Case T-282/02

Cementbouw Handel & Industrie BV

v

Commission of the European Communities

(Competition – Control of concentration of undertakings – Articles 2, 3 and 8 of Regulation (EEC) No 4064/89 − Concept of concentration – Creation of a dominant position − Authorisation subject to compliance with certain commitments – Principle of proportionality)

Summary of the Judgment

1. Competition – Concentrations – Concept

(Council Regulation No 4064/89, Art. 3; Commission Notice 98/C 66/02, point 19)

2. Competition – Concentrations – Concept

(Council Regulation No 4064/89, Art. 3(2))

3. Competition – Concentrations – Acquisition of indirect joint control of a joint undertaking

(Council Regulation No 4064/89, Arts 3(1)(b) and (4)(b))

4. Community law – Principles – Protection of legitimate expectations – Conditions

5. Competition – Concentrations – Concept

(Council Regulation No 4064/89, Art. 3)

6. Competition – Concentrations – Existence – Concentration coming within the exclusive competence of the Commission – Conditions

(Council Regulation No 4064/89, Art. 3)

7. Competition – Concentrations – Concentration having a Community dimension – Criteria for assessment

(Council Regulation No 4064/89, Arts 1 and 5)

8. Competition – Concentrations – Examination by the Commission

(Council Regulation No 4064/89, Art. 6)

9. Competition – Concentrations – Concentration resulting from a number of legal transactions having a unitary nature on account of their interdependence

(Council Regulation No 4064/89)

10. Competition – Concentrations – Assessment of compatibility with the common market – Creation or strengthening of a dominant position

(Council Regulation No 4064/89, Arts 2(2) and 3)

11. Competition – Concentrations – Examination by the Commission – Economic assessments

(Council Regulation No 4064/89, Art. 2)

12. Competition – Dominant position – Existence – Barriers to market entry

(Art. 82 EC)

13. Competition – Dominant position – Existence – Relevance of the purchasing power of customers vis-à-vis the supplier

(Art. 82 EC)

14. Competition – Concentrations – Assessment of compatibility with the common market – Creation or strengthening of a dominant position

(Council Regulation No 4064/89)

15. Competition – Concentrations – Examination by the Commission – Commitments given by the undertakings concerned of such a kind as to render the notified transaction compatible with the common market

(Council Regulation No 4064/89, Arts 2(2) and 8(2))

1. It follows from Article 3 of Regulation No 4064/89 on the control of concentrations between undertakings, entitled ‘Definition of concentration’, that a concentration is deemed to arise, in particular, where control of one or more undertakings is acquired either by an undertaking acting on its own or by two or more undertakings acting jointly, on the understanding that, no matter what form it assumes, the taking of control, having regard to the particular circumstances of fact and of law in each case, must confer the possibility of exercising decisive influence on the activity of the acquired undertaking as a consequence of rights, contracts or any other means.

In accordance with paragraph 19 of the Commission Notice on the concept of concentration within the meaning of Regulation No 4064/89, joint control exists where two or more undertakings or persons have the possibility of exercising decisive influence over another undertaking, that is to say, the power to block actions which determine the strategic commercial behaviour of an undertaking. Thus, joint control may result in a deadlock situation owing to the power of two or more undertakings to reject proposed strategic decisions. Those shareholders must therefore reach understanding in determining the commercial policy of the joint venture.

While decisive influence, within the meaning of Article 3(3) of Regulation No 4064/89, need not necessarily be exercised in order to exist, the existence of control within the meaning of Article 3 of that regulation requires that the possibility of exercising that influence be effective.

(see paras 41-42, 58)

2. The fact that a joint undertaking may be a full-function undertaking and therefore economically autonomous from an operational viewpoint does not mean that it enjoys autonomy as regards the adoption of its strategic decisions. The opposite conclusion would lead to a situation in which there would never be joint control of a ‘joint undertaking’ as soon as it was economically autonomous. The condition in Article 3(2) of Regulation No 4064/89 on the control of concentrations between undertakings that must be satisfied in order for the creation of a joint undertaking, that is to say one controlled by two or more undertakings, to be considered to constitute a concentration, namely that the joint undertaking must ‘[perform] on a lasting basis all the functions of an autonomous economic entity’, proves that that is not the case.

(see para. 62)

3. Article 3(1)(b) of Regulation No 4064/89 on the control of concentrations between undertakings states that control may be acquired ‘direct[ly] or indirect[ly]’ by one or more persons, and Article 3(4)(b) of that regulation accepts that those having control may also be persons who, while not being holders of rights or entitled to rights under contracts, have the power to exercise the rights deriving therefrom.

The shareholders of the members of a joint undertaking may acquire indirect control within the meaning of Article 3 even where they are not direct holders of voting rights in the general assembly of that undertaking, which are exercised by the members themselves.

Provided that commercial companies comply in any event with the decisions of their exclusive shareholders, their majority shareholders or those jointly controlling the company, it necessarily follows that, where the member companies of the joint undertaking are all subsidiaries held either exclusively or jointly by two shareholders, an appointment to the joint undertaking’s decision-making bodies presumes the agreement of the two shareholders. Otherwise, the members will be unable to appoint the joint undertaking’s decision-making bodies and the joint undertaking will be incapable of functioning.

The fact that representatives of the parent companies are not entitled to sit on the joint undertaking’s managing board or that they are able to represent only a minority within its supervisory board does not alter the fact that it is the members of that undertaking that decide on the composition of the decision-making bodies and, through the intermediary of those members, their two shareholders.

Furthermore, as regards the composition of the joint undertaking’s two decision-making bodies, although its articles do not preclude that all the persons sitting on those bodies will themselves carry out functions within the decision-making bodies of the member undertakings of the joint undertaking, it is inevitable that those representatives will have been appointed by the shareholders of the members of the joint undertaking and that, in performing their functions within the joint undertaking’s decision-making bodies, they will have to take those shareholders’ views into account.

(see paras 72-74)

4. Three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the Community authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules.

(see para. 77)

5. Whereas Article 3(1)(a) of Regulation No 4064/89 on the control of concentrations between undertakings treats as a concentration a relatively simple and identifiable phenomenon – that of a merger between two or more previously independent undertakings –, Article 3(1)(b) is intended to cover all the other situations in which one or more undertakings acquire control of the whole or parts of one or more other undertakings. That general and teleological definition of a concentration – the result being control of one or more undertakings – implies that it makes no difference whether the direct or indirect acquisition of control was acquired in one, two or more stages by means of one, two or more transactions, provided that the end result constitutes a single concentration.

Nor does it matter whether, when they notify a concentration to the Commission, the parties propose to conclude two or more transactions or whether they have already concluded them before notifying them. It is for the Commission, in each case, to ascertain whether those transactions are unitary in nature, so that they constitute a single concentration for the purposes of Article 3 of Regulation No 4064/89.

Such an approach seeks to identify, in accordance with the circumstances of fact and of law specific to each case and with a concern to ascertain the economic reality underlying the transactions, the economic aim pursued by the parties, by examining, when faced with a number of legally distinct transactions, whether the undertakings concerned would have been inclined to conclude each transaction taken in isolation or whether, on the contrary, each transaction constitutes only an element of a more complex operation, without which it would not have been concluded by the parties. In other words, in order to determine the unitary nature of the transactions in question, it is necessary, in each individual case, to ascertain whether those transactions are interdependent, in such a way that one transaction would not have been carried out without the other.

That approach tends, on the one hand, to ensure that undertakings which notify a concentration have the advantage of legal certainty for all the transactions which complete that operation and, on the other, to enable the Commission to carry out an effective control of concentrations capable of significantly impeding competition in the common market or a significant part thereof. Those two aims constitute, moreover, the principal objective of Regulation No 4064/89.

It follows that a concentration within the meaning of Article 3(1) of Regulation No 4064/89 may be deemed to arise even in the case of a number of formally distinct legal transactions, provided that those transactions are interdependent in such a way that none of them would be carried out without the others and that the result consists in conferring on one or more undertakings direct or indirect economic control over the activities of one or more other undertakings.

(see paras 103-109)

6. Article 3 of Regulation No 4064/89 on the control of concentrations between undertakings defines the conditions of the existence of a ‘concentration’ and confines itself to defining, generally and materially, what is to be understood by a ‘concentration’; it does not determine the question of the Commission’s competence in respect of concentrations. Among the transactions which satisfy the definition in Article 3 of Regulation No 4064/89, only those having a ‘Community dimension’, such as those defined in Article 1 of that regulation, fall within the exclusive competence of the Commission, save where the regulation provides to the contrary. Consequently, the mere fact that a transaction satisfies the definition of Article 3 of Regulation No 4064/89 does not necessarily mean that it falls within the scope of the Commission’s exclusive competence; the transaction must also have a ‘Community dimension’.

(see para. 114)

7. It follows from the general structure of Article 5 of Regulation No 4064/89 on the control of concentrations between undertakings that the Community legislature intended to specify the scope of that regulation by defining, inter alia, the turnover of the participants to a concentration that must be taken into consideration for the purpose of determining whether it has a ‘Community dimension’ within the meaning of Article 1 of Regulation No 4064/89. Thus, it follows from Article 5(2) of that regulation that, in the context of the acquisition of parts of an undertaking, only the turnover relating to those parts of the undertaking which are actually acquired are to be taken into account for the purpose of assessing the dimension of the concentration in question.

