiliates might have, the 
Disclosing Party may be entitled to seek the remedies of injunction, specific 
performance and other enforcement measures for any threatened or actual breach of 
the provisions of this Agreement.  
9.2 The Receiving Party will be liable to pay on demand to the  Disclosing Party an 
amount equal to any damage, loss or costs resulting from any failure to comply with 
any of the obligations for which the Receiving Party or its Affiliates are liable under 
this Agreement.  
10. Notices  
10.1 All notices, requests, demands, and ot her communications which are required to be or 
may be given under this Agreement shall be in writing and shall be deemed to have 
been received if delivered by (i) hand delivery against receipt signed and dated by the 
addressee, (ii) registered mail return receipt requested or if sent by email (provided 
automatic confirmation of receipt of email is issued to the sender of the notice or 
receipt of the notice is acknowledged by the recipient including by email) provided 
that a hard copy of such notice is also delivered by international courier service one 
Business Day after transmission, to the Parties at the following addresses: [ To be 
provided in agreements when signed ] 
10.2 Any notice given by mail, international courier service or email shall be effective 
when delivered.  Any notice given by email after 5:00pm (in the place of receipt) on a 
Business Day or on a day that is not a Business Day shall be deemed received on the 
following Business Day.  
10.3 For purposes of this Section, a “ Business Day ” shall mean a day on which banking 
institutions are open for regular business in France, which shall not be a Saturday, a 
Sunday, a legal holiday, or other day on which banking instituti ons are authorized or 
obligated by law to close in France.  
11. No hardship  
11.1 Pursuant to article 1195 of the French Code civil , each Party accepts to bear all future 
liabilities and risks (including unforeseeable as of the date hereof) resulting from the 
terms a nd conditions of this Agreement and accordingly irrevocably waives any right 
it may have under said article.   
  
 
 
82  
12. Term and Termination    
12.1 This Agreement shall become effective on the date first set forth above and shall 
terminate upon the [12th anniversary]/[20th anniversary] [ As appropriate depending on 
Commitment to which confidentiality agreement relates ] of closing of the 
contemplated acquisition by Alstom S.A. of sole control over Bombardier 
Transportation [(Investment) UK Ltd].  Each Party  irrevocably waives any right to 
terminate unilaterally this Agreement under article 1226 of the French Code civil . 
13. Survivability   
13.1 Each Party agrees that all of its obligations undertaken herein as a Receiving Party 
shall survive and continue after any te rmination or expiration of this Agreement.  
14. Governing  Law and Arbitration    
14.1 This Agreement shall be governed in all respects solely and exclusively by French 
Law.  All disputes, controversies, or claims arising out of, relating to, or in connection 
with th is Agreement shall be resolved by the Fast Track Dispute Resolution Procedure 
contained in the Commitments.  
14.2 Each Party shall be entitled to seek preliminary injunctive relief or other temporary 
measures from the courts of competent jurisdiction, provided that any proceedings 
and decisions as to the merits of the dispute are exclusively governed and resolved by 
arbitration in accordance with the Fast Track Dispute Resolution Procedure.  
15. Independent  Development    
15.1 Nothing in this Agreement shall be construed as a representation or agreement that the 
Receiving Party is not currently developing, shall not develop, or have developed for 
it, products, concepts, systems, technologies, or techniques that are similar to or 
compete with the products, concepts, systems , technologies, or techniques 
contemplated by the purpose or embodied in the Confidential Information, or explore 
such similar opportunities with other parties, provided that the Receiving Party does 
not violate any of its obligations under this Agreement in connection therewith.   
16. Miscellaneous   
16.1 This Agreement constitutes the entire understanding among the Parties hereto as to 
the Confidential Information and supersedes all prior discussions between them 
 
 
83 relating thereto.  No amendment nor modification of  this Agreement shall be valid or 
binding on the Parties unless made in writing and signed on behalf of each of the 
Parties by its authorized officer or representative.  No Party may assign or transfer, in 
whole or in part, any of its rights, obligations, or duties under this Agreement.  The 
failure or delay of any party to enforce at any time any provision of this Agreement 
shall not constitute a waiver of such party’s right thereafter to enforce each and every 
provision of this Agreement.  In the event th at any of the terms, conditions, or 
provisions of this Agreement are held to be illegal, unenforceable, or invalid by any 
court of competent jurisdiction, the remaining terms, conditions, or provisions hereof 
shall remain in full force and effect.  
 
