2004/105/EC: Commission Decision of 11 June 2003 on the compatibility of a merger with the common market and the EEA Agreement (Case COMP/M.3506 — Celanese/Degussa/JV (European Oxo-Chemicals)) (notified under document number C(2003) 1821) (Text with EEA relevance)
Date: 2003-06-11
Institutions: European Commission
Subjects: application of EU law, chemical industry, competition law, economic concentration, merger control

10.2.2004

EN

Official Journal of the European Union

L 38/47

COMMISSION DECISION

of 11 June 2003

on the compatibility of a merger with the common market and the EEA Agreement

(Case COMP/M.3506 — Celanese/Degussa/JV (European Oxo-Chemicals))

(notified under document number C(2003) 1821)

(Only the German text is authentic)

(Text with EEA relevance)

(2004/105/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

and Oxeno Olefinchemie GmbH (Oxeno), a wholly
owned subsidiary of Degussa AG (Degussa),
are
in which they will
establishing a joint venture (JV)
merge their respective European Oxo-C3 business. The
JV is to trade as European Oxo-Chemicals GmbH (EOC).

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

(2)

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 to initiate
proceedings in this case,

Having given the undertakings concerned the opportunity to
make known their views on the objections raised by the
Commission,

Having
Concentrations (3),

consulted

the

Advisory

Committee

on

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

(3)

Whereas:

(1)

On 18 December 2002 the Commission received
notification of the planned merger in accordance with
Article 4 of Council Regulation (EEC) No 4064/89
‘Merger Regulation'). According to the
(hereinafter
notification,
Europe GmbH
(Celanese), a wholly owned subsidiary of Celanese AG,

Chemicals

Celanese

the

notification,

of
the
Following
examination
Commission found that
the notified operation falls
within the scope of the Merger Regulation and raises
serious doubts as to its compatibility with the common
market. On 30 January 2003 the Commission,
in
accordance with Article
the Merger
Regulation, decided to initiate proceedings. After
detailed examination of the case, the Commission has
come to the conclusion that
the planned operation
would not create a dominant position as a result of
which competition would be significantly impeded in a
substantial part of the common market.

6(1)(c)

of

I. THE PARTIES

The German firm Celanese Chemicals Europe GmbH is
a wholly owned subsidiary of the German firm Celanese
AG, a chemicals firm operating worldwide with core
business in basic chemicals, acetates, technical synthetic
fibres, polypropylene
foil and food additives. The
oxo-chemicals to be merged in the JV are oxo-alcohols,
plasticisers and solvents used as intermediate products
in the production of synthetic fibres, petrol additives,
polyethylene foil, paints and varnishes.

(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 36, 10.2.2004.
(4) OJ C 36, 10.2.2004.

(4)

The German firm Oxeno Olefinchemie GmbH, with
is a wholly owned
headquarters in Marl, Germany,
subsidiary of Degussa AG, with headquarters
in
Düsseldorf. At the time of the notification, Degussa was
is now part of RAG
controlled by E.ON AG but
is in business
Aktiengesellschaft, Essen, Germany.

It

L 38/48

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Official Journal of the European Union

10.2.2004

worldwide in speciality chemicals. Oxeno produces C3
and C4 chemicals (including oxo-alcohols, plasticisers
and solvents), used in processing synthetic fibres, in the
varnish and paint
industry and in cosmetics and
pharmaceuticals.

and the business plan, which are to be taken by the
General Meeting and the Meeting of Partners, require a
unanimous vote. The JV will thus be jointly controlled
by the two parties.

II. THE PLANNED OPERATION

The merger is for the establishment of a full-function JV
by Celanese and Oxeno. The JV will produce and
distribute mainly oxo-C3 chemicals, in particular butyric
aldehyde, butanol, butyl acetate, 2-ethylhexanol (2-EH),
dioctylphthalate
acids
(trimethylhexane acid, 2-ethylhexane acid, butyric acid).

carbon

(DOP)

and

aldehyde

the JV and deliver

transferring its business

The parties will merge their respective European oxo-C3
business in the JV. For technical reasons, Oxeno cannot
transfer its butyric aldehyde facility in Marl to the JV.
But Oxeno will produce butyric
there
exclusively for
its entire butyric
aldehyde production to the JV. As regards butyl acetate,
to the JV;
only Oxeno is
Celanese will retain its butyl acetate business as it is not
conducted in the context of its oxo-chemicals but of its
acetyl business. As regards 2-EH, Degussa will transfer
only the existing 2-EH delivery contracts and the 2-EH
customer base to the JV but will abandon 2-EH
production once the JV is established and focus on the
longer-chain substitute product INA. The same applies
to the 2-EH downstream product DOP, where Degussa
will
likewise transfer only its customer base. Celanese
will not transfer its carbon acid facilities to the JV.

The JV will also acquire a number of ancillary services
from Degussa (tank facility,
fatty alcohol distillation,
ethanol
finishing, resin production, hydrogenation of
cyclododecatriene into cyclododecane and processing of
butylene
butylene
acetic
glycolacetates).

glycol

acid

into

and

III. MERGER

(10) Ultimately, the JV will exercise all the functions of an
autonomous economic entity. It will be established for
an unlimited period and production facilities will be
transferred to it permanently. Moreover, it will exercise
on the relevant markets the functions that are also
exercised by other firms on those markets. It will have
its own management dealing with day-to-day business
and adequate financial resources to cover its business
needs. It will produce the oxo-chemicals that it markets
almost exclusively in its own production facilities and
transferred from Celanese and
using its own staff
in addition have its own direct
Oxeno. The JV will
access
for
marketing its own production itself.

to the market.

It will be

responsible

(11)

The planned operation is accordingly a merger within
the meaning of Article 3(2) of the Merger Regulation,
read in conjunction with Article 3(1)(b).

IV. COMMUNITY DIMENSION

(12)

The firms concerned have a worldwide turnover of
more than EUR 5 billion (Celanese AG EUR 5 097
million, RAG Aktiengesellschaft approximately EUR 13
billion). Celanese and RAG each have a Community
turnover of more than EUR 250 million ([…] (*)).
its
Celanese
Community turnover in a single Member State. The
notified merger
Community
dimension.

than two thirds of

achieves more

accordingly

has

a

V. ASSESSMENT IN TERMS OF COMPETITION

(13)

it has been
Following detailed scrutiny of the merger,
established that
this merger would not create or
strengthen a dominant position as a result of which
competition would be significantly impeded in the
common market or in a substantial part thereof.

The JV will be a full-function joint venture within the
meaning of Article 3(2) of the Merger Regulation. It will
be jointly controlled by Celanese and Oxeno, will be
established for a limited period and will exercise all the
functions of an autonomous economic entity.

SUPPLIERS ON THE RELEVANT MARKETS

(14)

The basic material for the relevant products is butyric
aldehyde, which is produced from propylene and

Celanese and Oxeno will each have a 50 % holding in
to financial
the JV. Strategic business decisions as
planning, management appointments, major investments

(*) 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.

(5)

(6)

(7)

(8)

(9)

10.2.2004

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Official Journal of the European Union

L 38/49

(2-EH), carbon
synthetic gas. Butanol, 2-ethylhexanol
acids, TMP and NPG are produced from this basic
product at the first subsequent processing stage. At a
further processing stage, butyl acetate can be produced
from butanol, but other products such as the butyl
aminate and butyl acrylate supplied by Celanese can
also be produced. 2-EH acrylates and dioctylphthalate
(DOP) among others are made from 2-EH. Suppliers
tend to be vertically integrated and use their preliminary
products primarily in their own processing facilities.

it was

DOP but also dibutyl phthalate (DBP) and di-isobutyl
in business
phthalate (DIBP). When the firm was
difficulties,
the Polish State
renationalised;
publicly offered to enter into negotiations for the sale of
the firm. According to one of Zaklady's customers, the
firm is under bank supervision and can accept only
business contracts that generate an immediate profit.

