2003/292/EC: Commission Decision of 9 April 2002 declaring a concentration to be compatible with the common market and the EEA Agreement (Case COMP/M.2568 — Haniel/Ytong) (notified under document number C(2002) 1396) (Text with EEA relevance)
Date: 2002-04-09
Institutions: European Commission
Subjects: building materials, competition law, dominant position, economic concentration, merger control

6.5.2003

EN

Official Journal of the European Union

L 111/1

II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 9 April 2002

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

(Case COMP/M.2568 — Haniel/Ytong)

(notified under document number C(2002) 1396)

(Only the German text is authentic)

(Text with EEA relevance)

(2003/292/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Whereas:

Having regard to the Treaty establishing the European
Community,

(1)

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 30 November
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),

(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 107, 6.5.2003.
(4) OJ C 107, 6.5.2003.

(2)

(3)

(4)

On 16 October 2001 Haniel Bau-Industrie Porenbeton
Holding GmbH, which belongs to the Haniel group
(‘Haniel'), notified the Commission under Article 4 of
Regulation (EEC) No 4064/89 (‘the Merger Regulation')
of a planned concentration whereby Haniel was, by
share acquisition,
to acquire sole control of Ytong
Holding AG (‘Ytong').

The Commission examined the notification and 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 30 November 2001,
the Commission therefore
decided to initiate proceedings under Article 6(1)(c) of
the proposed
the Merger Regulation.
concentration concerned Germany,
the Commission
adopted a decision on the same day referring the case to
the competent German authorities under Article 9(3) of
the Merger Regulation.

In so far as

the case,

Following a detailed investigation of
the
Commission has now come to the conclusion that by
itself the proposed concentration would indeed create or
strengthen a dominant position as a result of which
effective competition would be significantly impeded in
the
a substantial part of
allow the
entered
commitments

the common market. But

into by Haniel

L 111/2

EN

Official Journal of the European Union

6.5.2003

competition concerns
concentration to be resolved.

identified in respect of

the

concrete products and prefabricated houses in Germany,
the Netherlands, Belgium, France and Austria.

I. THE PARTIES AND THE TRANSACTION

(10) Haniel intends to acquire all Ytong's business shares.

II. CONCENTRATION

(5)

(6)

(7)

(8)

(9)

sale

and

specifically

Haniel is active in the construction materials industry,
and
of
the manufacture
wall-building materials such as sand-lime bricks, aerated
concrete and ready-mixed concrete. Haniel's main centre
is also active in the
of activities is Germany, but it
Netherlands through its indirect stake in the Dutch joint
venture Coöperatieve Verkoop- en Produktievereniging
van Kalkzandsteenproducenten (‘CVK'). Haniel has a
in
stake
Germany, eight in the Netherlands, one in Belgium and
two in Poland.
It operates a sand-lime facing brick
factory in Denmark, and has stakes in three ready-mixed
concrete plants in France.

in around 30 sand-lime brick factories

On 4 September 2001 Haniel notified its acquisition of
Fels-Werke GmbH (‘Fels'), a subsidiary of the German
firm Preussag AG (‘Preussag'), to the Commission as a
concentration (COMP/M.2495 — Haniel/Fels). With
regard to the German market, the Commission referred
the case to the competent German authorities under
Article 9 of the Merger Regulation on 30 November
2001. For
the Commission declared the
concentration compatible with the common market
under Article 8(2) of that Regulation by decision dated
21 February 2002.

the rest,

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

firm is also active

BV (‘Cementbouw')

Haniel is party to another concentration too, notified on
24 January 2002 by Haniel and Cementbouw Handel &
Industrie
(COMP/M.2650 —
Haniel/Cementbouw/JV (CVK)). That notification had
been requested by
and
Cementbouw had acquired joint control of the Dutch
sand-lime brick maker CVK. On 25 February 2002 the
Commission took a decision initiating proceedings in
the case under Article 6(1)(c) of the Merger Regulation.
The proceedings are still pending.

the Commission: Haniel

a

is

Ytong
of Rheinisch-Westfälische
Kalkwerke AG, which in turn is controlled by the British
firm RMC plc. Ytong manufactures and sells aerated

subsidiary

(11) Haniel

intends to acquire all

the business shares in
Ytong and hence
firm. The
transaction therefore constitutes a concentration within
the meaning of Article 3(1)(b) of the Merger Regulation.

sole control of

that

III. COMMUNITY DIMENSION

(12)

an

have

undertakings

aggregate
The
concerned
worldwide turnover of over EUR 5 billion (5) (Haniel:
EUR 18,7 billion, Ytong: EUR 0,4 billion). Both Haniel
and Ytong have a Community-wide turnover of over
EUR 250 million (Haniel: EUR 17,5 billion, Ytong: EUR
0,3 billion). Neither undertaking achieves more than
two thirds of its aggregate Community-wide turnover
within one and the same Member State. The notified
concentration thus has a Community dimension.

IV. PROCEDURE

from the

the Bundeskartellamt,

(13) On 13 November 2001 the Commission received a
competent German competition
request
the planned
to refer
authority,
concentration to it in so far as it concerned Germany.
The
in
wall-building materials for rising back-up masonry in
Germany, but not the markets in wall-building materials
outside Germany. By decision of 30 November 2001 the
Commission referred the part of the case relating to
Germany to the competent German authorities.

the market

concerns

referral

request

for

(14) On 30 November 2001 the Commission decided under
the Merger Regulation to initiate
the case not

Article 6(1)(c) of
proceedings in respect of
referred to the German authorities.

that part of

(15) A hearing took place on 21 February 2002. Haniel and

Ytong attended, as did Cementbouw and CVK.

(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.

6.5.2003

EN

Official Journal of the European Union

L 111/3

V. COMPATIBILITY WITH THE COMMON MARKET

(21)

In-situ concrete can be cast either by the traditional
method of using formworks specially made on site or
(tunnelgietbouw in Dutch) using
by ‘tunnel-forming'
prefabricated tunnel
formworks, whereby walls and
ceilings are cast in a single process.

A. THE RELEVANT PRODUCT MARKETS

(16)

(17)

and

bricks

sand-lime

The parties' operations overlap in the production and
sale of wall-building materials. Haniel produces and sells
sand-lime
the
Netherlands it does so via the Dutch joint venture CVK.
sand-lime,
Ytong produces aerated concrete. Besides
aerated
concrete
gypsum products,
and
products and clay bricks are also used in wall-building,
as are,
to a limited extent, steel plates and wooden
panels.

concrete

blocks;

in

1. THE PRODUCTS

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
to
up
900 mm × 625 mm × 300 mm in the Netherlands).

(usually measuring

used

are

(22)

(23)

(24)

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
thus
considerably larger than the sand-lime bricks or blocks
predominantly used in masonry work and require heavy
equipment.

entire walls

constitute

and

are

Brick — the
classic masonry material — is
manufactured from a mixture of clay and water by
firing at temperatures of over 1 000 °C. However, the
size of individual bricks is limited, as the firing process
causes deformations such as shrinkage and warpage.
Jointing is therefore generally necessary when working
with
these
in
deformations.

products

offset

order

these

to

in

are

plates

used mainly

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

(18) 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 (bricks, 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.

are

employed
construction, mainly

and
(25) Wooden panels
residential
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.

in industrial
in the

2. DEFINITION OF THE RELEVANT PRODUCT MARKET

(19) 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.

(26)

(20)

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
almost exclusively as load-bearing walls.

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

In determining the extent of a product market,
the
Commission has to consider various product market
definitions. In this case 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
in some EEA member
some respects very different
countries.
the Commission has
In its
focused essentially on conditions in the Netherlands
since
the
is only in that Member State
concentration leads to additional market shares which
are significant from a competition point of view.

investigation,

that

it

L 111/4

EN

Official Journal of the European Union

6.5.2003

(a) Market definition proposed by the notifying party

(wall-building materials)

trade. This market

(27) 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
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.

includes

(28) 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,
these
according
specifications 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.

to Haniel,

but,

(29) Haniel does

the

that

In view of

every purpose.

concede, however,

various
wall-building materials are not entirely interchangeable
considerable
for
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.

the

(31)

(32)

the building planning stage.
were interchangeable at
Within this market definition,
the Commission also
considered that a further distinction could be made
between
non-load-bearing walls
and
(load-bearing masonry). It took no account of precast
concrete walling units or in-situ concrete.

load-bearing

(c) Practice of the German Bundeskartellamt

(masonry)

In its decisions,

consistently defined

The Bundeskartellamt has
the
relevant market in wall-building materials in a similar
to the Commission in its decision on
manner
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
The
blocks
between
not
Bundeskartellamt
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.

concrete
does

distinguish

(masonry).