  
 
 
84 Annex III:  Monitoring Trustee  
1. The Monitoring Trustee shall, at the time of appointment, be independent of Alstom 
and Bombardier and their Affiliated Undertakings1, possess the necessary experience, 
competence, and qualifications to carry out its mandate  and shall neither have nor 
become exposed to a conflict of interest.   
2. The Monitoring Trustee shall be remunerated by Alstom in a way that does not 
impede the independent and effective fulfilment of the Monitoring Trustee’s mandate.   
Proposal by Alstom  
3. No later than two weeks after the Effective Date, Alstom shall submit the name or 
names of one or more natural or legal persons whom Alstom proposes to appoint as 
the Monitoring Trustee to the European Commission (the “ Commission ”) for 
approval.  The propos al shall contain sufficient information for the Commission to 
verify that the person or persons proposed as Monitoring Trustee fulfil the 
requirements set out in paragraph Error! Reference source not found.  and shall 
include:  
a) the full terms of the proposed mandate, which shall include all provisions 
necessary to enable the Monit oring Trustee to fulfil its duties under the 
Commitments; and  
b) the outline of a work plan which describes how the Monitoring Trustee intends to 
carry out its assigned tasks.  
Approval or rejection by the Commission  
4. The Commission shall have the discretion to approve or reject the proposed Trustee(s) 
and to approve the proposed mandate subject to any modifications it deems necessary 
for the Trustee to fulfil its obligations.  If only one name is approved, Alstom shall  
appoint, or cause to be appointed, the person or persons concerned as Trustee, in 
accordance with the mandate approved by the Commission.  If more than one name is 
approved, Alstom shall be free to choose the Trustee to be appointed from among the 
names a pproved.  The Trustee shall be appointed within one week of the 
Commission’s approval, in accordance with the mandate approved by the 
Commission.  
New proposal by Alstom  
5. If all the proposed Trustees are rejected, Alstom shall submit the names of at least two 
more natural or legal persons within one week of being informed of the rejection, in 
accordance with paragraphs 35 and 3.  
                                                 
1  Affiliated Undertakings: undertakings controlled by the Parties and/or by the ultimate parents of the Parties, 
whereby the notion of control shall be interpreted pursuant to Article 3 of the Merger Regulation and in 
light of the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on 
the control of concentrations between undertakings (the “ Consolidated Jurisdictional Notice ”). 
 
 
85 Trustee nominated by the Commission  
6. If all further proposed Trustees are rejected by the Commission, the Commission shall 
nominate a Trustee, whom Alstom shall appoint, or cause to be appointed, in 
accordance with a trustee mandate a pproved by the Commission.  
Functions of the Monitoring Trustee  
7. The Trustee shall assume its specified duties and obligations in order to ensure 
compliance with the Commitments.  The Commission may, on its own initiative or at 
the request of the Trustee or Alstom, give any orders or instructions to the Trustee in 
order to ensure compliance with the conditions and obligations attached to the 
Decision.  
8. The Monitoring Trustee shall:  
a) propose in its first report to the Commission a detailed work plan describing how 
it intends to monitor compliance with the obligations and conditions attached to 
the Decision;  
b) monitor compliance by Alstom with the conditions and obligations attached to the 
Decision;  
c) propose to Alstom such measures as the Monitoring Trustee consid ers necessary 
to ensure Alstom’s compliance with the conditions and obligations attached to the 
Decision;  
d) act as a contact point for any request by third parties, in relation to the 
Commitments;  
e) provide to the Commission, sending to Alstom a non -confident ial copy at the 
same time, a written report within fifteen (15) working days after the end of every 
quarter of the Effective Date for the first five (5) years and every six (6) months 
thereafter, so that the Commission can assess whether the commitments ar e being 
correctly implemented;  
f) promptly report in writing to the Commission, sending to Alstom a non -
confidential copy at the same time, if it concludes on reasonable grounds that the 
Alstom is failing to comply with the Commitments; and  
g) assume the other  functions assigned to the Monitoring Trustee under the 
conditions and obligations attached to the Decision.  
Duties and Obligations of Alstom   
9. Alstom shall provide and shall cause its advisors to provide the Monitoring Trustee 
with all such cooperation, assistance, and information as the Monitoring Trustee may 
reasonably require to perform its tasks.  The Monitoring Trustee shall have full and 
complete access to Alstom’s books, records, documents, management, or other 
personnel, facilities, sites, and technical information necessary for fulfilling its duties 
under the Commitments and Alstom shall provide the Trustee upon request with 
copies of any  relevant document.  Alstom shall make available to the Monitoring 
Trustee one or more offices on their premises and shall be available for meetings in 
order to provide the Monitoring Trustee with all information necessary for the 
performance of its tasks.   
 