1. BUTYRIC ALDEHYDE

(15) Apart

from the parties, BASF, Perstorp, Atofina and
Zaklady Azotowe ‘Kędzierzyn' SA are among the most
important vertically integrated suppliers.

(20)

(16)

(17)

the only competitor

BASF is the world's largest chemicals group. Following
the closure of its works in Tarragona, Spain, its entire
oxo-chemicals production is now concentrated in
Ludwigshafen. BASF is
to be
present on all six markets where the JV will be in
its integration strategy, which
business. By means of
seeks
integrated
through
synergies
production systems, BASF is less dependent than other
competitors on the oxo-chemicals market on sales to
third parties upstream. BASF is not very strongly
represented on many markets
for oxo-intermediate
products.

enhance

to

a

is

is

active

Swedish

firm that
engineering materials,

in
Perstorp
oxo-intermediates,
coating
intermediates, performance chemicals and formox and
has a turnover of approximately SEK 670 million. It was
born of the merger of Perstorp AB and Neste Oxo.
Among other
it produces butyric aldehyde,
things,
butanol, 2-EH and DOP.

(18) Atofina is a TotalFinaElf subsidiary consisting of Elf
chemicals division of Petrofina.
Atochem and the
Atofina is
in the oxo-chemicals business primarily
through Oxochimie at Lavera, near Marseilles, France.
Oxochimie is a joint venture founded in 1968 by
Atofina and BP, making butyric aldehyde, butanol and
2-EH. The two companies each hold 50 % of the capital
in Oxochimie and are entitled to supplies of butanol
and 2-EH accordingly, while butyric
is
reprocessed internally apart from some deliveries to a
few customers. Atofina produces the most important
2-EH downstream product, DOP, but
in 2001 BP
dropped DOP production. Since then BP has been
vertically integrated only in downstream products of
butanol.

aldehyde

(19)

Zaklady Azotowe ‘Kędzierzyn' S.A. (Zaklady) is a Polish
producer based in Kozle, Poland. The Oxo-division
produces oxo-alcohols
semi-finished products
and
(2-EH, n- and iso-butanol, n- and iso-butyric aldehyde).
Among other things, the plasticisers division produces

It

Butyric aldehyde is the first chemical step in the oxo-C3
chemistry.
is produced from propylene through a
reaction with a synthesis gas (syngas). This reaction
leads to the production of
two isomers of butyric
aldehyde: iso-butyric aldehyde and n-butyric aldehyde in
a ratio of 10 to 12 tonnes of n-butyric aldehyde for 1
tonne of iso-butyric aldehyde. From the two isomers are
iso-butanol and
derived further products
from iso-butyric aldehyde and
neopentilglycol
n-butanol, 2-ethylhexanol
trimethilolpropane
(TMP) and carboxylic acids from n-butyric aldehyde.
Each producer of butyric aldehyde also produces some
downstream products so that the merchant market for
n- and iso-butyric aldehyde is more limited than their
captive use. The merchant market represents 1/30 of
total production.

such as

(2-EH),

(NPG)

(1) RELEVANT MARKET

(21)

The parties submitted that butyric aldehyde could not
be considered as a real market but was only an
intermediate product. Nevertheless, even though the
related merchant market
than the
captive use, it still exists: more than 20 chemical firms
throughout Europe buy these products and depend on
this supply to produce downstream chemical products.
Buying patterns range from spot purchases to long-term
contracts.

is much smaller

(22) On the supply side, five firms produce butyric aldehyde
in the EEA: Perstorp in Sweden, BASF, Celanese and
Oxeno in Germany, Atofina in France. They all sell
butyric aldehyde on the merchant market and also have
captive uses.
Imports are mainly due to a producer
located in Poland: Zaklady. The latter and Atofina are
for butyric
smaller players in the merchant market
aldehyde business
aldehyde. Consequently,
exhibits all characteristics of a market.
In addition,
n-butyric aldehyde and iso-butyric aldehyde have to be
the
regarded as
following reasons:

two distinct product markets

butyric

for

L 38/50

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Official Journal of the European Union

10.2.2004

(a) No demand side substitutability between n-butyric
aldehyde and iso-butyric aldehyde: the two isomers
lead to different downstream products

several months may be needed to modify the ratio by a
few percentage points. Therefore, it appears not to be
possible to produce significant quantities of one isomer
instead of the other, even though the same equipment is
used for both.

(23)

The investigations carried out by the Commission
revealed that
the two isomers are used for different
purposes and cannot be substituted for each other in
most cases. This is especially true for the manufacture
of the following downstream products: TMP, PVB and
NPG, which represent more than 95 % of sales of
butyric aldehyde on the merchant market. This is due
the two molecules exhibit
that
mainly to the fact
different
given
that
properties,
chemical
downstream product can be derived from only one of
the two isomers through a specific chemical reaction.

so

a

(24) Moreover, most customers buy only one specific isomer.
The only ones which bought both isomers did so to
produce two different products: TMP or PVB from
n-butyric aldehyde and NPG from iso-butyric aldehyde
only.

(25)

the average prices of

Lastly,
the two isomers show
significant differences, ranging from 15 to 40 % over the
years, as shown in the table below. This can partly be
explained by the fact that customers commonly buy
much smaller volumes of iso-butyric aldehyde than in
the case of the n-isomer. As a result, the market for
iso-butyric aldehyde is much smaller than for n-butyric
aldehyde [10 to 15]* kt compared with [50 to 55]* kt
for n-butyric aldehyde in 2002).

following

to the market

(27) As a consequence, two distinct product markets will be
distinguished in the
sections: n-butyric
aldehyde and iso-butyric aldehyde. Oxeno is currently
not active on the market for iso-butyric aldehyde, as
opposed
aldehyde.
Therefore, the following assessment will focus on the
market for n-butyric aldehyde. In the following sections,
specify one
the Commission does not
each time
particular
the described
this means
isomer,
characteristics apply to both isomers. The following
observations
relate to both isomers, except where
specific reference is made to a particular isomer.

n-butyric

that

for

(2) GEOGRAPHIC MARKET FOR N-BUTYRIC ALDEHYDE

The markets for butyric aldehyde are at most
European in scope

(28)

The parties submitted that
the markets for butyric
aldehyde, if they can be considered as real markets, are
EEA-wide in scope, mainly because a few producers
supplied all customers throughout Europe.

Table 1

Celanese's average prices from 1999 to 2002

(29)

n-butyric aldehyde

iso-butyric aldehyde

1999

2000

2001

2002

EUR […]*/t

EUR […]*/t

EUR […]*/t

EUR […]*/t

EUR […]*/t

EUR […]*/t

EUR […]*/t

EUR […]*/t

The investigation showed that these markets were at
most EEA-wide: there have been no significant imports
or exports of butyric aldehyde in recent years between
the EEA and the rest of the world, with the exception of
Zaklady's sales in Europe. Customers and competitors
largely confirmed that the market was at most European
in scope. On the one hand, butyric aldehyde is a raw
material of
low value and cannot economically be
transported over long distances and, on the other, it is
unstable in the presence of oxygen and therefore
requires expensive storage infrastructures or
special
means of transport.

(b) Very little supplier flexibility for production

switchover

Northern Europe and Southern Europe constitute two
distinct geographic markets for n-butyric aldehyde

(26)

The two isomers are produced at the same time and in
the same reactor. Depending on the conditions of
pressure and temperature and the modification of the
characteristics of the catalyst, the ratio of production of
the two isomers can be only slightly modified. The
parties and the competitors confirmed that this ratio
commonly remains in the range of 10:1 to 12:1. The
ratio can be moved within this range but only slowly:

(30)

the
Before attempting a more precise delineation of
geographic markets,
it must be noted that all main
customers of butyric aldehyde and therefore more than
95 % of the European sales are concentrated in three
countries: Belgium, Germany and Italy, where five main
customers together account for over 90 % of demand.
The breakdown between the Member States is shown in
the table below.