blocks

and

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

the Nederlandse Mededingingsautoriteit
By contrast,
(‘NMa',
the Dutch competition authority) draws a
distinction between load-bearing and non-load-bearing
walls because, to its knowledge, different materials are
in the Netherlands (8).
used for each type of wall
this difference in uses, sand-lime bricks,
Because of
which are used for both types of wall,
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
in
wall-building materials for load-bearing materials. This
covers not only the wall-building materials for masonry
mentioned in recital 31 (the ‘brick-on-brick' method),
but also precast concrete units and in-situ concrete.
However,
in a
it should also be pointed out
subsequent decision, the NMa opened up the possibility
of a distinction between in-situ concrete and other
wall-building materials (9).

the market

that,

are

(b) Previous Commission practice

(masonry/load-bearing masonry)

3. ASSESSMENT

(30)

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),
sand-lime
bricks, aerated concrete blocks and pumice blocks. Its
investigations at that time suggested that these products

including clay bricks,

(33) On the basis of the information available to it and, in
particular, the market investigation it carried out in this
case, the Commission, like the NMa, concludes (as it did
in its decision of 21 February 2002 in Case
COMP/M.2495 — Haniel/Fels) that there is a relevant
product market in the Netherlands for building materials
for load-bearing walls and a separate one for building
that within
materials for non-load-bearing walls, but

(7) Decision of 29 March 2000 in Case COMP/M.1866 —
Preussag/Hebel (OJ C 142, 20.5.2000, p. 36); see also the decision
of 21 February 2002 in Case COMP/M.2495 — Haniel/Fels (not yet
published).

(8) NMa,

decision

of

20 October

1998

in Case

124/CVK

Kalkzandsteen.

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

Fernhout.

6.5.2003

EN

Official Journal of the European Union

L 111/5

clay bricks,

concrete wall units

and other materials

in-situ concrete. The result of

subdivision into masonry
these markets a further
building 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
sand-lime bricks, aerated concrete,
as
concrete blocks, precast
and,
possibly,
the market
investigation suggests that in-situ concrete, in particular
that
excluded.
is not necessary to settle this matter
However,
conclusively since it does not affect the assessment of
the concentration. Likewise,
for building
materials for non-load-bearing walls thus covers all
building materials used for non-load-bearing walls, such
as
gypsum
plasterboards and planks, steel sheets and wood. This
result is based on the following key factors.

cast by tunnel-forming,

the market

should be

sand-lime

concrete,

aerated

bricks,

it

(34) 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.

(35)

(36)

(a) Properties of the various wall-building materials

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.

In addition,

cemented together.

Sand-lime bricks are in themselves 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
sand-lime
can be
the factory in
to shape at
products can be cut
so that units
accordance with the building plans,
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
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
the Netherlands,
something of the order of [60 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

non-load-bearing walls.

do not

require

any

In

(*) 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.

(37)

(38)

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
in non-residential
construction. Sand-lime bricks are the traditional and
most popular wall-building material in the Netherlands.

those often required

fairly

somewhat

raw materials. However,

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
large-scale
resources such as cranes must be used in erecting such
walls, and this in its turn involves some investment
costs. Precast concrete walling units are therefore used
primarily for
larger projects, chiefly in
non-residential construction (utiliteitsbouw, abbreviated to
u-bouw in Dutch) rather than residential construction
(woningbouw, abbreviated to w-bouw). Even so, savings
can
residential
construction projects where around 10 or more units
are used, 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.

in medium-sized

be made

also

therefore

required for

repeated casting

In-situ concrete requires the largest amount of on-site
investment in its use, particularly in-situ concrete used
the
in tunnel-forming. The manufacture and use of
frameworks
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
relatively little
is
form and size. There
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. Tunnel-forming is therefore not a suitable
alternative for smaller construction projects or those not
involving rectangular shapes or repeated applications.
In-situ concrete is also used in the construction of
high-rises if their load-bearing capacity is ensured by
means
to which
concrete
non-load-bearing wall-building materials are attached.

skeleton

cast

of

a

(39) Aerated concrete is in itself 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
manufacture 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 insulation properties. In Germany, some 80 %

L 111/6

EN

Official Journal of the European Union

6.5.2003

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: something like 80 to 85 % of
aerated concrete is used in non-load-bearing walls.

(45)

(40) Gypsum is a light 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
load-bearing
space is saved. Because of
capacity, gypsum is used only for non-load-bearing
walls.

its lack of

(41)

Bricks are relatively small wall-building materials, and
because of their uneven surface they are usually jointed.
Their use entails relatively high labour costs and is
relatively time
and this makes bricks
unsuitable for industrial construction.

consuming,

(42)

(43)

(44)

(b) The distinction between wall-building materials for

load-bearing and non-load-bearing walls

(46)

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.

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
sound insulating properties,
ageing,
timetable and the overall
other technical capabilities,
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.

fire protection,

(47)

(48)

their

conduct

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

building materials

choice

the

load-bearing walls
non-load-bearing walls.

and

building materials

for

between

difference

load-bearing

The
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 requirements 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
the
advantage
load-bearing
Thin
ceilings.
non-load-bearing walls for their part save space.

of making
capacity

fewer
of

demands

the

on

load-bearing
These varying requirements in respect of
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
largest building materials
walls. Concrete is the next
category.
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.

In-situ concrete

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

the materials

44 % of

used

for

of

for

aerated

concrete

load-bearing

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
and
non-load-bearing walls are just the reverse of those in
in Germany 80 % of all
the Netherlands. Whereas
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
role in
In Germany, concrete plays a minor
walls.
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
common
to be
together with bricks

the most

(10) According to the information provided by the parties,

accounts

concrete
tunnel-forming;
proportion might be even higher than that.

for
the market

40 % of

used
the materials
investigation suggested that

in-situ
in
the

6.5.2003

EN

Official Journal of the European Union

L 111/7

(49)

(50)

wall-building material. The use of in-situ concrete in
tunnel-forming is much less widespread in Germany and
Belgium than in the Netherlands.

for

these differences

in demand-side
The
reasons
behaviour stem,
from differences in building
traditions and aesthetic approaches and, secondly, from
the advanced industrialised building methods used in
the Netherlands.

firstly,

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
required primarily in non-residential
are
construction.

(54)

the

than 90 %.

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
In Germany, by
relates to individual house building.
contrast,
In the
is more
figure
Netherlands, 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
In
building projects on this scale, building materials that
require high investment but involve lower wage costs,
such as
tunnel-forming
method, are profitable. Consequently, bricks, which are
labour intensive at the building site (small size and need
for jointing, though methods of cementing bricks do
exist) and hence entail higher wage costs and are more
time consuming, are used to only a minor extent.

in-situ concrete using the

(e.g. VINEX locaties).

There is
therefore only limited competition in the
Netherlands between, on the one hand, products used in
those used in
load-bearing walls and, on the other,
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
for
some wall-building materials
load-bearing walls may also be used in non-load-bearing
walls and vice-versa. Sand-lime especially is in this
category: it 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
in the market in
suitable for both types of wall are,
load-bearing walls,
largely
different set of competitors and faced with different
in
than
competitive
non-load-bearing walls.

in competition with a

the market

conditions

that are

suitable

in

(51)

Sand-lime bricks are the traditional building material in
the Netherlands; they are relatively cheap, 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).

(55)

(52) 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
In the Netherlands, by contrast,
smooth, plastered external walls are not customary. The
the
preference
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
sand-lime.
Consequently, aerated concrete is used only to a limited
extent
load-bearing walls in
residential construction.

in the Netherlands for

facades which give

insulation.

building

material

there

than

for

is

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 [60 to 80]* %
of its products on that market.

(56)

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 cast by tunnel-forming. As already explained in
recital 38, 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
this method does not
that
represent an alternative, not only in the case of small

(53) 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

(11) In particular for elements cut for a specific use or for specific
deliveries; see recital 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.

L 111/8

EN

Official Journal of the European Union

6.5.2003

the same process, ceilings

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
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 cast by 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. THE RESPONSE OF THE PARTIES TO THE STATEMENT OF

OBJECTIONS

The views of the parties

In its answer to the statement of objections, and at the
the
hearing, Haniel said it maintained its view that
relevant market had to include
all wall-building
materials. Haniel conceded, however, that a case could
be made for the distinction drawn by the Commission
and
between building materials
non-load-bearing walls.

load-bearing

for

(61)

(62)

other

concrete

products were
building

The criticism Haniel regarded as essential concerned the
possibility — which the Commission had raised but left
open — that the product market might not include
in-situ concrete, and more especially in-situ concrete
cast by the tunnel-forming method. Haniel argued that
these
direct
in-situ
for
competition with
load-bearing walls. Contrary to the view put forward by
the Commission, this method of building did not entail
any additional costs, and was not confined to large
residential units
projects. The
needed to make tunnel-forming worthwhile was 15, and
not 30 to 50,
the Commission had stated.
Tunnel-forming offered sufficient design flexibility to
ensure that residential units built using it need not be
identical in appearance.

smallest number of

in
products

as

(57)

(58)

(59)

Cementbouw and CVK agreed.