That global assessment also includes the interpretation of the second subparagraph of Article 5(2) of Regulation No 4064/89, so that where the acquisition of parts of one or more undertakings takes place in a number of transactions within a two-year period between the same persons or undertakings, the turnover must relate to the acquired parts considered together. The underlying reason for the insertion of the second subparagraph of Article 5(2) of Regulation No 4064/89 is to ensure that the same undertakings or the same persons do not artificially break a transaction down into a number of partial sales of assets, over a period of time, with the aim of avoiding the thresholds laid down in Regulation No 4064/89 which determine the Commission’s competence in application of that regulation.

Accordingly, the fact that the second subparagraph of Article 5(2) of Regulation No 4064/89 allows the Commission to consider two or more transactions to constitute a single concentration for the purposes of calculating the turnover of the undertakings concerned with the aim of preventing any circumvention of the competence conferred on it by that regulation does not mean that that provision deprives the Commission of the right to determine, upstream, in application of Article 3 of that regulation, whether a number of transactions notified to it give rise to a single concentration or whether, on the contrary, those transactions must be regarded as giving rise to a number of concentrations.

If it emerges from the examination carried out by the Commission that two transactions notified to it are not interdependent, those transactions will be assessed individually. Where one and/or the other does not have a Community dimension, the Commission will decline competence to assess that transaction. If it emerges from that examination that the transactions are of a unitary nature and can therefore be considered to be a single concentration, in application of Article 3 of Regulation No 4064/89, the Commission will then ascertain whether the transaction thus identified has a Community dimension, for the purposes of establishing whether it is competent and of assessing the effects of the transaction on competition.

(see paras 115-120)

8. The position defended by each of the parties notifying a concentration is by definition subjective and necessarily reflects that party’s own interests. None the less, that cannot mean that the Commission, in its desire to ascertain the economic reality of a concentration, is precluded from using the explanations supplied by the parties which enable it to identify the true economic purpose pursued by the parties at the time when they concluded the transactions in question. Although the uncontested explanations provided by one of the notifying parties cannot be decisive in themselves, the Commission must be permitted to rely on those explanations where they enable it to support the assessments on which its analysis is based.

(see para. 147)

9. When examining together with a subsequent transaction from which it cannot be dissociated a transaction which, taken on its own, would not satisfy the ‘Community dimension’ criteria and which had for that reason been examined by the competent national competition authority, which had approved it, the Commission does not disregard the allocation of competence between national and Community competition authorities established by Regulation No 4064/89 on the control of concentrations between undertakings, provided that, owing to their unitary nature, the two transactions bring about a single concentration of a Community dimension.

(see paras 158-161)

10. The dominant position referred to in Article 2 of Regulation No 4064/89 on the control of concentrations between undertakings is concerned with a situation where one or more undertakings wield economic power which would enable them to prevent effective competition from being maintained in the relevant market by giving them the opportunity to act to a considerable extent independently of their competitors, their customers and, ultimately, of consumers.

In that regard, the existence of very large market shares is highly important and the relationship between the market shares of the undertaking or undertakings involved in the concentration and their competitors, especially those of the next largest undertakings, is relevant evidence of the existence of a dominant position. That factor enables the competitive strength of the competitors of the undertaking in question to be assessed. Furthermore, a particularly high market share may in itself be evidence of a dominant position, especially where the other operators on the market have only much smaller shares.

Likewise, the presence of competitors can as a general rule constitute a factor likely to modify or even eliminate, as the case may be, the dominant position of the entity in question only if those competitors hold a strong position which acts as a genuine counterweight.

Last, the absence of significant competitive pressure may also, in part, be inferred from the differentiated nature of the products on the relevant market. The differentiated nature of the products means that each product is not a perfect substitute for the other and that, consequently, an increase in the price of one of them does not necessarily have the effect that the undertaking which has increased the price will lose market share to its competitors which produce the other product, as would be the case for perfectly substitutable products.

(see paras 195, 198, 201, 212-213)

11. The basic provisions of Regulation No 4064/89 on the control of concentrations between undertakings, in particular Article 2 thereof, confer on the Commission a certain discretion, especially with respect to assessments of an economic nature. Consequently, review by the Community judicature of the exercise of that discretion, which is essential for defining the rules on concentrations, must take account of the discretionary margin implicit in the provisions of an economic nature which form part of the rules on concentrations.

It follows that review by the Community judicature of complex economic assessments made by the Commission in the exercise of the discretion conferred on it by Regulation No 4064/89 must be limited to ensuring compliance with the rules of procedure and the statement of reasons, as well as the substantive accuracy of the facts, the absence of manifest errors of assessment and of any misuse of power. In particular, it is not for the Community judicature to substitute its own economic assessment for that of the Commission.

(see paras 196-197)

12. Barriers to market entry may be of various kinds, in particular economic, commercial or financial factors, which are likely to expose potential competitors of the established undertakings to risks and costs sufficiently high to deter them from entering the market within a reasonable time or to make it particularly difficult for them to enter the market, thus depriving them of the capacity to exercise a competitive constraint on the conduct of the established undertakings.

(see para. 219)

13. The purchasing power of a supplier’s customers may compensate for the supplier’s market power if those customers have the ability to resort to credible alternative sources of supply within a reasonable time if the supplier decides to increase its prices or to make the conditions of delivery less favourable.

In that regard, the dispersion of operators on the relevant market and the absence of a credible alternative supply for those operators on the market are two criteria which, without necessarily constituting exhaustive confirmation or denial of the existence of customer buyer power capable of counteracting a supplier’s economic power, are very relevant. The criterion of the degree of concentration of buyers on the market means that their limited number may be capable of reinforcing their bargaining power vis-à-vis the supplier. Furthermore, the criterion of the presence of credible supply alternatives makes it possible to determine whether there is a strong probability that the supplier is forced to limit any increase in prices or indeed to refrain from increasing prices.

(see paras 230-232)

14. Regulation No 4064/89 on the control of concentrations between undertakings does not prohibit an examination, under its own provisions, of the possible aspects of vertical coordination between the joint venture and one or other of its founding undertakings which result from a concentration, without any prejudgment of the autonomy of the joint venture.

(see para. 250)

15. Under Regulation No 4064/89 on the control of concentrations between undertakings, the Commission has power to accept only such commitments as are capable of rendering the notified transaction compatible with the common market. In other words, the commitments offered by the undertakings concerned must enable the Commission to conclude that the concentration at issue would not create or strengthen a dominant position within the meaning of Article 2(2) of that regulation.

Thus, in order to be accepted by the Commission with a view to the adoption of a decision under Article 8(2) of Regulation No 4064/89, such commitments must not only be proportionate to the competition problem identified by the Commission in its decision but must eliminate it entirely.

However, the notifying parties are not required to confine themselves to proposing commitments aimed strictly at restoring the competitive situation existing before the concentration in such a way that the Commission may declare that transaction compatible with the common market. Under Article 8(2) of Regulation No 4064/89, the Commission is authorised to accept all commitments by the parties which allow it to adopt a decision declaring the concentration compatible with the common market.

Furthermore, given commitments which go further than the restoration of the situation existing before the concentration, the Commission does not have the discretion to refuse them and to adopt either a decision declaring the concentration incompatible with the common market pursuant to Article 8(3) of Regulation No 4064/89 or a decision declaring the concentration compatible with the common market pursuant to Article 8(2) of that regulation but with conditions attached aimed at restoring the situation preceding the concentration which it would impose unilaterally.

In the first hypothesis – involving the adoption of a negative decision – the Commission would fail to comply with Article 8(2) of Regulation No 4064/89, which requires it to adopt a decision declaring the concentration compatible with the common market if it finds that the concentration, following modifications by the undertakings concerned if necessary, satisfies the criterion defined in Article 2(2) of that regulation. In the second hypothesis – involving a positive decision with conditions attached aimed at strictly restoring the previous situation – the Commission would also come up against the wording of the second subparagraph of Article 8(2) of Regulation No 4064/89, which makes no provision for the Commission to make its declaration that a concentration is compatible with the common market subject to conditions which it has imposed unilaterally, independently of the commitments given by the notifying parties.

(see paras 294, 307-311)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber, Extended Composition)

23 February 2006 ( )

(Competition – Control of concentration of undertakings – Articles 2, 3 and 8 of Regulation (EEC) No 4064/89 − Concept of concentration – Creation of a dominant position − Authorisation subject to compliance with certain commitments – Principle of proportionality)

In Case T-282/02,

Cementbouw Handel & Industrie BV, established in Le Cruquius (Netherlands), represented by W. Knibbeler, O. Brouwer and P. Kreijger, lawyers,

applicant,

v

Commission of the European Communities, represented initially by A. Nijenhuis, K. Wiedner and W. Mölls, and subsequently by A. Nijenhuis, É. Gippini Fournier and A. Whelan, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for annulment of Commission Decision 2003/756/EC of 26 June 2002, relating to a procedure pursuant to Council Regulation (EEC) No 4064/89, declaring a merger to be compatible with the common market and the EEA Agreement (Case COMP/M.2650 − Haniel/Cementbouw/JV (CVK)) (OJ 2003 L 282, p. 1, corrigendum published in OJ 2003 L 285, p. 52),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber, Extended Composition),

composed of H. Legal, President, P. Lindh, P. Mengozzi, I. Wiszniewska-Białecka and V. Vadapalas, Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 6 July 2005,

gives the following

Judgment

Background

1 On 24 January 2002 Franz Haniel & Cie GmbH (‘Haniel’) and the applicant notified a concentration to the Commission pursuant to Article 4 of Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1, republished, after rectification, in OJ 1990 L 257, p. 13), as amended by Council Regulation (EC) No 1310/97 of 30 June 1997 (OJ 1997 L 180, p. 1). According to the notification, in 1999 Haniel and the applicant acquired joint control, for the purposes of Article 3(1)(b) of Regulation No 4064/89, of the Netherlands undertaking Coöperatieve Verkoop- en Produktievereniging van Kalkzandsteenproducenten (‘CVK’) and its 11 member undertakings by means of an agreement and the purchase of shares held by the German company RAG AG (‘RAG’).

