2002/191/EC: Commission Decision of 3 April 2001 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.2139 — Bombardier/ADtranz) (Text with EEA relevance) (notified under document number C(2001) 1032)
Date: 2001-04-03
Institutions: European Commission
Subjects: Canada, European Economic Area, North America, Western Europe, aeronautical industry, common market, economic concentration, merger control, railway industry

L 69/50

EN

Official Journal of the European Communities

12.3.2002

COMMISSION DECISION

of 3 April 2001

declaring a concentration to be compatible with the common market and the functioning of the
EEA Agreement

(Case COMP/M.2139 (cid:151) Bombardier/ADtranz)

(notified under document number C(2001) 1032)

(Only the English text is authentic)

(Text with EEA relevance)

(2002/191/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

case pursuant
Regulation.

to Article 6(1)(c) of

the Merger

Having regard to the Treaty establishing the European
Community,

Having regard to the Agreement on the European Economic
Area (hereinafter the EEA Agreement), and in particular Article
57 thereof,

Having regard to Council Regulation (EEC) No 4064/89 of 21
December 1989 on the control of concentrations between
undertakings (1)
(hereinafter the Merger Regulation), as last
amended by Regulation (EC) No 1310/97 (2), and in particular
Article 8(2) thereof,

Having regard to the Commission decision of 6 December
2000 to initiate proceedings in this case,

Having regard to the opinion of the advisory Committee on
Concentrations (3),

Whereas:

(1)

(2)

to Article 4 of

the Commission received a
On 20 October 2000,
notification pursuant
the Merger
Regulation of a proposed concentration by which
(hereinafter Bombardier) will acquire
Bombardier Inc.,
sole control of
the undertaking DaimlerChrysler Rail
Systems GmbH (hereinafter ADtranz) and will merge
their activities world-wide.

By decision dated 6 December 2000, the Commission
found that the notified operation raised serious doubts
as to its compatibility with the common market. The
Commission accordingly initiated proceedings in this

(1) OJ L 395, 30.12.1989, p.1; Corrigendum in OJ L 257, 21.9.1990,

p. 13.

(2) OJ L 180, 9.7.1997, p.1; Corrigendum OJ L 40, 13.2.1998, p. 17.
(3) OJ C 63, 12.3.2002.

(3)

(4)

(5)

I. THE PARTIES

industries.

Bombardier
is a Canadian corporation engaged in
design, development, manufacture and marketing in the
aircraft, rail transportation equipment and recreational
product
the company offers
In addition,
services related to its core products and core businesses
involved in financial
and is,
services and the development of real estate interests.
Bombardier operates plants mainly in North America
and Western Europe. Over 90 % of
its revenues are
generated outside Canada.

through subsidiaries,

ADtranz, which is wholly owned by DaimlerChrysler
AG, is engaged in the manufacture and distribution of
Its current activities cover
rail transportation vehicles.
the manufacture and sale of rolling stock equipment as
well as fixed installation and signalling equipment. Even
prior to and independent of the present transaction, the
company decided to focus on its rolling stock business.
entered into a binding
Accordingly, ADtranz has
agreement to sell its fixed installations business to the
United Kingdom-based group Balfour Beatty, subject to
clearance by the Office of Fair Trading. Moreover,
its signalling equipment
ADtranz also intends to sell
operations, although a buyer has yet to be found.

II. CONCENTRATION

sole

intends

control over
to acquire
Bombardier
ADtranz by way of purchase and transfer of 100 % of
ADtranz shares, all of which are currently held by
Daimler-Chrysler AG. The notified operation therefore
constitutes a concentration within the meaning of
Article 3(1)(b) of the Merger Regulation.

12.3.2002

EN

Official Journal of the European Communities

L 69/51

III. COMMUNITY DIMENSION

(cid:151) passenger coaches,

(6)

(7)

The undertakings concerned have a combined aggregate
world-wide turnover (4) of more than EUR 5 billion
(Bombardier, EUR 8,598 billion in its financial year
ending 31 January 2000; ADtranz, EUR 3,560 billion in
its financial year ending 31 December 1999). Each of
them has an aggregate Community-wide turnover in
excess of EUR 250 million (Bombardier, [more than
in its financial year ending 31
EUR 250 million](*)
January 2000; ADtranz, [more than EUR 250 million]*
in its financial year ending 31 December 1999), but
they do not achieve more than two-thirds of
their
aggregate Community-wide turnover within one and the
same Member State. The notified operation therefore
has a Community dimension within the meaning of
Article 1(2) of the Merger Regulation, but it does not
constitute a cooperation case under the EEA Agreement,
pursuant to Article 57 of that Agreement.

IV. COMPETITIVE ASSESSMENT

A. THE RELEVANT PRODUCT MARKETS

in

its

for

case

decision

railway transport

In
IV/M.580 (cid:151)
ABB/Daimler-Benz (5), the Commission categorised the
market
technology into the
following five product groups: mainline trains, regional
trains, local trains, wayside systems and miscellaneous.
These product groups were further subdivided into, inter
locomotives, electrical and
alia, electrical and diesel
(EMUs and DMUs), passenger
diesel multiple units
trams and underground
coaches and freight wagons,
trains, components, spare parts and maintenance, etc.
These subdivisions constituted the relevant product
markets. Whilst the market investigation in this case has
confirmed the delineation in ABB/Daimler-Benz to be
largely still applicable, it has shown, nevertheless, that
some additional subdivisions need to be taken into
account. Therefore, the relevant product markets have
been found to be the following:

(8)

(9)

(cid:151) high-speed trains,

(cid:151) self-propelled electrical multiple units (EMUs) and
diesel multiple units (DMUs) for intercity transport
(hereinafter also referred to as intercity trains or
mainline trains),

(10)

(cid:151) EMUs and DMUs for regional transport (hereinafter

also referred to as regional trains),

(4) Turnover calculated in accordance with Article 5(1) of the Merger
Regulation and the Commission Notice on the calculation of
turnover (OJ C 66, 2.3.1998, p. 25).

(5) Commission Decision 97/25/EC of 18 October 1995 (OJ L 11,

14.1.1997, p. 1, point 9).

(cid:151) trams and light-rail vehicles (the latter also referred

to as LRVs),

(cid:151) underground vehicles,

(cid:151) airport people movers (APMs),

(cid:151) heavy maintenance services,

(cid:151) light maintenance services, and

(cid:151) refurbishment of rail vehicles.

the French TGV (6) by
such as
High-speed trains,
the German ICE (7)
Alstom or
are highly
train,
locomotive-hauled
integrated self-propelled units or
trains which are designed to travel
long distances at
speeds of more than 250 km/h on conventional tracks.
In many cases, however, dedicated tracks are used
which allow for very high speed travel (usually between
270 km/h and 300 km/h).

Self-propelled units for intercity transport are sets of
coaches in which the traction components are fully
integrated,
i.e. passenger coaches and locomotives are
merged. Such train sets cannot be separated, but may be
coupled in order to increase their capacity. They are
intended for long-range travel between urban centres on
ordinary rail tracks, achieving speeds of 160 km/h to
250 km/h, and may have tilting technology. There are
two basic types of self-propelled intercity train units,
(EMUs) and diesel
namely electrical multiple units
multiple units (DMUs). As regards these two types of
self-propelled units,
the Parties’ activities overlap and
their combined market share does not vary significantly.
It can therefore be left open in this case whether two
separate product markets exist for intercity EMUs and
DMUs.

Regional trains are also self-propelled units, but operate
at a lower speed of up to 160 km/h. They are built as
single or multiple units. As in the case of
intercity
trains (8),
it can be left open whether two separate
product markets exist for regional EMUs and DMUs.
The Parties suggest, however, the further separation of
this market
into three segments, according to the
number of seats: trains with less than 100 seats, trains
with between 100 and 170 seats, and commuter train
sets with more than 170 seats. However, a clear
to the Commission’s market
majority of

answers

(*) Parts of

this text have been edited to ensure that confidential
information is not disclosed; those parts are enclosed in square
brackets and marked with an asterisk.

(cid:145)Train (cid:224) grande vitesse(cid:146) (high-speed train).
(cid:145)Intercity Express(cid:146).

(6)
(7)
(8) See recital 9.

L 69/52

EN

Official Journal of the European Communities

12.3.2002

that have narrower

investigation did not agree with this market definition.
In particular, many customers answered that they did
not order vehicles according to this
segmentation,
which was seen as arbitrary since it is common practice
to combine train sets during peak hours, or to order
should be
trains
mentioned that, according to some customer responses,
a segmentation between single and double-decker cars
could be envisaged. However, this issue does not need
to be explored any further because it does not have an
the
impact
concentration.

competitive

assessment

seating.

the

on

of

It

(11)

(12)

that

there are several

It has been suggested by third parties
the
distinction between mainline and regional trains is not a
rigid one since there is no accepted industry definition.
While there is a certain degree of overlap between the
two product markets for at least some products in the
market,
features which render a
distinction valid. For regional trains, top speed is not an
overriding issue, due to frequent stops on those routes.
There seems to be agreement at least in Germany that
regional trains operate at speeds of up to 160 km/h.
Capacity is more important
trains than
comfort. These product requirements are reflected in the
technical profile of the product, e.g. propulsion systems
the interior
are designed for lower operating speed,
layout
from a
demand-side point of view,
the two products are
different. As regards the supply side, it has to be noted
that all major players in the market are active in both
markets, with the exception of small players active in
regional
trains only, such as Stadler and Jenbacher,
neither of which would be capable of switching to
mainline trains without significant adjustment costs.
Therefore, the distinction between mainline and regional
trains remains valid for the purpose of this decision.

focuses on functionality. Therefore,

for regional

Passenger coaches include all non-self-propelled railway
vehicles,
in particular for mainline and, to a smaller
extent, for regional passenger transport, hauled by any
type of locomotive. Coaches do not have propulsion,
which makes
national
environments easier, and they require significantly less
production technology than other rolling stock.

