2003/260/EC: Commission decision of 21 February 2002 declaring a concentration to be compatible with the common market and the EEA Agreement (Case COMP/M.2495 — Haniel/Fels) (Text with EEA relevance.) (notified under document number C(2002) 554)
Date: 2002-02-21
Institutions: European Commission
Subjects: building materials, competition law, dominant position, economic concentration, merger control, restrictive-practice authorisation

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Official Journal of the European Union

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COMMISSION DECISION

of 21 February 2002

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

(Case COMP/M.2495 — Haniel/Fels)

(notified under document number C(2002) 554)

(Only the German text is authentic)

(Text with EEA relevance)

(2003/260/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(3)

(4)

(5)

Having regard to the Treaty establishing the European Com-
munity,

Having regard to the Agreement on the European Economic
Area, and in particular Article 57(2)(a) thereof,

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

Having regard to the Commission decision of 17 October
2001 to initiate proceedings in this case,

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

Having regard to the final report of the Hearing Officer in this
case (4),

Whereas:

(1)

(2)

On 4 September 2001, Haniel Baustoff-Industrie Zu-
schlagsstoffe GmbH (‘HBI’) notified the Commission
under Article 4 of Council Regulation (EEC) No 4064/
89 (‘the Merger Regulation’) of a planned concentration
whereby Haniel was, by share acquisition, to acquire
sole control of Fels-Werke GmbH (‘Fels’).

The Commission examined the notification and initially
found that the notified transaction fell within the scope
of the Merger Regulation and raised serious doubts as to
its compatibility with the common market and the EEA
Agreement.

On 17 October 2001 the Commission therefore decided
to initiate proceedings under Article 6(1)(c) of the Merger
Regulation. In so far as the proposed concentration
concerned Germany, the Commission adopted a decision
on the same day referring the case to the competent
authorities of Germany under Article 9(3) of the Merger
Regulation.

Following a detailed investigation of
the case, the
Commission has now come to the conclusion that the
proposed concentration does not create or strengthen
a dominant position as a result of which effective
competition would be significantly impeded in a sub-
stantial part of the common market.

I. THE PARTIES AND THE TRANSACTION

HBI is a direct subsidiary of Franz Haniel & Cie GmbH
(‘Haniel’), a diversified German holding company. In the
construction materials industry Haniel is active in the
manufacture and sale of wall-building materials such as
sand-lime bricks, aerated concrete and ready-mixed
concrete. Haniel’s main centre of activities is Germany,
but it is also active in the Netherlands through its
indirect stake in the Dutch cooperative undertaking
Coöperatieve Verkoop- en Produktievereniging van
Kalkzandsteenproducenten (‘CVK’). Haniel has a stake in
around 30 sand-lime brick factories in Germany, eight
in the Netherlands, one in Belgium and two in Poland. It
also operates a sand-lime facing brick factory in Den-
mark and has a stake in three ready-mixed concrete
plants in France.

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

p. 13.

( 2) OJ L 180, 9.7.1997, p. 1.
( 3) OJ C 97, 24.4.2003.
( 4) OJ C 97, 24.4.2003.

(6)

On 16 October 2001 Haniel notified as a concentration
its acquisition of Ytong Holding AG (‘Ytong’), a subsidi-
ary of Rheinisch-Westfälische Kalkwerke AG, which in
turn is controlled by the British firm RMC plc. (Case
COMP/M.2568 — Haniel/Ytong). The notification is still
pending. On 30 November 2001 the Commission

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Official Journal of the European Union

L 103/37

(7)

(8)

(9)

referred that part of the case relating to Germany to the
competent German authorities under Article 9 of the
Merger Regulation and initiated proceedings under
Article 6(1)(c) of the Merger Regulation with regard to
remaining aspects of the concentration.

(11) Also on 17 October 2001, the Commission decided
under Article 6(1)(c) of the Merger Regulation to initiate
proceedings in respect of that part of the case not
referred to the German authorities.

Fels, a subsidiary of the German firm Preussag AG
(‘Preussag’), manufactures and sells — either itself or
through its subsidiary Hebel AG (‘Hebel’) — building
materials such as aerated concrete, lime products, plaster
fibre plates and dry mortar. The firm is also active in the
manufacture and sale of prefabricated houses made of
aerated concrete and in the planning and construction
of aerated concrete production plants.

Haniel intends to acquire all Preussag’s business shares
in Fels.

II. THE CONCENTRATION

Under the terms of the proposed transaction, Haniel will
acquire sole control of Fels. This would give rise to a
concentration within the meaning of Article 3(1)(b) of
the Merger Regulation.

V. COMPATIBILITY WITH THE COMMON MARKET

A. THE RELEVANT PRODUCT MARKETS

(12) The parties’ operations overlap in the production and
sale of wall-building materials. Haniel produces and sells
sand-lime bricks and sand-lime blocks in the Netherlands
via the cooperative CVK. Fels sells aerated concrete and
gypsum products. Besides sand-lime, aerated concrete
and gypsum products, concrete products and clay bricks
are also used in wall-building, as are, to a limited extent,
steel plates and wooden panels.

III. COMMUNITY DIMENSION

1. THE PRODUCTS

The undertakings concerned have an aggregate world-
wide
turnover of over EUR 5 billion (Haniel:
EUR 18,7 billion, Fels: EUR 0,8 billion) (5). Both Haniel
and Fels have a Community-wide turnover of over
EUR 250 million (Haniel: EUR 17,5 billion, Fels:
EUR 0,7 billion). Fels achieves more than two thirds of
its aggregate Community-wide turnover in Germany, but
this is not the case for Haniel. The notified concentration
therefore has a Community dimension.

IV. PROCEDURE

(10) On 28 September 2001,

the Commission received
a request from the competent German competition
authority, the Bundeskartellamt, to refer the planned
concentration to the German competition authorities in
so far as it concerned Germany. The request for referral
concerns the market in wall-building materials for rising
back-up masonry in Germany, but not the markets in
wall-building materials outside Germany. By decision of
17 October 2001 the Commission referred the part of
the case relating to Germany to the competent German
authorities.

( 5) Turnover calculated in accordance with Article 5(1) of the Merger
Regulation and with the Commission notice on calculation of
turnover (OJ C 66, 2.3.1998, p. 25). Turnover achieved before
1 January 1999 has been calculated in accordance with the
average ECU exchange rate and converted into euro at a rate of
1:1.