2 Haniel is a diversified German holding company active in the building materials sector where it produces and sells wall-building materials, such as sand-lime bricks, aerated concrete and ready-mixed concrete. Its activities are mainly in Germany. As regards the Netherlands, before the concentration took place Haniel held shares in several other undertakings which produced sand-lime bricks and were members of CVK.

3 The applicant, which was previously part of the Netherlands group NBM Amstelland BV, is active in the Netherlands in the building materials market and, more generally, the construction, logistics and raw materials supply markets. At the date of adoption of Commission Decision 2003/756/EC of 26 June 2002, relating to a procedure pursuant to Council Regulation (EEC) No 4064/89, declaring a merger to be compatible with the common market and the EEA Agreement (Case COMP/M.2650 − Haniel/Cementbouw/JV (CVK)) (‘the contested decision’), the applicant was owned by CVC Capital Partners Group Ltd, an investment group.

4 CVK has been in existence since 1947 and was initially responsible for selling the output of its member undertakings, the Netherlands producers of sand-lime bricks. In 1989 it was transformed into a Netherlands-law cooperative in order to improve cooperation between its members.

5 Before the concentration, five of the eleven member undertakings of CVK – Kalkzandsteenfabriek De Hazelaar BV (‘De Hazelaar’), Kalkzandsteenindustrie Loevestein BV (‘Loevestein’), Steenabriek Boudewijn BV (‘Boudewijn’), Kalkzandsteenfabriek Hoogdonk BV (‘Hoogdonk’) and Kalkzandsteenfabriek Rijsbergen BV (‘Rijsbergen’) – were subsidiaries of Haniel. Three brickworks – Kalkzandsteenfabriek Harderwijk BV (‘Harderwijk’), Kalkzandsteenfabriek Roelfsema BV (‘Roelfsema’) and Kalkzandsteenfabriek Bergumermeer BV (‘Bergumermeer’) – were subsidiaries of the applicant, while two producers – Anker Kalkzandsteenfabriek BV (‘Anker’) and Vogelenzang Fabriek van Bouwmaterialen BV (‘Vogelenzang’) were subsidiaries of RAG. Finally, one producer, Van Herwaarden Hillegom BV (‘Van Herwaarden’), was owned jointly by Haniel ([confidential]%), ( ) the applicant ([confidential]%) and RAG ([confidential]%).

6 In 1998 the Nederlandse Mededingingsautoriteit, the Netherlands competition authority (‘the NMa’), was notified of a proposed concentration whereby CVK was to acquire control of its member undertakings. Control was to be transferred in the context of a pooling agreement and by amending CVK’s articles. On 23 April 1998 the NMa decided to open the ‘second phase’ procedure. By decision of 20 October 1998, the NMa closed the second phase procedure and authorised the proposed concentration.

7 Before the transaction was carried out, RAG decided to sell its shares in the member undertakings of CVK to Haniel and the applicant. In March 1999 the parties informed the NMa of their intentions. By letter of 26 March 1999 the NMa informed the parties that the proposed transfer would not constitute a concentration within the meaning of Article 27 of the wet van 22 mei 1997 houdende nieuwe regels omtrent de economische mededinging (Medingingswet) (Law of 22 May 1997 laying down new rules on economic competition) (Stb. 1997, No 242), provided that the transaction authorised by the decision of 20 October 1998 was completed no later than the time of the transfer.

8 On 9 August 1999 CVK and its member undertakings concluded the pooling agreement referred to in paragraph 6 above. CVK’s articles were amended on the same date to take account of the provisions of the pooling agreement (these two transactions are designated below as constituting ‘the first group of transactions’). Also on the same date, RAG transferred its shares in three of the member undertakings of CVK (Anker, Vogelenzang and Van Herwaarden) to Haniel and the applicant (‘the RAG transaction’), and Haniel and the applicant concluded a cooperation agreement governing their cooperation within CVK (these two transactions, taken together, are designated below as ‘the second group of transactions’).

9 The Commission became aware of the concentration of 9 August 1999 when it examined two other concentrations notified by Haniel (Cases COMP/M.2495 – Haniel/Fels and COMP/M.2568 – Haniel/Ytong) and, by letter of 22 October 2001, it informed the applicant and the other participating undertakings that the transaction must be notified to it pursuant to Article 4 of Regulation No 4064/89.

10 As indicated in paragraph 1 above, Haniel and the applicant notified the concentration pursuant to Article 4 of Regulation No 4064/89 on 24 January 2002.

11 On 25 February 2002 the Commission adopted a decision under Article 6(1)(c) of Regulation No 4064/89, in which it found that the notified concentration raised serious doubts as to its compatibility with the common market and with the Agreement on the European Economic Area (‘the EEA Agreement’).

12 On 25 April 2002 the Commission sent a statement of objections to the notifying parties. The applicant responded by letter of 13 May 2002.

13 On 16 May 2002 the Commission heard the parties concerned.

14 Following the submission of a first set of draft commitments on 28 May 2002, which the Commission regarded as insufficient to resolve the competition problem which it had identified, Haniel and the applicant submitted final commitments on 5 June 2002.

15 On 26 June 2002 the Commission adopted the contested decision, whereby it considered that the notified concentration was compatible with the common market and the EEA Agreement (Article 1 of the contested decision), subject to the condition that the commitments set out in points 27, 28, 32 to 35 and 40 of the annex to the contested decision were complied with in full by Haniel and the applicant (Article 2 of the contested decision) and that the other commitments set out in the Annex were complied with in full (Article 3 of the contested decision). The commitments referred to in Article 2 of the contested decision include, in particular, the dissolution of CVK within a period of [confidential] of the adoption of the contested decision. The contested decision, omitting the confidential data, was published in the Official Journal of the European Union of 30 October 2003 (OJ 2003 L 282, p. 1, corrigendum published in OJ 2003 L 285, p. 52).

Procedure and forms of order sought by the parties

16 By application lodged at the Registry of the Court of First Instance on 11 September 2002, the applicant brought the present action under Article 230 EC.

17 In application of Article 14 of the Rules of Procedure of the Court of First Instance, the Court, after hearing the parties in accordance with Article 51 of the Rules of Procedure, decided to refer the case to a Chamber of extended composition.

18 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Fourth Chamber, Extended Composition) decided to open the oral procedure and, by way of measures of organisation of procedure, requested the parties to answer a number of questions in writing and to produce certain documents. The parties complied with those requests within the prescribed period.

19 The parties presented oral argument and their answers to the questions put by the Court at the hearing on 6 July 2005.

20 The applicant claims that the Court should:

– annul the contested decision;

– order the Commission to pay the costs.

21 The Commission contends that the Court should:

– dismiss the application;

– order the applicant to pay the costs.

Law

22 In essence, the applicant raises three pleas in support of its application. The first plea alleges that the Commission was not competent to examine the transactions in question under Article 3 of Regulation No 4064/89. The second plea alleges errors of assessment by the Commission relating to the creation of a dominant position by the concentration, in breach of Article 2 of Regulation No 4064/89. Last, the third plea alleges breach of Article 3 and Article 8(2) of Regulation No 4064/89 and of the principle of proportionality.

1. First plea: the Commission was not competent to examine the transactions in question under Article 3 of Regulation No 4064/89

23 This plea is divided into three parts. The first part alleges that the Commission was not competent to examine the RAG transaction, on the ground that there was no change in the control of CVK. The second part alleges that the Commission was not competent to qualify two separate transactions as a single concentration and that in the present case there was no concentration within the meaning of Article 3 of Regulation No 4064/89. The third part alleges that the Commission was not competent to examine the taking of control by CVK of its member undertakings, since it had been authorised by the NMa.

First part of the first plea: the Commission was not competent to examine the RAG transaction, on the ground that there was no change in the control of CVK

Arguments of the parties

24 The applicant maintains that the Commission was not competent, under Regulation No 4064/89, to examine the RAG transaction, since that transaction did not lead to the establishment of joint control of CVK by Haniel and itself.

25 First, the applicant disputes the assertion in the contested decision that before the RAG transaction variable majorities at CVK shareholders’ meetings were possible.

26 In the first place, the applicant finds that assertion surprising, since the NMa’s decisions of 23 April and 20 October 1998 make no mention of that possibility.

27 Next, the applicant expresses surprise that the contested decision contains no analysis of whether variable majorities were actually possible at CVK shareholders’ meetings before the RAG transaction. The Commission cannot, in the applicant’s contention, merely do as it did in the contested decision and state that there were variable majorities before that transaction, without adducing the slightest evidence that there was no strong common interest between the shareholders or that there was no stable majority, in accordance with paragraph 35 of the Commission’s Notice on the concept of concentration within the meaning of Regulation No 4064/89 (OJ 1998 C 66, p. 5). In the applicant’s submission, the Commission did not succeed in establishing that there was a ‘no control’ situation in CVK’s case before the RAG transaction, whereas it was incumbent on the Commission to demonstrate that there was no control before the RAG transaction, in view of the strong joint interests existing between CVK’s ‘shareholders’ before that transaction, in particular on the basis of the pooling agreement.