adaptation

different

to

same

other system, and in fact, some tram operators even use
tracks. Nevertheless,
both systems on the
operators will be hesitant to revert to high-floor trams
once they have introduced a low-floor system. The
reasons for this are, inter alia, that the cost of specific
low-floor platforms would be frustrated and that the
increased comfort of level access could no longer be
used as a value proposition. Moreover, low-floor trams
are in many instances the best solution to comply with
specific legislation or local policies designed to grant
handicapped people better access to public transport.
However, from a supply-side perspective, the answers to
the Commission’s market investigation clearly pointed
towards
and
low-floor trams. Therefore, these two segments do not
seem to constitute separate product markets.

substitutability

high-floor

between

(14) Underground vehicles or metros are electric vehicles
that run on either steel or rubber wheels, and transport
people within a city centre, always on completely
segregated tracks and usually underground. Metros are
than LRVs, mainly
generally heavier
because of
and need to
their
accommodate the high flow of passengers in and out of
the cars at peak travel times. They are built to accelerate
and decelerate quickly, mainly due to the short distances
between stations.

and sturdier
greater

capacity,

(15) Airport

(APMs)

from planes

people movers

system carrying passengers

completely
are
form part of an integrated
automated vehicles that
transit
to
terminals or between terminals in an airport. As travel
times are short and passengers may be carrying luggage,
quick loading and unloading are crucial, which is why
they are fitted with large doors and little seating
capacity. Furthermore, as routes are generally relatively
less
simple,
sophisticated than those of automated guided transports
(AGTs).

also much

guidance

systems

are

(13) As for trams and light-rail vehicles,

answers

the Parties have
suggested a distinction between low-floor and high-floor
trams. The
to the Commission’s market
investigation indicated, from a demand side perspective,
a clear
trend by urban public transport companies
towards low-floor trams, with high-floor trams being
progressively replaced by low-floor trams when coming
to the end of their life cycle. Also, the use of low-floor
trams usually involves low-floor specific investment in
infrastructure, i.e. platforms for level access to the cars.
It would not be technically impossible to switch to the

(16) As regards maintenance and refurbishment, the results
of the market investigation suggest that a distinction
should be made between light maintenance, heavy
maintenance
and refurbishment. Light maintenance
includes day-to-day repairs, component exchanges and
safety checks carried out on a regular basis. Heavy
maintenance, on the contrary, covers more substantial
interventions as well as major overhaul of
railway
in central workshops on a less
vehicles, carried out
regular and more infrequent basis,
for a duration of
several days or weeks. Finally, refurbishment involves

12.3.2002

EN

Official Journal of the European Communities

L 69/53

the modernisation and adaptation of rolling stock to a
completely new concept or design. In many cases, only
the body shell of railway vehicles remains unchanged.
All three types of services require different equipment,
skills and technology, and must therefore be regarded as
separate markets.

to design and produce customised products for each
project. Thus, according to Bombardier, market entry
barriers are lowered and European-wide bidding is
facilitated.

(17)

(18)

B. THE RELEVANT GEOGRAPHIC MARKETS

National markets for regional
light-rail vehicles, and underground trains

trains,

trams and

rail

technology

demands (9).

In the case ABB/Daimler-Benz of 1995,
the relevant
geographic markets for rail vehicles were found to be
national at least in Member States having a very large,
to meet
domestic
cases
customers’
Ferroviaria (10)
and
(COMP/M.2069 (cid:151) Alstom/Fiat
COMP/M.1446 (cid:151) DaimlerChrysler/ADtranz (11)),
the
question was
left open. The Commission, having
conducted a thorough market investigation, found the
market
since
ABB/Daimler-Benz.

industry
In more

characteristics

unchanged

largely

recent

able

having

national

decision

contracts

evolved
since

considerably
the

Bombardier submits that the market for rolling stock
should be regarded as a European one, the rail vehicle
towards
industry
Europeanisation
in
ABB/Daimler-Benz. Reasons put forward by Bombardier
to support that submission include the following: EU
public procurement
rules now also apply to train
tenders and have undermined the practice of awarding
significant
champions.
to
Accordingly, manufacturers compete for orders across
Europe and even outside the EEA. An increasing
number of EU countries such as the United Kingdom,
Spain, Portugal and Finland have already awarded
contracts to companies from other countries. Even in
certain EU countries (such as Germany, France and Italy)
where contracts continue to be awarded to companies
with a local presence or to consortia that involve a local
company, bids are contested by train manufacturers
from other EU Member States and non-EU countries.
Furthermore, European-wide bidding has to be seen in
the
rail
equipment and infrastructure in Europe. The major
market players tend to offer so-called product platforms
whose objective is to serve all customer requirements
from a restricted number of basic products, rather than

standardisation of

context of

increasing

(19)

(20)

least

The Commission’s investigation has confirmed, however,
for those Member States with a strong
that at
national rail industry, markets must still be considered
to be largely national. Taking Germany as an example:
not only have orders for rail vehicles gone almost
exclusively to prime contractors or main suppliers
established in Germany, but there have also been hardly
any truly foreign suppliers bidding for tenders, in spite
of the EU procurement rules and standardisation trends.
The only significant
foreign entrants to the German
market have been the French company Alstom and the
Canadian company Bombardier. Their success, however,
depended significantly on the formation of consortia
with German players at the beginning and later on the
acquisition of the German company Linke Hoffmann
Busch GmbH, Salzgitter (hereinafter LHB) in the case of
Alstom,
and Deutsche Waggonbau
(hereinafter DWA) (12) in the case of Bombardier. Thus,
the experiences of Alstom and Bombardier itself rather
support the definition of the market as national, in the
case of Germany.

Talbot

and

The Commission’s view was supported by most of the
competitors and customers of the Parties. In particular,
the remaining diversity of infrastructural requirements
among different Member States was cited as the major
obstacle to the Europeanisation of these markets. Thus,
even
been
though
implemented,
the real obstacle to
European-wide bidding still lies in the different national
standards for rail infrastructure.

EU procurement

it appears

rules

have

that

(21) Neither

that

five years

the results of

the Parties nor

the peculiarities of

the market
investigation have provided strong evidence that an
opening-up of national markets will be accomplished
within the forecast period of
the
Commission applied in the ABB/Daimler-Benz case,
taking into account
rail
technology sector (13). In this respect, it must be borne
in mind that
the
existence of a national market in Germany at that time
were to a large extent identical to those put forward by
the Parties in this case. Also, the results of the market
investigation have proven to be in line with those in
ABB/Daimler-Benz. Consequently, there is no reason to
the phenomena (in particular: entry of
assume that
foreign competitors and sufficient standardisation, as for

the reasons put

forward against

the

(9) Decision 97/25/EC of 18 October 1995, recitals 41 and 42.
(10) Decision of 18 September 2000, recital 18.
(11) Decision of 15 March 1999 (OJ C 97, 9.4.1999, p. 7), recital 10.

(12) See Commission decision of 29 January 1998 in Case No
IV/M.1064 (cid:151) Bombardier/DWA (OJ C 49, 14.2.1998, p. 13).

(13) Decision 97/25/EC of 18 October 1995, recital 43.

L 69/54

EN

Official Journal of the European Communities

12.3.2002

instance in the framework of
the MARIE industrial
forum (14)) that have hardly shown any significant effect
over the last five years will trigger a major change in
market conditions in the near future.

left open, since the competitive assessment does not
change, irrespective of the definition chosen.

National
refurbishment services

markets

for

maintenance

and

(22)

In this respect, it is important to note that Bombardier
itself reasoned in internal strategy documents provided
to the Commission in the notification that it has in the
past
faced the need to show local presence and
therefore followed the common approach of buying
local manufacturers and maintaining a widespread
network of
in targeted
local production facilities
markets. Bombardier also expressed the view that the
Europeanisation of national markets was mainly
hindered by the lack of harmonisation of
technical
standards across the existing infrastructure, and that it
was progressing extremely slowly and might not even
be accomplished at all.

(23)

The Commission, therefore, concludes that the markets
for regional
trams and LRVs, as well as for
underground trains, are still national in scope.

trains,

the

services

concerned,

it would not be economical

(26) As far as light maintenance, heavy maintenance and
relevant
are
refurbishment
geographical markets must clearly be defined as being
national or even sub-national. The results of the market
In fact,
investigation have confirmed this conclusion.
local presence of maintenance service providers
is
train
essential, as
operating companies to move rolling stock from the
region where it operates to other, more distant places
for maintenance purposes only, given the loss of
operating time and profit as well as the transportation
costs that would be incurred. In order to avoid such
drawbacks, many train operators currently even provide
maintenance services (cid:145)in-house(cid:146),
in their own depots.
This picture is not likely to change with the evolving
trend among train operators to (cid:145)out-source(cid:146) maintenance
to train suppliers, in which case a local presence and
the acquisition of local depots by suppliers is of utmost
importance.

for

Open market definition for high-speed trains,
intercity trains, passenger coaches
and airport
people movers

(24)

The lack of harmonisation results in an enormous cost
burden, even for those products for which a tendency
towards markets whose scope is wider than national is
discernible. For example, high speed trains which
operate on trans-European networks, such as the Thalys
or the ICE 3 (15), need several converters to be able to
run in more than one country. This makes the train up
to 60 % more
than in the one-nation
configuration. However, the definition of the relevant
geographic market
for high speed trains can be left
open, since the competitive assessment does not change,
irrespective of the definition chosen.

expensive

(25)

Furthermore, the Commission investigated the market
for intercity trains, passenger coaches and airport people
movers both at the national and at the EEA-wide level.
As in the case of high-speed trains, the scope of the
relevant geographic market for these products can be

(27)

(28)

Conclusion

LRVs; underground

trains; maintenance

In the light of the above, the Commission considers the
relevant geographic markets for the following products
and services still to be national: regional trains; trams
and
and
In contrast, a trend towards European
refurbishment.
markets has become apparent
for high-speed trains,
intercity trains, airport people movers and passenger
coaches. The
relevant
geographic market for those products can be left open,
in the present case
since the competitive assessment
does not change, irrespective of the definition chosen.

definition

precise

the

of

C. GENERAL MARKET CONDITIONS

the

The main characteristics of the rail technology market
increasing
in
are
Europe
cost-consciousness
ongoing
consolidation process among manufacturers, a trend
towards platform-based products, and the fact
that
contracts are generally awarded through a bidding
process.

privatisation
customers,

and
an

of

(14) MARIE (Mass transit rail

initiative for Europe)

is a voluntary
initiative of the railway supply industry and the urban transport
operators under the auspices of the European Commission. It aims
to improve the competitiveness of urban rail systems and to
accomplish the Single Market by means of standardisation. The
areas of work were design harmonisation, financial engineering,
life cycle costing and contractual terms and conditions.

