Opinion of the Advisory Committee on concentrations given during its 89th meeting on 12 January 2001 on a draft decision concerning the case COMP/M.2033 - Metso/Svedala

(2004/C 76/04)

(Text with EEA relevance)

1. The Advisory Committee considers, in agreement with the Commission, that the notified operation constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation and that it has a Community dimension within the meaning of Article 1(2) of the Regulation.

2. The Advisory Committee considers, in agreement with the Commission, that:

(a) New crushers and used crushers constitute separate markets.

(b) New crushers have to be segmented by technology (jaw crushers, cone crushers, primary gyratory crushers) and by application (A & C and mining).

(c) Within mining cone crushers, very large high capacity cones constitute a distinct product market.

3. The Advisory Committee considers, in agreement with the Commission, that:

(a) The relevant geographic market for A & C crushers is national.

(b) The relevant geographic market for mining crushers is regional (EEA).

4. The Advisory Committee considers, in agreement with the Commission, that:

(a) The notified concentration will create a dominant position on the markets for A & C cone crushers in Austria, Denmark, Finland, France, Germany, Italy, Ireland, Norway, Portugal, Spain, Sweden and the United Kingdom.

(b) The notified concentration will create a dominant position on the markets for A & C jaw crushers in Denmark, Finland, Norway and Sweden.

(c) The notified concentration will create a dominant position on the market for very high capacity cone crushers in the EEA.

(d) The notified concentration will create a dominant position on the market for mining jaw crushers in the EEA.

(e) The notified concentration will create a dominant position on the market for primary gyratory crushers in the EEA.

5. The Advisory Committee considers, in agreement with the Commission, that the commitments offered by the parties on 13 December 2000:

(a) Remove the competition concerns raised on the jaw crushers (A & C and mining).

(b) Remove the competition concerns raised on the cone crushers (A & C and mining).

(c) Are not sufficient to remove the competition concerns raised on the primary gyratory crushers market.

6. The Advisory Committee considers, in agreement with the Commission, that the new undertakings submitted by the parties on 22 December 2000 are not sufficient to remove the competition concerns raised on the primary gyratory crushers market.

7. On the last undertakings submitted by the parties on 9 January 2001:

(a) Majority of the Advisory Committee considers that they have been submitted after the deadline of Article 18(2) of Commission Regulation 447/98. A minority does not agree. Another minority abstains.

(b) Majority of the Advisory Committee considers that the parties have not required exceptional circumstances. A minority abstains.

(c) Majority of the Advisory Committee considers that, taking into account the specific features of this case, the proposals of 9 January do not constitute new undertakings. A minority of the Advisory Committee disagrees and considers that these proposals are not simple clarifications or amendments of previous undertakings, but constitute new undertakings. Another minority abstains.

(d) As a consequence, majority of the Advisory Committee considers that the proposals of 9 January must be taken into account. A minority of the Advisory Committee disagrees and considers that they should not be taken into account.

8. Majority of the Advisory Committee considers that these last undertakings are sufficient to remove all the competition problems. A minority of the Advisory Committee has not given an opinion as it does not agree to take the last undertakings submitted by the parties into account.

9. Majority of the Advisory Committee considers that the Metso/Svedala operation can be declared compatible with the common market and with the functioning of the EEA agreement. A minority of the Advisory Committee disagrees as it does not agree to take into account the last undertakings proposed by the parties.

10. The Advisory Committee asks the Commission to take into account all the matters raised by the Member States during the discussion, especially the difficulty to make a difference between what is to be considered as a new undertaking and what only constitutes a modification of a previous undertaking.

11. The Advisory Committee recommends the publication of its opinion in the Official Journal of the European Union.