28 Second, the applicant maintains that the alleged veto rights which, according to the contested decision, it held with Haniel do not give rise to joint control of CVK, which is an independent economic entity.

29 In the first place, the Commission merely presumed the existence of the applicant’s and Haniel’s veto rights within CVK’s decision making bodies.

30 Thus, first of all, the applicant asserts that the Commission ignored the guarantees which the applicant and Haniel gave to the NMa when notifying the draft pooling agreement approved by the decision of 20 October 1998. Those guarantees provided, first, that CVK’s Board of Management must consist exclusively of representatives of members of CVK or independent persons and must not include any representative of companies belonging to a group to which the parent company of one or more of the members of CVK belonged. As regards CVK’s supervisory board, moreover, a majority of that board was to be composed of independent members. The applicant maintains that those rules ensure that neither the applicant nor Haniel is able to influence CVK’s strategic business decisions.

31 Next, the applicant maintains that under the Netherlands Civil Code the decision-making bodies of a cooperative such as CVK must adopt their decisions in the sole interest of the undertaking and not in the interest of its shareholders. Consequently, neither the applicant nor Haniel was in a position, in law or in fact, to influence the strategic business decisions of CVK’s decision-making bodies. It follows, according to the applicant, that the decision of 20 October 1998 accepting the guarantees offered by it and by Haniel gave rise to a legitimate expectation on its part, while it was for the Commission to demonstrate specifically that it was possible for Haniel and the applicant to exercise decisive influence on CVK’s decisions.

32 In the second place, the applicant disputes the Commission’s conclusion in paragraph 19 of the contested decision that the cooperation agreement concluded between the applicant and Haniel, the closure of three sand-lime brickworks which were members of CVK and certain documents for Haniel’s internal use constituted evidence of the joint control which it and Haniel exerted over CVK. As regards the cooperation agreement between Haniel and the applicant, the applicant states that the stipulations cited in the contested decision concern only the use of [confidential], which cannot be automatically regarded as involving strategic decisions of CVK. As regards the closure of three undertakings which were members of CVK, the applicant observes that no agreement was concluded between it and Haniel on that topic and that, after the signing of the pooling agreement, it was CVK that decided, on the basis of its own commercial analyses, to close those undertakings. As regards Haniel’s internal documents, the applicant maintains that since it was allowed to peruse those documents it is in a position to assert that they do not demonstrate the existence or non-existence of joint control for the purposes of the application of Regulation No 4064/89 but reveal the subjective and, for the purposes of the present case, irrelevant interests of Haniel.

33 Third, and last, the applicant maintains that the Commission failed to fulfil its obligation to provide sufficient reasons for the contested decision, in three respects: first, as regards the alleged existence of changing coalitions within CVK before the RAG transaction, in particular by failing to set out its reasons for adopting a different position from that taken by the NMa; then, as regards its reasons for concluding that the guarantees offered by Haniel and by the applicant to eliminate the possibility of joint control were insufficient; and, last, as regards the finding that the cooperation agreement between Haniel and the applicant, the closure of a number of sand-lime brick producers and Haniel’s internal documents revealed joint control of CVK.

34 The Commission makes the preliminary point that in the contested decision it did not consider the RAG transaction to be a separate concentration. The pooling agreement, that is to say, the acquisition of control of CVK from its member undertakings, and the RAG transaction, that is to say, the taking of control of CVK by Haniel and the applicant by the acquisition of the shares previously held by RAG in the capital of the member companies of CVK, constitute one and the same concentration.

35 That being so, the Commission replies, first of all, that as a general rule where two shareholders share equally the voting rights in an undertaking, that situation, which is described in paragraph 20 of the Commission Notice on the concept of concentration cited in paragraph 27 above, confers a veto right and therefore joint control of the undertaking on those shareholders. In the present case, before the concentration, neither the applicant, nor Haniel nor RAG had a veto right. Furthermore, while it cannot be precluded that in very exceptional cases minority shareholders without a veto right may exercise de facto joint control of an undertaking, the applicant did not claim in its application that powerful joint interests existed between the three abovementioned shareholders before the concentration was carried out. In that regard, the Commission also observes that the attempted argument to that effect outlined by the applicant in its reply, where it claimed that such joint interests existed, especially in the light of the pooling agreement, disregards the fact that that agreement is an integral part of the concentration and therefore has no relevance during the period before 9 August 1999. In those circumstances, in the Commission’s submission, it must be held that the three shareholders had different interests and that variations in the majority within CVK were possible before the concentration.

36 Next, as regards the argument that it ignored the NMa’s decision of 20 October 1998 and the guarantees offered to it by the applicant and Haniel, the Commission contends that the NMa examined a different concentration under different legal rules. The concentration notified to the NMa was not implemented as such and a different concentration – consisting of the first and second groups of transactions –, which ought to have been covered by the obligation to notify under Regulation No 4064/89, was concluded on 9 August 1999. Furthermore, the NMa assessed the concept of control by reference to Netherlands competition law, whereas the Commission did so by reference to the provisions of Regulation No 4064/89. Thus, in the Commission’s submission, although the question of variations in majority was not relevant for the NMa, the Commission, on the contrary, when applying Regulation No 4064/89 to a different concentration, considered that those variations in majority were important, since in its view the fact that they became possible as a result of the concentration precluded any prior joint control of CVK. The guarantees to which the applicant refers do not alter that conclusion, since their sole purpose was to restrict the possibility of persons exercising functions within the ‘final shareholders’ of CVK sitting within its management boards. However, the members of those bodies are appointed by the meeting of members of CVK, on a proposal by the directors of those members, who are themselves appointed by their respective shareholders. The Commission therefore maintains that it is highly unlikely that the members of the managing bodies of CVK will act without taking account of the interests of those who ultimately decide on their appointment or removal – that is to say, the applicant and Haniel, in their capacity as ‘final shareholders’.

37 The Commission further submits that the provisions of the Netherlands Civil Code do not alter the conclusion that the applicant and Haniel have joint control of CVK. While it is true that in Netherlands law the decisions of the managing bodies of an undertaking must be taken in the interest of the undertaking, the interest of the shareholders is still a factor to be taken into consideration for the purpose of establishing what is in the interest of the undertaking. Furthermore, the relationship between CVK and the applicant may be assimilated to that between a subsidiary and its parent company; since under Netherlands law undertakings are required to follow the instructions of the parent company, the same should apply where two undertakings – the applicant and Haniel – jointly control a joint undertaking.

38 The Commission likewise disputes the applicant’s criticisms of paragraph 19 of the contested decision, which states that the cooperation agreement, the closure of three member undertakings of CVK and Haniel’s internal documents constitute evidence of the joint control exercised over CVK by the applicant and Haniel. In that regard, the Commission recalls that those factors serve merely to illustrate the existence of joint control, demonstrated in paragraphs 13 to 17 of the contested decision, which, moreover, the applicant acknowledged in its reply. Accordingly, the veto rights which the applicant and Haniel have in respect of the appointment of the administrative bodies of CVK are sufficient in themselves to establish their joint control of CVK. In any event, the Commission contends that the first two factors actually disclose the possibility for the applicant and Haniel to interfere in the activities and strategic decisions of CVK. As regards Haniel’s internal documents, the Commission maintains that they support its argument that Haniel and the applicant intended to take joint control of CVK.

39 Last, the Commission also refutes the applicant’s allegations that the reasoning in the contested decision was insufficient.

Findings of the Court

– Preliminary observations

40 It should be recalled in limine that according to Article 3 of Regulation No 4064/89, entitled ‘Definition of concentration’,

‘A concentration shall be deemed to arise where:

(a) two or more previously independent undertakings merge,

or

(b) – one or more persons already controlling at least one undertaking,

or

– one or more undertakings

acquire, whether by purchase of securities or assets, by contract or by any other means, direct or indirect control of the whole or parts of one or more other undertakings.

2. The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity shall constitute a concentration within the meaning of paragraph 1(b).

3. For the purposes of this Regulation, control shall be constituted by rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by:

(a) ownership or the right to use all or part of the assets of an undertaking;

(b) rights or contracts which confer decisive influence on the composition, voting or decisions of the relevant bodies of an undertaking.

4. Control is acquired by persons or undertakings which:

(a) are holders of the rights or entitled to rights under the contracts concerned;

or

(b) while not being holders of such rights or entitled to rights under such contracts, have the power to exercise the rights deriving therefrom.

…’

41 It follows that a concentration is deemed to arise, in particular, where control of one or more undertakings is acquired either by an undertaking acting on its own or by two or more undertakings acting jointly, on the understanding that, no matter what form it assumes, the taking of control, having regard to the particular circumstances of fact and of law in each case, must confer the possibility of exercising decisive influence on the activity of the acquired undertaking as a consequence of rights, contracts or any other means.

42 As the Commission states in paragraph 19 of its Notice on the concept of concentration, cited in paragraph 27 above – and reproduced, in substance, in paragraph 14 of the contested decision and not disputed by the applicant –, joint control exists where two or more undertakings or persons have the possibility of exercising decisive influence over another undertaking, that is to say, the power to block actions which determine the strategic commercial behaviour of an undertaking. Thus, joint control may result in a deadlock situation owing to the power of two or more undertakings to reject proposed strategic decisions. It follows, therefore, that those shareholders must reach understanding in determining the commercial policy of the joint venture.