10.2.2004

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Official Journal of the European Union

L 38/51

Table 2

Total sales of n-butyric aldehyde by country in 2002

Country

Volume sold (t)

Turnover
(EUR 1 000)

Proportion of EEA sales

Germany

Belgium

Italy

United Kingdom

France

Spain

The Netherlands

Total EEA

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[60 to 70 %]*

[20 to 30 %]*

[10 to 20 %]*

[0 to 10 %]*

[0 to 10 %]*

[0 to 10 %]*

[0 to 10 %]*

[23 000 to 26 000]*

100 %

(31)

The investigations carried out by the Commission lead
to the conclusion that two distinct geographic markets
should be distinguished: northern continental Europe (in
fact, mainly Germany and Belgium) and southern
Europe (in fact, mainly Italy).

(32)

First, it appears that the sales conditions in Italy and in
Germany and Belgium differ significantly. The average
price for n-butyric aldehyde in Germany and Belgium in

[…]* % of

2002 was around EUR [450 to 500]* per tonne, while
it was around EUR […] per tonne in Italy over the same
period. This significant difference (EUR [100 to 150]*,
the price in Germany) cannot be
i.e.
explained by transport costs alone: the latter are only
EUR [20 to 40]* higher on average in Italy than in
Germany. As a result, the margins of the supplier are
much higher in Italy than in Germany or in Belgium, as
the table below shows.

Average prices, variable costs, gross margin and the percentage, i.e. gross margin as a proportion of the total
price of all suppliers, on the basis of their 2002 sales in the country of destination

Table 3

Country

Average price
(EUR/t)

Average
variable cost
(EUR/t)

Average
gross margin
(EUR/t)

Germany

Belgium

Italy

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

Percentage

[…]*

[…]*

[…]*

(33)

These differences cannot be explained only by smaller
sales volumes: […]*. This pattern is possible because the
producers can discriminate in prices between customers,
depending on volumes and country of destination: the
products are delivered direct to the customer's plant for
an all-in price per tonne, including transport costs. The
producer
the logistics. And so a
producer, when pricing a product, knows exactly who is
the buyer as well as the country in which the buyer is
located and the volumes bought in the past […]*.

is responsible for

leading firm is Celanese.
In Italy market shares are
distributed in a very different way: Perstorp and BASF
are the leading players and more competitors are active
(five suppliers as compared with four main suppliers in
Germany and Belgium). Some suppliers such as Perstorp
and Zaklady enjoy significant market shares ([20 to
30 %]* and [10 to 20 %]* respectively) while they have
very limited sales in Germany ([5 to 10 %]* and [0 to
5 %]* respectively). Atofina is not active in Germany but
has sales in Italy ([0 to 5 %]*).

(34)

The market shares of the various producers are also
in Germany and Belgium, Celanese,
very different:
the market. The
Oxeno and BASF control most of

(35)

In Italy the strong presence of competitors such as
Perstorp, which has low market shares in Germany, can
be explained mainly by transport costs. Perstorp faces

L 38/52

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Official Journal of the European Union

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high transport costs in Germany (EUR […]* per tonne)
and therefore cannot effectively compete against
the
three local producers, which face much lower transport
costs (ranging from EUR […]* to EUR […]* per tonne ).
In Italy Perstorp and the German producers all
face
higher transport costs and are therefore on a more
equal competitive footing.

(38)

In this area,
appear

The competition conditions are quite different in Italy
the
where there is no local producer.
German, Swedish and Polish suppliers
to
footing, both in terms of
compete on a more equal
transport costs and supply conditions
(security of
supply, timely delivery). This is reflected in the market
shares, which are more evenly distributed among the
[30 to 40 %]*,
different
Perstorp:
[20 to 30 %]*,
Zaklady: [10 to 20 %]*).

suppliers
(in 2001, BASF:
[20 to 30 %]*, Celanese:

(36)

(37)

to be

storage

intermediate

carried by vessels

This situation is different from that of butanol or 2-EH,
in
where Perstorp has
tanks
Hamburg and Rotterdam to supply customers
in
northern Europe economically. In fact, butyric aldehyde
is unstable in the presence of oxygen. It must be stored
and transported in a nitrogen atmosphere and with
special equipment for recycling the vapours of butyric
aldehyde. Perstorp confirmed that such a tank would
not make economic sense. Moreover, this tank would
have
transporting large
quantities and having a vapour recycling system. Only a
few vessels have such systems on board. Lastly, these
vessels must be filled by pipe from the plant
(like
butanol and 2-EH), and Perstorp currently has no such
pipe and does not plan to install one given the price of
such a specific pipe. As a consequence, Perstorp has no
choice but to fill
iso-containers in Sweden (20 to 23
tonnes each) that can be transported by truck or by rail.
These containers are shipped by ferry to Germany and
then on to the final customers throughout Europe by
truck or by rail.

are not

The investigation has shown that, beside price, the most
important parameters are security of supply and timely
deliveries: customers commonly have comparatively
small storage capacities (like the producers) and have
just-in-time production. Delays
tolerated.
Admittedly, the storage capacities of [customer A] in
particular could be expanded at relatively low cost. As a
result, the locational advantages of German suppliers
when supplying customers in Germany and Belgium
would be only partly offset. For this reason, it appears
that penetrating an area where the three German
producers are located and offer a high level of security
of supply is difficult for outside competitors, i.e. mainly
Perstorp (Sweden) and, more recently, Zaklady (Poland).
The German producers can even deliver within a day by
truck, if need be. This also explains Perstorp's very low
regards
share in Germany and Belgium as
market
n-butyric aldehyde ([<5]* % in 2002), even though
Perstorp's transport costs are lower for deliveries of
butyric aldehyde to Antwerp (around EUR […]*/tonne)
compared with deliveries to southern Germany (around
EUR […]*/tonne).

(39) As a consequence, two distinct geographic markets for
n-butyric aldehyde are distinguished in the following
i.e. mainly
assessment: a northern European market,
Belgium and Germany,
southern European
market, i.e. Italy.

and a

(3) COMPATIBILITY WITH THE COMMON MARKET

(40)

(41)

(42)

in Oberhausen and Marl

Through the proposed operation, Celanese and Oxeno
are to contribute their production of butyric aldehyde,
located respectively
in
Germany, to a newly created joint venture. Oxeno is
iso-butyric
currently not active in the market
aldehyde: all the iso-butyric aldehyde produced at the
same time as n-butyric aldehyde is used internally.
When demand is not high enough, it reportedly can be
burnt. Therefore, the assessment focuses on the market
for n-butyric aldehyde, where there is an addition of
activities.

for

(a) Description of the conditions of competition on the

markets prior to the proposed operation

for

are

butyric

aldehyde

The markets
currently
oligopolistic markets where competition is not very
strong. These markets are, moreover, rather transparent,
the producers face similar costs, the characteristics of
the markets are stable and the aggregate demand on a
stagnating and mature market is relatively small. This
industry can be seen as mature.

The markets for butyric aldehyde are particularly
transparent

The characteristics of each isomer (n- and iso-butyric
aldehyde) are standardised so that only one quality exists
for each product. All customers confirmed that each
for
isomer market
considered
homogeneous products. The quality can differ
in
extreme cases where the product supplied does not
the standard agreed upon or may contain
respect
by-products that are lethal for downstream reactions. In

a market

as

is

10.2.2004

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Official Journal of the European Union

L 38/53

this case, the product is reportedly not accepted and/or
the commercial relations with the supplier terminated.

