EN Official Journal of the European Union C 58/14

Final report of the Hearing Officer in Case COMP/M.3796 — OMYA/J.M. HUBER PCC

(pursuant to Articles 15 and 16 of Commission Decision (2001/462/EC, ECSC) of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001)

(Text with EEA relevance)

(2007/C 58/06)

The draft decision gives rise to the following observations:

Written Procedure

On 4 April 2005, the Commission received a request for referral pursuant to Article 22(1) of Council Regulation (EC) No 139/2004 (‘Merger Regulation’) from the Finnish Competition Authority, subsequently joined by the competent authorities of Sweden on 22 April 2005, Austria on 26 April 2005, and France on 28 April 2005, to investigate a proposed concentration by which the undertaking Omya AG (‘Omya’, Switzerland) proposes to acquire within the meaning of Article 3(1)(b) of the Council Regulation sole control of the worldwide precipitated calcium carbonate (‘PCC’) business of J.M. Huber Corporation (‘Huber’), currently controlled by J.M. Huber Corporation (USA), by way of purchase of shares and assets.

Upon examination of the evidence submitted by the referring Member States, the Commission concluded that the concentration met the requirements laid down in Article 22(3) of the Merger Regulation and paragraphs 42-45 of the Commission Notice on Case Referral in respect of concentrations and decided to accept jurisdiction, sending decisions to that effect to the referring Member States on 18 May 2005. This case was the first referral from Member States to the Commission under Article 22 of the new Merger Regulation.

Omya submitted a notification on 4 August 2005. The Commission initiated proceedings on 23 September 2005 pursuant to Article 6(1)(c) of the Merger Regulation on the basis that the proposed concentration raised serious doubts as to its compatibility with the common market. On 3 October 2005, Omya was provided with access to the ‘key documents ’in the Commission file in accordance with the ‘Best Practices on the conduct of EC merger control proceedings ’(‘Best Practices’), as determined by the Directorate General for Competition.

Subsequently, the Commission adopted four Article 11(3) decisions addressed to Omya on 11 October 2005, 9 November 2005, 23 November 2005 and 9 December 2005. The proceedings thus were suspended between 11-19 October 2005, 4-17 November 2005, 22-29 November 2005 and 8 December 2005-3 January 2006.

When finalising the draft decision following the in-depth investigation the Commission services found that an earlier submission by the notifying party contained incorrect data. Therefore, on 8 March 2006 the Commission adopted another Article 11(3) decision that again suspended the procedure pending compliance by Omya with the Article 11(3) decision. (This decision was appealed by Omya to the Court of First Instance on 18 May 2006.) The effect of the Article 11(3) decision was to set the merger timetable clock back to 8 December 2005. The clock restarted on 21 March 2006. The Commission's continuing investigation confirmed competition concerns related to the coating market. A Statement of Objections focusing on this market was sent to the notifying party on 2 May 2006, with a deadline for reply of 16 May 2006.

Involvement of Third Parties

I granted two requests from undertakings to be admitted to the proceedings as interested third parties within the meaning of Article 18(4) of the Merger Regulation and Article 11(c) of Council Regulation (EC) No 802/2004. Minerals Technologies Inc. (‘MTI’) MTI was admitted on 23 December 2005, and Imerys SA (‘Imerys’) on 23 January 2006. Both undertakings, in addition to responding to requests for information pursuant to Article 11 of the Merger Regulation, made voluntary submissions, both written and in the context of meetings with the Commission.

When they understood that the Commission might not issue a Statement of Objections, both third parties wrote to the Hearing Officer or the Commission services to raise issues about the procedure in the case. Imerys lodged a formal complaint with the Hearing Officer on 23 February 2006, saying that the Commission services had not been transparent enough, nor provided sufficient information at an early enough stage in the proceedings for Imerys to contribute meaningfully to the investigation. I replied that in my view Imerys' legal rights to be heard as an interested third party had been fully respected. The same applied in relation to MTI. In terms of transparency, it might have been possible for these third parties to have been more fully informed. In the event, the third parties continued to be meaningfully involved in the procedure, both before and after the Statement of Objections was sent.

Access to file

In preparation for access to file following issuance of the Statement of Objections, on 27 April 2006 I took a decision pursuant to Article 9 of the Hearing Officer's Mandate (1) This decision required that certain information for which Huber had claimed confidentiality be disclosed to Omya in order to protect Omya's rights of defence.

Access to the file was granted to the notifying party upon issuance of the Statement of Objections. Omya complained, inter alia, of ‘limited and deficient ’access to file in its response to the Statement of Objections. The relevant Commission services responded to this issue. Subsequently Omya addressed a letter to the Hearing Officer reiterating some of its concerns about access to the file. Having examined the specific issues raised, I informed Omya that whilst certain deficiencies had been identified, these were subsequently corrected by the Commission services.

Omya raised a further issue with regard to its right to be heard in reference to a document the Commission sent to Omya for comments on 6 July 2006. However, I consider that in view of the fact that Omya provided comments on the document on 11 July 2006, there was still sufficient time for its views to be taken into account before the final Decision.

Oral Hearing

An oral hearing took place on 18 May 2006 on the request of Omya, which attended the hearing together with Huber. The two third parties, Imerys and MTI, were also present at the hearing.

Conclusions

Omya and Huber submitted a package of commitments to the Commission on 23 May 2006. On 29 May 2006, the Commission launched a market test on the first alternative commitment proposal. The Commission provided Omya with a set of non-confidential versions of the responses from third parties to the market test of the first alternative commitment, followed by a meeting where the results of the market test were discussed with the parties. Subsequently, on 3 July 2006, the parties submitted a revised commitment.

The Commission services have concluded that the first alternative commitment, subject to certain refinements proposed by the parties on 3 July 2006, and provided it is complied with in full, adequately addresses the competition concerns raised by the Commission with regard to effective competition on the market for coating calcium carbonates for affected customers in the South of Finland, and the concentration, as modified by the commitment, can be declared compatible with the common market and the functioning of the EEA Agreement.

No concerns were raised to the Hearing Officer as to the objectivity of the market tests.

In light of the above, I consider that the rights to be heard of all participants to the present proceeding have been respected.

Brussels, 14 July 2006 Karen WILLIAMS

(1) Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings (OJ L 162, 19.6.2001, p. 21).