Assessment

the
investigation does provide evidence to suggest
possibility that in-situ concrete, and particularly in-situ
concrete cast using the tunnel-forming method, does
not form part of the relevant market.

products

The main grounds for this assertion have already been
set out in detail. In addition, it should be borne in mind
that if a builder working on a project decides to change
over
to
from sand-lime
tunnel-formed in-situ concrete,
the change will affect
not only the wall-building materials but the flooring
to
and roofing materials
tunnel-forming will mean changing the entire design of
the building. For builders currently using sand-lime
products, therefore, tunnel-formed in-situ concrete is a
rather remote alternative.

too. Thus changing over

example

for

It has also to be borne in mind that tunnel-formed
fairly large
in-situ concrete can be used only for
projects. The parties have admitted this, but say that the
smallest number of residential units for which this
material is economical is about 15 rather than the 30 to
50 alleged by the Commission. In any event, though, it
that on smaller building projects sand-lime
is clear
bricks
from in-situ
competition
do
concrete (12). Aerated concrete in particular, which is
produced by Ytong, may be used in smaller building
projects of one to two residential units.

face

not

5. CONCLUSION CONCERNING THE RELEVANT PRODUCT

MARKETS

(63) On the basis of

the

above

considerations,

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
in building materials for load-bearing
as the market
walls is concerned,
in-situ
the question of whether
concrete, in particular that used in tunnel-forming, is to
be included in this market may be left open.

(60)

the Commission left
In the statement of objections,
open the question whether and to what extent in-situ
concrete ought to be included in the relevant market,
and it will do so again in this decision. There is no need
in this decision to settle the question since, even if one
were to accept the broader definition of the relevant
product market advocated by the parties, which includes
all classes of in-situ concrete, Haniel would in any event
hold a dominant position in the Netherlands, and that
dominant position would be strengthened by the merger
the Commission's market
at

issue here. Nevertheless,

(12) In many cases CVK knows the destination of its products, because
it is itself responsible for the delivery of its products to a specific
building site; for products which account for half of its turnover
CVK has access to the architect's plans. The Commission therefore
takes the view that CVK is in a position to differentiate its prices
depending on the competition it observes. By means of discounts
for volume and uniform transport prices it would be able to effect
an implicit differentiation between large and small building
projects. CVK has indicated that
it grants dealers in building
materials discounts which are specific to the project and the
builder.

6.5.2003

EN

Official Journal of the European Union

L 111/9

(64)

In so far as the activities of Haniel and Ytong overlap in
other Member States which, following the referral of
part of the case to the German Bundeskartellamt, are still
within the scope of
the
precise definition of the relevant product market can
is
remain open, because whichever way the market
defined no competition concerns arise.

the Commission's inquiries,

(69) Accordingly, the Commission 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

B. RELEVANT GEOGRAPHIC MARKETS

(65)

Leaving aside Germany,
the activities of Haniel and
Ytong 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.

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

(67)

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
sand-lime, can
the only producer and supplier of
moreover supply any building site in the Netherlands
direct from the nearest sand-lime works.

investigation has

(68) 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
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 Member
States. On the other hand, building standards
in
Germany mean that walls of comparable wall thickness
must be stronger and, given the extra materials that
requires, are more expensive than in the Netherlands.
the important undertakings that operate on the
All
Dutch market
also
in wall-building materials
established in the Netherlands. Belgian and German
producers operating in the Netherlands also do so via
Dutch subsidiaries.

are

(70)

that,

through

Commission

The
its
considers
shareholding in CVK — the only sand-lime brick
manufacturer — Haniel already occupies a dominant
position on the Dutch market in wall-building materials
for load-bearing walls. This holds true irrespective of
whether in-situ concrete as a whole or in-situ concrete
cast by the tunnel-forming method is to be included in
be
this market. This
strengthened by the acquisition of Ytong. If Haniel also
acquires Fels, this strengthening of a dominant position
will be further accentuated.

dominant position would

(71) Haniel's and Ytong's activities overlap not only in the
the German
Netherlands but also in Germany, but
markets are outside the scope of
the Commission's
inquiries in these proceedings. There is some small
overlap in Belgium, and possibly in France too.

1. NETHERLANDS

(a) Control of CVK by Haniel

(72)

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.

(aa) Structure of CVK

(73)

(74)

In the Netherlands there are altogether 11 sand-lime
brickworks, all of which are members of CVK. Of these
brickworks, five are wholly owned by Haniel, three are
wholly owned by the Dutch building-materials group
Cementbouw and the remaining three are owned 50/50
by Haniel and Cementbouw. The shares in CVK 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 Haniel and Cementbouw
each indirectly has a 50 % stake in CVK.

its members;

CVK was originally set up to carry out joint marketing
on behalf of
a pooling agreement
concluded in 1999 transferred the management of the
member companies to CVK. In the pooling agreement
and in the statutes (statuten) of CVK, it is stipulated that
CVK members are to be bound by CVK's instructions.
There is only limited scope for the appointment of
representatives of
the shareholders to the governing
bodies of CVK. On the managing board (Raad van
Bestuur), no member may at the same time perform any
the
function in a business belonging to any of

L 111/10

EN

Official Journal of the European Union

6.5.2003

shareholders, and on the supervisory board (Raad van
Commissarissen) only a minority of the members may do
so. CVK member companies are also required to
appoint CVK as one of not more than two managers of
the particular company. The other manager is appointed
by the company's own shareholders.

(75)

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
van Commissarissen. The day-to-day
on the Raad
management 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.

(bb) Joint control by Haniel and Cementbouw

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

interest which Haniel

50 % indirect

(77)

(78)

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,
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 and approving any other
strategic decisions.

to determine

alone or

jointly,

solely for

In CVK's case, strategic corporate decision-making is a
matter
the Raad van Bestuur. Whoever
determines 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
the Raad van Bestuur are appointed by the CVK
of

of

the

and

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
the member
representatives
undertakings in which Cementbouw holds the entire
share capital each have the same number of votes and
hence the representatives of the member undertakings
in which Haniel and Cementbouw each have a 50 %
share have a casting vote, both Haniel and Cementbouw
can indirectly block the appointment and removal of
members of the Raad van Bestuur. Their joint agreement
is accordingly needed for every appointment or removal
of a member of the Raad van Bestuur.

(79)

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

(cc) The response of the parties to the statement of

objections

The views of the parties

In its answer to the statement of objections, and at the
hearing, Haniel maintained its view that the rules of the
pooling agreement and the statutes ensure that Haniel
cannot exercise control over CVK. Haniel referred in
particular to a decision taken by the Dutch competition
the NMa, dated 20 October 1998, which
authority,
cleared a transaction giving CVK control of its member
companies. At that time the shares in CVK's member
companies were in the hands of
three shareholders,
namely Haniel, Cementbouw and RAG AG (‘RAG').

In its decision the NMa found that
the pooling
agreement and the corresponding changes to the CVK
statutes broke the original economic and organisational
links between the member companies and their owners
in such a way that CVK would now have control of its
members. This also meant that the member companies
would not be under the control of their shareholders
(Haniel, Cementbouw and RAG). The NMa attached
decisive importance to the fact that, under the rules laid
down, no member of the Raad van Bestuur and only a
minority of the members of the Raad van Commissarissen
were permitted to perform any function in businesses
belonging to the shareholders.

its

view, Haniel

In support of
to
correspondence with the NMa in the first half of 1999,
in which the NMa was informed that RAG proposed to
withdraw from CVK and sell its shares in CVK member
companies to Haniel and Cementbouw and was asked to

also refers

(80)

(81)

(82)

6.5.2003

EN

Official Journal of the European Union

L 111/11

shareholders

indicate whether this constituted a concentration under
Dutch law. The NMa confirmed that the reduction in
in the CVK member
the number of
companies from three to two did not
in any event
constitute a concentration under Dutch law if it took
transaction which the NMa had
place
approved. The decisive consideration, in the NMa's view,
was that after that transaction the shareholders would
not be able to exercise control over the CVK member
companies, so that the number of shareholders would
no longer affect the question of control.

after

the

(83) A further criticism made was that in its statement of
objections the Commission had failed to consider the
NMa decision and its
the
Commission's decision would ‘negate' a decision of a
national competition authority.

In addition,

reasoning.

(84)

This criticism was put forward by Haniel, Cementbouw
and CVK jointly.