 
86 10. Alstom shall provide the Monitoring Trustee with all managerial and administrative 
support that it may reasonably request to monitor the Commitments.  
11. Alstom shall provide the Monitoring Trustee with copies of all agreements entered 
into under these Commitments promptly following the execution thereof, in each case 
subject to the Monitoring Trustee’s obligations of professional secrecy.  
12. Alstom shall ind emnify the Monitoring Trustee and its employees and agents (each an 
“Indemnified Party ”) and hold each Indemnified Party harmless against, and hereby 
agrees that an Indemnified Party shall have no liability to, Alstom for any liabilities 
arising out of the  performance of the Monitoring Trustee’s duties under the 
Commitments, except to the extent that such liabilities result from the wilful default, 
recklessness, gross negligence, or bad faith of the Monitoring Trustee, its employees, 
agents, or advisors.  
13. At the expense of Alstom, the Monitoring Trustee may appoint advisors (in particular 
for legal advice), subject to Alstom’s approval (this approval not to be unreasonably 
withheld or delayed) if the Monitoring Trustee considers the appointment of such 
advis ors necessary or appropriate for the performance of its duties and obligations 
under the mandate, provided that any fees and other expenses incurred by the 
Monitoring Trustee are reasonable.  Should Alstom refuse to approve the advisors 
proposed by the Mon itoring Trustee, the Commission may approve the appointment 
of such advisors instead, after having heard Alstom.  Only the Monitoring Trustee 
shall be entitled to issue instructions to the advisors.  Paragraph 12 shall apply mutatis 
mutandis .  
14. Alstom agrees that the Commission may share confidential information proprietary to 
Alstom with the Monitoring Trustee.  The Monitoring Trustee shall not disclos e such 
information. The principles contained in Articles 17(1) and (2) of the Merger 
Regulation apply mutatis mutandis .  
15. Alstom agrees that the contact details of the Monitoring Trustee are published on the 
website of the Commission’s Directorate -General f or Competition, and shall inform 
interested third parties, in particular any potential purchasers, of the identity and the 
tasks of the Monitoring Trustee.  
16. For a period of twenty (20) years from the Effective Date, the Commission may 
request all informati on from the Parties that is reasonably necessary to monitor the 
effective implementation of these Commitments.  
Replacement, discharge, and reappointment of the Monitoring Trustee   
17. If the Monitoring Trustee ceases to perform its functions under the Commitme nt or 
for any other good cause, including the exposure of the Trustee to a Conflict of 
Interest:  
a) the Commission may, after hearing the Trustee and Alstom, require the Alstom to 
replace the Trustee; or  
b) Alstom may, with the prior approval of the Commission , replace the Trustee.  
18. If the Trustee is removed according to paragraph Error! Reference source not 
found. , the Trustee may be required to continue in its function until a new Trustee is 
in place to whom the Trustee has effected a full hand over all relevant information.  
 