(43)

consequence,

There are only six suppliers in Europe, three of which
are located in Germany. As regards producers, they have
all been on the market for many years. There has been
no new entrant in the market over the past 10 years. As
a
each plant
(technology, capacity) is public knowledge. This is true
particularly since those plants are classified under
Council Directive 96/82/EC of 9 December 1996 on the
control of major-accident hazards involving dangerous
substances (5) and are required by that Directive to

characteristics of

the

that

and the

substances

characteristics

volumes of
publish their
stored.
chemical
are used and/or
Furthermore, production capacities did not
evolve
dramatically in recent years (increase of less than 15 %
over the past five years). Lastly, the other producers are
also active in the downstream markets, which are also
concentrated: the main players on the butyric aldehyde
market are also the leading players in the downstream
product markets, such as 2-EH, butanol, DOP and butyl
bacetate. Their knowledge of the merchant markets for
downstream products thus enables them to have a
precise idea of the captive uses of butyric aldehyde and,
consequently, the spare capacity in the other producers'
plants.

Capacities and total production of n-butyric aldehyde in the EEA over the last four years (in kt)

Table 4

2002

2001

2000

1999

Capacity

Production

Capacity

Production

Capacity

Production

Capacity

Production

[450—500]*

[450—500]* (6)

[…]*

[…]*

[450—500]*

[400—450]*

[…]*

[…]*

[450—500]*

[400—450]*

[…]*

[…]*

[350—400]*

[400—450]*

[…]*

[…]*

[900—1 000]*

[650—700]*

[900—1 000]*

[650—700]*

[900—1 000]*

[650—700)

[900—1 000]*

[650—700)

[250—300]*

[250—300]*

[250—300]*

[250—300]*

[250—300]*

[250—300]*

[250—300]*

[250—300]*

[500—550]*

[450—500]*

[500—550]*

[450—500]*

[550—600]*

[500—550]*

[550—600]*

[500—550]*

[250—300]*

[200—225]*

[250—300]*

[200—250]*

[200—250]*

[200—250]*

[200—250]*

[200—250]*

1 983

1 649

2 015

1 617

2 024

1 701

1 899

1 693

Celanese

Degussa

JV

Atofina

BASF

Perstorp

Total

(44)

and

hydrogen)

throughout

technologies exist

the world to
Several
produce butyric aldehyde. All producers in Europe use
the same technology based on rhodium catalyst. As a
the quantity of energy, propylene and syngas
result,
(carbon monoxide
to
manufacture one tonne of butyric aldehyde represents
most of the variable costs and is significantly the same
for all producers: variable costs = A* propylene price +
B* syngas price + energy (a few percentage points),
where A is around EUR […]*/tonne, B around EUR
[…]*/tonne and energy around EUR […]*/tonne. The
syngas being much less expensive than propylene,
it
represents only 18 % of
the final variable cost of
producing butyric aldehyde.

needed

(45)

The table below provides the producers' average variable
costs in 2002 and shows that the different producers'

(5) OJ L 10, 14.1.1997, p. 13.
(6) Oxeno reduced its capacity to […]*t per year in the course of
INA, which is

following the launch of a new product,
2002,
produced using part of the butyric aldehyde plant.

variable costs are very similar. The variation ranges up
to EUR […]* per tonne, i.e. 10 %. This differences must
not be overestimated: (i) they may result simply from
variations in the price of propylene over the year and
(ii) they must be assessed in comparison with the gross
margins which are at least EUR […]* per tonne (cf.
subsequent sections).

Table 5

Average variable costs in 2002 per tonne of butyric
aldehyde produced, for each producer

Firm

Average variable costs

Celanese

Degussa

Perstorp

BASF

Atofina

Zaklady

EUR […]*/tonne

EUR […]*/tonne

EUR […]*/tonne

EUR […]*/tonne

EUR […]*/tonne

n.a.

L 38/54

EN

Official Journal of the European Union

10.2.2004

(46)

(47)

quoted

the
Consequently, one producer can easily work out
variable costs of
its competitors since the bulk of
variable costs is determined by the price of propylene,
daily on international markets
which is
(ICIS-LOR publishes propylene prices in Europe,
for
instance). The remaining variable costs comprise energy,
which is similar (EUR […]*/tonne) for each producer,
and syngas, which accounts for a much smaller fraction
of variable costs than propylene: syngas accounts for
40 % in weight but for less than 20 % of cost of the
is much more stable than
final product).
propylene since it is made of carbon monoxide and
hydrogen, which are produced in the neighbourhood of
the chemical plant (by refineries).

Its cost

The characteristics of the markets are stable over
time

— Prices are much more stable than they appear

that most of

The price of butyric aldehyde fluctuates over time. This
is due mainly to the fact
the cost of
producing butyric aldehyde is dependent on the price of
the main raw material, i.e. propylene, which fluctuates
significantly over time. Nevertheless, most of n-butyric
supply
aldehyde sales,
contracts, where the agreed price is based on a formula
that takes into account the price of propylene and the
quantity of propylene (0,65 to 0,70 t) needed to
produce one tonne of butyric aldehyde. The formula for
most contracts is:

instance, are sold under

for

butyric aldehyde price = C * propylene price (7) +
charge, where C ranges from 0,65 to 0,70.

The charge comprises reworking costs, transport costs
and the producers' margin. Therefore, price negotiations
relate exclusively to the level of this charge and exclude
all fluctuations in the price of propylene.

(48)

The contracts that are not based on this formula are
i.e. monthly or quarterly
mainly short-term contracts,
contracts. They are considered in this
industry as
fixed-price ‘spot' purchases. Admittedly, this fixed price
reflects both the cost of propylene (0,65*price of
propylene at the time) and the reworking and transport
costs plus the margin:
the latter corresponds to the
charge. The Commission's investigations showed that
the only large customers which use spot contracts for
significant volumes of butyric aldehyde are [firm A]*
and [firm B]*.

— No technological innovation, mature business

in Europe are

(49) As mentioned above, the plants that produce butyric
aldehyde
several decades old. The
technology has not evolved significantly in recent
decades. The only major modification relates to the
catalyst: cadmium has been replaced by rhodium for all
producers. All players in the market confirmed that this
was a mature business.

(50)

The market for n-butyric aldehyde is stable. As regards
n-butyric aldehyde, even a slight decline may be
expected in the coming years owing to the declining
sales of 2EH (which is produced from n-butyric
aldehyde). In fact, the plasticiser produced from 2EH,
DOP, has recently been classified as toxic.
Its use in
certain applications may therefore be prohibited in the
future (the phase relating to risk assessment based on
the type of application has not been completed yet), and
this will affect the volumes of 2EH produced and hence
the production of n-butyric aldehyde.

— No countervailing buying power

(51)

given

producer's

than 90 % of

The number of customers in these markets is very
limited. Five to ten customers commonly account for
more
sales.
a
Nevertheless, these customers do not appear to hold
strong countervailing buying power because, firstly, the
customers who buy butyric aldehyde are not vertically
integrated, unlike most butyric aldehyde producers and,
secondly, most of them value security of supply and
timely delivery. The investigation showed that, for this
reason, most customers regard only a very limited
number of producers as serious alternatives (8) and
maintain with them long-term commercial relationships
involving close cooperation,
in particular in terms of
logistics. Switching to a new supplier would therefore
entail higher risks and uncertainties, require setting up
an efficient logistics chain and testing the compatibility
of the product with the characteristics of the chemical
reaction performed in the plant. Having one additional
supplier may also make it necessary to use an additional
tank in order to store separately the products supplied
In case of production
by the different producers.
problem, this enables the customer to identify which
product
the merchant
market for butyric aldehyde represents less than 5 % of
the total production of butyric aldehyde. Therefore, the
loss of one customer would have a very limited impact
on the activity of the producer.

responsible for

it. Lastly,

is

(7) This formula is based on the fact that 0,65 tonne to 0,70 tonne of

(8) Only one large customer reported five suppliers. In all other cases,

propylene is needed to produce 1 tonne of butyric aldehyde.

the number of suppliers was between one and three.