(85)

(86)

(87)

Assessment

In examining the question of control of CVK,
the
Commission applied the tests of the Merger Regulation
in conjunction with the practice established in its own
decisions. It considered the relevant agreements between
CVK and its members and between the shareholders,
and other relevant documents such as the statutes of the
CVK and the correspondence between the parties and
the NMa referred to.

its

shareholders Haniel

The Commission concluded that control of CVK was
exercised jointly by
and
Cementbouw because each had a indirect 50 % holding
in CVK and consequently a veto at
the members'
It was the
meeting, which acted by simple majority.
members' meeting that determined who would sit on
CVK's governing bodies, which decided the strategy to
be pursued by CVK, so that the veto rights at members'
meetings gave their holders
joint control of CVK:
appointments could be decided only by the two acting
in agreement.

test

applied by the Commission to
The decisive
determine who controlled CVK, namely the right
to
decide appointments to its governing bodies, is therefore
different from the test applied by the NMa, namely the
two
composition of
authorities consequently came to different conclusions
on the question of control. RAG's withdrawal from CVK
was assessed differently for the same reason.
In the
NMa's view, RAG's withdrawal after the restructuring of
CVK — an exercise it had examined and allowed to

bodies. The

governing

the

therefore, RAG's withdrawal was

irrelevant once CVK's member
happen — was
companies had been deprived of control whereas, in the
Commission's view,
it was RAG's withdrawal which
conferred control on Haniel and Cementbouw. When
there were three shareholders majorities at the members'
meeting could shift. When one shareholder withdrew,
the remaining shareholders were left with a 50 %
holding each: it was this which gave them veto rights at
the members' meeting, which was the point that decided
the question of control. Under the system of the Merger
the
Regulation,
transaction by which the two shareholders acquired
control of CVK. The Commission does not question the
fact that the pooling agreement and the amendments to
its member
CVK's
companies, as the parties have pointed out and as was
made clear in the NMa decision. But that does not affect
the Commission's conclusion. The
effect of CVK's
acquisition of control of its member companies is rather
instead of exercising
that Haniel and Cementbouw,
separate control of the member companies which are
their respective wholly owned subsidiaries, and joint
control of
the member companies which they own
jointly, now through their joint control of CVK exercise
indirect joint control of all the member companies.

statutes gave CVK control of

(88)

In its statement of objections the Commission set out
the reasons for its conclusion. The European Court of
Justice has held consistently and in a wide variety of
in its reasoning
cases that
obliged specifically to counter differing views or
to
answer objections that might conceivably be raised
against the measures it proposes to take (13).

the Commission is not

(89) Nor will the present decision negate a decision of a
national competition authority. There is no need here to
consider questions of the primacy of Community law
and the
a
exclusion of national powers
transaction in the event that Community powers exist:
this is because the Commission has concluded that the
planned transaction which was approved by the Dutch
competition authority is not the transaction entered into
by Haniel and Cementbouw.

to vet

(90)

In 1998 a planned concentration was notified to the
NMa by which the 11 member companies of CVK,
which were owned by three shareholders, were to be
the control of CVK; CVK was not
brought under
controlled by the
alternative
majorities were possible at the members' meeting. But,
by means of a single set of agreements concluded on 9
the parties did in fact bring the 11
August 1999,

shareholders because

(13) See, for example, the Court's judgment of 19 September 2000 in
Case C-156/98 Germany v Commission [2000] ECR I-6857,
paragraphs 89 et seq.

L 111/12

EN

Official Journal of the European Union

6.5.2003

the
member companies under CVK's control and at
same time — by selling RAG's shares in CVK member
companies to Haniel and Cementbouw — convert CVK
from an undertaking with three indirect shareholders to
an undertaking with two shareholders with an indirect
50 % holding each, with these shareholders acquiring
control of CVK. As part of
this set of agreements,
Haniel and Cementbouw also concluded a ‘cooperation
agreement' on cooperation in CVK which contained,
inter alia, arrangements for the closure of plants. This
agreement was not in the NMa's possession when it
took its decision in 1998.

(92)

Even if one assumes that CVK's acquisition of control
over
its member companies and the acquisition by
Haniel and Cementbouw of control over CVK were two
distinct mergers, this would not alter the assessment
that, on completion of the transactions described, Haniel
and Cementbouw acquired joint control of CVK.

(dd) Conclusion

(93)

The Commission is therefore of the opinion that for the
purposes of this decision CVK's market shares must be
assigned to Haniel.

(91)

the other. The conclusion of

Even if one were to regard these steps as two separate
transactions with a lapse of time in between, they are
interdependent
to a point where they have to be
regarded as a single concentration. The legal steps which
gave Haniel and Cementbouw joint control of CVK and
the legal steps which gave CVK control of
the 11
sand-lime brickworks were performed on the same day,
9 August 1999, and were recorded by the notary in a
single document. The parties to the agreement wanted
to link the two changes of control so that one could not
the
take place without
agreements
that had been submitted to the Dutch
competition authority was accordingly postponed until
the negotiations on the transfer of RAG's shares were
complete. Answering questions on this point put by the
Commission at the hearing, Haniel expressly confirmed
that the agreements that had been submitted for the
NMa's approval were not implemented immediately in
view of the desire that had since been expressed by
RAG to withdraw from CVK. The implementation of
these agreements was postponed until the negotiations
with RAG regarding the transfer of
its shares were
complete since RAG did not want to take part in the
new CVK structure. In economic terms, therefore, the
two acquisitions of control form a unity and are to be
regarded as a single concentration distinct
from the
concentration approved by the NMa.

(94)

(95)

(b) The market in wall-building materials for

load-bearing walls

in CVK,

indirect holding

Through its
sole
manufacturer of sand-lime bricks, Haniel already holds a
dominant position on the Dutch market in wall-building
materials for load-bearing walls. This dominant position
would be strengthened by the acquisition of Ytong. The
grounds for this conclusion are set out below.

the

(aa) The structure of the market

In 2000 the Dutch market in wall-building materials as
a whole had a total volume quantity-wise of 3,8 million
m3 and value-wise of some EUR 640 million. The
market in wall-building materials for load-bearing walls
had a volume of 2,1 million m3 and was worth EUR
If in-situ concrete is excluded from the
356 million.
load-bearing walls market,
the market
the size of
shrinks to 1,8 million m3 and EUR 276 million. If only
in-situ concrete cast by the tunnel-forming method is
excluded, the market has a volume of 1,9 million m3
and a value of EUR 322 million (14).

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

6.5.2003

EN

Official Journal of the European Union

L 111/13

(96)

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 (15):

Company

Building material

(in %)

Market share

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

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

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

CVK (Haniel/Cementbouw)

Sand-lime bricks

[50—60]*

[50—60]*

[60—70]*

Ytong

CVK + Ytong

Cementbouw

Mebin

NCD

Aerated concrete

[0—2]*

[0—2]*

[0—2]*

[50—60]*

[60—70]*

[60—70]*

Precast concrete walling units
In-situ concrete

[2—5]*

[2—5]*

[2—5]*

In-situ concrete

[2—5]*

[2—5]*

In-situ concrete

[0—2]*

[0—2]*

0,0

0,0

Wienerberger

Clay bricks

[0—2]*

[0—2]*

[0—2]*

Hanson (Pioneer)

Clay bricks In-situ concrete

[0—2]*

[0—2]*

[0—2]*

Oudenallen

Precast concrete walling units

[0—2]*

[0—2]*

[0—2]*

CRH

Fels

Clay bricks

[0—2]*

[0—2]*

[0—2]*

Aerated concrete

[0—2]*

[0—2]*

[0—2]*

(bb) Existing dominant position of Haniel (CVK)

1. Grounds for assuming the existence of a dominant position

(97)

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
in-situ
concrete should be included in this market.

regardless of whether or not

to prevent effective
an undertaking which enables it
competition being maintained on the relevant market by
affording it
the power to behave to an appreciable
extent independently of its competitors, customers and
ultimately 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.

(98)

The European Court of Justice has defined a dominant
position as a position of economic strength enjoyed by

(99)

and

(15) 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
as
load-bearing
and
wall-building materials
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.

non-load-bearing
used

walls.
in

load-bearing

Inasmuch

are

factors which,

taken separately,

The existence of a dominant position may derive from
several
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 (16).

(16) 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.

L 111/14

EN

Official Journal of the European Union

6.5.2003

(100) 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 (17), 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 this assessment 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
concrete
is
manufacturer Mebin, with a market share of around
[2 to 5]* %. Other competitors have market shares of
2 % or less.

competitor

in-situ

the

In view, however, of

(CVK)
than that of

is therefore more
(101) The market share of Haniel
the
leading
than 10 times bigger
competitor.
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.

(102)

in-situ concrete were not

If
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 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] %.

(103) None of Haniel's competitors in the Netherlands is
active in the sand-lime brick sector. CVK is the only
producer and supplier of this building material in the
Netherlands.
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.