 
87 The new Trustee shall be appointed in accordance with the procedure referred to in 
paragraphs 35–6.  
19. Unless removed according to paragrap h 17, the Trustee shall cease to act as Trustee 
only after the Commission has discharged it from its duties after all the Commitments 
with which the Trustee has been entrusted have been implemented.  However, the 
Commission may at any time require the reappointment of the Monitoring Trustee if it 
subsequently appears that the relevant remedies might not have been fully and 
properly implemented.  
  
 
 
88 Annex A: Pricing Formula  
1. All services and products offered within the Commitments (other than the provision 
of documentation for which fixed fees are provided) will be priced on a cost -plus 
basis.  This applies to:  
 STM/Class B manufacturing  
 Technical support relating to STM/Class Bs  
 Redesign/design renewal of STMs  
 TCMS modifications  
A. STM  AND CLASS B  
1. COST-PLUS PRICING FOR CLASS BS AND STM  MANUFACTURING AND SUP PLY 
2. Available Class Bs and STMs, assuming no obsolescence applies, will be priced o n a 
cost-plus basis per unit.  At the time each order is placed, the price will be calculated 
based on the following methodology (all costs as estimated at the time of ordering):  
 Direct equipment costs in EUR, including but not limited to those related to : 
o Manufacturing  
o Costs of components including supply chain costs  
o Testing  
o Project management  
o Packing and delivery per defined Incoterms  
 Plus: Fee to cover:  
o Warranty  
o Product sustaining (including addressing Minor Obsolescence)  
o  [Confidential details on Alstom’s business cost structure ]1  
o Net margin.  
1. Discounts will be offered for high quantities (above […]) based on the following 
methodology.  
[Confidential details on discounts’ structure ]. 
                                                 
1  [Confidential details on Alstom’s business cost structure ].   
 
 
89 2. PRICING FOR TECHNICAL SUPPORT , TCMS  MODIFICATIONS , REDESIGN  
2. Technical support, support for TCMS modifications, and redesign of STMs will be 
priced also on a cost plus basis taking into account the following elements  
 Direct design and industrialization costs in EUR, including but not limited to 
those related to:  
o Engineering (design and modification)  
o Industrialization and manufacturing files  
o Purchase or subcontracting costs  
o Testing  
o Project management  
o Travel costs  
 Plus:  Fee to cover:  
o  [Confidential details on Alstom’s business cost structure ] 
o Net margin  
3. PAYMENT TERMS  FOR REDESIGN  
3. Where, redesign of an STM is required due to major obsolescence Alstom will offer 
two alternatives, either:  
 An infrastructure manager can commission the redesign work for a one -off 
fee, or  
 The design refresh will be charged as an increase to the unit price calculated 
under the formula outlined above in paragraph 2 amortized over three y ears.  
4. WARRANTY FOR STM S / CLASS BS  
4. The standard warranty period is twenty -four (24) months after commissioning of the 
contractual products, but shall not, however, exceed thirty (30) months after delivery 
of the contractual products.  
5. Return cost is incl uded.  The final user shall be responsible for the diagnostic, 
dismounting, and freight for failed components from the Customer’s site to Alstom’s 
manufacturing site.  
 
 
90 5. INTERFACE DOCUMENTATION  
6. Subject to the special provisions on Finland and Portugal, Interf ace Documentation 
will be provided at a fixed price of EUR […] per Class B / STM.  
6. INTEROPERABILITY DOCUMENTATION  
7. Available Interoperability Documentation will be provided  at a fixed price of EUR 
[…] per TCMS type. 2    
B. GENERAL CONDITIONS  
8. All prices are excluding VAT.    
9. Delivery will be made in accordance with DPA Purchaser Site within the EEA, 
Incoterms ICC 2020 .  
10. All services are invoiced in EUR (Euro) regardless of the location of the client subject 
to applicable taxation laws.  
                                                 