(15) Third generation of ICE trains.

1. THE TREND TOWARDS PLATFORM-BASED PRODUCTS

(29) Whereas

in the past

the design, development and
manufacture of rail technology products took place in
close collaboration between suppliers and customers,

12.3.2002

EN

Official Journal of the European Communities

L 69/55

with customers having a direct
influence on the
products to be manufactured and the selection of the
firms producing them (tailor-made products), the trend
is now for suppliers to offer their own set products (also
referred to as platform-based products)
from which
customers can choose. The objective of this is to serve
all customers from a restricted number of platforms
rather than to design and produce completely new
for each project. Even where national or
vehicles
customer-specific
a
platform-based approach allows manufacturers to obtain
economies of scale and scope for those parts of the
train that do not require customisation.

requirements

technical

differ,

(30)

the

first

time,

supplier

for instance,

to introduce

a
Siemens was
in Potsdam in 1996. At
platform-based LRV product,
that
the existence of platform-based products
exerted significant price pressure on competitors and
resulted in overall price decreases. At present, all major
European manufacturers have developed their own
platform-based product lines. Alstom,
is
promoting its Citadis (trams), Metropolis (underground
trains)
and Coradia
trains), X’Trapolis
its Incentro
platforms. ADtranz has begun to offer
Itino (regional
(trams), Movia (underground trains),
trains),
platforms.
AnsaldoBreda has developed a platform in the tram
sector called Sirio. Siemens’ product portfolio includes
the Combino (trams), MOMO (underground trains) and
Desiro
Bombardier’s
Cityrunner (trams) and Talent (regional trains) product
lines are also platform-based. However, Bombardier does
not currently manufacture platform-based products in
other market segments.

and Crusaris

platforms.

(intercity

(regional

(regional

trains)

trains)

(31) Nevertheless, there are customers,

in particular in the
tram sector, who are very reluctant to buy a platform
product and continue to demand individual, customised
solutions.

2. THE CUSTOMERS

(32)

(33)

and

local

transport

Customers for rail vehicles are not only the national
railway companies, but also an increasing number of
or
regional
municipalities, as well as a growing number of private
undertakings.
undertakings
(hereinafter also referred to as railway operators), certain
private customers do not provide transport services
themselves but have specialised in leasing rail vehicles to
railway operators (16).

companies

addition

these

to

In

and political
Privatisation,
pressure to develop efficient rail transport systems have

fewer public

resources

(16) These customers are also referred to as (cid:145)rolling stock leasing

companies(cid:146) (ROSCOs).

in

railway

operators

resulted
becoming more
sophisticated and cost-conscious in their procurement
policies
and using their purchasing power more
effectively. In particular, purchasing pools and buying
consortia have become more common in recent years,
even among local train operators.

(34)

Customers are increasingly concerned with product
performance standards,
life-cycle costs and contract
management. The ability of manufacturers to offer,
alone or as leaders of a consortium,
the complete
product, and to assume responsibility for it, has become
the main selection criteria for rolling stock
one of
customers.

3. THE MANUFACTURERS

(35) Amongst the main European manufacturers of rolling
stock, only four companies currently produce the
mechanical part as well as electrical propulsion elements
suppliers
of
(systems
Alstom,
AnsaldoBreda, and Siemens.

so-called full-line
ADtranz,
are

rail vehicles. These

integrators)

(36)

(37)

In addition to these, several smaller companies focus on
supplying either mechanical or electrical elements of
railway vehicles. Mechanical elements are produced by
y
two Spanish manufacturers Construcciones
the
Auxiliar de Ferrocarrilles (hereinafter CAF) and Patentes
Talgo (Hereinafter Talgo),
Swiss
manufacturer Stadler Rail AG (hereinafter Stadler). These
suppliers are, however, capable of supplying complete
trains with diesel engines for propulsion (DMUs).

as well

the

as

Suppliers of electrical propulsion technology are the
German company Kiepe Elektrik GmbH & Co. KG,
(hereinafter Kiepe) (17) and the Austrian
D(cid:252)sseldorf
company ELIN EBG Traction GmbH, Vienna (hereinafter
ELIN). In the past, these companies were able to form
consortia with the other suppliers to offer complete
packages, whereas in recent years, the need for such
on-going
consortia has
rail
consolidation and integration process
technology
of
and
(branded)platform products. As a consequence, suppliers
component
of

electrical propulsion have become

in the
introduction

diminished,

industry

due

the

the

to

(17) Kiepe is an independent manufacturer of electrical propulsion
systems, especially for trams and trolleybuses. The company had
to be sold by Daimler Benz as a condition of clearance in case
ABB/Daimler-Benz of 1995 (IV/M.580),
in order to ensure that
another independent supplier of electrical components remained
present in the market.

L 69/56

EN

Official Journal of the European Communities

12.3.2002

(38)

(39)

(40)

(41)

suppliers for a platform product or product
rather than partners in consortia.

family

Bombardier has so far had an intermediate position
between the systems integrators and the non-integrated
manufacturers. Its main focus has been on supplying the
mechanical parts of rolling stock. However, Bombardier
does supply complete train sets with diesel propulsion
(DMUs), and has also managed to bid as a prime
contractor for trams, LRV’s and regional
trains with
electrical propulsion, mainly in Germany and Austria,
due to its close cooperation with Kiepe in the tram
sector and ELIN in the trams and regional trains sector.
In the context of
this cooperation, Kiepe and ELIN
provided the electrical propulsion.

solely attributed to the respective prime contractor,
usually the manufacturer of the mechanical parts of the
train. Whenever companies operate through their local
subsidiaries (18), bidding data and market shares are
attributed to the parent company.

contrary, options

(42) Only base contracts awarded between 1995 and 1999,
or shorter periods when appropriate, were taken into
account. To the
by
customers in that period were not considered, given that
they were based on contracts tendered out earlier and
do not reflect
In
particular, some of the underlying base contracts were
awarded before the beginning of privatisation of train
operating companies and the transposition into German
law of the public procurement directives.

the same competitive environment.

exercised

4. BIDDING MARKETS; DATA TAKEN INTO ACCOUNT

D. AFFECTED MARKETS

In determining the market strength of rolling stock
manufacturers, account must be taken of the fact that
most of the contracts for purchase of rail vehicles are
awarded as the result of a bidding process in public calls
for tender. Accordingly, market share figures only take
the winners of a given
into account
contract but do not
credible
competitors actually participated as bidders and thus
created competitive constraints.

show how many

the activity of

technology varies over
Furthermore, demand for rail
time. Consequently,
the Parties’
to assess
in order
market strength correctly, a fairly long period must be
the market
considered. Therefore, as a general rule,
shares analysed in this decision have been calculated on
the basis of the undertakings’ average market volume
shares over the five-year period 1995-1999.
In some
cases, when market trends have changed substantially
within this period, shorter periods have been taken into
account in order to ensure that market shares reflect
more accurately the post-merger competitive situation.

(43)

The notified concentration affects the following markets:

(cid:151) high-speed trains in Germany, the Netherlands and

the European Economic Area (EEA),

(cid:151) self-propelled

units

for

intercity

transport

in

Germany and the EEA,

(cid:151) passenger coaches in the EEA,

(cid:151) regional trains in Germany,

(cid:151) trams and light-rail vehicles

in Austria, France,

Sweden and Germany,

(cid:151) underground vehicles in Austria, and

(cid:151) heavy maintenance services in the United Kingdom

(UK).

to

It should also be noted that in many cases companies
submit bids as a part of consortia.
In the case of
consortia, this decision regards the prime contractor as
the contract; but market shares are
the winner of
the consortium
attributed to the other members of
according
consortium.
share
their
Furthermore, it should be noted that this presentation
cannot fully represent the competitive strength of the
different members of consortia. Indeed, some members
could be easily replaceable, while the participation of
others could have been crucial to obtain the contract.
Finally,
in which subsuppliers
(namely Kiepe and ELIN) participate, market shares are

regards projects

that

as

in

(44)

the

former

focused

given that

also provides

complementary,

on manufacturing

The businesses of Bombardier and ADtranz are to some
extent
is
predominantly
the
mechanical elements of railway vehicles, whereas the
latter
electrical propulsion elements.
Therefore, in many markets there is no real overlap in
the activities of the two parties, since they are part of a
consortium in which Bombardier
supplying the
mechanical part, whilst ADtranz is responsible for the
there exist some
electrical components. Nevertheless,
significant overlaps in the Parties’ activities, in particular

is

(18) In particular, Alstom has so far been present in Germany mainly
through its subsidiary LHB; Bombardier is the parent company of
the German-based DWA; see recital 19.

12.3.2002

EN

Official Journal of the European Communities

L 69/57

regional

in the markets for
trains and trams/LRVs,
their own branded products, as
where both offer
ADtranz also manufactures the mechanical parts of
rolling stock.