In that country,

by

far

the most

(104) Substantial market entry barriers exist. CVK controls all
the sand-lime brick works in the Netherlands and hence
the production of
important
wall-building material assignable to the relevant product
investigation has
market. The Commission's market
shown that it would be possible for manufacturers of
other wall-building materials
the
manufacture 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

undertake

to

(17) 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.

concrete. The production processes and hence the
production plants are different for each wall-building
material. For these reasons, a switch of production by
competitors is not considered a serious possibility.

customer

is potentially the buyer of

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

remaining market

(106) Haniel's market position can thus be summed up as
follows: Haniel (CVK) has, at well over [50 to 60]* %, by
the biggest market share and is linked to the
far
smaller,
next-largest competitor, which is 10 times
through CVK. The
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
in the Netherlands.
most important building material
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.

volume

2. The response of the parties to the statement of objections

The views of the parties

(107)

In their answer to the statement of objections, and at
the hearing, Haniel, Cementbouw and CVK maintained
that CVK and hence Haniel did not have a dominant
position in the Netherlands. They gave four main
reasons for this:

— in-situ concrete is a material that exerts considerable
In-situ

competitive pressure on sand-lime bricks.
concrete producers are invariably large enterprises,

— CVK's direct customers — building-material dealers
— have considerable buyer power. Of CVK's sales,
[60 to 80]* % is accounted for by the five largest
building-material dealers, the biggest customer alone
being responsible for about 21 %,

— market entry barriers are low. Haniel states that the
investment
in a sand-lime brickworks comes to
about EUR […]* million. An in-situ concrete
producing plant costs as little as EUR […]* million,

— in its pricing, CVK must

into account
competitive conditions on the neighbouring market

take

6.5.2003

EN

Official Journal of the European Union

L 111/15

for non-load-bearing
in wall-building materials
walls,
in which it has a weaker market position,
inasmuch as in regard to a substantial part of its
sales it does not know to what end use its products
are put.

(108) To back up these arguments, CVK points out that in

recent years it has lost market share to its competitors.

(109) Cementbouw takes the view that, despite its 50 %
it is to be regarded as a competitor

holding in CVK,
independent of the latter.

Assessment

(110) The arguments advanced by the parties do not negate
the grounds on which the Commission finds that CVK
is in a dominant position. The following points are
conclusive in this respect:

If,

the largest competitor,

— in-situ concrete cannot be regarded as a material
with which substantial competitive pressure can be
brought to bear on CVK. In-situ concrete's share of
the market in wall-building materials as a whole
comes to only 12 %, Cementbouw's share being
approximately [0 to 2] %. As
indicated above,
competitors on the wall-building-materials market
are thinly spread.
in line with the intervening
parties' thinking, in-situ concrete is to be included in
the relevant market,
the
in-situ concrete producer Mebin, has a market share
of only [2 to 5]* %, while the other competitors
have less than 2 %. This can be contrasted with a
the only
[50 to 60]* % market share for CVK,
supplier of
competitive
sand-lime bricks. The
pressure on such a market depends not only on a
product's market position but also on competitors'
to the market
market positions. Of
position of competitors
they
supply. This is especially true in the present case
is a differentiated
because the relevant market
product market in which different products compete
for the same end-uses. The possibility of supplying a
certain product that may be particularly appreciated
by certain consumers or for certain uses may be of
importance as far as a firm's position on such a
market is concerned,

is what products

relevance

— the large building material dealers do not have any
buyer power. First of all, even a [20 to 30]* % share
of total purchases does not confer any buyer power
on the largest customers because
there are a
sufficient number of other building-material dealers
these
available

an alternative. A few of

as

dealers

building-material

(in Dutch:
that

building-material dealers are, moreover, purchasing
inkoopcombinaties). What
cooperatives
matters
are
is
dependent on trade in CVK's products. Sand-lime
bricks are the most important wall-building material
important
in the Netherlands. The next most
wall-building material
is — also in the parties'
opinion — concrete. But this is not an alternative as
far as the building-materials trade is concerned as
neither
in-situ concrete nor — in appreciable
quantities — precast concrete walling units are
distributed via that trade. No other building-material
can therefore,
from the building-material dealer's
point of view, replace the distribution of sand-lime
bricks. Moreover, CVK has more influence over
pricing vis-à-vis building contractors
than the
parties admit. The following points are significant in
the
this
respect. Building-material dealers bear
financial
is not
building-material dealers that choose the building
material, but building
already
indicated, CVK is generally well informed about the
identity of users and the destination of its products.
Deliveries are made direct from whichever sand-lime
brickworks is closest to the building site. According
to CVK, discounts are granted to building-material
dealers, whereby the latter may be required to
supply the goods to specific building contractors or
for specific building projects. Building contractors
are, however, dispersed and not in a position to
exercise any buyer power themselves,

contractors. As

in distribution.

risk inherent

It

of

course

surveyed by

— the arguments adduced by Haniel to the effect that
there are no market entry barriers are not sound.
The investment costs to which Haniel refers are
competitors
contradicted by
the
its market
the
in
Commission
investigation, who state unanimously that it is only
with the greatest difficulty that they could expand
their existing production capacities or embark upon
the manufacture of another wall-building material.
even
During
Cementbouw's estimate of the investment costs was
significantly higher than Haniel's. According to the
there had been a small number of
competitors,
they were confined to the
market entries, but
concrete segment. Entries in the sand-lime brick
segment were non-existent,

investigation,

market

the

— according to the information in the Commission's
possession, CVK is in a position, in its pricing, to
take account of whether its products are used in
either load-bearing or non-load-bearing walls. As
stated above, sand-lime bricks are used essentially in
load-bearing walls. CVK is aware of the specific use
to which its products are put partly through its
knowledge of
is being
the building site
supplied. It also has access, as far as sand-lime units
the
are concerned,
building projects supplied by it. Haniel has pointed
out, moreover, that the thickness of a substantial
part of sand-lime brick products indicates whether
in
they
non-load-bearing walls.

to the architects' plans

in load-bearing or

being used

that

are

for

L 111/16

EN

Official Journal of the European Union

6.5.2003

(111) There is no evidence in the Commission's possession to
suggest that there has been any weakening of CVK's
market position in favour of its competitors. On the
contrary, Haniel has stated more than once in its
correspondence with the Commission that operators'
market shares have scarcely changed in recent years.
Nor is there any evidence to suggest that the situation
will change in the foreseeable future.

positions on the Dutch market are already so well
established that very little in the way of competition
takes place there. Consequently, even a small increase in
Haniel's market position in conjunction with other
factors may significantly reduce the few remaining
opportunities still open to competitors.

it

(112) The Commission does not agree with Cementbouw's
assertion that
is to be regarded as a competitor
independent of CVK. The Commission has already
explained at length above that Cementbouw controls
for that reason alone,
CVK jointly with Haniel and,
cannot be regarded as an independent competitor. Even
if,
intervening parties,
Cementbouw does not control CVK, a 50 % stake in a
company with a [50 to 60]* % market share is so
important a source of revenue that it is improbable that
Cementbouw would not take this into account in its
behaviour in relation to its other activities.

is maintained by

the

as

(cc) Strengthening of the dominant position of

Haniel (CVK) through the merger

(113) The Commission

is

of

the

the
concentration would strengthen the dominant position
of Haniel (CVK) on the Dutch market in wall-building
materials for load-bearing walls. The reasons for this are
as follows:

opinion

that

1. Acquisition of Ytong

(114) On the assumption that Haniel acquires only Ytong,
Haniel's market
share would be increased by only
around [0 to 2]* % to [50 to 60]* % as a result of the
concentration. If in-situ concrete were deemed not to
form part of the market in wall-building materials for
load-bearing walls, Haniel's market share 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 [60 to
factor is that, with sand-lime
70]* %. An additional
bricks, CVK controls by itself
important
the most
wall-building material in the Netherlands. Owing to the
abovementioned high market entry barriers, it is not to
be expected that other suppliers will enter this segment.
All of Haniel's competitors supply other products as
wall-building materials
walls.
Cementbouw, the only supplier on the relevant market
with a share of
is itself a
controlling shareholder of CVK and cannot therefore be
considered an independent competitor. The remaining
competition is widely dispersed, no one competitor
having a market share in excess of [2 to 5]* %. None of
greater
the
significance on this market than Ytong. This means that

just under [2 to 5]* %,

load-bearing

competitors

appreciably

thus

for

of

is

links

structural

(115) The strengthening of the existing dominant position of
Haniel (CVK) through the acquisition of Ytong cannot
be assessed on the basis of the size of the increase in
market share alone. In the wall-building materials sector
as a whole, Ytong is the largest competitor operating
independently of Haniel without
to
the leading supplier of
Haniel. Ytong is, moreover,
aerated concrete in the Netherlands, a material which is
used both in load-bearing and in non-load-bearing walls.
With a total of some […]* m3, Ytong sold more than
five times as much aerated concrete in the Netherlands
in 2000 as the only other supplier, Fels. As a result of
the concentration, Haniel would therefore, with Ytong,
acquire the largest producer of aerated concrete. In a
differentiated product market, Haniel would thus be not
only the sole supplier of sand-lime bricks, which is by
far the most important wall-building material
in the
Netherlands, but, with [> 80]* % of sales, would also
become the main supplier of aerated concrete. It is true
that aerated concrete is,
in competition
with sand-lime bricks and the other products belonging
to the market in load-bearing wall-building materials.
However, in a differentiated product market such as the
present market,
in which different products are in
competition with one another for the same types of use,
the ability to offer a specific product which is perhaps
preferred by certain users or for certain purposes may
be important to the market position of a firm.

in principle,

(116) Customers surveyed as part of the market investigation
stated that
significant price
they saw a danger of
increases if Ytong, as an independent active supplier of
aerated concrete, were to depart from the market.