2  As provided i n Annex I.1  to Annex I.7 . 
 
 Annex B – Framework Agreement for Supply of Alstom ATB -EG Class B – 
Principal Terms  
1. Alstom will agree upon a Framework Agreement (the “ Dutch Framework 
Agreement ”) with the Dutch infrastructure manager (ProRail, hereafter referred to as 
the “ Customer ”, together with Alstom the “ Contracting Parties ”), at ProRail’s 
option, for the supply of Alstom’s ATB -EG Class B for a period of twenty (20) years 
from the Closing Date.  The Dutch Framework Agreement will allow for rolling 
stock suppliers and/or ETCS OBU s uppliers authorized by the Customer 
(“Authorized Third Parties ”) to place orders for Alstom’s ATB -EG Class B at the 
same pricing and on the same terms as agreed with ProRail.1   
2. Under this Dutch Framework Agreement, the Customer will be able to order or wi ll 
be able to authorize rolling stock suppliers and/or ETCS OBU suppliers to order 
ATB -EG Class B.  
3. The Dutch Framework Agreement will contain the following principal terms:  
4. No restriction on end -user to whom ATB -EG Class B can be supplied .  The 
Customer will be free to pass on quantities purchased of Alstom’s ATB -EG Class B 
to any third party for installation in rolling stock in the EEA or to authorize a third 
party to order Alstom’s ATB -EG Class for installation in rolling stock in the EEA.  
5. Interface information .  Under the Dutch Framework Agreement, Alstom will 
provide Authorized Third Parties with Interface Documentation for Alstom’s ATB -
EG Class B for a fixed fee of EUR […] per cab, adjusted on a yearly basis as 
approved by the Monitoring  Trustee.    
6. Pricing .  Pricing will be agreed between Alstom and the Customer, taking as a 
starting point current existing benchmark pricing for Alstom’s ATB -EG Class B 
sales on a product basis and open book principles and will be adjusted on a yearly 
basis following the revision formula based on applicable to the supply of STMs and 
Class B OBUs set out in Annex A  of the OBU Commitments.  Authorized Third 
Parties will be entitled to order Alstom’s ATB -EG Class B on the basis of the 
pricing agreed with the C ustomer and otherwise subject to the principal terms of the 
Dutch Framework Agreement.  The same terms as set out in Annex A regarding 
redesign shall also apply to the Dutch Framework Agreement.  
7. Term and termination .  The Dutch Framework Agreement will be concluded for an 
initial period of twenty (20) years from the Closing Date.  The Dutch Framework 
Agreement will be terminable for material breach by either Contracting Party, and in 
any event by the Customer at any time subject to six (6) months’ notice of  
termination.  For the purposes of this Dutch Framework Agreement, a material 
breach shall be deemed to have arisen when:  
a) the Customer’s payments for 2 consecutive orders of any duly delivered 
ATB -EG Class Bs are overdue for more than 90 days.   
b) Failure by  Alstom to comply in substantial part with substantial provisions of 
this Dutch Framework Agreement, and in particular with clauses 5, Error! 
Reference source not found.  13 and 20 of this Dutch Framework 
Agreement.   
                                                 
1  Authorized Third Parties to enter contracts with Alstom substantially on the same terms as the Dutch 
Framework Agreement.  
 