43 In the present case, the Commission stated as follows in paragraphs 15 to 17 of the contested decision:

‘(15) By buying RAG’s shares, Haniel and Cementbouw acquired joint control of CVK. Their respective indirect stakes of 50% in CVK enable Haniel and Cementbouw to exercise veto rights at the meeting of CVK members (ledenvergadering). These rights were created by the withdrawal of RAG, whose presence at the meeting would have made variable majorities possible and hence ruled out control of the meeting by the shareholders.

(16) The meeting of members decides who will sit on CVK’s decision-making bodies. These are the managing board (Raad van Bestuur) and the supervisory board (Raad van Commissarissen). The articles and the pooling agreement impose restrictions on the meeting’s choice, since no member of the managing board, and only a minority of the members of the supervisory board, may at the same time hold a position in the companies of the shareowners of the CVK members.

(17) Choosing who sits on the decision-making bodies of a company is a basic strategic decision. A right to veto such a decision therefore gives its holder, for the purpose of the Merger Regulation, control over the company, in this case CVK, since the members of the decision-making bodies will not disregard the views of those who have the right to veto their decisions.’

44 In paragraph 19 of the contested decision, the Commission also states that:

‘Further light is shed on Haniel’s and Cementbouw’s acquisition of control of CVK by the cooperation agreement which they concluded in the context of the pooling agreement. This [cooperation agreement] regulates various aspects of their cooperation within CVK (paragraph 11). In addition, certain strategic decisions implemented by CVK’s corporate management after the [transaction] had been [completed] – in particular the closure of three of the eleven sand-lime brickworks – were already being discussed in detail by Haniel and Cementbouw before the [transaction] and thus, for the parties, plainly formed the basis for concluding the pooling agreement. Collectively, the documents preparing the decisions of the Haniel group’s management with regard to the [transaction] in question show that, in Haniel’s eyes at any rate, the pooling agreement would enable the parties jointly to control CVK.’

45 It follows from those passages in the contested decision that the Commission found that Haniel and the applicant had taken control of CVK, independently of the question, raised in the second part of the present plea, as to whether the present case involved one or more concentrations. Accordingly, even though the Commission observes in its written submissions that it did not adopt a position in the contested decision solely on the RAG transaction but on a concentration consisting of the first and second groups of transactions mentioned in paragraph 8 above, it must none the less be held that, in reaching its decision that Haniel and the applicant had taken joint control of CVK, the Commission relied solely on the second group of transactions.

46 In substance, the applicant gives the impression that initially, before the conclusion of the second group of transactions, and in particular before the RAG transaction, joint control of CVK was exercised by its three shareholders, namely the applicant, Haniel and RAG – as implied by the applicant’s assertion that there were ‘strong common interests between CVK’s shareholders’ (see paragraph 27 above), of the type indicated in paragraphs 30 to 35 of the Commission Notice on the concept of concentration – and criticises the Commission for not having shown ‘the absence of common interests’ between CVK’s shareholders before the conclusion of the second group of transactions, prior to the finding of a ‘taking of control’ of CVK by Haniel and the applicant. The applicant then maintains that the guarantees offered to the NMa, in the context of the notification of the first group of transactions mentioned in paragraph 8 above, as regards the composition of CVK’s managing and supervisory boards, preclude any joint control of CVK, namely the absence of rights held by Haniel and the applicant to veto the strategic decisions of the undertaking.

47 The examination which follows will therefore relate, first of all, to the applicant’s assertion that CVK was jointly controlled by its three shareholders before the second group of transactions was concluded. Should the Court find that CVK was not so jointly controlled, it will then determine, second, whether, as the contested decision found, the second group of transactions, in particular the RAG transaction, entailed the taking of joint control of CVK by Haniel and the applicant. Last, and third, the Court will examine the applicant’s complaints concerning the insufficiency of the reasoning employed in the contested decision to support the finding that those parties took joint control of CVK.

– The applicant’s assertions relating to the existence of joint control of CVK before the conclusion of the second group of transactions

48 It should be observed that the statement in paragraph 15 of the contested decision that RAG’s presence at the meeting of CVK members made variable majorities possible and ruled out control of the meeting by the shareholders necessarily relies on the interpretation of the data relating to the division of the share capital and the corresponding voting rights set out in paragraph 5 of the contested decision.

49 Those data, which are reproduced below, represent the share, in percentage points, which each of the 11 members of CVK held in CVK’s share capital – and the associated voting rights –, in accordance with CVK’s articles:

– De Hazelaar [confidential]%

– Loevestein [confidential]%

– Boudewijn [confidential]%

– Hoogdonk [confidential]%

– Rijsbergen [confidential]%

– Harderwijk [confidential]%

– Roelfsema [confidential]%

– Bergumermeer [confidential]%

– Anker [confidential]%

– Vogelenzang [confidential]%

– Van Herwaarden [confidential]%

50 It should be borne in mind that, before the conclusion of the second group of transactions, Haniel owned the first five undertakings mentioned above, the applicant was the parent company of Harderwijk, Roelfsema and Bergumermeer, while RAG owned Anker and Vogelenzang. As regards Van Herwaarden, Haniel held [confidential]% of its capital, the applicant [confidential]% and RAG [confidential]%.

51 It follows that, before the conclusion of the second group of transactions, Haniel indirectly held [40 to 45]% ( ) of CVK’s capital ([confidential]% corresponding to the total share of the first five undertakings + [confidential]% corresponding to its [confidential]% stake in Van Herwaarden), while the applicant and RAG held, respectively, [40 to 45]% ([confidential]% corresponding to the total stake of its three subsidiaries + [confidential]% corresponding to its [confidential]% stake in Van Herwaarden) and [15 to 20]% [confidential] corresponding to its total stake in its two subsidiaries + [confidential]% corresponding to its [confidential]% stake in Van Herwaarden).

52 Having regard to the voting arrangements within the meeting of members of CVK, it would have followed, in principle, that if RAG had kept its stake in CVK, none of the three shareholders in CVK would have been able to block the adoption of decisions by that meeting, in particular the adoption of CVK’s strategic decisions.

53 That assertion is not affected by the applicant’s allegation that there were significant joint interests between the shareholders, comparable to those indicated by the Commission in its Notice on the concept of concentration, so that in fact CVK was jointly controlled by the three shareholders before that transaction.

54 In paragraph 30 of that Notice, the Commission stated that even in the absence of specific veto rights, two or more undertakings which acquire majority shareholdings in another undertaking may obtain joint control. It is clear from the Notice that such a situation predicates concertation between the minority shareholders resulting either from a legally binding agreement or from de facto circumstances. According to the Notice, the legal means of ensuring the joint exercise of voting rights may take various forms, such as a holding company or an agreement whereby the shareholders undertake to act in the same way (a vote-pooling agreement). As regards the de facto circumstances showing collective action, the Notice states, in paragraph 32, that, very exceptionally, collective action by the shareholders may be demonstrated where interests which unite the shareholders are so strong that they would not act against each other in exercising their rights in relation to the joint venture.

55 The Notice states, first, that in the case of acquisitions of minority shareholdings in a pre-existing joint venture, the prior existence of links between the minority shareholders or the acquisition of the shareholdings by means of concerted action will be factors indicating such a common interest. Second, where a new joint venture is established, there is a higher probability that the parent companies are carrying out a deliberate common policy when they acquire minority shareholdings in a pre-existing undertaking, in particular where each parent company provides a contribution to the joint venture which is vital for its operation (specific technologies, know-how, supply agreements, etc.). Last, the Notice points out, in paragraph 35, that in the absence of strong common interests such as those outlined above, the possibility of changing coalitions between shareholders will normally exclude the assumption of joint control. Where there is no stable majority in the decision-making procedure and a majority can on each occasion be any of the various combinations possible amongst the minority shareholders, it cannot be presumed that the minority shareholders will jointly control the target undertaking.

56 The applicant does not dispute the general appraisals of the existence of common interests which the Commission sets out in its Notice on the concept of concentration, but contends that in the present case the three shareholders already had such interests, within the meaning of that Notice, before the second group of transactions was concluded.

57 However, it must be pointed out that in its written submissions the applicant puts forward no evidence to support its assertion. At the most, it indicates that those common interests are based on the pooling agreement, that is to say, on one of the transactions forming part of the first group of transactions. In that regard, however, it must be borne in mind that it is common ground that the pooling agreement was not concluded until 9 August 1999, that is to say, on the same day as the second group of transactions. Contrary to the applicant’s contention, therefore, that agreement cannot constitute the basis of proof of the existence of common interests between the three shareholders before the conclusion of the second group of transactions, on which it might be determined whether at the time there existed the possibility of exercising decisive influence on the strategic decisions of CVK. The fact that the proposed pooling agreement was notified to the NMa does not alter that assertion, since the possibility under that contract for the applicant and Haniel to exercise decisive influence on CVK’s strategic decisions was not effective before the conclusion of the second group of transactions.

58 In effect, while decisive influence, within the meaning of Article 3(3) of Regulation No 4064/89, need not necessarily be exercised in order to exist, the existence of control within the meaning of Article 3 of that regulation requires that the possibility of exercising that influence be effective. The mere fact that the proposed pooling agreement was notified to the NMa does not prove that, as a result of that notification, the three shareholders acquired the possibility of exercising decisive control over CVK before the second group of transactions was concluded.