10.2.2004

EN

Official Journal of the European Union

L 38/55

(52)

In light of the market conditions described above, the
markets for n- and iso-butyric aldehyde should be
regarded as highly concentrated oligopolistic markets
where competition is weak.

Germany + Belgium

Firm

Volume sold (kt)

Market share

(53)

(54)

(b) The impact of the merger on the markets

The proposed joint venture does not lead to any overlap
in Italy since Oxeno is not active there. Therefore, the
following assessment focuses on the northern European
market
comprising mainly
for n-butyric
Germany and Belgium.

aldehyde,

serious doubts as

In this market, the proposed operation will result in a
combined market share of [60 to 70 %]* (Celanese: [50
to 60 %]* and Oxeno: [10 to 20 %]* in 2002). The
remaining players are BASF, with a [20 to 30 %]*
market share, Perstorp ([0 to 10 %]*) and Zaklady (less
than [10 %]*). Such market shares are high enough to
raise
the proposed
operation may lead to the creation or the strengthening
of dominant positions. As is analysed in detail below,
the investigation carried out by the Commission showed
that, firstly, the market shares were not very reliable
indicators of market power in this case and, secondly,
several competitors enjoyed enough spare capacities to
challenge the notifying parties' position.

to whether

(55)

Table 6

Volumes sold in 2002 and related market shares for
n-butyric aldehyde in Germany + Belgium

Germany + Belgium

(56)

Firm

Volume sold (kt)

Market share

Celanese

Degussa

Joint venture

[…]*

[…]*

[…]*

[50 to 60 %]*

[10 to 20 %]*

[60 to 70 %]*

[…]*

[…]*

[…]*

[…]*

[…]*

[20 to 30 %]*

[0 to 10 %]*

[>5 %]*

[<5 %]*

100 %

BASF

Perstorp

Atofina

Zaklady

Total

Market shares

aldehyde. Therefore,

it represents around 3 % of

for n-butyric aldehyde is very
The merchant market
the total annual
small:
production of n-butyric
any
producer could supply the whole merchant market
either by using spare capacities or
theoretically by
switching a part of the butyric aldehyde used internally
for downstream products into the merchant market. The
latter is far more unlikely to occur than the former
the demand for downstream
since it
requires
the margin generated by
products decreases or that
butyric aldehyde becomes significantly higher than the
one generated by downstream products. However, as
explained
spare
capacities.

competitors

below,

enjoy

some

that

Further, the parties' market shares have been declining
sharply over the past years, from [70 to 80 %]* in 1999
to [60 to 70 %]* in 2002 in the EEA. This pattern is the
same when the German+Belgian market is considered
since Degussa is not active in Italy and Celanese has
only a small turnover there. Since the size of the total
market shrank over the period, the loss in term of sales
is even bigger:
from
[…]* kt in 1999 down to […]* kt in 2002, a decrease
of [more than 30 %]*.

the parties' combined sales fell

The parties' sales and market shares for butyric aldehyde in the EEA from 1999 to 2002

Table 7

1999

2000

2001

2002

Sales (kt)

Market share

Sales (kt)

Market share

Sales (kt)

Market share

Sales (kt)

Market share

Celanese

[…]*

[70 to 80 %]*

[…]*

[60 to 70 %]*

[…]*

[50 to 60 %]*

[…]*

[40 to 50 %]*

Degussa

0

0 %

0

0 %

[…]*

[0 to 10 %]*

[…]*

[0 to 10 %]*

Joint venture

[…]*

[70 to 80 %]*

[…]*

[60 to 70 %]*

[…]*

[50 to 60 %]*

[…]*

[50 to 60 %]*

Total market

[…]*

100 %

[…]*

100 %

[…]*

100 %

[…]*

100 %

L 38/56

EN

Official Journal of the European Union

10.2.2004

(57)

The main reason for this strong evolution relates to the
characteristics of the market for butyric aldehyde. Even
though more than twenty companies purchase butyric
aldehyde, only a handful have significant sales. In the
northern European market
four
companies purchase most of the butyric aldehyde sold
on this market: Bayer (Germany, […]* kt per year),
Solutia (Belgium, […]* kt per year), Kuraray (Germany,
[…]* kt per year), Wacker (Germany, […]* kt per year).
As a consequence, as soon as one customer changes its
purchase pattern, the impact on market shares can be
significant.

(Germany+Belgium),

Table 8

BASF sales of n-butyric aldehyde in kt and corresponding
market share in the EEA from 1999 to 2002 (9)

BASF

1999

2000

2001

2002

Sales (kt)

[…]*

[…]*

[…]*

[…]*

Market share

[…]*

[…]*

[…]*

[…]*

Total market

[…]*

[…]*

[…]*

[…]*

(58)

This is demonstrated by the Oxeno and BASF cases: in
2001 [firm B]* chose Oxeno as an additional supplier
for n-butyric aldehyde. As a result, Oxeno suddenly
acquired a [10 to 20 %] market share. Similarly, BASF
lost sales to Perstorp in 1999 but not in 2000 and
2001. As a result, BASF's market share jumped from [10
to 20 %]* in 1999 to [10 to 30 %]* in 2000-2001.

(59)

Spare capacities

very

given the

Consequently,
limited number of
customers and the small size of the merchant market
the market
compared with the level of production,
shares of the various competitors fluctuate widely. This
tends to minimise the role of market shares as an
indicator of market power. Even so, market shares in
the last four years show that there is competition on the
market in n-butyric aldehyde.

(60) Given the parties'

leading position in this already highly concentrated market,

the proposed
operation could lead to detrimental effects if competitors faced capacity constraints and could not
significantly increase the quantities that they put on the merchant market as a reaction to any
output reduction or price increase by the parties.

Capacity, production, captive use and merchant market for n-butyric aldehyde in 2002 in the EEA

Table 9

Capacity

Share

Production

Captive use

Non-captive
EEA

Market share

Celanese

Degussa

Joint venture

Atofina

BASF

Perstorp

Zaklady

Total

[…]*

[…]*

[40 to 50 %]*

[10 to 20 %]*

[20 to 30 %]*

[10 to 20 %]*

n.a.

1 983

n.a.

100 %

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

n.a.

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

n.a.

1 649

1 601

[…]*

[40 to 50 %]*

[…]*

[5 to 15 %]*

[…]*

[50 to 60 %]*

[…]*

[>5 %]*

[…]*

[20 to 30 %]*

[…]*

[…]*

[…]*

[5 to 10 %]*

[5 to 10 %]*

100 %

(9) Since BASF's turnover in Italy has not fluctuated, this situation

reflects that in Germany in Belgium.

10.2.2004

EN

Official Journal of the European Union

L 38/57

The parties

(61)

The parties reported in their reply to the statement of
objections that Oxeno's capacity has been dramatically
reduced in 2002 as a consequence of
launching the
production of INA: part of the butyric aldehyde plant
has been used to produce INA. As a result, Oxeno's
butyric aldehyde capacity has been reduced to […]* kt
[…]* kt per year. From 2003
per year,
onwards, the joint venture's capacity will be […]* kt per
year and its
spare capacity (based on the 2002
production figures): […]* kt per year. The parties will
therefore still enjoy the largest capacity and spare
capacity on the market, but the difference with BASF
([…]* kt per year spare capacity) will be much smaller.

instead of

Atofina

(62) Atofina

butyric

through

aldehyde

produces

its
in Lavera. Oxochimie has no
subsidiary Oxochimie,
spare capacity:
it confirmed (see transcription of their
telephone call of 4 April 2003) that it has important
internal needs to produce butanol and 2-EH, which it
regards as its core business. It is able to sell on the
merchant market little more than […]* kt of n-butyric
aldehyde. According to Atofina, the price of n-butyric
aldehyde would have to increase significantly before it
considers diverting part of its internal use of butyric
aldehyde to sell
it on the merchant market. Atofina's
strategy and its capacity constraints are confirmed by its
level of production compared with its capacity over the
last years:
the high level of […]* %.
Atofina considers the latter as an excellent ratio for the
industry. In the past, it produced less only because of
incidents or periodic maintenance:
it had to stop
production of butyric aldehyde for a month in 2001, for
instance.

it remained at

Perstorp

(63)

Perstorp enjoys
some spare capacities. Nevertheless,
when asked about its margins of manoeuvre, it admitted
that they were more limited than the raw figures may
indicate: First, it puts its real capacity at lower than the
nominal capacity by […]*kt. Second,
it also produces
[chemicals] using part of the butyric aldehyde capacity,
namely around […]* kt. As a consequence, Perstorp has
around […]* spare capacity. However, this represents
more than 20 % of the northern European market and
could be enough to offset any output reduction by the
parties.