(13)

Sand-lime bricks are masonry units prepared from lime
and sand by adding water and then compressing and
hardening them under steam pressure. The bricks are
used exclusively for building walls. They are generally
rendered, filled in with thin plaster or hidden from view
by a facing wall. When sand-lime masonry is visible, it
generally consists of facing bricks, which are produced
only in small formats (6). These form a separate market,
which will not be discussed in detail here, as the parties
produce such facing bricks only in small quantities.
Besides sand-lime bricks, other, larger sand-lime walling
units are used (usually measuring up to 900 mm ×
625 mm × 300 mm in the Netherlands).

(14) Aerated concrete is a building material made from sand,
lime and cement, to which aluminium powder is added
during the manufacturing process. The powder reacts
with water to form a fine porous structure. Aerated
concrete products (blocks and other units) are used
mainly in the construction of buildings. They can be
used for both load-bearing walls — particularly in the
case of blocks and very dense units — and non-load-
bearing walls.

(6) Maximum size: 240 mm × 175 mm × 113 mm.

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(15) Gypsum is a light wall-building material used only for
non-load-bearing walls, as it has a very low load-bearing
capacity. It is used in the form of gypsum plasterboards
and planks.

(21) Wooden panels are employed in industrial and residen-
tial construction, mainly in the form of prefabricated
walling units used to close off the building on the
outside where there are no load-bearing walls. In the
Netherlands wood is used for load-bearing walls only in
exceptional cases.

(16) Concrete is another widely used wall-building material.
Concrete walls can be made by pouring mixed concrete
on site (in situ concrete) or by using precast concrete
walling units. A third form of concrete comes in small-
format concrete blocks. Concrete walls are built only as
load-bearing walls.

(17)

(18)

In situ concrete can be cast either by the traditional
method of using formworks specially made on site or
by ‘tunnel forming’ (‘tunnelgietbouw’ in Dutch) using
formworks, whereby walls and
prefabricated tunnel
ceilings are cast in a single process. Tunnel forming
entails high fixed costs and is therefore profitable for
construction firms only in projects where a large number
of identical, rectangular storeys are to be built. It is not
a suitable alternative for smaller construction projects or
those not
involving rectangular shapes or repeated
applications.

Precast concrete walling units are produced in factories
to precise specifications, then transported on site and
built into the building for which they are intended.
They generally constitute entire walls and are thus
considerably larger than the sand-lime bricks or blocks
predominantly used in masonry work, and require heavy
equipment. Precast concrete walling units are therefore
used primarily for larger projects, chiefly in non-residen-
tial construction (‘utiliteitsbouw’, abbreviated to ‘u-
bouw’
in Dutch) rather than residential construction
(‘woningbouw’, abbreviated to ‘w-bouw’).

(19) Brick, the classic masonry material,

is manufactured
from a mixture of clay and water by firing at tempera-
tures of over 1 000 °C. However, the size of individual
bricks is limited, as the firing process causes defor-
mations such as shrinkage and warpage.
Jointing is
therefore necessary when working with these products,
in order to offset these deformations. This makes the use
of bricks time consuming and labour intensive.

(20)

Steel plates are used mainly in non-residential construc-
tion, and to a lesser extent in residential construction.
For example, they are used to fill in wall space in load-
bearing concrete or steel structures. In such cases the
wall usually consists of two steel plates with insulating
material between them (metal sandwich plates).

2. DEFINITION OF THE RELEVANT PRODUCT MARKET

(22)

In determining the extent of a relevant market, the
Commission has to consider various product market
definitions. In so doing, it has to be borne in mind that
the use and exchangeability of various wall-building
materials depend to a not inconsiderable extent on
national building practices and traditions and are thus
in some respects very different in some EEA States. In its
investigation, the Commission has focused essentially
on conditions in the Netherlands since it is only in that
Member State that the concentration leads to additional
market shares which are significant from a competition
point of view.

(a) Market definition of the notifying party (wall-

building materials)

(23) Haniel claims there is a single market in wall-building
materials, given the existing conditions of competition,
in particular the lack of any price difference based on
use and the fact
that they are invariably sold via
the building materials trade. This market includes all
products which are used in the construction of walls:
clay bricks, concrete blocks, sand-lime bricks, aerated
concrete blocks, precast concrete walling units, other
sand-lime and aerated concrete units, masonry mortar,
in situ concrete, steel plates, gypsum plasterboards and
planks, and wooden panels. Haniel argues that, when a
building is designed, there is generally a choice of various
solutions for constructing the walls.

(24) Haniel states that the architect or project developer
generally defines the requirements to be met in relation
to the building’s load-bearing capacity, age resistance,
ease of maintenance, thermal insulation, fire protection
and noise insulation. In some cases the architect also
makes a selection of building materials in the building’s
specifications, but, according to Haniel, these specifi-
cations leave ample room for alternative solutions.
Building contractors have a free choice of building
materials, provided that the specifications are met. In
the project proposal they can opt for a specific building
material or put forward several possible solutions.

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(25) Haniel does concede, however, that the various wall-
building materials are not entirely interchangeable for
every purpose. In view of the considerable differences in
the demands made on building materials, depending on
whether they are used for load-bearing or non-load-
bearing walls, Haniel considers that there is a case for
dividing the market
in wall-building materials into
materials for load-bearing and for non-load-bearing
walls.

(b) Previous Commission practice (masonry/load-

bearing masonry)

(26)

In its decision on Preussag/Hebel (7), the Commission
looked at two alternative product market definitions,
but without adopting any firm position. On the one
hand it considered the possibility of a market for all
materials that can be used to build up walls by the ‘brick-
on-brick’ method (masonry), including clay bricks, sand-
lime bricks, aerated concrete blocks and pumice blocks.
Its investigations at
that time suggested that these
products were interchangeable at the building planning
stage. Within this market definition, the Commission
also considered that a further distinction could be made
between load-bearing and non-load-bearing walls (load-
bearing masonry). It took no account of precast concrete
walling units or in situ concrete.

(c) Practice

of

the German Bundeskartellamt

(masonry)

(27) The Bundeskartellamt has consistently defined the rel-
evant market in wall-building materials in a similar
manner to the Commission in its decision on Preussag/
Hebel. The Bundeskartellamt assumes the existence of a
market in building materials for rising back-up masonry
which takes in aerated concrete products, sand-lime
products, bricks, pumice blocks and concrete blocks.
The Bundeskartellamt does not distinguish between
load-bearing and non-load-bearing walls. As far as
the Bundeskartellamt is aware, the materials used in
Germany for both types of wall are essentially the same.