1. HIGH-SPEED TRAINS IN GERMANY, THE NETHERLANDS

AND THE EEA

(45)

In the market for high-speed trains, both Bombardier
and ADtranz are members of the ICE 3 consortium. The
consortium leader and prime contractor for the ICE 3 is
Siemens, which accounts for [(cid:133) %]* of the consortium.
The share of ADtranz in the consortium is [(cid:133) %]*,
Bombardier has [(cid:133) %]*. There have been two orders in
the EEA for high-speed trains over the five-year period
1995(cid:151)1999, placed by Deutsche Bahn AG and by the
Netherlands Railway (NS) respectively. Both operators
ordered the ICE 3. Since both ADtranz and Bombardier
are members of the same consortium supplying the ICE
3, there is no real overlap between the Parties’ activities
in either the Netherlands or Germany. If the relevant
market were the EEA, the same reasoning would apply.

it

(46) As for the competitive situation in the high-speed train
sector,
should be noted that consortia are very
common in the industry, given the enormous costs of
development. This is not only true for the German and
Dutch markets, examined in this case, but also for
several other geographical markets in Europe and in
the Italian ETR 500 is
third countries. For instance,
a
supplied by
and
by
and
ADtranz,
Talgo/Siemens/ADtranz with Talgo manufacturing the
coaches. The two European industry leaders, Alstom and
Siemens, have also joined forces to win a contract in
Taiwan.

consortium of AnsoldoBreda
350
the

Spanish

Talgo

TGV Eurostar high-speed trains. Similar agreements were
entered into by SNCB with its French and Dutch
counterparts
acquisition of TGV Thalys
high-speed trains in 1993.

the

for

(49) Deutsche Bahn and SNCF, the two main customers for
high-speed trains in Europe, publicly announced in
autumn 2000 that they consider tendering out jointly
the fourth generation of high-speed trains which can
operate in Germany, France and other countries. It is
very likely that a new consortium will be formed to
supply the fourth generation. Alstom and Siemens are
currently negotiating terms and conditions of such a
consortium to build this train. The Parties have stated
that they would seriously consider developing a fourth
generation high-speed train on their own.

Conclusion

(50)

The competitive situation in Germany, the Netherlands
the
and the EEA will not change as a result of
transaction, since Bombardier and ADtranz are already
part of the same consortium, the ICE 3. Bombardier has
supplied mechanical parts to Alstom for the TGV, but
the market investigation shows that it could be easily
replaced by other manufacturers. It is also likely that a
merged entity will develop its own high-speed train,
which could increase
the
demand side is also concentrated and has considerable
buyer power which balances the concentration of the
supply side. There is usually only one buyer in each
country, that is to say a monopsonist, whereas on a
European level,
form buyer consortia.
Therefore, the proposed transaction does not lead to the
creation or strengthening of a dominant position in the
the
high-speed
market
Netherlands, or the EEA.

competition. Moreover,

in Germany,

large buyers

trains

for

(47)

(48)

Bombardier supplies the centre coaches for the ICE 3,
and also manufactures,
in a consortium with Alstom,
mechanical parts for the competing TGV. Alstom has
stated in its reply to the Commission that, should
Bombardier not be willing to participate in such
it could easily replace
projects following the merger,
Bombardier as the supplier of centre coaches and other
mechanical parts by either CAF or AnsaldoBreda.

The demand side is also highly concentrated, both in
national markets like the Netherlands and Germany and
on a European level. Buyers are the national railway
operators, with the exception of the United Kingdom.
This means that in most countries there is only one
buyer. These railway operators have started to form
buyer consortia. For instance, the Belgian national train
operating company SNCB teamed up with its French
and British counterparts in 1989 in order to purchase

2. INTERCITY (MAINLINE) TRAINS IN GERMANY AND THE

EEA

(51)

trains,

the only
Concerning intercity or mainline
national market where the activities of
the Parties
overlap is Germany. Two contracts were awarded
between 1995 and 1999, both by Deutsche Bahn AG.
the two contracts tendered out by Deutsche
One of
Bahn AG was awarded to ADtranz,
the other to a
consortium led by Siemens, with Bombardier as the
supplier of mechanical components. Siemens has stated
in its reply to the Commission that, should Bombardier
not be willing to participate in such projects following
the merger,
it could easily replace Bombardier as the
supplier of the mechanical parts. In the German market,
therefore, the Parties did not compete against each other

L 69/58

EN

Official Journal of the European Communities

12.3.2002

because Bombardier did not submit a bid on its own.
the
the takeover of ADtranz by Bombardier,
After
number of suppliers, that is to say systems integrators
able to offer intercity trains, will not change.

(52) On a European level,

there were 11 tenders in the
relevant period 1995-1999, representing a total volume
of 1 482 cars and a total value of EUR 2,4 billion. Of
these 11 tenders, Alstom won five (representing more
than 50 % in terms of both value and volume), ADtranz
two, and Bombardier one. The remaining three tenders
were won by consortia of which Siemens was prime
contractor for two contracts, and Alstom for one (the
latter together with CAF). Given that Alstom was also
part of one of the consortia led by Siemens, it follows
that Alstom was the winner or part of the winning
consortium in seven out of 11 contracts. Therefore,
Alstom is the clear market leader.

that

which

enjoys

(53) As in the case for high-speed trains, the demand side is
in most
also highly concentrated. This means
countries there is only one buyer, the national railway
operator,
significant
therefore
countervailing power. The only exception is the United
Kingdom, where three tenders accounting for more than
half of European demand for intercity trains took place.
However,
inviting tenders are large
powerful train operators such as First Great Western
Group or Connex which are active internationally and
the latter are
are backed by financing companies;
themselves subsidiaries of
large multinational banks,
such as HSBC.

the companies

Conclusion

(54) As

the

regards

the German market,

competitive
situation will not change significantly as a result of the
merger. If the relevant geographic market were to be
the EEA, the merged entity would become a distant
is
second to the market
regarded by all customers as a credible integrated
supplier. Furthermore, there is considerable buyer power
by the national railway companies or the train operators
in the case of
the
proposed transaction does not lead to the creation or
strengthening of a dominant position of the Parties in
the market for intercity trains in Germany or the EEA.

the United Kingdom. Therefore,

leader Alstom. Siemens

to cover the whole EEA would this area represent an
affected market. Even then, ADtranz would add only
[0-10 %]* to Bombardier’s [30-40 %]* European-wide
market share. ADtranz has won only one contract in
Austria. Competitors in this market
include Siemens
[5-15 %]*, Alstom [10-20 %]*, AnsaldoBreda [0-10 %]*,
and CAF.

(56) As in the case for high-speed and intercity trains, the
demand side is highly concentrated. This means that in
most countries there is only one buyer, the national
in the relevant period
railway operator. All orders
1995-1999 were made by
railway
operators
Finland, Germany,
Greece, Italy and Spain which have considerable buyer
power. Therefore, the proposed transaction will not lead
to the creation or strengthening of a dominant position
of the Parties in the market for coaches in the EEA.

in Austria, Belgium,

the national

4. REGIONAL TRAINS IN GERMANY

(57)

of

for

and

regional

[20-30 %]*,

the marketing

the German market (19) ADtranz

trains in Germany,
share would amount

the
In the market
to
Parties’ combined market
[50-60 %]*
ADtranz:
(Bombardier:
[30-40 %]*). It should be noted that the largest part of
ADtranz’s market share was achieved by sales of
its
Regioshuttle
Stadler’s
Gelenktriebwagen (GTW), entrusted to ADtranz until the
end of the year 2000. Indeed, during the final three-year
period (1997-1999) out of the five years (1995-1999)
examined, that is to say, after the GTW was introduced
sold
in
Regioshuttle and GTW regional trains in Germany. The
second largest player in the German market would be
Siemens
by Alstom with
[10-20 %]*. There are only two fringe companies in this
and Austrian
market,
AG
manufacturer
(hereinafter
however,
non-integrated companies which,
together, accounted
for a market share of less than 3 % (1995-1999) and
regarded as
can,
in time, not be
independent competitors to the Parties (20).

Swiss manufacturer

Transportsysteme

[25-35 %]*,

this point

Jenbacher);

Jenbacher

followed

Stadler

latter

only

are,

the

at

3. PASSENGER COACHES IN THE EEA

(55)

for passenger coaches,

In the market
the Parties’
activities are to a large extent complementary. Since
either Bombardier or ADtranz, but not both, have won
a contract in all Member States, there is no overlap at
all. Only if the relevant geographic market were found

(58) On the one hand, given that the markets in question are
bidding markets,
the
notified concentration cannot be exclusively based on
an analysis of market shares (21).
the Parties’

the competitive assessment of

Indeed,

(19) See recitals 63 and 64.
(20) See recitals 62 to 66.
(21) See recitals 39 and 40.