(117) The market investigation has shown that Ytong is well
established in particular as a supplier to the leading
Dutch building-materials
trading groups. The other
supplier of aerated concrete in the Netherlands, Fels, has
difficulties supplying them as well. Consequently, Fels is
currently reliant on the ‘independent' dealers, who make
fewer sales and are less strong financially. Furthermore,
in contrast
to Fels, Ytong has its own production
facilities in the Netherlands and does not operate on the
market solely through imports.

on

the

neighbouring

favourable position is based on its

strong
(118) Ytong's
position
in
non-load-bearing wall-building materials. As has already
been pointed out, aerated concrete is the only other
significant wall-building material apart from sand-lime
bricks which is used both for load-bearing and for
non-load-bearing walls. 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

market

CVK + Ytong

GIBO

Lafarge

Gyproc

Fels

Knauf

6.5.2003

EN

Official Journal of the European Union

L 111/17

million. The following table shows the market shares (by
volume) of the parties and of their main competitors, all
non-load-bearing
being
wall-building
included (18):

materials

Non-load-bearing wall-building materials

(in %)

Company

Building material

Market share

CVK (Haniel/Cementbouw)

Sand-lime bricks

[15—20]*

Ytong

Aerated concrete

[15—20]*

[30—40]*

[10—15]*

Gypsum plaster-
boards and planks

Gypsum plaster-
boards and planks

[10—15]*

The marketing structure and distribution system can
therefore be used equally on both markets. Other
suppliers which — apart
from Haniel and Fels —
operate on only one of the two markets do not have
this possibility. The same applies
in
production facilities, which can be used for supplying
both markets.

to investment

cover

(121) Prior to the merger, Haniel (CVK) can supply only one
wall-building material, sand-lime bricks. Following the
merger, Haniel (CVK) plus Ytong would be in a position,
through the supply of sand-lime bricks and aerated
concrete,
from
to
for wall-building materials
building-material dealers
both for load-bearing and for non-load-bearing walls.
This would increase Haniel's lead over the suppliers of
materials competing with sand-lime bricks on the
market in wall-building materials for load-bearing walls,
since none of its competitors is similarly able to cover
its customers' requirements so comprehensively.

bulk of

demand

the

Gypsum plaster-
boards and planks

[5—10]*

(122)

Aerated concrete,
gypsum

[5—10]*

Gypsum plaster-
boards and planks

[2—5]*

In these circumstances, it is to be expected that, through
the takeover of Ytong, Haniel will be placed in a
position to induce customers to a significant extent to
obtain all their wall-building-material requirements from
itself and thus to further restrict the scope of other
competitive pressure
suppliers. As
the
suppliers of wall-building
emanating
materials
further
diminished, leading to higher prices.

load-bearing walls would be

result,
from other

for

a

Wienerberger

Clay bricks

Hanson (Pioneer)

Clay bricks

CRH

Clay bricks

[0—2]*

[0—2]*

[0—2]*

(119) After Haniel, Ytong is the strongest competitor on the
market in non-load-bearing wall-building materials. As
the only supplier of sand-lime bricks, Haniel (CVK) is
once again the strongest competitor here, with a market
share of more than [15 to 20]* %. Ytong is with aerated
concrete the second strongest competitor with almost
[15 to 20]* %. As a result of a concentration, Haniel
(CVK)/Ytong would thus become about [2 to 5]* times
as large as the next largest competitor. That competitor,
GIBO, has a market share of [10 to 15]* %. Fels, the
only alternative supplier of aerated concrete, has a
market share of around [2 to 5]* %. All
the other
competitors supply only gypsum products.

(120) This

strong position of Ytong on the market
in
non-load-bearing wall-building materials has a direct
impact on its position on the market in load-bearing
wall-building materials. Its turnover on the market in
non-load-bearing wall-building materials gives Ytong
access
load-bearing wall-building
materials too, since they are the same on both markets.

to customers

for

2. Acquisition of Ytong and Fels

(123)

If, as a result of exemption by the Commission and the
Bundeskartellamt, Haniel is allowed to take over not only
Ytong, but also Fels, competitors would be even less
leader consisting of
able to stand up to a market
in load-bearing
Haniel/Ytong/Fels. On the market
wall-building materials,
share of Haniel
the market
(CVK)/Fels amounting to [50 to 60]* % (or alternatively:
[50 to 60]* % or [60 to 70]* %) (19) would be increased
by about [0 to 2]* % through the acquisition of Ytong.
On the market in non-load-bearing walls, the market
share of Haniel (CVK)/Fels amounting to [20 to 30]* %
would increase through the acquisition of Ytong to [40
to 50]* %.

(124)

In the circumstances, Haniel would accordingly control
not only the sole supplier of sand-lime bricks in the
Netherlands, but also all producers of aerated concrete.
As a result, the remaining competitive pressure exerted
by
concrete on sand-lime bricks would
disappear altogether. Haniel would then by itself be in
control of the only two most important wall-building
materials that can be used in both load-bearing and
non-load-bearing walls. Moreover, Haniel would,

aerated

(18) 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 used in
non-load-bearing walls was taken into account.

(19) In so far as in-situ concrete cast by the tunnel-forming method or
in-situ concrete not cast by the tunnel-forming method are not
included in the market definition, the market shares of Haniel
(CVK) increase accordingly; see table in paragraph 95.

L 111/18

EN

Official Journal of the European Union

6.5.2003

wall-building

through Fels, also supply what is currently the most
in
important
non-load-bearing walls,
the only
competitor, Haniel would thus be in a position to
supply these three important wall-building materials
from one source.

material
i.e. gypsum. As

used

is, moreover, no commercial
materials. There
incentive to supply such a combination as only
50 % of profits on CVK's sales go to Haniel, whereas
Haniel would receive all of the profit on Ytong's
sales.

3. The response of the parties to the statement of objections

Assessment

The views of the parties

(126) The arguments advanced by the parties cannot refute
the grounds on which the Commission finds that CVK
is in a dominant position. The reasons for this are as
follows:

(125)

In its answer to the statement of objections, and at the
hearing, Haniel maintained that the acquisition of Ytong
would not
lead to any strengthening of a dominant
position. Haniel gave three main reasons for this:

too small

— Haniel asserts that a [0 to 2]* % increase in market
share is
to justify the claim that a
dominant position will be strengthened. It points to
a number of Commission decisions in which market
share additions of this order of magnitude were not
considered sufficient
It
finds the Commission's attitude in this case to be
inconsistent with its decision in Case COMP/M.2495
— Haniel/Fels. The Commission cleared Haniel's
acquisition of Fels because it did not consider Fels's
market position to be sufficient
to strengthen a
dominant position. Fels has a market share of [0 to
2]* %,

for such a strengthening.

to

distribution

system. Owing

— the position of Ytong on the neighbouring market
in non-load-bearing wall-building materials is not
such as to influence Ytong's position on the market
in load-bearing wall-building materials. Like the
producers of other wall-building materials, Ytong
has for decades had access to the building-material
trade's
its
considerable market share in the sand-lime brick
segment, Haniel
the
neighbouring market in wall-building materials for
non-load bearing walls, so any advantages stemming
from a simultaneous presence in both markets
already existed and would not be increased by the
acquisition
from
of Ytong. Moreover,
sand-lime bricks, aerated concrete is not the only
both
to
wall-building material
load-bearing and non-load-bearing walls, as this also
applies to clay bricks, concrete blocks and precast
concrete units,

present

already

apart

used

be

in

in

is

— Haniel can derive no advantage from being able to
supply aerated concrete in addition to sand-lime
trade a full
bricks as
product range includes more than just wall-building

in the building-materials

the

in this

competitors

account. None

— the small size of the market share increase is not
decisive as a means of excluding the strengthening
of a dominant position. Haniel itself points out in its
reply to the statement of objections that the market
position cannot be inferred schematically from the
market shares. As explained in detail above,
the
Commission was also influenced by this aspect
when making its assessment. It focused on all factors
constituting Ytong's market position, and explained
in detail
connection why the market
positions of Ytong and Fels differ in such a way that
it can rule out a strengthening in one case and rule
it in in the other. The factors mentioned include the
fact that Ytong is the leading supplier of aerated
concrete in the Netherlands and sells five times
more aerated concrete than Fels. Moreover,
in
assessing the size of the market shares and their
ability to strengthen an existing dominant position,
the size of the other market players has to be taken
into
is
of
substantially larger than Ytong. Ytong's market share
is twice the size of Fels's and there are a large
number
of
wall-building materials whose market shares are low,
being well below [0 to 2]* %. The present case is
characterised,
differentiated
by
Every wall-building
relevant
material has specific characteristics (see above for a
detailed description), and any given wall-building
material may be more suitable for some uses than
for others. In-situ concrete, and in particular that
cast by the tunnel-forming method, is, for example,
aerated
suited to larger projects, while
better
concrete
in the
is used in load-bearing walls
Netherlands primarily in houses and hence in
smaller-sized projects. On a scale depicting the
magnitude of projects,
in-situ concrete cast by
tunnel-forming would therefore be right at the top,
followed by in-situ concrete made by other methods.
Aerated concrete would be at the bottom end of the
scale, while sand-lime bricks would fill almost the
entire scale. The acquisition of a product such as
aerated concrete will therefore, by adding a further
product, very likely strengthen an existing dominant
position based on a single product such as sand-lime
bricks,

furthermore,
product market.