(64)

Lastly, despite its spare capacity, Perstorp does not
appear as a very competitive player in the northern
Its only
for n-butyric
European market

aldehyde.

significant customer in this area is [customer C]*, which
purchased […]* tonne in 2001 and […]* t in 2002.
[Customer C]* decided to switch to [supplier A]* and
[supplier B]*. As a result, Perstorp's sales in this area in
2003 are less than […]* %. When asked about
the
reasons for this switch, [customer C]* explained that
Perstorp's prices (that is, the charge on top of the cost
of propylene) are much higher than the prices usually
proposed by the German producers: by around EUR
[…]* a tonne (compared with a charge of between EUR
[…]* and EUR […]*). According to [customer C]*, the
cost of
transporting butyric aldehyde from Sweden
could be the main reason.

Perstorp is competitive when the other producers raise
their charges. This has been the case in 2001 and 2002:
Perstorp's charge did not change but became attractive
because the German producers proposed a much higher
price to [customer C]*. In 2003 the prices proposed by
BASF and Celanese returned to normal and [customer
C]* switched back to them. [Customer C]* stated that
Perstorp was
really concerned by losing such a
significant volume and came back several times with
lower prices. The lowest price proposed by Perstorp
nevertheless remained significantly higher than BASF's
and Celanese's prices (which appear to be the prices
usually proposed in this area).

for

in 2002,

in-depth investigation:

This analysis is confirmed by the data gathered during
the
instance,
Perstorp's prices for butyric aldehyde were in the range
of EUR […]* — EUR […]* a tonne (EUR […]* in
Germany, EUR […]* in Italy), while BASF and Celanese
sold their butyric aldehyde at prices ranging from EUR
[…]* to EUR […]* in Germany over the same period.
When asking for a quote in the past months, [customer
D]* also received a similar price level from Perstorp and
discarded the proposal. [Customer E]* also confirmed
Perstorp's non-competitive price level.

(65)

(66)

(67) As

regards

transport costs, data also confirm the
difference between the local producers and Perstorp:
Perstorp's transport costs range from EUR 90 to EUR
110 per tonne to deliver in Germany. As a comparison,
Celanese's transport costs range from EUR 25 to EUR
39 per tonne to deliver in the same area.

(68)

restrict

Consequently, Perstorp will
local producers'
room for manoeuvre only if it increases prices by some
EUR […]* per tonne, i.e. by [10 to 20]* %. The fact that
Celanese and BASF lowered prices for [Customer C]
after they lost sales to Perstorp shows that Perstorp
already exerts some competitive control over BASF and
the notifying parties.

L 38/58

EN

Official Journal of the European Union

10.2.2004

Volumes of n-butyric aldehyde sold on the merchant market and the related market share over the past
four years in the EEA

Table 10

Celanese

Degussa

Joint venture

BASF

Perstorp

Atofina

Zaklady

Total

Volume (kt)

[20 to 25]*

[0 to 10]*

[25 to30]*

[…]*

[…]*

[…]*

[…]* (10)

[…]*

Market share

[40 to 50 %]*

[0 to 10 %]*

[50 to 60 %]*

[20 to 30 %]*

[0 to 10 %]*

[0 to 10 %]*

[0 to 10 %]*

100 %

Volume (kt)

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

Market share

[50 to 60 %]*

[0 to 10 %]*

[50 to 60 %]*

[20 to 30 %]*

[10 to 20 %]*

[0 to 10 %]*

[0 to 10 %]*

100 %

Volume (kt)

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

Market share

[60 to 70 %]*

[0 to 10 %]*

[60 to 70 %]*

[20 to 30 %]*

[10 to 20 %]*

[0 to 10 %]*

[0 to 10 %]*

100 %

Volume (kt)

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

Market share

[70 to 80 %]*

[0 to 10 %]*

[70 to 80 %]*

17 %

[0 to 10 %]*

[0 to 10 %]*

[0 to 10 %]*

100 %

2
0
0
2

1
0
0
2

0
0
0
2

9
9
9
1

BASF

(69)

In light of the above, BASF appears to be a strong
competitor which has spare capacities to sell additional
n-butyric aldehyde on the German/Belgian market.
BASF's spare capacity amounted in 2002 to […]* kt, i.e.
[…]* % of nominal capacity and [more than 100 %]* of
the size of
in Germany and
Belgium. Unlike Perstorp, BASF also faces low transport
costs to supply German and Belgian customers. It could
therefore very easily use its large spare capacities to gain
additional market shares should the joint venture reduce
sales volumes or raise prices.

the merchant market

(70) When asked about

its

strategy in the market

for
n-butyric aldehyde, BASF replied that it was definitely
active in this market but had a conservative and
long-run approach to this business: suddenly placing
significant additional volumes on the market would not
be profitable in the long term since prices would
consequently remain low.
the price at
which it sells butyric aldehyde has to be compared with
the downstream products that can be
the price of
internally to give ideal margins.
produced from it
Besides,
in
connection with return on capital employed (ROCE).
Therefore, it must manage its business in the long run

to achieve certain targets, e.g.

In particular,

it has

(10) No precise data have been received from Zaklady.

in such a way that turnover covers fixed costs and their
financial
targets are met. This strategy is also being
pursued by other suppliers of butyric aldehyde.

(71)

Even so, BASF's market share in the EEA over the last
five years has expanded from [15 to 25 %]* to [25 to
35 %]*. Only 1999 was a maverick year in this respect.
BASF explained that it lost significant sales to Perstorp
in 1999 and realised that it would have to reduce its
it
dependence on this
reorganised its portfolio of customers, won back a
major customer and increased its sales up to [10 to 20]*
kt, as shown in the table below. BASF was therefore able
to increase its sales over the five-year period 1998 to
2002 by [considerably more than 35 %]*.

customer (11). As a result,

Table 11

BASF's sales of n-butyric aldehyde (in kt) from 1995
to 2002

1995

1996

1997

1998

1999

2000

2001

2002

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

[…]*

(11) Perstorp was purchased by Neste in 2002. Before this acquisition,
it used to buy butyric aldehyde from various suppliers, among
which Neste. After the acquisition, the company producing butyric
aldehyde took the name of ‘Perstorp'. Sales previously made to
Perstorp are now internal sales.

10.2.2004

EN

Official Journal of the European Union

L 38/59

(72)

Some customers reported that BASF was not always
available on the market or proposed only limited
volumes. This was the case, for instance, with supply
contracts negotiated recently with two important
customers in [country]*: [customer E and customer F]*.
Each of them asked BASF for a quotation to be fully
supplied by the latter.
In both case, BASF agreed to
supply them at market price (i.e., in line with Celanese's
and Oxeno's prices) but for a limited volume (roughly
half of the demand). However, it cannot be concluded
from the historical trend of market shares that BASF
will, in future, be a less active competitor.