(d) Practice of the Dutch competition authority, NMa
(building materials for load-bearing walls)

(28) By contrast,

the Nederlandse Mededingingsautoriteit
(NMa — the Dutch competition authority) draws a
distinction between load-bearing and non-load-bearing
walls because, to its knowledge, different materials are

used for each type of wall in the Netherlands (8). Because
of this difference in uses, sand-lime bricks, which are
used for both types of wall, are in competition with
different materials in each case. The NMa has included
all wall-building materials used for load-bearing walls in
its definition of the market in wall-building materials
for load-bearing materials. This covers not only the
abovementioned wall-building materials for masonry
(the ‘brick-on-brick’ method), but also precast concrete
units and in situ concrete. However, it should also be
pointed out that, in a subsequent decision, the NMa
opened up the possibility of a distinction between in situ
concrete and other wall-building materials (9).

3. ASSESSMENT

(29) On the basis of the information available to it and, in
particular, the market investigation carried out by it in
the case, the Commission, like the NMa, concludes that
there is a relevant product market in the Netherlands for
building materials for load-bearing walls and a separate
one for building materials for non-load-bearing walls,
but that within these markets a further subdivision into
masonry building materials and other materials (concrete
products in particular) is not appropriate. The market in
wall-building materials for load-bearing walls includes
all building materials used for load-bearing walls, such as
clay bricks, sand-lime bricks, aerated concrete, concrete
blocks, precast concrete wall units and, possibly, in situ
concrete. The result of the market investigation suggests
that in situ concrete, in particular that cast by tunnel
forming, should be excluded; however, it is not necessary
to settle this matter conclusively since it does not affect
the assessment of
the
market for building materials for non-load-bearing walls
thus covers all building materials used for non-load-
bearing walls, such as sand-lime bricks, aerated concrete,
gypsum plasterboards and planks, steel sheets and wood.
This result was based on the following key factors.

the concentration. Likewise,

(30) All the building materials included by Haniel

in its
proposed market definition are suitable for the building
of walls and are actually used for this purpose. The
Commission’s market investigation in the Netherlands
has shown, however, that not all of these materials are
in competition with one another.

( 7) Case COMP/M.1866 — Preussag/Hebel, decision of 29 March

(9) NMa, decision of 29 February 2000 in Case 2427/NCD —

2000.

Fernhout.

(8) NMa, decision of 20 October 1998 in Case 124/CVK — Kalk-

zandsteen.

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(a) Properties of the various wall-building materials

(34)

(31)

Each of the abovementioned wall-building materials has
specific properties that are taken into account in the
selection of a specific wall-building material for a specific
building project.

(32)

Sand-lime bricks are a cheap building material which,
though they cannot achieve the size of aerated concrete
precast products, nevertheless, with dimensions of up to
900 mm × 625 mm × 300 mm, are larger than
traditional bricks. Furthermore, sand-lime bricks, like
aerated concrete, have a smooth surface that does not
have to be evened out by jointing. The units can be
cemented together. In addition, sand-lime products can
be cut to shape at the factory in accordance with the
building plans, so that units forming the gable or
window openings can be pre-prepared. All these factors
mean that less time and less expenditure on wage costs
are needed than in the case of, for example, ordinary
bricks. At the same time, sand-lime bricks do not require
any large-scale investment in heavy cranes, as in the case
of precast concrete wall units, or casting moulds, as in
the case of in situ concrete. In the Netherlands, because
of
their excellent load-bearing properties, sand-lime
bricks are used for load-bearing walls and, to a lesser
extent, also for non-load-bearing walls. In the Nether-
lands, some [60 to 80] to [< 80]* (*) % of sand-lime
bricks are used in load-bearing walls. When they are
used in non-load-bearing walls, sand-lime bricks have
the disadvantage of being relatively heavy (about twice
as heavy as aerated concrete). However, the material
does have good sound-insulating properties and is
suitable in particular for high, non-load-bearing walls,
such as those often required in non-residential construc-
tion. Sand-lime bricks are the traditional and most
popular wall-building material in the Netherlands.

(33)

Precast concrete sections do not require masonry work
as they are already the size of the wall to be produced.
Concrete as a product can be produced from relatively
simple raw materials. However,
large-scale resources
such as cranes must be used in erecting them, and this
in its turn involves some investment costs. In the case of
medium-sized projects involving 10 or more units, this
can lead to cost savings, since the wall is produced at
the factory and erection at the building site requires
relatively little labour and takes relatively little time. The
bigger the project, the lower the costs for the precast
wall.

(*) 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.

In situ concrete requires the largest amount of on-site
investment in its use, particularly in situ concrete used
in tunnel forming. The manufacture and use of the
frameworks required for repeated casting in the tunnel
forming method are so costly that
this method is
worthwhile only if there is a minimum of 30 to 50
residential units and only if the latter are identical in
form and size. There is therefore little flexibility as to
form and size in construction using in situ concrete in
the tunnel forming method. However, flexibility is an
important criterion in the Netherlands, even in the case
of fairly large projects, so as to avoid uniformity. In situ
concrete is used in the construction both of individual
houses and of high-rises, if their load-bearing capacity is
ensured by means of a cast concrete skeleton to which
non-load-bearing wall-building materials are attached.

(35) Aerated concrete is an expensive wall-building material.
It is produced from high-grade, expensive basic materials
with high energy costs. Large sections must be reinforced
with steel, which further increases the price, since
reinforced sections entail significant costs in the manu-
facture of the reinforcing elements. In contrast to steel
reinforcement in the case of ordinary concrete, the steel
used for reinforcement here has to be coated in order to
protect against corrosion. The constructional properties
of aerated concrete are somewhat more limited than
those of sand-lime bricks, but it is possible to use it to
build up to two stories with load-bearing walls. Aerated
concrete does, however, have excellent thermal
insu-
lation properties. In Germany, some 80 % of the aerated
concrete products used in wall-building is used for load-
bearing walls, while only 20 % is used in non-load-
bearing walls. In the Netherlands, however, the ratio is
the reverse: some 80 to 85 % of aerated concrete is used
in non-load-bearing walls.

(36) Gypsum is a light, thin material. Because of this property,
it is very well suited to non-load-bearing walls. The load-
bearing demands placed on floors are small, and space
is saved. Because of its lack of load-bearing capacity,
plaster is used only for non-load-bearing walls.

(37) Bricks are relatively small wall-building materials, and
because of their uneven surface they have to be jointed.
Their use thus entails relatively high labour costs and
is relatively time consuming, and this makes bricks
unsuitable for industrial construction.

(b) The distinction between wall-building materials
for load-bearing and non-load-bearing walls

(38) The market investigation showed that the decision as to
which building material to use for a specific project is
influenced both by the client and the architect and by
the building contractor. Exactly how much influence on
the choice of wall-building material is exercised by each
of these three groups of persons varies from case to case.