59 It follows that, contrary to the applicant’s contention, the Commission cannot be criticised for not having shown that there were no significant common interests between the minority shareholders in the joint undertaking CVK before the second group of transactions was concluded, since, even before the Court, the applicant was unable to indicate the evidence which would support those alleged joint interests.

60 Furthermore, the applicant’s claim that the NMa’s decisions of 23 April and 20 October 1998 do not mention the possibility of changing coalitions between the shareholders, and regard CVK as an autonomous economic entity, is inoperative.

61 In effect, on the one hand, even on the assumption that the NMa’s decisions may be raised as against the Commission, in those decisions the NMa determined whether the proposed transaction forming the subject-matter of the pooling agreement constituted a concentration for the purposes of the Netherlands law. The NMa was therefore not requested to make a determination in respect of the second group of transactions, of which it was unaware at the time of adopting the decisions. In any event, just as it did not mention the changing coalitions, the NMa does not state in its final decision of 20 October 1998 that the three shareholders had joint control of CVK before the conclusion of the second group of transactions, as the applicant claims in the context of this part of its plea.

62 On the other hand, the applicant is mistaken as to the concept of autonomous economic entity. The fact that a joint undertaking may be a full-function undertaking and therefore economically autonomous from an operational viewpoint does not mean that it enjoys autonomy as regards the adoption of its strategic decisions. The opposite conclusion would lead to a situation in which there would never be joint control of a ‘joint undertaking’ as soon as it was economically autonomous. The condition in Article 3(2) of Regulation No 4064/89 that must be satisfied in order for the creation of a joint undertaking, that is to say one controlled by two or more undertakings, to be considered to constitute a concentration, namely that the joint undertaking must ‘[perform] on a lasting basis all the functions of an autonomous economic entity’, proves that that is not the case.

63 Consequently, on the basis of the data in the contested decision and the evidence in the file which was available at the time of its adoption, the applicant has not shown that there was joint control of CVK by its three shareholders before the conclusion of the second group of transactions, the existence of which the Commission is alleged to have wrongly ignored.

64 The Court must therefore ascertain whether the conclusion of the second group of transactions entailed the taking of control of CVK by Haniel and the applicant, granting them a right to veto the strategic decisions of CVK.

– The taking of joint control of CVK by Haniel and the applicant upon the conclusion of the second group of transactions

65 First of all, it is common ground that by the RAG transaction Haniel and the applicant took joint control of the three undertakings Anker, Vogelenzang and Van Herwaarden, all members of CVK. That transaction, consisting in the purchase of RAG’s shares, respectively exclusive and minority, in those undertakings constitutes a concentration in itself. The transfer agreement also contains restrictive clauses typically linked with concentrations, such as a no-compete clause, to which RAG committed itself for all the undertakings in its group, on the Netherlands market for the production of building materials for load-bearing walls.

66 Next, it must be observed that, in view of the division of CVK’s share capital between its members as set out in paragraph 5 of the contested decision, Haniel and the applicant, by, on the one hand, each acquiring [confidential]% of the shares of Anker and Vogelenzang and, on the other hand, agreeing that the applicant would purchase the [confidential]% which RAG held in the share capital of Van Herwaarden, each indirectly acquired 50% of the share capital of CVK.

67 The fact that the shareholders held equal shares in CVK’s share capital and in the associated voting rights means, in principle, that each of the shareholders can block the strategic decisions of the joint undertaking, such as those relating to the appointment of the decision-making bodies of the joint undertaking, namely the managing board and the supervisory board. In order to ensure that the strategic decisions of the joint undertaking are not thus blocked, the shareholders are therefore required to cooperate permanently.

68 In that regard, the applicant maintains, first, that the commitments given to the NMa as regards the composition of CVK’s decision-making bodies preclude a right of veto by each of the shareholders over those decisions. It submits, second, that under the Netherlands Civil Code CVK’s decision-making bodies are required to take their decisions in the sole interest of CVK and not in the interest of the shareholders. Third, it disputes the Commission’s finding that the pooling agreement which it concluded with Haniel and the other examples set out in paragraph 19 of the contested decision reflect the existence of joint control of CVK.

69 Those arguments cannot succeed.

70 As regards the first allegation, it must be pointed out that, in accordance with Articles 9 and 12 of CVK’s articles, as amended, adopted on 9 August 1999, each member of the management board and the supervisory board is chosen by the general meeting of the members. Those articles, in accordance with the commitments given to the NMa, provide for certain restrictions concerning the persons eligible to sit on the decision-making bodies. Thus, as regards the managing board, Article 9(1) of the articles provides that that body is to consist solely of members of CVK or of independent persons and is not to include any representative of groups of companies to which the parent company of one or more members of CVK belongs. As regards the supervisory board, Article 12(2) of the articles states that the majority of members of that body, including its president, is to consist of representatives of the members or of independent persons, while a minority of members may consist of representatives of groups of companies to which the parent company of one or more members of CVK belongs.

71 However, as that type of restriction affects only the choice of persons sitting on CVK’s decision-making bodies, it cannot preclude every possibility that the shareholders of the members of CVK will exercise decisive influence on CVK.

72 Admittedly, it must be accepted that the shareholders of CVK’s members do not directly have voting rights in the general meeting of CVK, as those rights are exercised by the members themselves. None the less, it must be borne in mind that Article 3(1)(b) of Regulation No 4064/89 states that control may be acquired ‘direct[ly] or indirect[ly]’ by one or more persons, whereas Article 3(4)(b) of that regulation accepts that those having control may also be persons who, while not being holders of rights or entitled to rights under contracts, have the power to exercise the rights deriving therefrom. Since commercial companies comply in any event with the decisions of their exclusive shareholders, their majority shareholders or those jointly controlling the company and since, moreover, the member undertakings of CVK are all subsidiaries held either exclusively or jointly by the applicant and Haniel, it necessarily follows that an appointment to CVK’s decision-making bodies presumes the agreement of the two shareholders. Otherwise, the members will be unable to appoint CVK’s decision-making bodies and the joint undertaking will be incapable of functioning.

73 The fact that representatives of the parent companies are not entitled to sit on CVK’s managing board or that they are able to represent only a minority within its supervisory board does not alter the fact that it is the members of CVK that decide on the composition of the decision-making bodies and, through the intermediary of those members, their two shareholders.

74 As regards the composition of CVK’s two decision-making bodies, it cannot be precluded that all the persons sitting on those bodies will themselves carry out functions within the decision-making bodies of the member undertakings of CVK, as permitted by the alternative provisions in Articles 9 and 12 of CVK’s articles, which state that CVK’s decision-making bodies are to ‘consist solely of members of CVK or of independent persons’. If that is the case, it is inevitable that those representatives will have been appointed by the shareholders of the members of CVK and that, in performing their functions within CVK’s decision-making bodies, they will have to take those shareholders’ views into account.

75 In those circumstances, the applicant has adduced no evidence capable of calling in question the Commission’s finding that all possibility of exercising decisive influence on CVK by Haniel and by the applicant following the conclusion of the second group of transactions is not excluded.

76 Nor can the applicant rely as against the Commission on an alleged legitimate expectation based on the interpretation of the concept of control employed by the NMa under the Netherlands law on competition.

77 In that regard, it must be borne in mind that three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the Community authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see Case T-347/03 Branco v Commission [2005] ECR II-0000, paragraph 102 and the case-law cited).

78 In the present case, it is sufficient to observe that the applicant received no precise assurance from the Community authorities that, even on the assumption that there was any legal basis on which it could bind itself in that way, the Commission would assess the concept of control under Regulation No 4064/89 in the same way as the NMa had assessed that concept in its decision of 20 October 1998 in application of the Netherlands law on competition. Nor did the applicant receive any precise assurances on the part of the NMa, in particular in the letter of 26 March 1999 cited in paragraph 7 above, with which the Commission would have acquiesced and according to which the Commission would adopt the same approach as that taken in that letter, after the second group of transactions was concluded. In any event, even on the assumption that the applicant did receive such assurances, they could not have given rise to well-founded hopes on its part, since according to the reasoning set out above such assurances would not have been based on an assessment consistent with Article 3 of Regulation No 4064/89.

79 Nor does the second argument, based on the application of the Netherlands Civil Code, carry conviction. Although, as the applicant maintains, the Netherlands Civil Code provides that the decisions of a cooperative company must be taken in the interest of that company, the fact remains that it is the persons who directly or indirectly have the voting rights in that company that have the power to adopt those decisions. Accordingly, the applicant’s arguments based on the Netherlands Civil Code do not call in question the existence of decisive influence on CVK on the part of Haniel and the applicant after the conclusion of the second group of transactions.

80 Last, as regards the third allegation, as the applicant accepts in its reply, the pooling agreement which it concluded with Haniel, the closure of three member undertakings of CVK and certain of Haniel’s internal documents referred to in paragraph 19 of the contested decision do not constitute the essential part of the legal reasoning of the contested decision relating to the joint control of CVK –which focuses on the existence of veto rights exercisable by Haniel and the applicant – but serve to illustrate it. Consequently, even on the assumption that, as the applicant claims, those examples do not demonstrate the exercise of decisive influence on CVK – the possibility of which arises owing to the existence of the veto rights, previously established in paragraphs 13 to 17 of the contested decision and analysed above – and that, accordingly, the contested decision is vitiated by errors of assessment in respect of those elements submitted by way of example, that would not entail annulment of the contested decision, as the principle that Haniel and the applicant would be able to exercise the possibility of decisive influence on CVK remains perfectly valid.