12.3.2002

EN

Official Journal of the European Communities

L 69/59

main competitors in the German market, Siemens and
Alstom, remain credible and active bidders (22). On the
other hand, the notified concentration will undoubtedly
reduce the number of independent suppliers of regional
trains in the German market from four (Bombardier,
ADtranz, Siemens and Alstom, or their subsidiaries) to
three (Bombardier/ADtranz, Siemens and Alstom, or
their subsidiaries), with Bombardier/ADtranz obtaining
clear market leadership. Against this background, the
following aspects need to be taken into account:

(59)

(60)

in the

There were 42 tenders
five-year period
1995-1999, representing a total volume of 2 631 cars
and a total value of EUR 2,4 billion. Both Bombardier
and ADtranz submitted separate bids (23) for a total of
24 contracts examined by the Commission, representing
a value of EUR 963 million and a volume of 1 131 cars
the overall market), whereas in 12 cases
(43 % of
examined by the Commission, representing a value of
EUR 567 million and a volume of 607 cars (23 % of the
overall market), only one of the Parties participated as a
bidder. Four contracts, tendered out by Deutsche Bahn
AG and representing a value of EUR 841 million and a
volume of 873 cars (one-third of the overall market),
were
of
awarded
and their main competitor
Bombardier, ADtranz,
examined by the
two cases
In another
Siemens.
Commission, neither of the Parties submitted a bid. The
Parties therefore competed against each other for the
award of contracts representing 43 % of
the overall
market (1995-1999), that is to say, in those cases for
which both submitted separate bids.

consortium consisting

to

a

in

that market,

and Bombardier) which won,

Siemens is part of the BR 424-426 consortium (together
with ADtranz
in
particular, contracts for 139 train sets (870 cars) from
DB Regio AG. It is responsible for the electrical part of
these trains. Furthermore, Siemens has two branded
products
the
RegioSprinter. The RegioSprinter is a light weight DMU,
which has so far only been sold in small quantities in
Germany. According to the Parties, the RegioSprinter
was not accepted by Deutsche Bahn AG because of its
low buffer
the
Desiro is a newly-developed platform product which has
been well received in the marketplace.

load (crashworthiness). By contrast,

the Desiro

and

(62)

(63)

(64)

(65)

Jenbacher started developing a DMU in 1993 as a
successor to its BR 5047, which is called the Integral.
Jenbacher was awarded one contract for its supply in
1997 to the Bavarian Oberlandbahn. These 17 trains
were delivered in early 1999 and brought Jenbacher a
market share of less than 3 %. However, all 17 trains
had to be taken back to the depot due to severe quality
problems and will not be operational before early 2001.
Jenbacher is currently looking for a strategic partner.
Therefore,
Jenbacher cannot be considered a strong
competitor in this market.

Stadler’s market share outside Switzerland has been
rather small and initially did not exceed 2 % in the EU,
resulting from two contracts in Austria and Greece. The
company’s product, the Gelenktriebwagen (GTW), was
not launched in the German market until 1997 by a
consortium of ADtranz, DWA (24) and Stadler. The
GTW accounted for [10-20 %]* of the German market
over the three-year period 1997-1999.

Stadler
initially neither produced nor marketed the
GTW itself. It entered the German market by giving a
licence to DWA, which adapted the GTW to the
German market and built
the cars.
Stadler was initially only a subsupplier to DWA for the
manufacturing of the mechanical part. ADtranz is the
supplier of the electrical part and was also responsible
for the marketing of the GTW.

the majority of

In early 2000, Stadler acquired a majority stake in the
former ADtranz production site in Berlin Pankow (25)
where Stadler plans to manufacture itself the GTW for
the German market. ADtranz still holds a minority
share of one-third in what is now called Stadler Pankow
GmbH hereinafter Stadler Pankow) Joint Venture. Under
the Joint Venture contract, ADtranz is obliged to
guarantee a certain number of manufacturing hours to
than its capital
fill
participation. This obligation ends in [(cid:133)]*. In order to
transferred the
fulfil
manufacturing of
to Stadler
Pankow. The marketing and ownership of the RS 1,
however, remains with ADtranz.

the capacity which is higher

its obligations, ADtranz has

its Regioshuttle (RS 1)

(61) Alstom has developed two product

families, called
Coradia and X’Trapolis, which are modular platform
from DB
products. Alstom secured a large contract
in a consortium with ADtranz,
Regio AG (BR 423)
which is supplying the electrical part.
It also won a
significant number of contracts for the Coradia-Lint 27
and 41 recently.

(66)

The initial marketing agreement for the GTW between
ADtranz and Stadler lapsed on 31 December 2000.
Since 1 January 2001, Stadler has marketed the GTW
itself. However, ADtranz as a [(cid:133)]* partner
in the
Stadler-Pankow Joint Venture is still able to influence
decisions concerning the GTW. Therefore, Stadler can,

(22) Either directly or

through their subsidiaries, either as single

bidders or as part of consortia.

(23) Either directly or

through their subsidiaries, either as single

(24) DWA is now a subsidiary of Bombardier (see recital 19).
(25) Stadler and ADtranz currently have joint control over the Stadler

bidders or as part of competing consortia.

Pankow Joint Venture (see recital 103).

L 69/60

EN

Official Journal of the European Communities

12.3.2002

at present, not be considered a fully independent
competitor to the merged entity as long as its structural
link with ADtranz remains unchanged.

(67) Although Deutsche Bahn Regio AG is

regional

these smaller regional

the biggest
customer for regional
trains in Germany which has
countervailing buyer power, there are several privately
owned smaller operators of
trains. The
privatisation process is likely to continue. While some
of
train operating companies
belong to the French company Connex (Vivendi), a
group active across Europe, a majority does not.
Therefore, the demand side is much more fragmented
than in the market for high speed or intercity trains,
and does not enjoy the same degree of buyer power.
The risk of market dominance by the Parties cannot
therefore be ruled out.

Conclusion

(68)

For the above reasons, the notified concentration raises
serious doubts as to its compatibility with the common
market with regard to regional trains in Germany. It is
likely to create a dominant position for the Parties in
that market.

5. TRAMS AND LIGHT-RAIL VEHICLES

IN AUSTRIA,

FRANCE, SWEDEN AND GERMANY

(a) Austria

(69) Only a very small number of contracts were awarded in
Austria in the period 1995-1999. Of the six contracts
examined by the Commission, Bombardier won [less
than six]*, representing a value of EUR [(cid:133)]* million
(40-50 %]* of the overall market) and a volume of [(cid:133)]%
cars ([50-60 %]* of the overall market). Siemens won
one contract, representing a value of EUR [(cid:133)]* million
the overall market) and a volume of
([40-50 %]* of
[(cid:133)]* cars
the overall market). One
contract representing a value of EUR 16,2 million and a
volume of
six cars was awarded to a consortium
consisting of Bombardier, ADtranz, ELIN and Siemens.
ADtranz’s market share in Austria of
[0-10 %]* (in
value) is exclusively based on its participation in that
consortium. There is, therefore, no overlap between the
Parties with the exception of that resulting from their
participation in that consortium, in which they did not
compete against each other.

([35-45 %]* of

(70) Under these circumstances, the notified operation does
not lead to the creation or strengthening of a dominant
position for the Parties in the Austrian market for trams
and light-rail vehicles. Firstly, since the markets at issue
are bidding markets, and given that only a very small
the competitive
number of contracts were awarded,

shares

to not

assessment of
the notified concentration cannot be
exclusively based on an analysis of market shares (26), as
market
reveal how many credible
competitors actually participated in a public tender as
active bidders. Secondly, the number of active credible
bidders in the Austrian tram and LRV market will not
the notified concentration, as
change as a result of
ADtranz
a winning
in
participated
once
consortium and, in that case, did not compete against
Bombardier nor
the other major
suppliers. Finally, the position of Siemens as a strong
competitor in the Austrian market remains unchanged.

any of

against

only

(b) France

of

the

share

creation

duopolistic

dominance

((cid:133) [55-65 %]*).

(71) As regards trams and light rail vehicles in France, the
Parties have a combined market share of [30-40 %]*
(Bombardier: [20-30 %]*, ADtranz: [10-20 %]*), whereas
Alstom’s market
In its
is
investigation, the Commission has found no evidence
for
by
Bombardier/ADtranz and Alstom in the French market.
In fact,
leaders
in addition to the current market
(Alstom, Bombardier and ADtranz), three competitors
have been active as bidders in the French market,
namely Siemens, AnsaldoBreda and CAF. For a total of
seven contracts tendered out between 1995 and 1999,
Alstom submitted six bids, Bombardier five, Siemens
five, ADtranz four, AnsaldoBreda three, and CAF
one (27). Only in two out of seven tenders examined did
the Parties directly compete against each other as
bidders. Given the strong position of Alstom in the
French market and the presence of
several active
bidders, in particular Siemens, the takeover of ADtranz
creation or
by Bombardier will not
strengthening of a dominant position in the French
market for trams and light-rail vehicles.

lead to the

(c) Sweden

(72) As regards the Swedish market for trams and light-rail
vehicles, only one contract
(by SL Infrateknik AB,
Stockholm, 1997) was awarded in the five-year period
1995-1999 examined by the Commission; this contract
represented a total value of
just EUR 21,9 million
(twelve cars). Moreover, Bombardier and ADtranz had
submitted their bid for that contract as members of a
single
consortium:
and were,
Bombardier
therefore, not competing against each other. Their
activities
therefore
in the Swedish market did not
overlap. The Commission’s market
investigation has
revealed no evidence for the creation or strengthening
of a dominant position for the Parties in Sweden.

consortium (shares

[(cid:133) %]*, ADtranz

that
[(cid:133) %]*)

in

(26) See recitals 39 and 40.
(27) In 2000 only three tram/LRV contracts were tendered out

in

France, all of which were won by Alstom.

12.3.2002

EN

Official Journal of the European Communities

L 69/61

(d) Germany

(73)

in Europe,

In Germany, by far the largest market for trams and
the Parties’ combined
light-rail vehicles
market
(Bombardier:
[30-40 %]*, ADtranz: [20-30 %]*), followed by Siemens
([30-40 %]*) and Alstom ([0-10 %]*, each calculated on
a five-year basis covering the years 1995 through 1999.

share amounts

to [50-60 %]*

the competitive assessment of

(74) On the one hand, since the markets at issue are bidding
the notified
markets,
concentration cannot be
exclusively based on an
analysis of market shares (28). Indeed, the Parties’ main
competitors
and
Alstom, remain credible and active bidders (29).

in the German market, Siemens

(75)

Regarding the tram and light-rail vehicle purchases in
the Commission,
Germany
Siemens
examined by
participated as a bidder
in 18 out of 19 projects
tendered out from 1995 to 1999, was short-listed in
most cases and won ten contracts; its success rate has,
therefore, been above 50 %.

(76) As regards Alstom, this company submitted nine bids
over the same period of time, was short-listed three
times and won one contract. It should be noted that
Alstom has recently been focussing on the production
site of its German subsidiary LHB, Salzgitter,
for the
and trams/light-rail
manufacture of
vehicles for the German market. This could enhance the
company’s
in
Germany and should allow it to increase its current
market share.

future chances of winning contracts

regional

trains

(77)

to introduce a platform-based product.