(73) Given the spare capacities, BASF will also be able to
counteract possible price increases by the joint venture.
In the course of
the Commission
the investigation,
found no evidence that BASF would alter its strategy
and would not react
to a reduction in supply and
possible future price increases by the joint venture by
expanding supply. BASF could thus improve its position
in this market and exert effective competitive pressure
on the JV. Its behaviour in recent years shows that it
was in a position, and found it advantageous, to expand
its market share significantly over the last five years.

New entrants and producers outside the EEA

(74)

(75)

Strong competition cannot be expected from new
entrants: no new entrant has been reported in the past
10 years and, given the size of the European market,
which already exhibits substantial overcapacity, the cost
of building a new plant and the strict
regulations
applying to Seveso sites, the construction of a new plant
is highly unlikely in the near future.

existing chemical plants outside

the EEA
Several
produce butyric aldehyde, namely Zaklady in Poland
and two other firms in Russia and Romania. However,
no customer
reported having been supplied by the
Romanian or Russian firm. These appear to be too far
away to offer the level of security of supply required by
European customers and particular those in Germany
and Belgium, where closer and more reliable suppliers
are active.

(76) A few customers in Germany have been and may still
be supplied by Zaklady (less than [5]* % market share).
Besides, Zaklady is a significant player on the Italian
market. Several German customers reported that they
considered that Zaklady currently did not offer a level of
security of supply high enough for them to take the risk
of being supplied by it. Further, Zaklady declined several

times to commit to long-term supply contracts (this has
been the case, for instance, with Solutia and Kuraray)
and proposed only spot contracts for a short period.
The use of spot contracts may be a sign of short
capacities or unsecured supply in propylene. Therefore,
Zaklady can be seen as a fringe player in Germany and
Belgium that does not seem to be currently in a
position to exercise any counter pressure against the
joint venture. However, Zaklady has been a significant
player in Italy for several years ([10 to 20 %]* market
share in 2002), where it has been apparently able to
supply butyric aldehyde with a satisfactory logistics
chain. Therefore,
that, being
in the years
located close to Germany, Zaklady will
sales organisation and
ahead develop an efficient
increase its market share in Germany.

it cannot be ruled out

(c) Conclusion as regards n-butyric aldehyde

(77) Accordingly,

it appears that

the proposed operation
would, on the basis of 2002, give the joint venture a
[60 to 70 %]* market share. Although this market share
appears significant, it has fallen sharply in recent years
following Celanese's losses of market share. In addition,
the market share level does not seem to be a very
reliable indicator of market power given the very small
size of
the merchant market and the very limited
number of customers. Developments in market shares
over the last five years (see recitals 58 and 71) have
shown that competition exists on the n-butyric aldehyde
market. Moreover, even though this market is already
very highly concentrated, the parties' main competitor,
to a lesser extent, Perstorp enjoy spare
BASF, and,
capacities that are sufficient
them to avert any
for
reduction or price increase by the merging
output
parties. Besides,
found any
strong evidence that BASF would alter its strategy and is
not using its spare capacity but would instead follow
price increases effected by the parties. Lastly, Zaklady
was in a position to develop a logistics chain on the
highly priced southern European market. The possibility
cannot, therefore, be ruled out that, in the event of a
small,
significant but not merely temporary price
increase, Zaklady will also step up deliveries to the
northern European market.

the Commission has not

(78)

In the present case, it is therefore to be noted that the
merger would lead not only to the creation or the
strengthening of a dominant position.

L 38/60

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Official Journal of the European Union

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(d) Commitments given by the parties

(79)

The Commission takes note of the commitments given
by the parties. These commitments are the following:

to their butyric aldehyde customers

(a) The parties undertake to maintain durable secure
supplies
in
accordance with their market activity hitherto. To
this end, they declare their readiness to renew all
existing supply contracts with customers currently
purchasing from them,
if so requested, as follows:
[…]*.
In volume terms, at least the quantities of
butyric aldehyde currently supplied must be made.
sales prices or price formulas will be
Current
a
maintained,
or
only
cost-
inflation-related adjustment
applying the
usual parameters; […]*.

to
factor

subject

(b) […]*

(c)

[…]*

These commitments are not a condition of approval.

2. BUTANOL

(1) THE RELEVANT PRODUCT MARKET

(80)

(81)

It

It

(BuOH)

is a downstream product of butyric
Butanol
is produced by catalytic hydration from
aldehyde.
is the precursor for a series of
butyric aldehyde.
intermediate products such as butyl acetate,
chemical
and phthalate plasticisers.
butylamine, butylacrylate
There are no truly adequate substitute products for
butanol. Only in varnish production can butanol,
technically speaking, be replaced by a series of other
products with
thinning
the formula,
capacities (such as, after adaptation of
propanols, ketones, glycol ether and aromatics). In the
absence of adequate substitutability, it can be assumed
that
the relevant product market consists only of
butanol.

comparable

solvent

and

for

instance,

two isomers: n- and
Butanol comes in the form of
from n-butyric
iso-butanol, n-butanol being made
from iso-butyric aldehyde.
aldehyde and iso-butanol
There are arguments for accepting separate product
markets for the two types of butanol. On the demand
side,
there is only a low degree of
substitutability. For most applications, only one type can
be used; only in solvents can one be replaced by the
side,
other. On the
again no
is
substitutability
in organising production
processes). Producers cannot basically switch production
to any great
capacity from n-butanol
extent. The reason for this is that in the production of

supply
(flexibility

to iso-butanol

there

the precursor, butyric aldehyde, the two types n- and
iso-butyric aldehyde are used in a basically fixed ratio. If
a butanol producer,
for instance, wished to raise its
production of iso-butanol, it would also have to boost
production of iso-butyric aldehyde. If it did so, n-butyric
aldehyde output would rise in the same proportion. The
producer would then have to find a use for the excess
n-BuH. In many cases n-butanol production would be
the only option. So, at the end of the day, production of
the two types of butanol would have risen by the same
proportion.

(82)

the following situation is also conceivable. An
But
integrated producer produces butyric aldehyde, of which
it obtains both types. For its production of reprocessed
products it needs mainly one of
the two types, say
iso-butyric aldehyde, so that only a small quantity of
iso-butyric aldehyde is left over for hydration, in other
words for iso-butanol production. The producer will
then produce larger quantities of n-butanol but only
small quantities of iso-butanol. In such a situation there
is no possibility of offering to supply more iso-butanol
except by renouncing the possibility of processing the
iso-BuH and selling the products made from it.

(83)

It follows that some suppliers, depending what products
are made from the two butyric aldehyde isomers, obtain
different market shares for n- and iso-butanol. But this
does not apply to the parties, who have similar market
shares for the two butanol isomers.

(84) An argument in favour of accepting separate markets is
the fact that price trends for the two isomers are not
parallel. In 1998, for instance, the price of n-butanol
was around 15 % higher than the price for iso-butanol,
but in 2002 average prices were virtually identical.

(85)

But the question whether separate markets should be
defined for n- and iso-butanol can be left unanswered
for the moment, as the merger does not appear to be
compatible with the common market,
regardless of
whether a single butanol market or separate markets for
the two types are accepted.

(2) THE RELEVANT GEOGRAPHIC MARKET

(86) As the parties see it, the butanol market is (at least)
that demarcating

EEA-wide. But some customers feel
national markets is more realistic.

(87)

The investigation revealed that there are grounds for
believing that German suppliers delivering butanol to

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German customers enjoy a comparative advantage over
foreign suppliers, with the result that the parties have a
substantially higher market share in Germany, but that
the impact of these advantages is not such as to warrant
a conclusion that national markets are fragmented. Nor
there seem to be a defined regional market
does
consisting of Germany and neighbouring countries.

