WRITTEN QUESTION E-1178/01

by Helmuth Markov (GUE/NGL) to the Commission

(19 April 2001)

Subject: Scrutiny for compatibility with competition law of the merger between the IVG and Hochtief Consortia for the construction of the Berlin Brandenburg International Airport (BBI)

On 5 February 2001, the European Commission authorised Hochtief and IVG, which had previously been competitors, to submit a joint tender for the construction of the planned Berlin Brandenburg International Airport (BBI). In the opinion, reported in the media,

of the Directorate-General for Competition, the project in its proposed form would not lead to any restriction of competitive positions among European airports. However, the opinion apparently expressly leaves open the issue as to whether the entire tendering procedure for the construction and operation of the BBI was actually valid in law.

Can the Commission answer the following:

1. What was the actual substance of the application made to the European Commission by the IVG and Hochtief Consortia for its merger for the construction and operation of the BBI to be scrutinised for its compatibility with competition law?

2. Which individual aspects of the merger did the Commission scrutinise on the basis of that application?

3. What was the actual outcome of the scrutiny notified by the Commission to the aforementioned applicants on 5 February 2001?

4. Were any specific issues in the merger between IVG and Hochtief not scrutinised before the Commission took its decision on 5 February 2001? If so, which issues were not scrutinised, and why not?

5. When the Commission scrutinised the merger between IVG and Hochtief for its compatibility with competition law, was any account taken of the infringements in the tendering procedure for the privatisation of Berlin Brandenburg Airport Holding and the construction of the BBI which were established by the Brandenburg Higher Regional Court by decision of 3 August 1999? If so, from what angle? If not, why was no account taken of the legality of the tendering procedure referred to above when the Commission took its decision on 5 February 2001?

6. Does the Commission's decision of 5 February 2001 include any restrictions on or requirements of the bidders? If so, what are they?

7. Does the Commission's decision of 5 February 2001 include any provisos on the basis of which authorisation was granted for the joint construction and joint operation of the BBI by the IVG and Hochtief Consortia?

Answer given by Mr Monti on behalf of the Commission

(16 July 2001)

1. On 22 December 2000 IVG Holding AG (IVG) and Hochtief AirPort GmbH (HTA) notified pursuant to Article 4 of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings(1) (the Merger Regulation) their proposal to acquire joint control of Berlin Brandenburg Flughafen Holding GmbH (BBF). BBF is charged with operating the commercial airport system in the Berlin/Brandenburg region and with developing the system in future. Berlin's three existing commercial airports at Tegel, Tempelhof and Schönefeld are operated by wholly owned subsidiaries of BBF. BBF is to construct and operate the future Berlin Brandenburg International Airport (the BBI). This is a compulsory application according to the said Regulation, on the basis of which the Commission has to examine whether the concentration is compatible with the Common Market. Such examination must be based on the criteria laid down in Article 2 of the said Regulation (see answer to the following question).

2. The Commission examined under Article 2 of the Merger Regulation whether the merger created or strengthened a dominant position as a result of which effective competition would be significantly impeded in the common market or in a substantial part of it, or whether the acquisition by IVG and HTA of joint control of the BBI has as its object or effect the coordination of the competitive behaviour of undertakings which remain independent. In so doing it assessed the merger's impact on the various markets for the operation of airports on which IVG, HTA and the BBI are directly or indirectly active through shareholdings.

Further details can be obtained from the Commission decision of 5 February 2001, available on the Internet at www.europa.eu.int/comm/competition/mergers/cases.

3. In its decision of 5 February 2001 the Commission declared the merger compatible with the common market under Article 6(1)(b) of the Merger Regulation.

4. In its decision the Commission considered all aspects of the merger within the meaning of the Merger Regulation that is to say of the acquisition of joint control by IVG and HTA of the BBI in the light of the Regulation.

5. In the proceedings under the Merger Regulation the Commission did not consider the legality of the tendering procedure which took place prior to the merger. It was not empowered to do so under the Regulation, the sole purpose of the merger control procedure being, as already indicated, to determine whether a merger would have one of the effects mentioned in Article 2 of the Merger Regulation (see answer to the second question). The question of the legality of the tendering procedure falls to be decided solely in accordance with the relevant public procurement or antitrust provisions, the application of which is a matter first and foremost for the competent national authorities and courts.

6. Since the merger as notified did not give rise to any serious doubts as to its compatibility with the common market, the Commission declared it compatible with the common market under Article 6(1)(b) of the Merger Regulation without attaching any conditions or obligations.

7. No (see the answer to question No 6).

(1) OJ L 395, 30.12.1989.