 
92 8. If an Authorized Third Party’s payments to Alstom are overdue for more than 90 
days for any 2 consecutive orders, A lstom will be entitled to terminate supply to that 
Authorized Third Party.  The Customer’s Dutch Framework Agreement would not 
be terminated in that situation, unless the Customer itself were in breach under 7a) or 
7b) above.  
9. Option for renewal .  After expiration of the Commitments and the twenty (20 ) years 
term of the Dutch Framework Agreement, ProRail will have the option to extend the 
Dutch Framework agreement on the same terms for a further period of […]  years  
10. Call-off procedure .  Whenever the Customer wishes Alstom to provide any units of 
the AT B-EG Class B it shall issue a Call -off for such units via email to an address to 
be agreed in the Dutch Framework Agreement specifying the date for delivery, the 
price to be paid, and the location of delivery (which shall be a location within the 
Netherlan ds).  The date for delivery may be no sooner than […] months and no later 
than […] months after issuance of the Call -off, depending on the quantity of ATB -
EG Class Bs ordered by the Customer.  Alstom shall acknowledge receipt of such 
Call-off via email no later than the fifth working day following receipt, confirming 
availability of the units by the requested date or advising of any supply issues.  
11. The Customer may delegate its responsibilities under this Call -off Procedure, as well 
as liability for payment  of such units to an Authorized Third Party, provided that 
such Authorized Third Party agrees to the same payment terms and other provisions 
including as to liability as are outlined in the Dutch Framework Agreement.  
12. Maximum quantities .  The Dutch Framewo rk Agreement will include no minimum 
order requirements and will be subject to a maximum yearly order of […] ATB -EG 
Class B units (regardless of whether orders are placed by the Customer or an 
Authorized Third Party).  
13. Quality and Rejection.   Alstom commit s to deliver units of the ATB -EG Class B 
that meet the quality standards in the technical specification that will be included in 
the Dutch Framework Agreement and/or attached to each individual order (the 
“Technical Specification ”).  Prior to the delivery of any ATB -EG Class B units 
ordered by the Customer or any Authorized Third Party, Alstom will conduct factory 
testing of any such ATB -EG Class Bs in accordance with the last validated factory 
testing process set out in the Technical Specification.  Delive red units of ATB -EG 
Class B will be accompanied by their certificate of conformity.   
14. The Customer or an Authorized Third Party may, not later than one (1) month after 
the delivery of the relevant ATB -EG Class Bs, reject by notice in writing, any ATB -
EG Cl ass Bs which, in its reasonable opinion, are not in accordance with the relevant 
Technical Specification.  Any such rejection notice shall include the Customer and 
Authorized Third Party ’s explanation of the basis and reasons for the relevant ATB -
EG Class  B’s non -compliance with the agreed Technical Specification.  Any ATB -
EG Class Bs not so rejected shall be deemed to have been accepted by the Customer 
or the Authorized Third Party.   
15. Payments .  The Dutch Framework Agreement will require advance payment o f 
[…]% of the price of a particular order, with the balance payable within […] days of 
shipment or against warehouse receipt, within the Netherlands.  All payments are to 
be made in EUR (Euros) subject to applicable taxation legislation.   
 
 
93 16. Title and Risk.  Passage of title and risk will be agreed between Alstom and ProRail 
based on Incoterms ICC 2020.   
17. Liability.  In no event shall Alstom be liable to the Customer or any Authorized 
Third Party, including by way of indemnity, for any loss of profits, loss of business 
or production, loss of revenue, loss of or damage to goodwill, loss of savings 
(whether anticipated or otherwise) and/or any indirect, special or consequential loss 
or damage.  
18. Warranty.   Alstom shall repair any defective ATB -EG Class B at its o wn expense 24 
months after commissioning or 30 months after handover to the Customer or the 
relevant Authorized Third Party.   
19. Rights of third parties.  Nothing herein expressed or implied is intended or shall be 
construed to confer upon or give to any per son or corporation, other than the 
Contracting Parties hereto and their permitted successors or assignees, any rights or 
remedies under or by reason of this Framework Agreement.  
20. Major Obsolescence.   If Alstom anticipates Major Obsolescence of ATB -EG Class 
Bs as delivered, a last buy order notice will be sent to the Customer or the relevant 
Authorized Third Party with a minimum period of six (6) months to allow for 
additional orders.   
21. Redesign at Customer’s request .  Where redesign of the ATB -EG would be required 
due to Major Obsolescence or need to renew the industrial file due to absence of 
regular purchase orders leading to no manufacturing having taken place for […]), 
Alstom will offer the Customer,  on substanti ally the same terms as those set out in 
Annex A  to the STMs and Class B OBUs Commitments , at Alstom’s sole discretion, 
either:   
 To develop a standalone ATB -EG STM ; or  
 To redesign Bombardier’s ATB -EG STM.  
22. Governing law and dispute resolution .  The Dutch Framework Agreement will be 
governed by Dutch Law, as will any disputes arising out of or in connection with the 
Dutch Framework Agreement.  It will be subject to the Fast Track Dispute 
Resolution Procedure.  
 
 
  
 
 
94 Annexe IV  
 
[Confidential ]