Both Siemens and Alstom have a full product portfolio
which covers the whole range of applications and can
satisfy all customer requirements: Siemens was the first
It
supplier
currently markets the Combino low-floor
the
CitySprinter high-floor
tram and the dual voltage
GT8-100D/2S-M, whilst Alstom offers the Citadis 100,
200 and 300 low-floor trams, the B-Wagen high-floor
tram and the dual-voltage Citadis 500 tram train.

tram,

(78) On the other hand,

the notified concentration will
undoubtedly reduce the number of
leading active
suppliers of trams and light-rail vehicles in the German
market from four (Bombardier, ADtranz, Siemens, and

or

their

subsidiaries)

Alstom,
three
(Bombardier/ADtranz, Siemens, and Alstom, or their
subsidiaries), with Bombardier/ADtranz obtaining clear
market
the
following aspects need to be taken into account:

leadership. Against

background,

this

to

(79)

(80)

it must

even though high-floor

Firstly, although the Parties’ product portfolios are to
some degree complementary, the notified operation will
allow the new entity (Bombardier/ADtranz)
to better
for trams and light-rail
position itself
in the market
vehicles. On the one hand,
indeed be
trams,
acknowledged that
low-floor trams and tram trains were found to belong to
the same product market (30), the Parties’ activities in
this field are to a certain extent complementary: in fact,
ADtranz actively markets its platform-based Incentro, a
100 % low-floor tram, and its Vario-tram, a 100 % or
70 % modular
tram, whilst Bombardier
markets low-floor trams (such as Cityrunner, NGT6/8
and K 4000) as well as high-floor trams (K 5000) and
the
dual-voltage Tram Trains. On the other hand,
notified operation will allow the Parties to offer a
complete range of
tram and LRV products, covering
both the high-floor and the low-floor market segment,
and thus enabling them to gain competitive strength.

low-floor

cases

[(cid:133) %]* cars [40-50 %], whilst
examined

Secondly, although it can be accepted that
the past
bidding activities of the Parties were to some degree
complementary, the notified concentration will enhance
the new entity’s possibilities of participating in public
tenders. Indeed, it should be noted that the Parties only
competed against each other in approximately half of
the projects tendered out in Germany between 1995
and 1999. Both Bombardier and ADtranz submitted
separate bids (31)
[0 < 10]* contracts
for a total of
examined by the Commission, representing a value of
EUR [(cid:133) %]* million ([50-60 %]* of the overall market)
and a volume of
in
[0 < 10]*
Commission,
representing a value of EUR [(cid:133) %]* million [30-40 %]*
and a volume of [(cid:133) %]* cars [30-40 %]*, only one of
the Parties participated as a bidder. In another two cases
examined by the Commission, representing a value of
EUR [(cid:133) %]* million [10-20 %]* and a volume of
[(cid:133) %]* cars [10-20 %]*, Bombardier and ADtranz were
part of the same consortium and thus did not compete
takeover of
against
in a strengthening of
ADtranz will necessarily result
Bombardier’s competitive position in that market.
In
the new entity’s product
fact,
portfolio, covering the whole range of products in the
tram and LRV sector, will allow it to submit bids in any
public tender to be published in Germany (32).

each other. Nevertheless,

the enlargement of

the

the

by

(30) See recital 13.
(31) Either directly or

through their

subsidiaries, either as single

(28) See recitals 39 and 40.
(29) Either directly or

through their subsidiaries, either as single

bidders or as part of competing consortia.

(32) As for the enlargement of the new entity’s product portfolio, see

bidders or as part of consortia.

also the preceding paragraph.

L 69/62

EN

Official Journal of the European Communities

12.3.2002

(81)

investigation has

Thirdly, although the Parties’
relatively high market
shares can be counterbalanced to some extent by the
increased influence of customers in the tram market, the
Commission’s market
shown that
buyer power is not sufficient to outweigh the effects of
the notified concentration. On the one hand, customers’
bargaining power has increased in so far as purchasing
pools and buying consortia have become more common
in recent years. For instance, two German municipal
train operators, Leipziger Verkehrsbetriebe GmbH and
Rostocker Stra(cid:223)enbahn AG, recently issued a joint call
for tenders in the tram market (33), as did Mannheimer
Versorgungs-
AG
(MVV-Verkehr AG),
in cooperation with Heidelberger
Stra(cid:223)en- und Bergbahn AG, Oberrheinische Eisenbahn
AG, Rhein-Haardtbahn GmbH and Verkehrsbetriebe
Ludwigshafen GmbH (34). The market investigation has
shown that more such consortia and cooperation can be
expected in the future. On the other hand, it is true that
train
a vast majority of customers are mainly local
operating companies or municipalities. Therefore, unlike
in the market
the
demand side in the tram and LRV sector remains much
more fragmented and does not enjoy a sufficient degree
of countervailing buyer power to rule out the danger of
market dominance by the Parties.

for high-speed or intercity trains,

Verkehrsgesellschaft

und

that

(82) Moreover, the overall results of the market investigation
suggest
the remaining barriers to entry in the
German tram and light-rail vehicle market cannot be
disregarded, due in particular to customers’ preferences
for suppliers with a national, if not local, presence, and
to
technical
certain
specifications (35).

requirements

quality

and

Conclusion

(84)

For the above reasons, the notified concentration raises
serious doubts as to its compatibility with the common
market with regard to trams and light-rail vehicles in
Germany. It is likely to create a dominant position for
the Parties in that market.

6. UNDERGROUND VEHICLES IN AUSTRIA

(85) As

the

awarded

these contracts

(cid:145)U-Bahn Typ T(cid:146), 1997),

regards underground vehicles,

the Commission’s
market investigation has shown that only two contracts
were awarded in Austria in the period 1995-1999. For
(Vienna underground,
only one of
(cid:145)U-Bahn Typ V-Wagen(cid:146), 1998) did Bombardier and
ADtranz actually participate in competing bids (on the
one hand, Bombardier with Kiepe as a subsupplier; on
the other hand, Siemens with ADtranz and ELIN as
to the
contract was
subsuppliers);
consortium led by Siemens. As for the other contract
(Vienna underground,
it was
awarded to a consortium consisting of Bombardier,
ADtranz and Siemens, with both Kiepe and ELIN as
for
the
subsuppliers.
[50-60 %]* of the Austrian market (ADtranz [30-40 %]*,
Bombardier [10-20 %]*), with the remaining [40-50 %]*
being
the
circumstances referred to above, and since the markets
at issue are bidding markets, the competitive assessment
of the effects of the notified concentration in Austria
cannot be based on a mere
analysis of market
shares (36). Actually,
the Parties’ competitive overlap
with regard to underground vehicles in Austria is not
significant.

Siemens. However,

accounted

In total,

Parties

under

held

by

(83)

by

for

the

has

supplying

up with

jeopardise

concentration will

Bombardier. Given

in the German market
teamed

the
Furthermore,
existence of electric propulsion supplier Kiepe, which is
trams.
mainly active
Although Kiepe
different
mechanical suppliers in the past, an important part of
its turnover in the railway business has so far been
generated
that
Bombardier will itself become an integrated producer of
rail vehicles after the takeover of ADtranz,
it will no
longer have to rely on electrical propulsion equipment
from smaller sub-suppliers, such as Kiepe or ELIN, who
have so far been important partners for Bombardier.
Consequently,
investigation
the Commission’s market
has revealed concerns that these suppliers might lose
their businesses or be reduced to the role of niche
players. In that case, they would no longer be able to
partners
serve
non-integrated mechanical
as
such as Stadler, nor could they act as
suppliers,
non-integrated market
for
gatekeepers
entrants, such as CAF or Talgo.

potential,

for

(33) The contract was awarded in 1999.
(34) The contract was awarded in 1999.
(35) See recital 17 and following.

(86) Moreover, the Vienna underground is the only urban
metro system in place in Austria, and it is not expected
that new tenders will be published within the next few
years, either for the existing Vienna underground or for
any new system in any other Austrian city. In its market
investigation, therefore, the Commission has found no
evidence of the creation or strengthening of a dominant
position for
in Austria with regard to
underground vehicles.

the Parties

7. HEAVY MAINTENANCE SERVICES

IN THE UNITED

KINGDOM

(87)

combined market

In the heavy maintenance sector in the United Kingdom,
the Parties’
amounted to
[30-40 %]* in 1999 (ADtranz: [20-30 %]*, Bombardier:
[10-20 %]*),
followed by Railcare ([10-20 %]*) and
Alstom ([10-20 %]*). Local train operating companies

share

(36) See recitals 39 and 40.

12.3.2002

EN

Official Journal of the European Communities

L 69/63

accounted for [20-30 %]* of
the heavy maintenance
market in the United Kingdom. Based on these figures,
Bombardier and ADtranz would have achieved a leading
position in the United Kingdom heavy maintenance
market
to
after
competitive concerns:

concentration,

giving

rise

the

(88)

(89)

The notifying Party submits, however, that the major
part of the turnover generated by Bombardier in the
United Kingdom heavy maintenance segment was only
achieved as a result of the execution of two contracts
which were terminated before the end of 2000; at this
point of time, according to the notifying Party, there is
no order backlog, nor has Bombardier concluded any
new contracts which are due to enter into force in the
heavy maintenance
does Bombardier
sector, nor
currently have significant spare capacities which would
allow it to offer heavy maintenance services in the near
future.