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(39) The client’s precise preferences regarding, for example,
aesthetics and buildings costs are factors here, as are the
architect’s specifications. Criteria which are of relevance
in the selection of the various wall-building materials
are quality, constructional properties, flexibility of use,
appearance, the purchase price of the material and the
costs involved in using it. The special requirements of
the building project must be taken into account in this
respect, as must the use to which the building is to be
put, the necessary load-bearing capacity, resistance to
ageing, fire protection, sound insulating properties, other
technical capabilities, timetable and the overall costs of
the project. The building contractor’s main criteria, in so
far as he has any options regarding the choice of wall-
building materials, are costs and building speed. These
in turn are influenced by his experience with specific
building materials and the resources and facilities (e.g.
cranes) available to him. As far as the cost factor is
concerned, it must be borne in mind that the cost of
materials is always just one part of the overall costs of
erecting a wall.

(40)

In its market investigation, therefore, the Commission
surveyed all these decision-makers to determine the basis
of their conduct in selecting wall-building materials.
Similarly, the manufacturers of the various building
materials were asked to provide information. In the
Netherlands, the survey showed that, in selecting build-
ing materials, a fundamental distinction was made
between the choice of building materials for load-
bearing walls and building materials for non-load-
bearing walls.

(41) The difference between load-bearing and non-load-
bearing walls, as the terms already suggest, is the load-
bearing function of the relevant wall-building material.
Load-bearing walls ensure the stability of a building. The
relevant walls are often external walls. However, internal
walls too may perform a load-bearing function. Such
walls must be distinguished from walls which do not
have any function in supporting the building, but merely
divide up the space or fill gaps inside a load-bearing
framework (external or internal walls). Building materials
used in load-bearing walls must meet certain require-
ments as to resistance to pressure, load-bearing capacity
and stiffness. Building materials used in non-load-
bearing walls, by contrast, must meet other, possibly
contrary requirements. Lighter, non-load-bearing walls,
for example, have the advantage of making fewer
demands on the load-bearing capacity of the ceilings.
Thin non-load-bearing walls for their part save space.

(42) These varying requirements in respect of load-bearing
and non-load-bearing walls result, in the Netherlands, in
different building materials being selected for these
different purposes. In the Netherlands, the main material
used in load-bearing walls is sand-lime bricks. Sand-lime
bricks are used in [50 to 60]* % of all load-bearing walls.
Concrete is the next largest building materials category.
In situ concrete is used in 12 % of all load-bearing walls.

At least two-fifths of this building material is used in
tunnel forming (10). A total of 8 % is accounted for by
load-bearing walls made from precast concrete wall
units. Aerated concrete and bricks, accounting for
proportions of 2 % and 5 % respectively, play a very
minor role.

(43)

In the case of non-load-bearing walls, by contrast,
gypsum products are the main materials used. They
account for 44 % of the materials used in non-load-
bearing walls. Next comes aerated concrete with 20 %,
followed by sand-lime bricks with [15 to 20]* %.

the reverse of

(44) This demand-side pattern is typical of the Netherlands
and differs fundamentally from that in other countries,
such as Germany. In Germany, the proportions in the
use of aerated concrete for load-bearing and non-load-
bearing walls are just
those in the
Netherlands. Whereas in Germany 80 % of all aerated
concrete products are used to construct load-bearing
walls, in the Netherlands 85 to 90 % of all aerated
concrete products are used in non-load-bearing walls. In
Germany, concrete plays a minor role in load-bearing
walls in residential construction, while bricks and other
masonry units feature prominently.
In Belgium, by
contrast, concrete blocks appear to be much more
widespread than in the Netherlands and are the most
common wall-building material. The use of in situ
concrete in tunnel forming is much less widespread in
Germany and Belgium than in the Netherlands.

(45) The reasons for these differences in demand-side behav-
iour stem, firstly, from differences in building traditions
and aesthetic approaches and, secondly,
from the
advanced industrialised building methods used in the
Netherlands.

(46)

In the Netherlands, building and construction activity is
based on large-scale projects even in the residential
sector. Less than 20 % of all new residential building
relates to individual house building. In Germany, by
contrast, the figure is more than 90 %. In the Nether-
lands, large areas are released by the Government for
building purposes, and on such areas the building and
construction industry erects as much as several thousand
residential units (e.g. ‘VINEX locaties’). In building pro-
jects on this scale, building materials that require high
investment but involve lower wage costs, such as in
situ concrete using the tunnel-forming method, are
profitable. Consequently, bricks, which are labour-inten-
sive at the building site (small size and need for jointing)
and hence entail higher wage costs and are more time
consuming, are used to only a minor extent.

(10) According to the information provided by the parties, in situ
concrete accounts for 40 % of the materials used in tunnel
forming; the market investigation suggested that the proportion
might be even higher than that.

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(47)

Sand-lime bricks are the traditional building material in
the Netherlands, since they are very cheap to produce
and can be used with great flexibility, speed and on
favourable cost terms in the building process (large
units, cut to the required shape in the factory, no jointing
necessary).

(51)

In setting its prices for products used in load-bearing
walls, CVK, as the only sand-lime brick producer in the
Netherlands, is not restricted by prices charged on the
market in products intended for non-load-bearing walls.
The Commission’s market investigation shows that CVK
often knows the specific use of its products (11) and
might therefore be in a position to determine its prices
on the basis of whether its sand-lime products are being
used in load-bearing or non-load-bearing walls. If this is
not the case, it is to be assumed that CVK tailors its
pricing strategy primarily to the requirements of the
market in load-bearing walls, since it sells [> 80]* % of
its products on that market. The share of CVK’s total
sales accounted for by sand-lime products sold for non-
load-bearing walls, at 10 %, is too small for it to be
assumed that it has any significant influence on CVK’s
pricing of its products intended for load-bearing walls.

(52) The results of the market investigation raise the question
of whether and to what extent in situ concrete is also to
be included in the market in wall-building materials for
load-bearing walls. This applies in particular to in situ
concrete used in tunnel forming. As already explained
above, this technique involves high fixed investment
costs which become worthwhile only if at least some 30
to 50 residential units of identical form and size are to
be built. This means that this method does not represent
an alternative, not only in the case of small projects, but
also in the case of large projects in which, for aesthetic
and social reasons, a repetitive building style is to be
avoided. Furthermore, as already explained, the tunnel
forming method allows not only walls but also, as part
of the same process, ceilings to be produced. For these
reasons, a decision to opt for the tunnel-forming method
is not so much a price decision as a decision in favour
of a particular system. However, the question of the
inclusion of in situ concrete and, in particular, in situ
concrete used in tunnel forming, in the market in wall-
building materials for load-bearing walls can be left
open, as it does not affect the result of the assessment.