81 For the sake of completeness, the Court observes that the closure of the three member undertakings of CVK (Boudewijn, Bergumermeer and Vogelenzang), which the applicant does not seriously deny constitutes a strategic decision, serves to illustrate sufficiently that control of CVK was taken by Haniel and the applicant.

82 In effect, as regards, more particularly, Vogelenzang – which, before the RAG transaction, was a subsidiary of that undertaking – after the conclusion of the second group of transactions, neither Haniel nor the applicant could decide alone to close that undertaking, whose shares are held in equal parts by its two shareholders. At no time during the procedure before the Court, moreover, was the applicant able to support the assertion that it was CVK, on the basis of its own commercial policy, that decided to close that undertaking. It follows that only Haniel and the applicant were able to decide to close Vogelenzang.

83 For all of those reasons, it must be held that the Commission was correct to consider that by concluding the second group of transactions Haniel and the applicant took joint control of CVK for the purposes of Article 3 of Regulation No 4064/89.

– The alleged insufficiency of the reasoning

84 The applicant puts forward three complaints relating to the insufficiency of the reasoning of the contested decision as regards the finding that it and Haniel took joint control of CVK (see paragraph 33 above).

85 It must be borne in mind that, according to consistent case-law, the extent of the obligation to state reasons depends on the nature of the measure in question and on the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning of the institution, in such a way as to give the persons concerned sufficient information to enable them to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested, and to enable the Community judicature to carry out its review of the measure (see Case T-251/00 Lagardère and Canal+ v Commission [2002] ECR II-4825, paragraph 155 and the case-law cited).

86 In the present case, in spite of the reasoning implicit in the contested decision as to the absence of joint control of CVK by the three shareholders before the conclusion of the second group of transactions and, in particular, of the RAG transaction, the contested decision was capable of being understood in the context in which it was adopted, in particular on the basis of the data in paragraph 5 of the contested decision, of CVK’s articles and of the contracts concluded on 9 August 1999. As the analysis carried out above reveals, the reasoning in the contested decision on this point does not hinder the review carried out by the Court either.

87 Nor can the applicant criticise the Commission for having insufficiently explained its reasons for considering that the guarantees provided to the NMa were not sufficient. It is clear from paragraphs 25 and 27 of the contested decision that the Commission stated the reasons why it was unable to extend the interpretation which the NMa put on the concept of control, in particular in its decision of 20 October 1998, on the basis of Netherlands competition law, to the interpretation of Article 3(3) of Regulation No 4064/89, competence for which devolves on the Commission, subject to review by the Community judicature. Those explanations were sufficient in themselves. Furthermore, judicial review is not hindered on that question either, as the preceding developments show.

88 The same conclusion must be reached as regards the examples which show the existence of joint control which are mentioned in paragraph 19 of the contested decision. Although the reasoning in the contested decision is succinct on this point, the applicant was perfectly capable of understanding the Commission’s reasons for believing that those elements could reflect the existence of joint control of CVK by the applicant and Haniel, without judicial review being hindered.

89 In those circumstances, the complaints alleging that the reasoning in the contested decision is insufficient must be rejected.

90 Accordingly, the first part of the first plea must also be rejected.

Second part of the first plea: the Commission was not competent to treat two transactions as a single concentration and in the present case there was no concentration within the meaning of Article 3 of Regulation No 4064/89

Arguments of the parties

91 First, the applicant criticises the Commission for having considered in the contested decision that the taking of control by CVK of its member undertakings through the conclusion of, first, the pooling agreement and, second, the RAG transaction constituted one and the same concentration, owing to their interdependence from both a temporal and an economic aspect. According to the applicant’s written submissions, Regulation No 4064/89 confers no general competence on the Commission to decide that two separate transactions must be regarded as a single concentration.

92 In that regard, the applicant submits that only the second subparagraph of Article 5(2) of Regulation No 4064/89 – which, in certain circumstances, authorises the Commission to treat two or more transactions as one and the same concentration for the purpose of calculating the turnover of the undertakings concerned which acquire parts of one or more undertakings – refers to such a situation. However, the applicant emphasises that that provision is not relevant in the present case. In the first place, the second subparagraph of Article 5(2) of Regulation No 4064/89 seeks to ensure that undertakings do not avoid the application of that regulation by artificially splitting a transaction into a number of transactions in such a way that it would fall below the turnover thresholds laid down in that regulation. In the present case, the contested decision contains no evidence that the applicant or Haniel sought to circumvent the application of Regulation No 4064/89. In the second place, the applicant observes that in paragraph 23 of the contested decision the Commission concludes that the second subparagraph of Article 5(2) of Regulation No 4064/89 is not directly relevant in this case. In any event, the applicant maintains that the current limits on the scope of Regulation No 4064/89 were recognised by the Commission itself in the Green Paper on the examination of Regulation No 4064/89 (COM(2001) 745 final) and in the proposal for a Council Regulation on the control of concentrations between undertakings (OJ 2003 C 20, p. 4) submitted by the Commission and designed to amend Regulation No 4064/89.

93 Second, the applicant submits that even on the assumption that Regulation No 4064/89 does confer competence on the Commission to treat multiple transactions as a single concentration, the Commission has not provided sufficient support for its finding that in the present case there is interdependence between the two groups of transactions in question, in such a way that they must be regarded as a single concentration.

94 The fact that the first and second groups of transactions were concluded on the same date – 9 August 1999 – before the same notary does not assume particular importance as regards their interdependence. The applicant emphasises in that regard that it had already informed the Commission that both the pooling of profits and losses within CVK, involving several large-scale technical and commercial operations, and various ecological studies had delayed the conclusion of the pooling agreement until 9 August 1999.

95 Furthermore, the applicant disputes the Commission’s finding that the conclusion of the pooling agreement was conditional upon completion of the second group of transactions, more particularly the RAG transaction. On that point, the applicant recalls, first of all, that the pooling agreement had been notified to the NMa on 26 February 1998, which means that the intention to conclude that agreement was sufficiently precise, without the sale of RAG’s shares in the member undertakings of CVK being known to the applicant, and, consequently, being relevant to the interdependence of the two transactions. The applicant further emphasises that there is no binding contractual agreement or other arrangement linking the two transactions. Last, the applicant claims that Haniel’s opinion that the transactions were interdependent must also be considered irrelevant, since in order to assess such interdependence the Commission must base itself on the facts and not on the subjective assessments of one of the parties and since, given the background to the present case, Haniel might have had an interest in the dissolution of CVK, as required by the contested decision. In the applicant’s submission, there are therefore indeed two separate concentrations.

96 As regards, in the first place, the argument relating to the Commission’s general competence to treat a number of transactions as a single concentration, the Commission responds that Article 3 of Regulation No 4064/89, which concerns the concept of concentration, does not preclude the possibility that a concentration may cover more than one transaction. A concentration may, depending on the economic reality, consist of one or more transactions. In the Commission’s submission, its own practice in taking decisions reveals several examples where that has been so.

97 Furthermore, according to the Commission, the applicant’s reference to the second subparagraph of Article 5(2) of Regulation No 4064/89 is irrelevant. That provision concerns only the calculation of turnover for the purpose of determining whether or not a concentration has a Community dimension and seeks to prevent undertakings from avoiding the application of Regulation No 4064/89 by splitting their transactions into a number of separate concentrations carried out over a two-year period and not individually reaching the turnover thresholds. The concept of concentration is dealt with in Article 3 of Regulation No 4064/89.

98 The Commission also disputes the applicant’s reference to the Green Paper and to the Commission’s proposal to amend Regulation No 4064/89. Although the Green Paper proposed to extend the Commission’s competence to certain particular types of transactions, it confirmed the general, broad definition of concentration, while the Commission proposal sought only to clarify its existing practice in taking decisions.

99 In the second place, the Commission does not subscribe to the applicant’s criticism that it did not sufficiently demonstrate the interdependence between the two main transactions in issue.

100 The Commission submits that three elements, considered as a whole, permit the conclusion that such interdependence existed, as demonstrated in paragraphs 20 to 22 of the contested decision.

Findings of the Court

101 In the context of the present part, and although it qualified its position at the hearing, the applicant disputes, first, the Commission’s general competence to treat a number of transactions as a concentration, in application of Article 3 of Regulation No 4064/89. Second, the applicant contends that the Commission’s finding that the transactions concluded on 9 August 1999 were interdependent and constituted a whole from an economic viewpoint is incorrect.

– The possibility for the Commission to treat a number of transactions as a concentration, in application of Article 3 of Regulation No 4064/89

102 Under Article 3(1) of Regulation No 4064/89, a concentration is to be deemed to arise either where two or more previously independent undertakings merge (Article 3(1)(a)) or where one or more persons already controlling at least one undertaking, or one or more undertakings, acquire, whether by purchase of securities or assets, by contract or by any other means, direct or indirect control of the whole or parts of one or more other undertakings (Article 3(1)(b)).

103 Whereas Article 3(1)(a) of Regulation No 4064/89 treats as a concentration a relatively simple and identifiable phenomenon – that of a merger between two or more previously independent undertakings –, Article 3(1)(b) is intended to cover all the other situations in which one or more undertakings acquire control of the whole or parts of one or more other undertakings.