Conclusion

rise

sector. Given

to competition concerns

In the light of the above, the concentration does not
in the United
give
Kingdom heavy maintenance
that
Bombardier’s activity in the United Kingdom heavy
maintenance market will
significantly decrease from
2001, there will be no major overlap in the Parties’
time. The
heavy maintenance activities
Commission has found no evidence for the creation or
strengthening of a dominant position for the Parties in
the United Kingdom.

from that

E. NON-AFFECTED MARKET: AIRPORT PEOPLE MOVERS (APMS)

(90) ADtranz is the world leader in the market for APMs
with a global market share of 70 %. Main competitors
are Poma-Otis, a joint venture between Pomagalski of
France
and the American company Otis, Matra
(Siemens) and Mitsubishi. ADtranz won the only new
contract in the EEA in the period 1995-1999 awarded
by the airport of Rome. Bombardier does not have its
there is no overlap
own APM product. Therefore,
between ADtranz and Bombardier. As for Bombardier,
after evaluating several options for entering the APM
market, the company formed an alliance with Mitsubishi
Heavy Industries (hereinafter MHI) in 1999. Bombardier
markets and provides the overall system integration, and
MHI provides
the vehicle itself and the signalling
system. To date, the MHI/Bombardier relationship has
not resulted in any joint APM bids in Europe, although
MHI/bombardier were in the process of preparing a bid
for the Madrid Airport and intended to participate in
the bid process
the Charles de Gaulle Airport
project. However, Bombardier and MHI have agreed to
terminate
the proposed
relationship should
transaction with ADtranz be consummated.

their

for

(91)

the

Project. Therefore,

Bombardier has already withdrawn from the Madrid
transaction could
Airport
strengthen the dominant position of ADtranz in the
European APM market by putting at risk the entrance of
a new supplier of APMs into the European market.
it was able to
itself has stated that
However, MHI
finalise the bid for the Madrid airport with Sumitomo.
Therefore, the proposed transaction does not lead to the
elimination of
and does not
strengthen ADtranz’s dominant position in this market
in Europe.

a potential

entrant

V. UNDERTAKINGS

(92)

In order to address the aforementioned competition
concerns that arise in the German markets for regional
trains and trams,
submitted the
undertakings described in recitals 93 to 100. The full
text of those undertakings is set out in the Annex which
forms an integral part of this Decision.

the Parties have

1. UNDERTAKINGS AIMED AT STRENGTHENING THE

INDEPENDENCE OF STADLER (37)

(93) ADtranz is currently operating a joint venture, Stadler
Pankow, Berlin, with Stadler (38). This Joint Venture is
being used by both parent companies as a common
production site for the assembly of regional trains, such
as
Stadler’s
Gelenktriebwagen (GTW).

Regioshuttle

ADtranz’s

(RS)

and

(94) ADtranz holds [(cid:133)]* of the shares in the Joint Venture,
whilst Stadler holds the remaining [(cid:133)]* of the shares.
Since ADtranz has the right to appoint [(cid:133)]* of the five
members of the Joint Venture’s supervisory board and a
right of veto regarding the Joint Venture’s budget,
Stadler Pankow is jointly controlled by both parent
companies.

(95)

The Parties offer to withdraw from this Joint Venture
and to divest ADtranz’s stake in Stadler Pankow to
Stadler.

(96)

The Parties also offer to take certain interim measures to
ensure that Stadler Pankow can continue its business
activities. These include,
in particular, a capacity load
guarantee (up to a certain total of working hours per
year) for Stadler Pankow until the end of [(cid:133)]*, thereby
largely exceeding ADtranz’s current obligations under

(37) See paragraphs 1(e) to (g) of the undertakings, as set out in the

Annex.

(38) Stadler and ADtranz currently have joint control over the Stadler

Pankow Joint Venture (see recital 103).

L 69/64

EN

Official Journal of the European Communities

12.3.2002

the Joint Venture agreement, and the commitment to
supply Stadler, for a transitional period of [(cid:133)]* years,
with certain components on current commercial terms,
subject to adjustment for inflation.

Furthermore, Bombardier offers to order
installation
work from Kiepe valued at DEM [(cid:133)]* per year over a
period of
[(cid:133)]* years. A cooperation agreement has
already been concluded.

2. UNDERTAKINGS AIMED AT PRESERVING EFFECTIVE
COMPETITION IN THE GERMAN MARKETS
FOR
REGIONAL TRAINS AND TRAMS AND LIGHT-RAIL
VEHICLES (39)

VI. ASSESSMENT OF THE UNDERTAKINGS

(97)

(98)

(99)

lines, namely the Regioshuttle regional

Furthermore, the Parties offer to grant exclusive licenses
for production and marketing, in the EU, of two of their
train
product
and the Variotram tram, to Stadler. The Regioshuttle
represents roughly [5-20 %]* of the German market for
in the period 1995-1999, whereas
regional
Variotram represents approximately [5-20 %]* of
the
German market for trams/light-rail vehicles in that same
period. Both products have been sold to various
customers.

trains

3. UNDERTAKINGS AIMED AT STRENGTHENING THE

INDEPENDENCE OF ELIN (40)

in the undertakings ELIN (41). ELIN is

Bombardier undertakes to divest its minority stake of
a
[(cid:133) %]*
manufacturer of propulsion technology for rail vehicles
(both regional trains and trams) and has so far been one
for
of Bombardier’s electrical propulsion providers,
example for its Talent regional train and for trams of
the Cityrunner Linz type.

Furthermore, Bombardier undertakes (cid:151) in addition to
its existing cooperation with ELIN in the development
of regional trains of the Talent type (cid:151) to extend its
cooperation with ELIN to light-rail vehicles of
the
Cityrunner Linz type for a period of five years. A Joint
Development Agreement has already been concluded.

4. UNDERTAKINGS AIMED AT STRENGTHENING THE

INDEPENDENCE OF KIEPE (42)

(100)

In addition, Bombardier undertakes to exclusively use
the undertaking Kiepe for the
traction equipment of
worldwide sale of its high-floor trams of the K 5000
type and the EU-wide sale of
the
Saarbr(cid:252)cken Vehicle type, over a period of [(cid:133)]* years.
The proposed exclusive cooperation with Kiepe is
binding upon Bombardier only (unilateral exclusivity).

tram trains of

(39) See paragraphs 1(h) and (i) of the undertakings, as set out in the

Annex.

(40) See paragraphs 1(a) and (b) of the undertaking, as set out in the

Annex.

(41) Bombardier and ELIN’s majority shareholder, VA TECH ELIN EBG
GmbH, currently have joint control over ELIN (see recital 105).
(42) See paragraphs 1(c) and (d) of the undertakings, as set out in the

(101) As

results of

the market

confirmed by the

considered sufficient

test
conducted by the Commission, these undertakings can
the
be
competition concerns
for
trains and for trams and LRVs, as outlined
regional
above (43).

remedy
in the German markets

to properly

(102) The

for

will

trains

ensure

regional

proposed

undertakings

in the markets

the
independence of three of the remaining non-integrated
players
and
trams/LRVs and increase their competitivity. These
companies are, on the one hand, ELIN and Kiepe, both
of whom are electrical propulsion providers; and, on the
other hand, Stadler who is a mechanical manufacturer
of regional trains and trams/light-rail vehicles. Stadler
will be established as an important manufacturer of
regional trains and trams for the German market, whilst
Kiepe and ELIN will continue to play an important role
to non-integrated
as electrical propulsion suppliers
in particular Stadler. The
mechanical manufacturers,
undertakings submitted by the Parties will,
therefore,
provide compensation for the disappearance of ADtranz
as a manufacturer of regional trains and trams/light-rail
vehicles.

1. THE SITUATION OF STADLER, ELIN AND KIEPE

(a) Stadler

(103) As regards Stadler Pankow, the [(cid:133) %]* minority stake
of ADtranz in that Joint Venture grants it joint control,
together with the majority shareholder, Stadler, given
that, for instance, the Joint Venture’s budget needs to be
approved
shareholders.
Furthermore, ADtranz has the right to appoint [(cid:133)]* of
the five members of
the Joint Venture’s supervisory
board; thus, the Parties would have access to all relevant
business information concerning the Joint Venture if the
concentration was cleared unconditionally.

unanimously

both

by

(104) Severing Stadler’s structural link with ADtranz in Stadler
Pankow will turn this company into an independent
manufacturer of regional trains. Moreover, acquiring the
Regioshuttle and Variotram licenses, as offered by the
Parties, will allow Stadler to establish itself as a credible
competitor in the German markets for both regional
trains and trams, marketing on a stand-alone basis two

Annex.

(43) See recitals 68 and 84.

12.3.2002

EN

Official Journal of the European Communities

L 69/65

products which are already well introduced and sold in
certain guarantees will be
Germany. Nevertheless,
necessary for a transitional period. These are provided
by the Parties’ commitments to offer a capacity load
guarantee for the Stadler Pankow facility and to supply
certain components to Stadler on current commercial
terms (44).

project (K5000) and a light-rail vehicle of the tram-train
type (Saarbr(cid:252)cken Vehicle), thereby providing sufficient
diversity for Kiepe to allow it to continue to be active in
both market
Bombardier’s
segments. Moreover,
commitment to order DEM [(cid:133)]* worth of installation
for a [(cid:133)]*-year period
work from Kiepe per year
provides additional economic security for that company
until it can find new partners.

(b) ELIN

(d) Possible cooperation between Stadler, ELIN and

Kiepe; (cid:145)gatekeeping(cid:146)

(105) As

the

regards ELIN,

[(cid:133) %]* minority

stake of
Bombardier’s subsidiary DWA in that company grants it
joint control, together with the majority shareholder,
VA TECH ELIN EBG GmbH, Vienna, given that DWA
has the right to veto certain strategic business decisions.
In addition, Bombardier has an option to acquire the
remaining [(cid:133) %]* of ELIN as soon as the major part of
ELIN’s
is generated through projects with
Bombardier. Furthermore, [(cid:133)]* of the four members of
ELIN’s supervisory board is appointed by DWA; thus,
the Parties would have access to all relevant business
information about ELIN if the concentration was cleared
unconditionally.

turnover

(106) Severing ELIN’s structural

trains

regional

technology

link with Bombardier will
turn this company into an independent supplier of
and
for
propulsion
trams/light-rail vehicles. Nevertheless, certain guarantees
will be necessary for a transitional period in order to
allow ELIN to find new partners, replacing Bombardier,
which will become vertically integrated after
the
acquisition of ADtranz and, thus, will no longer have to
rely on ELIN as a supplier of electrical propulsion
equipment.
Joint Development Agreements
concluded between Bombardier and ELIN provide for
cooperation between these two companies for a period
of [(cid:133)]* years, concerning both projects in the regional
trains and in the tram sector (Talent and Cityrunner
Linz), thereby allowing ELIN to continue to be active in
both market segments.