4. CONCLUSION CONCERNING THE RELEVANT PROD-

UCT MARKETS

(53) On the basis of the considerations set out in recitals 29
to 52 in particular, the Commission takes the view that,
for the purposes of assessing the notified concentration,
a distinction has to be made in the Netherlands between
a market in building materials for load-bearing walls and
a market in building materials for non-load-bearing
walls. As far as the market in building materials for load-
bearing walls is concerned, the question of whether in
situ concrete, in particular that used in tunnel forming,
is to be included in this market, may be left open.

(11) In particular for elements cut for a specific use or for specific
deliveries; see paragraph 32. Haniel has also indicated that,
generally, it must be assumed that, above a given wall strength,
the product is used for load-bearing walls.

(48) Aerated concrete, which is very widely used in Germany
in load-bearing walls because of its good heat-insulating
properties, is, despite this advantage, not so widely used
in the Netherlands because of its substantially higher
price compared to sand-lime. In Germany, 30 cm-thick
aerated concrete units are used for load-bearing walls.
These have then only to be plastered and painted to
produce a complete wall that meets high heat-insulation
requirements. There are no costs for facing masonry and
additional insulation. In the Netherlands, by contrast,
smooth, plastered external walls are not customary. The
preference there is for facades which give the impression
of brickwork. This is done by means of brickwork facing
in front of the load-bearing wall. This means that the
cost advantage of aerated concrete, which does not need
insulation and facing, is forfeited and hence that aerated
concrete is a much more expensive building material
than sand-lime. Consequently, aerated concrete is used
only occasionally in the Netherlands for load-bearing
walls in residential construction.

(49) However, since aerated concrete costs about the same as
gypsum walls, is relatively light, but affords better heat
insulation, aerated concrete products are used in the
Netherlands for non-load-bearing walls. Sand-lime is
also used here. This is because it has very good sound-
insulating properties which may, in some cases, offset its
disadvantages as a heavy building material. In addition,
because of its constructional properties, it is particularly
suitable for high, non-load-bearing walls, such as are
required primarily in non-residential construction.

(50) There is therefore only limited competition in the
Netherlands between, on the one hand, products used in
load-bearing walls and, on the other, those used in non-
load-bearing walls. This prompts the Commission to
draw a distinction in the Netherlands between a relevant
product market in load-bearing walls and one in non-
load-bearing walls. This is despite the fact that some
wall-building materials that are suitable for load-bearing
walls may also be used in non-load-bearing walls and
vice-versa. This is the case in particular with sand-lime,
which is the only wall-building material which is used
to any significant extent equally in load-bearing and
non-load-bearing walls. Firms which make products
suitable for both types of wall are, in the market in load-
bearing walls, in competition with a largely different set
of competitors and faced with different competitive
conditions than in the market in non-load-bearing walls.

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Official Journal of the European Union

L 103/43

(54)

In so far as there is an overlap between the activities of
Haniel and Fels in other Member States which, after
part-referral of the case to the Bundeskartellamt, are still
subject to examination by the Commission, the question
of the precise definition of the relevant product market
may be left open since there would not be any compe-
tition concerns whichever definition is taken into
account.

B. RELEVANT GEOGRAPHIC MARKETS

(55)

Leaving aside Germany, the activities of Haniel and Fels
overlap in the Netherlands, Belgium and, possibly,
France. As regards the part of the merger not referred to
the Bundeskartellamt, the merger results in additions of
market shares that are significant from a competition
law point of view only in the Netherlands.

(56) Haniel defines the relevant geographic market with
regard to the Netherlands as national. Although a few
firms involved in the building-materials trade tended to
operate on a regional basis, it argues, transport costs in
the Netherlands were not of such significance that
building materials could not be supplied throughout
the entire territory of the Netherlands. Wall-building
materials were transported by lorry, usually from the
production site direct to the building site.

(57) The investigations have confirmed that the Dutch market
is national. The market investigation has shown that the
prices charged for most wall-building materials are
calculated free at production site for delivery throughout
the Netherlands, even though transport costs represent
a not insignificant cost factor. CVK, as the only producer
and supplier of sand-lime, can moreover supply any
building site in the Netherlands direct from the nearest
sand-lime works.

(58) Although in the Dutch border areas there are evidently
imports of wall-building materials from Belgium and
Germany into the Netherlands, these are marginal and
do not justify the inclusion of parts of Belgium and
Germany in the relevant geographic markets. The market
investigation has revealed the existence of barriers to
market entry based,
in particular, on building and
industrial safety regulations. For example, bricks laid
manually may not weigh more than 18 kg in the
Netherlands which is not the case in other Mem-
ber States. On the other hand, building standards in
Germany dictate that comparable wall thicknesses must
be stronger and, given the extra materials that requires,
more expensive than in the Netherlands. All
the
important undertakings that operate on the Dutch
market in wall-building materials are also established
in the Netherlands. Belgian and German producers
operating in the Netherlands also do so via Dutch
subsidiaries.

(59) On the basis of the above considerations, the Com-
mission takes the view that the relevant geographic
market, as far as the Netherlands is concerned is, for the
purposes of this Decision, national.

C. COMPETITIVE ASSESSMENT

(60) The concentration involved in this case does not create
or strengthen, on any of the relevant product and
geographical markets within the meaning of Article 2(2)
of the Merger Regulation, a dominant position as a result
of which effective competition would be significantly
impeded in a substantial part of the common market.

(61)

Leaving Germany aside, given that its market is not being
examined by the Commission in these proceedings, the
activities of Haniel and Fels overlap in the Netherlands
and, to a limited extent, Belgium, and possibly also in
France.

1. THE NETHERLANDS

(a) Control of CVK by Haniel

(62) The assessment of the merger in the Netherlands in the
light of competition law depends on whether the market
shares of the CVK cooperative, in which Haniel has an
indirect shareholding of 50 %, are to be ascribed to
Haniel.

(63)

In the Netherlands there are altogether 11 sand-lime
brickworks, all of which are members of the CVK
cooperative. Of these brickworks, five are wholly owned
by Haniel,
three are wholly owned by the Dutch
building-materials group Cementbouw and the remain-
ing three are owned 50/50 by Haniel and Cementbouw.
The shares in the CVK cooperative are apportioned
among the 11 sand-lime brickworks that make it up in
such a way that the wholly owned subsidiaries of Haniel
and the wholly owned subsidiaries of Cementbouw
together have equal-sized shareholdings in CVK, with
the result that overall Haniel and Cementbouw each
indirectly have a 50 % stake in CVK.