104 That general and teleological definition of a concentration – the result being control of one or more undertakings – implies that it makes no difference whether the direct or indirect acquisition of control was acquired in one, two or more stages by means of one, two or more transactions, provided that the end result constitutes a single concentration.

105 Nor does it matter whether, when they notify a concentration to the Commission, the parties propose to conclude two or more transactions or whether they have already concluded them before notifying them. It is for the Commission, in each case, to ascertain whether those transactions are unitary in nature, so that they constitute a single concentration for the purposes of Article 3 of Regulation No 4064/89.

106 Such an approach seeks to identify, in accordance with the circumstances of fact and of law specific to each case and with a concern to ascertain the economic reality underlying the transactions, the economic aim pursued by the parties, by examining, when faced with a number of legally distinct transactions, whether the undertakings concerned would have been inclined to conclude each transaction taken in isolation or whether, on the contrary, each transaction constitutes only an element of a more complex operation, without which it would not have been concluded by the parties.

107 In other words, in order to determine the unitary nature of the transactions in question, it is necessary, in each individual case, to ascertain whether those transactions are interdependent, in such a way that one transaction would not have been carried out without the other.

108 That approach tends, on the one hand, to ensure that undertakings which notify a concentration have the advantage of legal certainty for all the transactions which complete that operation and, on the other, to enable the Commission to carry out an effective control of concentrations capable of significantly impeding competition in the common market or a significant part thereof. Those two aims constitute, moreover, the principal objective of Regulation No 4064/89 (judgment in Case T-290/94 Kaysersberg v Commission [1997] ECR II-2137, paragraph 109; order of the President of the Court of First Instance in Case T-322/94 R Union Carbide v Commission [1994] ECR II-1159, paragraph 36; see also, to that effect, judgment in Case T-3/93 Air France v Commission [1994] ECR II-121, paragraph 48).

109 It follows that a concentration within the meaning of Article 3(1) of Regulation No 4064/89 may be deemed to arise even in the case of a number of formally distinct legal transactions, provided that those transactions are interdependent in such a way that none of them would be carried out without the others and that the result consists in conferring on one or more undertakings direct or indirect economic control over the activities of one or more other undertakings.

110 That finding is not affected by the various arguments put forward by the applicant.

111 First, the allegation based on the second subparagraph of Article 5(2) of Regulation No 4064/89, which, because in the applicant’s submission it is the only provision to make express reference to multiple transactions and because the Commission is alleged to have considered that it was not directly applicable in the present case, would deprive the Commission of its competence to treat two or more transactions as a single concentration for the purposes of Article 3 of Regulation No 4064/89, must be rejected as unfounded.

112 It must be borne in mind that Article 5 of Regulation No 4064/89, entitled ‘Calculation of turnover’, provides:

‘1. Aggregate turnover within the meaning of Article 1(2) shall comprise the amounts derived by the undertakings concerned in the preceding financial year from the sale of products and the provision of services falling within the undertakings’ ordinary activities after deduction of sales rebates and of value added tax and other taxes directly related to turnover. The aggregate turnover of an undertaking concerned shall not include the sale of products or the provision of services between any of the undertakings referred to in paragraph 4.

…

2. By way of derogation from paragraph 1, where the concentration consists in the acquisition of parts, whether or not constituted as legal entities, of one or more undertakings, only the turnover relating to the parts which are the subject of the transaction shall be taken into account with regard to the seller or sellers.

However, two or more transactions within the meaning of the first subparagraph which take place within a two-year period between the same persons or undertakings shall be treated as one and the same concentration arising on the date of the last transaction.

…’

113 It follows from the very wording of that provision that it governs a different question from that referred to by Article 3 of Regulation No 4064/89.

114 Whereas Article 3 of Regulation No 4064/89 defines the conditions of the existence of a ‘concentration’ and confines itself to defining, generally and materially, what is to be understood by a ‘concentration’, it does not determine the question of the Commission’s competence in respect of concentrations (see, to that effect, Case T-22/97 Kesko v Commission [1999] ECR II-3775, paragraph 138). Among the transactions which satisfy the definition in Article 3 of Regulation No 4064/89, only those having a ‘Community dimension’, such as those defined in Article 1 of that regulation, fall within the exclusive competence of the Commission, save where the regulation provides to the contrary. Consequently, the mere fact that a transaction satisfies the definition of Article 3 of Regulation No 4064/89 does not necessarily mean that it falls within the scope of the Commission’s exclusive competence; the transaction must also have a ‘Community dimension’.

115 It follows from Article 1 of Regulation No 4064/89 that the Community legislature intended that, in the context of its role in respect of concentrations, the Commission would become involved only where the proposed concentration – or the concentration already carried out – attains a certain economic size and geographic scope, that is to say, a ‘Community dimension’. It also follows from the general structure of Article 5 of Regulation No 4064/89 that the Community legislature intended to specify the scope of that regulation by defining, inter alia, the turnover of the participants to a concentration that must be taken into consideration for the purpose of determining whether it has a ‘Community dimension’ within the meaning of Article 1 of Regulation No 4064/89.

116 Thus, it follows from Article 5(2) of Regulation No 4064/89 that, in the context of the acquisition of parts of an undertaking, only the turnover relating to those parts of the undertaking which are actually acquired are to be taken into account for the purpose of assessing the dimension of the concentration in question (Air France v Commission, paragraph 108 above, paragraph 103).

117 That global assessment also includes the interpretation of the second subparagraph of Article 5(2) of Regulation No 4064/89, so that where the acquisition of parts of one or more undertakings takes place in a number of transactions within a two-year period between the same persons or undertakings, the turnover must relate to the acquired parts considered together.

118 The underlying reason for the insertion of the second subparagraph of Article 5(2) of Regulation No 4064/89 – the analysis of which, moreover, is common to the parties to the present dispute – is to ensure that the same undertakings or the same persons do not artificially break a transaction down into a number of partial sales of assets, over a period of time, with the aim of avoiding the thresholds laid down in Regulation No 4064/89 which determine the Commission’s competence in application of that regulation.

119 Accordingly, the fact that the second subparagraph of Article 5(2) of Regulation No 4064/89 allows the Commission to consider two or more transactions to constitute a single concentration for the purposes of calculating the turnover of the undertakings concerned with the aim of preventing any circumvention of the competence conferred on it by that regulation does not, contrary to the applicant’s contention, mean that that provision deprives the Commission of the right to determine, upstream, in application of Article 3 of that regulation, whether a number of transactions notified to it give rise to a single concentration or whether, on the contrary, those transactions must be regarded as giving rise to a number of concentrations.

120 If it emerges from the examination carried out by the Commission that two transactions notified to it are not interdependent, those transactions will be assessed individually. Where one and/or the other does not have a Community dimension, the Commission will decline competence to assess that transaction. If it emerges from that examination that the transactions are of a unitary nature and can therefore be considered to be a single concentration, in application of Article 3 of Regulation No 4064/89, the Commission will then ascertain whether the transaction thus identified has a Community dimension, for the purposes of establishing whether it is competent and of assessing the effects of the transaction on competition.

121 In any event, the application of Article 3 of Regulation No 4064/89 to a specific case has neither the object nor the effect of determining whether the Commission is competent to examine the concentrations identified, but of ascertaining whether the notified transactions constitute one or more concentrations.

122 In those circumstances, the applicant’s argument based on the second subparagraph of Article 5(2) of Regulation No 4064/89 has no consequence as regards the interpretation of Article 3 of Regulation No 4064/89 which allows the Commission to examine whether the transactions in question fell within the scope of that provision owing to their unitary nature.

123 In the second place, concerning the applicant’s claim that the Commission, in the context of the revision of Regulation No 4064/89, recognised that it was not competent to treat two or more transactions as a concentration within the meaning of Article 3 of Regulation No 4064/89, it is sufficient to observe that, even if that were so, the fact that the Commission has taken such a position is without prejudice to the interpretation of Article 3 of Regulation No 4064/89 stated above by the Court.

124 It follows that the applicant’s complaint alleging that the Commission was not competent to treat a number of transactions as a single concentration, in application of Article 3 of Regulation No 4064/89, must be rejected.

– The independent nature of the transactions concluded on 9 August 1999

125 The applicant criticises the Commission for having made an error of assessment in considering that in the present case the first and second groups of transactions concluded on 9 August 1999, referred to in paragraph 8 above, were interdependent in such a way that they constituted a whole from an economic viewpoint.

126 First of all, it must be borne in mind that in the contested decision the Commission stated:

‘(20) … The operations took place within a narrow time frame and closely resembled each other. The legal acts giving Haniel and Cementbouw control of CVK and those giving CVK control of the 11 sand-lime brick companies were performed on the same day (9 August 1999) and were recorded by the notary in a uniform document. Moreover, it was the parties’ intention to link the two acquisitions of control, so that one did not take place without the other. The conclusion of the agreements, which were submitted to the NMa, was thus postponed until the conclusion of the negotiations on the transfer of RAG’s shares. This came about because RAG had in the meantime expressed the wish to withdraw from CVK, as it was no longer willing to be part of the cooperative’s proposed new corporate structure. Economically too, therefore, the two acquisitions of control should be regarded as a unit. Even if one wanted to see these events as two transactions separated in time by a “logical second”, they are dependent on each other in such a way that they should be regarded as a single merger.

(21) Haniel, too, took this line in its comments on the statement of objections and in the hearing. Cementbouw, however, propos