Two

(c) Kiepe

(107) As regards Kiepe, the guarantees offered by Bombardier
will provide sufficient time for that company to find
new cooperation partners, replacing Bombardier, which
will become vertically integrated after the acquisition of
ADtranz and, thus, will no longer have to rely on Kiepe
as a supplier of electrical propulsion equipment. The
cooperation agreement concluded with Bombardier for
this transition period covers both a high-floor tram

(44) For details, see recital 96, as well as the fourth subparagraph of
1(e) and paragraph 1(g) of the undertakings, as set out in the
Annex.

(108) Given that the undertakings submitted will preserve the
independence of
two propulsion suppliers (ELIN and
Kiepe) as well as that of Stadler who provides only the
mechanical parts of trains, cooperation between these
three companies seems possible in the medium-term.
All three companies have already shown interest in such
cooperation, especially Stadler. Such cooperation would
allow these three companies to compete as independent
suppliers in the German markets for regional trains and
trams/light-rail vehicles, against the Parties as well as
against Siemens and Alstom.

(109) Moreover, ELIN and Kiepe could serve as gatekeepers in
the German market for other companies, such as the
two Spanish firms CAF and Talgo, in a way similar to
that in which Bombardier entered the German market
In fact, cooperation with
in cooperation with Kiepe.
suppliers of electrical propulsion,
in particular with
Kiepe as regards the sale of trams in Germany, was one
crucial factor that allowed Bombardier to rapidly gain
considerable market shares in that Member State over
the last six years.

2. EFFECTS ON MARKET STRUCTURE

Regional trains in Germany

firstly,

Indeed,

the Parties will divest

(110) The undertakings described above will establish Stadler
as a significant and viable competitor in the German
market.
the
Regioshuttle, a product line representing approximately
the market and currently owned and
[5-20 %]* of
marketed by ADtranz; Stadler
the prospective
is
purchaser of
the Regioshuttle license. Secondly, after
withdrawing from the Stadler Pankow Joint Venture,
ADtranz will
Stadler’s
the company has
Gelenktriebwagen (GTW) business;

influence

lose

any

on

L 69/66

EN

Official Journal of the European Communities

12.3.2002

already ceased to market Stadler’s GTW regional train as
of 1 January 2001 (45). ADtranz’s market share will
Stadler’s GTW was
decrease
since
introduced in Germany in 1997,
it accounted for
[10-20 %]* of the German market for regional trains
(1997-1999) (46).

accordingly;

[40-50 %]*

(111) Stadler’s future market share will roughly correspond to
the current share achieved by ADtranz ([20-40 %]* in
the period 1995-1999,
in the period
1997-1999); this assumption is conformed by the fact
that, in recent years, ADtranz has only sold Regioshuttle
and GTW regional
the three
product lines that ADtranz marketed in this segment,
two will now be transferred to Stadler. ADtranz’s only
remaining product
the Itino, has not secured a
single order to date. Since it is competitively close to
Bombardier’s Talent regional train, it is not unlikely that
the Parties will stop manufacturing and marketing one
of these products after the concentration.

trains in Germany. Of

line,

(112)

the above,

In view of
the
overlap in the Parties’ activities regarding regional trains
in Germany will be eliminated under the new market
situation.

it can be concluded that

Trams and light-rail vehicles in Germany

(113) Similarly, ADtranz’s share in the market for trams and
light-rail vehicles in Germany will decrease significantly
from [50-60 %]* to [40-50 %]* (based on the five-year
period 1995-1999). This decrease will be due to the
divestiture by the Parties of the Variotram, a product
line representing roughly [5-15 %]* of
the German
market and currently owned and marketed by ADtranz.
The [5-15 %]* market share can now be attributed to
Stadler,
the Variotram
license.

the prospective purchaser of

(114) Licensing the Variotram to Stadler will

thus remove
about half of the Parties’ overlap in the German market
for trams and light-rail vehicles due to the operation. It
will, however, ensure that Stadler becomes a viable
competitor in this market with the potential to replace
the competitive position of ADtranz previous to the
operation. Indeed, Variotram is one out of two ADtranz
tram products sold by ADtranz in Germany in the

(45) See recitals 63 to 66.
(46) As long as ADtranz participates in the Stadler Pankow Joint
Venture, the GTW project can be regarded as a consortium, with
Stadler as prime contractor, with ADtranz providing propulsion,
and with Stadler Pankow being a common production site; the
corresponding market share would have to be split between
Stadler and ADtranz. After ADtranz will have withdrawn from the
Stadler Pankow Joint venture, as provided for by the undertakings
submitted, what whole of the GTW market share will have to be
attributed to Stadler alone.

relevant period 1995-1999. Compared to the NGT
tram, Variotram is more modern and technically
advanced. Stadler would be well suited to produce
Variotram as it requires the same production technique
as already used by Stadler Pankow for the Regioshuttle.
Furthermore, acquiring the Variotram license will allow
Stadler to diversify its product portfolio and to establish
itself
electrical
propulsion suppliers Kiepe and ELIN, who are both
already active in the tram and LRV sector, would be
suitable partners for Stadler.

in the German tram market. The

Conclusion

(115) The commitments submitted by the Parties enable the
establishment of a new independent supplier of regional
trains and trams/light-rail vehicles (Stadler) which will
take over to a large extent the current market position
of ADtranz. Furthermore, the undertakings will ensure
that two independent suppliers of electrical propulsion
(Kiepe and ELIN) remain active in both markets, which
will allow for future consortia with Stadler and other
non-integrated mechanical suppliers. The Commission
has, therefore, reached the conclusion that, on the basis
of
the
lead to a dominant
notified concentration will not
position for the Parties in the German markets for
regional trains and trams/light-rail vehicles.

submitted by the Parties,

the undertakings

VII. CONDITIONS AND OBLIGATIONS

(116) Pursuant

of

to

the

the

the

and

first

sentence

requirement

second
subparagraph of Article 8(2) of the Merger Regulation,
the Commission may attach to its decision conditions
and obligations intended to ensure that the undertakings
concerned comply with the commitments they have
entered into vis-(cid:224)-vis the Commission with a view to
rendering
concentration compatible with the
common market. A distinction must be made between
conditions
for
obligations. The
achievement of each measure that gives rise to the
structural change of the market is a condition, whereas
the implementing steps which are necessary to achieve
result are generally obligations on the Parties.
this
Where a condition is not
the Commission’s
decision declaring the concentration compatible with
stands; where the
the common market no longer
an
a breach of
concerned commit
undertakings
obligation,
the Commission may revoke its clearance
decision, acting pursuant to Article 8(5)(b) of the Merger
Regulation, and the Parties may also be subject to fines
and periodic penalty payments as provided in Articles
14(2)(a) and 15(2)(a) of the Merger Regulation.

fulfilled,

(117)

In view of the foregoing, the Commission’s decision in
conditional upon full
the present

case must be

12.3.2002

EN

Official Journal of the European Communities

L 69/67

these bring about

the structural change of

compliance with all undertakings involving divestitures,
both of minority participations in third companies and
of product lines, including the licensing of product lines,
as
the
market. The latter also applies to the cooperation and
supply requirements vis-(cid:224)-vis third parties to which the
Parties have committed themselves, as these are aimed
at ensuring the success of the divestitures. On the other
hand, those parts of the undertakings which refer to the
Trustee
shall be
to be appointed by the Parties
obligations upon them, as they aim at implementing the
structural change of the market.

VIII. CONCLUSION

(118) For the reasons set out above, and subject

to full
compliance with the undertakings given by the Parties,
it is to be assumed that the proposed concentration
does not create nor strengthen a dominant position as a
competition would be
result of which effective
significantly impeded in the common market or in a
substantial part of it. The concentration is therefore to
be declared compatible with the common market and
the functioning of
to
Article 2(2) and Article 8(2) of the Merger Regulation
and Article 57 of the EEA Agreement, subject to full
compliance with the undertakings set out in the Annex.

the EEA Agreement, pursuant

HAS ADOPTED THIS DECISION:

Article 1

Inc., acquires
The notified operation whereby Bombardier
within the meaning of Article 3(1)(b) of the Merger Regulation
sole control of the undertaking DaimlerChrysler Rail Systems

GmbH is hereby declared compatible with the common
market and with the functioning of the EEA Agreement.

Article 2

Article 1 is subject to full compliance with the conditions set
out in paragraphs 1(a), first subparagraph, 1(b), 1(c), 1(d), 1(e),
first and fourth subparagraphs, 1(f), 1(g), 1(h), and 1(i) of the
Annex.

Article 3

Article 1 is subject to full compliance with the obligations set
out in paragraphs 1(a), second subparagraph, 1(e), second and
third subparagraphs, and paragraphs 2 to 8 of the Annex.

Article 4

This decision is addressed to:

Bombardier Inc.
800 RenØ-LØvesque Blvd. West
MontrØal, QuØbec
Canada H3B 1Y8.

Done at Brussels, 3 April 2001.

For the Commission

Mario MONTI

Member of the Commission

L 69/68

EN

Official Journal of the European Communities

12.3.2002

ANNEX

Case No COMP/M.2139 (cid:151) Bombardier/ADtranz

Undertakings

The full English text of the undertakings referred to in Article 2 and 3 may be consulted on the following Commission
web-site: http://europa.eu.int/comm/competition/index_en.html