(64) CVK, which was originally set up to carry out joint
marketing on behalf of its members, was made subject
by a pooling agreement in 1999 to management by
those members. In the pooling agreement and in the
is stipulated that CVK
statutes (statuten) of CVK it
members are to be bound by CVK’s instructions, that
the executive bodies may to only a limited extent
comprise representatives of the parent companies and
that the members must include a CVK representative in
their management. It was also agreed that the members
may appoint only one member of their shareholders to
their management.

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Official Journal of the European Union

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(65)

Strategic decisions concerning CVK are taken by its
managing board (Raad van Bestuur) by a simple majority.
Members of the Raad van Bestuur and of the supervisory
board (Raad van Commissarissen) are appointed and
removed by the members’ meeting. Pursuant to the
pooling agreement and the statutes, no member of the
Raad van Bestuur may perform any function in one of
the parent companies of the CVK members (Haniel
and Cementbouw), and no persons who perform any
function in Haniel or Cementbouw may form a majority
on the Raad van Commissarissen. The day-to-day manage-
ment of CVK and its members is in the hands of the
Raad van Bestuur; the Raad van Commissarissen exercises
the supervisory powers normally vested in such an
organ under Dutch company law without being able to
exert a direct influence over strategic corporate decisions.

casting vote, both Haniel and Cementbouw can
indirectly block the appointment and removal of mem-
bers of the Raad van Bestuur. Their joint agreement is
accordingly needed for every appointment or removal
of a member of the Raad van Bestuur.

(69) This means that Haniel and Cementbouw jointly control
CVK within the meaning of Article 3(3) of the Merger
Regulation.

(70) The Commission is therefore of the opinion that CVK’s
for the

market shares must be assigned to Haniel
purposes of this Decision.

(66) Haniel takes the view that, owing to CVK’s corporate
structure as described above, the cooperative is, despite
the 50 % indirect interest which Haniel and Cementbouw
each have in it, controlled exclusively by itself and not
by its member companies and/or their shareholders.

(b) The market in wall-building materials for load-

bearing walls

(67)

(68)

Pursuant to Article 3(3) of the Merger Regulation, the
control of an undertaking consists in the possibility of
exercising decisive influence on it. The question is
whether the person or persons exercising control are in a
position, alone or jointly, to determine the undertaking’s
strategic decisions. The decisive factor here as a rule is
the composition and decision-making procedures of the
body responsible for appointing and removing the
management
strategic
decisions.

and approving

any other

In CVK’s case, strategic corporate decision-making is a
matter solely for the Raad van Bestuur. Whoever deter-
mines the composition of
the Raad van Bestuur is
therefore in a position to control the undertaking, for it
is to be expected that, when taking strategic decisions,
the members of the Raad van Bestuur take into account
the interests of the person or persons who decide
whether to appoint or remove them. Since the members
of the Raad van Bestuur are appointed by the CVK
members’ meeting by a simple majority, and since in the
members’ meeting the representatives of the member
undertakings in which Haniel holds the entire share
capital and the representatives of the member undertak-
ings in which Cementbouw holds the entire share capital
each have the same number of votes and hence the
representatives of those member undertakings in which
Haniel and Cementbouw each have a 50 % share have a

(71)

In the Netherlands, Haniel already occupies, through its
indirect shareholding in CVK, the only sand-lime brick
manufacturer, a dominant position on the market
in wall-building materials used in load-bearing walls.
However, this dominant position will not be significantly
strengthened by the acquisition of Fels. This conclusion
is based on the following reasons.

(aa) Structure of the market

(72)

In 2000, the Dutch market in wall-building materials for
load-bearing walls had a volume of 2,1 million m3 and
was worth EUR 356 million. If
in situ concrete is
excluded from the load-bearing walls’ market, the latter’s
volume shrinks to 1,8 million m3 and its value to
EUR 276 million. If only in situ concrete cast by the
tunnel-forming method is excluded, the market has a
is worth
volume
of
EUR 322 million (12).

1,9 million m3

and

(12) On the assumption that 40 % of the in situ concrete used in
the Netherlands is cast using the tunnel-forming method; see
footnote 10.

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Official Journal of the European Union

L 103/45

(73) Below are the market shares (by volume) of the parties and of their main competitors including all
load-bearing wall-building materials and, alternatively, excluding in situ concrete and in situ
concrete cast by the tunnel-forming method (13):

Company

Building material

Load-bearing
wall-building
materials,
including in situ
concrete

Market share in %

Load-bearing
wall-building
materials,
excluding in situ
concrete used in
tunnel forming

Load-bearing
wall-building
materials,
excluding in situ
concrete

CVK (Haniel/
Cementbouw)

Sand-lime bricks

[50-60]*

[50-60]*

[60-70]*

Fels

Aerated concrete

[0-2]*

[0-2]*

[0-2]*

CVK + Fels

[50-60]*

[50-60]*

[60-70]*

Cementbouw

Precast concrete walling units

[2-5]*

[2-5]*

[2-5]*

In situ concrete

Mebin

In situ concrete

[2-5]*

[2-5]*

NCD

In situ concrete

[0-2]*

[0-2]*

0,0

0,0

Ytong

Aerated concrete

[0-2]*

[0-2]*

[0-2]*

Wienerberger

Clay bricks

[0-2]*

[0-2]*

[0-2]*

Hanson (Pioneer)

Clay bricks

[0-2]*

[0-2]*

[0-2]*

In situ concrete

Oudenallen

Precast concrete walling units

[0-2]*

[0-2]*

[0-2]*

CRH

Clay bricks

[0-2]*

[0-2]*

[0-2]*

(13) The calculation is based on estimates made by the parties on the shares of the various building materials in the
consumption of wall-building materials as a whole and broken down as between load-bearing and non-load-
bearing walls. Inasmuch as wall-building materials are used in load-bearing and non-load-bearing walls (e.g.
sand-lime bricks, aerated concrete), only that part of such building materials which is estimated to be used in
load-bearing walls was taken into account. On the basis of its market investigation, the Commission considers
these estimates to be basically accurate; however, precise statistical data are not available.

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(bb) Existing dominant position of CVK (Haniel)

(74) The Commission considers that, through its holding in
CVK, Haniel has a dominant position on the Dutch
market in wall-building materials for load-bearing walls.
This applies regardless of whether or not in situ concrete
should be included in this market.

(75) The Court of Justice has defined a dominant position
as a position of economic strength enjoyed by an
undertaking which enables it to prevent effective compe-
tition being maintained on the relevant market by
affording it the power to behave to an appreciable extent
independently of its competitors,
its customers and
ultimately of the consumers. Such a position does not
preclude some competition, but enables the undertaking
which profits by it, if not to determine, at least to have
an appreciable influence on the conditions under which
that competition will develop, and in any case to act
largely in disregard of it so long as such conduct does
not operate to its detriment.