substantially

suppliers

smaller

of

a

6.5.2003

EN

Official Journal of the European Union

L 111/19

to

the

access

established

— the arguments adduced by the intervening parties
do not refute the considerations demonstrating that
Ytong's position on the neighbouring market
in
non-load-bearing wall-building materials
is quite
likely to influence its position on the load-bearing
that Haniel already has,
walls market. The fact
through CVK, a considerable market share on this
neighbouring market with sand-lime bricks does not
invalidate the above conclusion. As a result of the
acquisition, Haniel could offer a further product in
the form of aerated concrete on both markets.
Ytong's
large
building-material dealers, through whom, as Haniel
points out, almost all aerated concrete is distributed
in the Netherlands, was expressly emphasised by the
Commission, whereas Fels clearly does not have
such access. Such access is, however, useful
for
purposes of distribution in both markets, with the
result that a strong position on one of
the two
markets definitely strengthens the position on the
other market.
to other wall-building
products such as clay bricks or concrete, aerated
concrete is one of the three leading wall-building
materials
from
sand-lime bricks, which are supplied by Haniel
alone, and gypsum. These three products together
make up more than [> 80]* % of the wall-building
materials used in the non-load-bearing wall sector.
Of these, only sand-lime bricks and aerated concrete
are also used in load-bearing walls,

for non-load-bearing walls apart

In contrast

— nor does the fact that the building-materials trade
supplies a large number of products stand in the
way of the above advantages. On the contrary, the
acquisition of the largest aerated concrete producer
in the Netherlands would increase building-material
dealers' existing dependence on CVK's sand-lime
they would
even further
brick products
henceforth have to rely extensively on CVK also for
the distribution of aerated concrete. Since, as has
already been explained, concrete products are not
distributed via the building-materials
the
building-materials trade would have to obtain a
substantial part of
the wall-building materials it
distributes from Haniel through CVK. An economic
incentive for the parties stems from the fact that the
total attainable earnings can be increased by selling
both products under one roof.

trade,

as

4. Result

(127) The Commission therefore concludes that the merger
will strengthen the existing dominant position of Haniel
(CVK)
for wall-building materials for
load-bearing walls in the Netherlands — all the more so
if Haniel simultaneously acquires Fels.

in the market

though not dominant,
sand-lime bricks, a strong,
position on the market in wall-building materials for use
in non-load-bearing walls. The acquisition of Ytong
would not lead to the creation of a dominant position
on this market. This would also be the case if Haniel
were in addition to acquire Fels as well. The reasons for
drawing this conclusion are as follows.

for

both

(129) Haniel (CVK) is, with a market share of [15 to 20]* %,
the market
in wall-building
leader on the market
materials for non-load-bearing walls and — as already
stated — the only supplier of sand-lime bricks, the main
building material
and
non-load-bearing walls. As the leading producer of
aerated concrete 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 prior to the
merger,
(CVK) having a
the possibility of Haniel
dominant position can be ruled out.

load-bearing

(130) As a result of the merger with Ytong — a supplier of
aerated concrete with a not insignificant market share of
[15 to 20]* % — Haniel's market share would increase
to [30 to 40]* %, thus widening the gap between it and
its next
largest competitors. Haniel would extend its
product range to include aerated concrete, an important
product for non-load-bearing walls. However, given the
especially in the
existence of
gypsum segment,
it is not to be expected that, as a
result of the takeover of Ytong, Haniel would increase
its competitive room for manoeuvre to such an extent
that a dominant position would be created by the
concentration.

strong competitors,

(131) The same points apply if Haniel were in addition to
share would
acquire Fels as well. Haniel's market
admittedly then increase to [40 to 50]* % and its
product range would be extended to include gypsum.
Haniel would thereby not only consolidate its position
it would also be the only
as market
competitor
three essential
for non-load-bearing walls.
wall-building materials
structure outlined in the
Nevertheless,
preceding
these
even
circumstances, Haniel would not acquire a dominant
position on the market in wall-building materials for
non-load-bearing walls.

leader, but
to be able to supply all

the market

suggests

recital

that,

in

2. OTHER NATIONAL MARKETS

(c) The market in wall-building materials for

non-load-bearing walls

(128) As stated in recital 115, Haniel has in the Netherlands,
through its indirect stake in CVK, the only producer of

(132) Apart from in Germany, whose markets are not being
examined by the Commission in these proceedings, and
the Netherlands, the concentration would also lead to
if
additions of market shares in Belgium, France and,
Haniel were to take over Fels, Austria.

L 111/20

EN

Official Journal of the European Union

6.5.2003

(133)

(134)

is

[2 to 5]* % and,

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

[5 to 10]* % and,

is

In France, Haniel has a stake in ready-mixed concrete
plants. Ytong owns one aerated concrete plant there.
Market share additions will arise only if one assumes a
larger market for wall-building materials that includes
precast concrete products and in-situ concrete. In that
case, the combined market share amounts to about [0
to 2]* %. Fels (Hebel) operates three aerated concrete
plants in France. The combined share of Haniel, Ytong
and Fels in the sale of wall-building materials is less
than [2 to 5]* % and, if all wall-building materials are
included (including precast concrete products and in-situ
concrete), less than [2 to 5]* %. Even if a distinction is
made between building materials for load-bearing and
non-load-bearing walls and/or
if a possible regional
these market shares are
market definition is applied,
such that the possibility of their reaching competitively
critical levels can be ruled out.

accentuated. The Commission draws

strengthening of a dominant position would be even
further
this
conclusion irrespective of whether in-situ concrete cast
by the tunnel-forming method or in-situ concrete as a
whole is to be included in this market.

VI. COMMITMENTS SUBMITTED BY HANIEL

(138)

to remove the Commission's objections in
In order
in wall-building materials for
relation to the market
load-bearing walls
in the Netherlands, Haniel has
submitted the commitments described below. They are
set out in full in the Annex.

(139) Ytong Holding AG holds all

the shares

in Ytong
Nederland BV (hereinafter called ‘Ytong Nederland').
Haniel undertakes to cause this shareholding in Ytong
Nederland to be sold within a period fixed for that
purpose. The purchaser must be in a position to operate
Ytong Nederland as an active force in competition with
Haniel.

(140) Haniel undertakes, moreover,

to ensure that,

in the
contracts to be concluded with the purchaser of the
shareholding in Ytong Nederland,
a provision is
included to the effect that Ytong Nederland may control
permanently
in the
Netherlands for a transitional period provided for in the
commitment, the ‘Ytong' trademark.

trademark

‘Durox'

and,

the

(135) Haniel

the market

is not active in Austria. Fels distributes

in
Austria, through a subsidiary, aerated concrete products
and gypsum plasterboards. However
is
defined, Fels thus has market shares of less than 2 %. In
the market in masonry materials, that market share is
even less than [0 to 2]* %. Ytong operates one plant and
in
sells aerated concrete products.
masonry materials,
share of
Haniel, Fels and Ytong is about [5 to 10]* %, and in the
market
in wall-building materials about [2 to 5]* %.
Even if a distinction is made between building materials
these
load-bearing and non-load-bearing walls,
for
market shares are such that
their
the possibility of
reaching competitively critical levels can be ruled out.

the combined market

In the market

(136) The concentration will not therefore lead to the creation
or strengthening of a dominant position in Belgium,
France and Austria.