(76) The existence of a dominant position may derive
from several factors which, taken separately, are not
necessarily decisive, but among which the existence of
very large market shares is highly important. Important
evidence of the existence of a dominant position is,
moreover, the relationship between the market shares of
the undertakings involved in the concentration and their
competitors, especially those of the next largest (14).

(77) Haniel (CVK) has a share of more than [50 to 60]* % of
the market in wall-building materials for load-bearing
walls. Its main competitor is Cementbouw (15), with a
market share of just under [2 to 5]* %. This figure does
not take account of Cementbouw’s stake in CVK, which
for the purposes of
is assigned in
its entirety to Haniel. Cementbouw’s market share of
approximately [2 to 5]* % is based solely on its precast
concrete walling unit and in situ concrete activities.
The next-largest competitor is the in situ concrete
manufacturer Mebin, with a market share of around [2
to 5]* %. Other competitors have market shares of 2 %
or less.

this assessment

( 14) Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461,
paragraph 39; see also Case T-102/96 Gencor v Commission
[1999] ECR II-753, paragraphs 201 and 202.

( 15) Until mid-2001, Cementbouw was a subsidiary of the Dutch
building group NBM Amstelland NV. At the beginning of the
year, the Cementbouw group was sold to CVC Capital Inc., a
venture capital firm.

(78) The market share of Haniel (CVK) is therefore more than
10 times bigger than that of the leading competitor. In
view, however, of the close structural links between, and
common interests of, Haniel and Cementbouw in CVK,
it is by no means clear how far Cementbouw and
Haniel are in competition with one another. The largest
competitor with no links with Haniel is, with its [2 to
5]* % or so market share, much smaller, Haniel being
[10 to 15]* times bigger than this competitor.

(79)

If
in situ concrete were not to be included in the
definition of the market in wall-building materials for
load-bearing walls, the market share of Haniel (CVK)
would be [60 to 70]* % as Haniel (CVK) does not supply
in situ concrete. Furthermore, the largest independent
competitor, Mebin, would then not be active in the
relevant product market. This would leave only a limited
number of much smaller competitors whose market
shares do not exceed [0 to 2]* %, or much less, even, in
some cases. If only in situ concrete cast by the tunnel
forming method is excluded from the market definition,
the market share of Haniel
(CVK) would be [50 to
60]* %.

(80) None of the competitors of Haniel (CVK) in the Nether-
lands is active in the sand-lime brick sector. CVK is the
only producer and supplier of this building material in
the Netherlands. In that country, sand-lime bricks are,
however, for the reasons given above, the traditional
and, what is more, most popular wall-building material.
Furthermore, they are the only wall-building material to
be used to a significant extent in both load-bearing and
non-load-bearing walls.

(81)

Substantial market entry barriers exist. CVK controls all
the sand-lime brick works in the Netherlands and hence
the production of by far the most important wall-
building material assignable to the relevant product
market. The Commission’s market investigation has
shown that it would be possible for manufacturers of
other wall-building materials to undertake the manufac-
ture of sand-lime brick products only at great expense
in terms of time and investment; the same is also true of
other wall-building materials such as aerated concrete.
The production processes and hence the production
plants are different for each wall-building material. A
switch to production of sand-lime bricks would also
depend on the acquisition of the necessary official
authorisations for the working of lime deposits. For
these reasons, a switch of production by competitors is
not considered a serious possibility.

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L 103/47

(82) The customers of CVK (Haniel) have no buyer power.
No one customer is potentially the buyer of a substantial
part of CVK’s output. In the case of sand-lime bricks,
which are by far the most important of all the wall-
building materials assignable to the relevant product
market, there are no alternative suppliers.

(87)

In the present case, however, the Commission’s market
investigation has shown that the takeover of Fels by
Haniel will not lead to this kind of consolidation and
strengthening of the existing market position of Haniel
(CVK).

(83) Haniel’s market position can thus be summed up as
follows: Haniel (CVK) has, at well over [50 to 60]* %, by
far the biggest market share and is linked to the next-
largest competitor, which is 10 times smaller, through
CVK. The remaining market volume is fragmented and
divided among competitors with market shares of just a
few percent. Haniel controls, moreover, in the form of
CVK, the only Dutch supplier of the most important
building material in the Netherlands. The market power
available to Haniel (CVK) is not offset by buyer power
on the other side of the market. The combination of all
these factors gives Haniel (CVK) a dominant position on
the market in wall-building materials for load-bearing
walls in the Netherlands.

(cc) The concentration will not strengthen the

dominant position of Haniel (CVK)

(84) However, the Commission is of the opinion that the
concentration will not strengthen the dominant position
of Haniel (CVK) on the Dutch market in wall-building
materials for load-bearing walls. The main reasons for
this are as follows.

(85) As a result of the concentration, the market share of
Haniel (CVK) will be increased by only [0 to 2]* % to
[50 to 60]* %. If in situ concrete were deemed not to
form part of the market in wall-building materials for
load-bearing walls, the market share of Haniel (CVK)
would be increased by [0 to 2]* % to [60 to 70]* %; and
if only in situ concrete cast by the tunnel forming
method were to be excluded from the relevant market,
the increase would be [0 to 2]* % and the joint market
share [50 to 60]* %.

(86) A possible strengthening of

the existing dominant
position of Haniel (CVK) cannot be assessed on the basis
of the size of the increase in market share alone. This is
particularly because the Dutch market in wall-building
materials for load-bearing walls is already so rigidly
carved up that very little in the way of competition takes
place there and consequently even a small increase in
Haniel’s market position may remove the few remaining
opportunities still open to competitors. In particular, the
consolidation of the market position of the dominant
undertaking through an increase in existing market entry
barriers or the creation of new ones or some other
extension in the room for manœuvre of the dominant
undertaking as a result of which competitors’ existing
scope is restricted (e.g. through an extension in the
product range) may, depending on the circumstances of
the case, constitute a strengthening of a dominant
position within the meaning of Article 2(2) of the Merger
Regulation.

(88)

It is true that Haniel will, through the takeover of Fels,
extend its product range. Before the merger, Haniel
(CVK) can supply only one wall-building material —
sand-lime bricks — which, despite being by far the most
important wall-building material for load-bearing walls,
is, in the case of non-load-bearing walls, with a market
share of [15 to 20]* %, in no stronger a position that
gypsum and aerated concrete. These two products are,
however, manufactured by Fels. Following the merger,
Haniel (CVK) plus Fels would be in a position to supply
all three products and hence cover the bulk of demand
for wall-building materials for load-bearing and non-
load-bearing walls.