3. RESULTS OF THE COMPETITIVE ASSESSMENT

(137) The Commission accordingly comes to the conclusion
that the takeover of Ytong by Haniel would lead to a
strengthening of a dominant position on the Dutch
market in wall-building materials for load-bearing walls.
If Haniel were in addition to acquire Fels as well, this

(141) The period for fulfilment of the commitments starts to
run at the time of service of the Commission decision
in Case COMP/M.2650 — Haniel/Cementbouw/JV (CVK)
(hereinafter called the CVK decision).
If an action is
brought against the CVK decision under Article 230 of
if applications for suspension of
the EC Treaty or
execution or other interim measures are made under
Articles 242 and 243 of the EC Treaty, the period will
start to run at the time of service of the order on the
suspension of execution or other
applications
interim measures pursuant to Article 107 of the Rules
of Procedure of the Court of First Instance.

for

of

proceeding

(142) The commitments will be without effect if, within the
period referred to in recital 141 and within the
framework
COMP/M.2650
Haniel/Cementbouw/JV (CVK), CVK is dissolved or
undertakings in which Haniel has a direct or indirect
If
interest no longer have a stake in CVK.
these
circumstances obtain after the sale of
the shares in
Ytong Nederland by Haniel,
the Commission may at
Haniel's request annul the obligation to sell or amend it
in Haniel's favour.

(143) With the Commission's agreement, Haniel may be
granted a repurchase right in the sales contracts should
the circumstances referred to in recital 141 obtain.

6.5.2003

EN

Official Journal of the European Union

L 111/21

(144) The commitments also contain standard clauses on
separate administration of the company to be sold and
rules on trusteeship.

VII. COMPETITIVE ASSESSMENT OF THE NOTIFIED
TRANSACTION IN THE LIGHT OF HANIEL'S
COMMITMENT

A. ASSESSMENT OF THE COMMITMENT TO SELL THE
SHAREHOLDING IN YTONG NEDERLAND

(145)

In the Commission's opinion,
commitments
described in recitals 135 to 141 suffice suitably to
remove the objections regarding the Dutch market in
wall-building materials for load-bearing walls. This has
also been confirmed by the market investigation.

the

(146) As a result of the sale of Ytong's shareholding in Ytong
Nederland, the combination, due to the concentration,
of the market positions of Haniel (CVK) and Ytong on
the relevant market will no longer occur. After the sale,
an
Ytong Nederland will be
independent
in
wall-building materials for load-bearing walls, to limit
the room for manoeuvre of Haniel (CVK) in the same
way as before the concentration.

as
competitor on the Dutch market

in a position,

(147) Ytong is active on the Dutch market exclusively through
Ytong Nederland, so that after the sale the combination,
due to the concentration, of the market shares of Haniel
(CVK) and Ytong on the relevant market will be
completely eliminated. Ytong Nederland is a legally
independent undertaking with two production plants for
aerated
independent
marketing structure. Prior to its being taken over by
Ytong, it was, moreover, active on the Dutch market as
an independent undertaking with no parent company.

products

concrete

and

an

for

period

limited

the Commission is convinced that

trademark, under which its products
a

(148) Ytong Nederland will be able to continue to use the
are
‘Ytong'
only.
currently marketed,
Nevertheless,
the
period provided for will enable Ytong Nederland to
switch from using the ‘Ytong' trademark for marketing
purposes to using the ‘Durox' trademark. The ‘Durox'
trademark, under which the Dutch undertaking used to
market its products before it was taken over by Ytong,
continues
reputation among
consumers of wall-building materials on the Dutch
market.

to enjoy an excellent

B. TERMINATION OF THE OBLIGATION TO SELL YTONG
NEDERLAND IF THE COMPETITION CONCERNS PUT
FORWARD BY THE COMMISSION IN CASE COMP/M.2650
— HANIEL/CEMENTBOUW/JV (CVK) ARE RESOLVED

(149) The Commission is

whether the acquisition of

currently seeking to establish
joint control of CVK by

Haniel and Cementbouw in 1999 is to be considered a
concentration within the meaning of
the Merger
Regulation with respect
to its effects on the Dutch
market in wall-building materials (Case COMP/M.2650
— Haniel/Cementbouw/JV (CVK)). On 25 February
2002 it decided to intimate proceedings in that case
the Merger Regulation. The
under Article 5(1)(c) of
Commission must
final decision on the
a
take
compatibility of that concentration with the common
market by 5 July 2002.

as provided in Article 8(4) of

(150) As things stand at present it seems possible that in its
decision in Case COMP/M.2650 case the Commission
will either come to the conclusion that
following
modification the concentration it is compatible with the
common market, as provided in Article 8(2) of
the
require action that may be
Merger Regulation, or
appropriate in order to restore conditions of effective
competition,
the
Regulation. It may be that the dominant position which
Haniel holds on the relevant market, and which has
been identified here, will be brought to an end by any
commitments
to the
concentration in Case COMP/M.2650 with a view to a
Commission decision under Article 8(2) of the Merger
Regulation,
the
Commission under Article 8(4) of the Merger Regulation
in order to restore conditions of effective competition;
and in that event the concentration which is the subject
of the present proceedings would no longer strengthen
such a dominant position.

entered into by the parties

action required

any

by

by

or

(151)

in

the

150,

recital

situation

described

the
In
commitment entered into by Haniel would no longer be
needed in order to prevent the concentration at issue
here from strengthening a dominant position on the
relevant market, and it seems appropriate in that event
to release Haniel from its commitment to dispose of
Ytong Nederland. The commitment entered into by
Haniel
the
promise to sell Ytong Nederland will be without effect
if,
in the proceedings in Case COMP/M.2650 and in
accordance with the conditions set out in recitals 141
and 142, CVK is wound up or steps are taken to ensure
that no firm participates in CVK in which Haniel
already participates directly or indirectly.

therefore includes a clause stating that

C. OVERALL ASSESSMENT OF THE COMMITMENTS

(152) The Commission has accordingly come to the overall
conclusion that, provided Haniel complies with the
commitment
notified
entered
concentration would not strengthen Haniel's dominant
position on the market in wall-building materials for
load-bearing walls in the Netherlands.

into,

has

the

it

L 111/22

EN

Official Journal of the European Union

6.5.2003

VIII. CONDITIONS AND OBLIGATIONS

(153) The first sentence of the second subparagraph of Article
8(2) of
the
the Merger Regulation states
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-à-vis the Commission with a view to
rendering
concentration compatible with the
common market.

that

the

in

be

imposed

form of

‘obligations'.

the Commission decision

(154) Measures that effect a structural change to the market
will
‘conditions';
the
implementing steps necessary to achieve this result will
If a condition is not
take the form of
fulfilled,
the
declaring
concentration compatible with the common market is
null and void. Where the undertakings concerned
commit a breach of an obligation, Article 8(5)(b) of the
Merger Regulation empowers the Commission to revoke
a clearance decision, and Articles 14(2)(a) and Article
15(2)(a)
fines or periodic
empower
penalties on the parties (20).

to impose

it

(155)

in

this

basic

serve

These

full (21).

distinction,

commitments

accordance with

the
In
to the
Commission decision should be made subject
regarding the
condition that Haniel's commitments
disposal of its stake in Ytong Nederland are complied
with
to
counterbalance the perceived strengthening of Haniel's
dominant position on the Dutch market in wall-building
materials for load-bearing walls and thereby to preserve
competition on that market. By contrast, all
the
remaining parts of the statement of commitments, and
in particular the commitment to temporary retention
and separate management of the stake to be disposed of,
and the detailed arrangements regarding the trustee to
be appointed by Haniel are to be made subject
to
obligations since they are designed solely to apply the
conditions mentioned previously.

are complied with in full, the concentration should be
declared compatible with the common market and the
the
EEA Agreement under Articles 2(2) and 8(2) of
Merger Regulation and Article 57 of
EEA
Agreement,

the

HAS ADOPTED THIS DECISION:

Article 1

The notified concentration by which Haniel Bau-Industrie
Porenbeton Holding GmbH acquires sole control within the
meaning of Article 3(1)(b) of the Merger Regulation of Ytong
Holding AG is declared compatible with the common market
and the EEA Agreement.

Article 2

Article 1 shall apply subject
the
commitments entered into by Haniel Bau-Industrie Porenbeton
Holding GmbH and set out in points 1, 2, 9 and 17 of the
Annex are complied with in full.

to the condition that

Article 3

The obligation is attached to this decision that
the other
commitments entered into by Haniel Bau-Industrie Porenbeton
Holding GmbH and set out in the Annex must be complied
with in full.

Article 4

This decision is addressed to:

Haniel Bau-Industrie Porenbeton Holding GmbH

IX. CONCLUSION

D-47119 Duisburg-Ruhrort

(156) Provided the commitments entered into by Haniel are
fully complied with, therefore, it can be accepted that
the planned
create or
strengthen 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.
Always provided the commitments set out in the Annex

concentration would not

Done at Brussels, 9 April 2002.

For the Commission

Mario MONTI

Member of the Commission

(20) See

the Commission notice on remedies

acceptable under
Regulation (EEC) No 4064/89 and under Commission Regulation
(EC) No 447/98 (OJ C 68, 2.3.2001, p. 3, point 12).

(21) Annex, points 1, 2, 9 and 17.

6.5.2003

EN

Official Journal of the European Union

L 111/23

ANNEX

The full original text of the conditions and obligations referred to in Articles 2 and 3 may be consulted on the
following Commission website:

http://europa.eu.int/comm/competition/index_en.html