(89) However, Fels is not one of the leading suppliers in the
Netherlands of either gypsum or aerated concrete. In the
case of aerated concrete, which can also be used in load-
bearing walls, Ytong is the leading supplier. Accordingly,
on the neighbouring market in wall-building materials
for non-load-bearing walls, on which aerated concrete
plays a greater role than on the market in wall-building
materials for load-bearing walls under discussion here,
Fels has a market share of only [5 to 10]* %, as against
[15 to 20]* % for Ytong. The market investigation has
shown that Ytong is well established in particular as a
supplier to the leading Dutch building-materials trading
groups and Fels therefore has difficulties supplying them
as well. Fels is consequently currently reliant on the
‘independent dealers’, who make fewer sales and are less
strong financially. Furthermore, Fels does not have its
own production plant in the Netherlands, but operates
on the market only through imports. It cannot therefore
be anticipated with sufficient certainty that, solely
through the takeover of Fels, Haniel will be placed in a
position to induce customers to a significant extent to
obtain all their required wall-building materials from
itself and thus to further restrict the scope of other
suppliers. Although customers surveyed during the
market investigation referred to the extension of the
product range offered by Haniel, they also stated that
they did not fear any significant price increases so long
as Ytong remained on the market as an independent
supplier of aerated concrete.

(90)

In these circumstances, the disappearance of Fels as an
independent competitor is, on the basis of the facts
known to the Commission, even taking account of the
already substantially reduced level of competition, not
such as to result in a strengthening of the existing
dominant position of Haniel (CVK).

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(c) The market in wall-building materials for non-

load-bearing walls

(91)

In 2000 the Dutch market in wall-building materials for
non-load-bearing walls had a volume of 1,7 million m3
and was worth EUR 282 million. The following table
shows the market shares (by volume) of the parties and
of their main competitors including all non-load-bearing
wall-building materials being included (16):

Company

Building material

Market
share in %

Non-load-
bearing
wall-building
materials

CVK (Haniel/
Cementbouw)

Sand-lime bricks

[15-20]*

Fels

Aerated concrete, gypsum

[5-10]*

CVK + Fels

[20-30]*

Ytong

GIBO

Lafarge

Gyproc

Aerated concrete

[15-20]*

Gypsum plasterboards and
planks

[10-15]*

Gypsum plasterboards and
planks

[10-15]*

Gypsum plasterboards and
planks

[5-10]*

Wienerberger

Clay bricks

Hanson (Pioneer)

Clay bricks

CRH

Clay bricks

[0-2]*

[0-2]*

[0-2]*

producer for non-load-bearing walls, Ytong, with a [15
to 20]* % market share, is very close to the market
position of Haniel (CVK), and the three main gypsum
producers, GIBO, Lafarge and Gyproc, have substantial
market shares of between [5 to 10]* and [10 to 15]* %.
Given this market structure, the possibility of Haniel
(CVK) having a dominant position can be ruled out.

(93) As a result of the merger with Fels — a supplier of
aerated concrete and gypsum with a not insignificant,
but at [5 to 10]* %, much smaller market share than
Ytong and the above-mentioned gypsum producers and
without its own production plant in the Netherlands —
Haniel’s market share will increase to [20 to 30]* %,
thus widening the gap between it and its next-largest
competitors. Haniel will extend its product range to
include gypsum and aerated concrete, which are both
important products for non-load-bearing walls. How-
ever, given the existence of strong competitors, it is not
to be anticipated that, as a result of the takeover of Fels,
Haniel will be able to extend its competitive room for
manœuvre to such an extent that a dominant position
would be created by the concentration.

(d)

Finding

(94) The Commission accordingly finds that the concen-
tration will not create or strengthen a dominant position
on any of the relevant product markets in the Nether-
lands.

2. OTHER NATIONAL MARKETS

(95) Apart from in Germany, whose markets are not being
examined by the Commission in these proceedings, and
the concentration will also lead to
the Netherlands,
additions of market shares in Belgium and possibly in
France.

(92) Haniel (CVK) is thus, with a market share of [15 to
20]* %, the market leader on the market in wall-building
materials for non-load-bearing walls and, as already
stated, the only supplier of sand-lime bricks, the main
building material for load-bearing and for non-load-
bearing walls. However, as the leading aerated concrete

(96)

( 16)

In asmuchas wall-building materials are used in load-bearing and
non-load-bearing walls (e.g. sand-lime bricks, aerated concrete),
only that part of such building materials which is used in non-
load-bearing walls was taken into account.

In Belgium, Haniel has one sand-lime brick factory. Fels
(Hebel) sells wall-building materials in Belgium, but
does not have its own production facilities there. The
combined share of Haniel and Fels in the sale of wall-
building materials is [2 to 5]* % and, if all wall-building
materials are included (including concrete precast prod-
ucts and in situ concrete), less than [2 to 5]* %. Even if a
distinction were made between building materials for
load-bearing and non-load-bearing walls, the possibility
of the market shares reaching competitively critical
thresholds can be ruled out.

24.4.2003

EN

Official Journal of the European Union

L 103/49

(97)

In France, Haniel has a stake in ready-mixed concrete
plants; Fels (Hebel) operates in France through three
aerated concrete plants. Market share additions will arise
only if one assumes a larger market for wall-building
materials that includes concrete precast products and in
situ concrete. In that case, the combined market share
amounts to about [0 to 2]* %. The possibility of market
shares that reach competitively critical levels arising can
be ruled out even if a distinction is made between
building materials for load-bearing and non-load-bearing
walls and/or if a possible regional market definition is
applied.

(98) The concentration will not therefore create or strengthen

a dominant position in Belgium and France.

Pursuant to Article 2(2) and Article 8(2) of the Merger
Regulation and Article 57 of the EEA Agreement, the
concentration is therefore to be declared compatible
with the common market and with the operation of the
EEA Agreement,

HAS ADOPTED THIS DECISION:

Article 1

The notified concentration, through which Haniel Baustoff-
Industrie Zuschlagsstoffe GmbH will acquire sole control of
Fels-Werke GmbH within the meaning of Article 3(1)(b) of the
Merger Regulation, is hereby declared compatible with the
common market and with the operation of the EEA Agree-
ment.

VI. CONCLUSION

(99)

For the reasons set out above, it can be assumed that the
proposed concentration will not lead to the creation or
strengthening of 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.

Article 2

This Decision is addressed to:

Haniel Baustoff-Industrie Zuschlagsstoffe GmbH
Franz-Haniel-Platz 6-8
D-47119 Duisburg-Ruhrort

Done at Brussels, 21 February 2002.

For the Commission

Mario MONTI

Member of the Commission