But the uneven distribution of market shares in the EEA
countries does not point to the existence of separate
markets. For one thing, there is no pattern whereby
suppliers each have dominant positions on their home
the parties are particularly
markets.
they also have sizeable
successful
market shares in Sweden and France, Perstorp's and
Atofina's home markets. And BASF, on the other hand,
has no above-average market share in Germany.

is true that
in Germany, but

It

Transport costs are not an argument
for accepting
narrower geographic markets than the EEA market.
the parties' main
Data from DB Cargo show that
competitors are
cost
disadvantage. This narrow gap has no significant
negative effect on foreign suppliers selling butanol
in
Germany.

at a 3 % to 6 % transport

(88)

(89)

It

supply

German

market
true
is

(90) Nor is there any evidence that foreign manufacturers
for
the
cannot
security-of-supplies
that
considerations.
security of supplies is an important competitive factor
for butanol buyers, alongside price and quality. But
there is no evidence that
foreign suppliers cannot
supply the German market simply because they cannot
guarantee
the
distance from their facilities to the customer's works.
This much is clear from the replies to the Commission's
questions, according to which the distance from the
supplier is not a significant factor. Not is there any

supplies on account of

security of

reason to believe that the likelihood of supplies being
unreliable rises with distance.

(91)

Finally, a foreign supplier can erect or rent a tank in
Germany. Recent examples are that of Perstorp, which
acquired a tank in Hamburg and put it into operation in
2001, whereupon its butanol
in Germany
increased considerably, and the South African producer
Sasol, currently erecting a tank in Marl.

sales

(3) COMPATIBILITY OF THE MERGER WITH THE COMMON

MARKET

(92)

The merger generates significant market shares on the
EEA-wide butanol markets. But the merger will not give
the parties such a market share as to raise fears of a
dominant position as a result of which competition
would be significantly impeded in the common market
or in a substantial part of it.

(93)

The assessment
is not affected by whether a single
market for butanol or a specific market for each of the
two butanol isomers is posited.

Assessment in competition terms on the basis of an
EEA-wide market for butanol

(94)

If a single EEA-wide market for butanol is posited, if in
other words no distinction is made between n- and
iso-butanol, the market structure after the merger will
be as follows:

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Table 12

Market share for butanol

1999

2000

2001

2002

2002+

kt

Share

kt

Share

kt

Share

kt

Share

kt

Share

Celanese

[…]*

[20 to 30 %]*

[…]*

[20 to 30 %]*

[…]*

[20 to 30 %]*

[…]*

[20 to 30 %]*

[…]*

[20 to 30 %]*

Oxeno

[…]*

[10 to 20 %]*

[…]*

[10 to 20 %]*

[…]*

[30 to 40 %]*

[…]*

[20 to 30 %]*

[…]*

[20 to 30 %]*

O+C

[…]*

[40 to 50 %]*

[…]*

[40 to 50 %]*

[…]*

[50 to 60 %]*

[…]*

[50 to 60 %]*

[…]*

[40 to 50 %]*

Atofina

[…]*

[0 to 10 %]*

[…]*

[0 to 10 %]*

[…]*

[0 to 10 %]*

[…]*

[0 to 10 %]*

[…]*

[0 to 10 %]*

BASF

[…]*

[10 to 20 %]*

[…]*

[10 to 20 %]*

[…]*

[10 to 20 %]*

[…]*

[0 to 10 %]*

[…]*

[0 to 10 %]*

Perstorp

[…]*

[20 to 30 %]*

[…]*

[20 to 30 %]*

[…]*

[10 to 20 %]*

[…]*

[20 to 30 %]*

[…]*

[10 to 20 %]*

BP

Sasol

[…]*

[0 to 10 %]*

[…]*

[0 to 10 %]*

[…]*

[0 to 10 %]*

[…]*

[0 to 10 %]*

[…]*

[10 to 20 %]*

[…]*

[0 to 10 %]*

[…]*

[0 to 10 %]*

[…]*

[0 to 10 %]*

[…]*

[0 to 10 %]*

[…]*

[0 to 10 %]*

Imports

[…]*

9,2 %

[…]*

9,0 %

[…]*

7,6 %

[…]*

7,9 %

[…]*

6,5 %

Total

229

233

277

[…]*

[…]*

(95)

For 2002 the Commission has identified a volume on
the free market of slightly more than 266 kt. Celanese
accounts for [… kt]* ([20 to 30 %]*) and Oxeno for […
kt]* ([20 to 30 %]*). If the monthly sales figures given
by the parties are added up, they have a market share of
and,
[50 to 60 %]*. Oxeno's
slightly over
consequently, the combined share of the parties (and the
volume of the market) are even greater than the table
indicates since Oxeno's figures do not include deliveries
to the joint venture with […]*, in which Degussa has a
50 % share. If this firm is regarded as independent of
Oxeno, the relevant deliveries are not part of its internal
group deliveries but part of the merchant market.

share

(96)

The second largest supplier after the joint venture is the
Swedish firm Perstorp, with sales of […]* kt and a
market share just over 20 % […]*.

The corresponding corrections have been incorporated
in table 12 in the 2002+ column.

(99)

If supplies to the joint venture with […]* are added to
the merchant market, this means that the figures both
for Oxeno deliveries and for the volume of the market
must be increased by [30 to 40 kt]*, which generates an
increase in the combined market share by just under
[… %]* (the […]* effect).

(100) The opposite is achieved by the ‘Ineos effect', which
stems from the fact that Ineos no longer belongs to BP
so that what were internal deliveries within the BP
group to its former butyric acetate plant in Antwerp are
now part of the merchant market. This increases the
volume of the market and BP's share by about […]* kt
and substantially increases BP's market share, making it
the joint venture's second largest competitor.

(97) All other suppliers have market shares below 10 %.
‘Imports' include imports from non-EEA countries. The
most important importer is the Polish firm Zaklady, and
butanol from Russian and Czech producers is also sold
through dealers in the EEA.

(101)

(98)

The parties rightly point to a series of effects suggesting
that the future market share of the joint venture will be
significantly lower, at no more than [30 to 40 %]* or so.

Finally, the entry into operation of Sasol's new butanol
plant in South Africa and its new n-butanol tank in
Marl must be factored in. For one thing, Sasol will be
able to meet its needs in Marl from its own butanol
imported from South Africa. For that purpose, Sasol has
already terminated its contract with Oxeno. This cuts
Oxeno's sales on the market by […]* (the Sasol/1 effect).
For another, Sasol will be able to supply customers in
the EEA (Sasol/2 effect). Depending on how large Sasol's
sales to third firms are and on what proportion is

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its combined
accounted for by sales to the parties,
market share comes to slightly below or slightly above
[30 to 40 %]*. The calculations underlying Table 12
assume that Sasol will succeed in selling not only the
production of the Brunsbüttel facility but also a further
[…]* kt of butanol, of which […]* kt to the parties. The
parties put both figures a little higher than that.

suppliers, primarily Perstorp and BASF. Both suppliers
have market shares of [10 to 20 %]* respectively. This
makes them substantially smaller than the joint venture
but large enough that the joint venture cannot ignore
them.

(102) The parties

argue

they have
lost a
that
further
significant customer […]* so that
the joint venture's
market share is likely to fall even further, although the
loss of this customer makes only a minor dent in their
combined market share.

(103)

In assessing these effects, account must be taken of the
following: […]*. For the purposes of assessing the future
JV's market power,
therefore
considerably less significant than the resulting reduction
in market shares.

effect'

‘Sasol

the

is

(104) Conversely, in assessing the impact of the […]* effect, it
must be remembered that this is an equally owned joint
venture of a firm in the Degussa Group and another
firm. It must be assumed that the relevant customer is
jointly controlled by Degussa and […]*. There is
therefor no apparent reason for treating the relevant
deliveries in the same way as other deliveries to the free
market.

(105) Sales volumes were taken as the basis for calculating
market shares. For one thing, fuller documentation is
sold than on turnover. For
available on quantities
another, price
fluctuating
reflect
commodity prices rather than pricing based on market
power. For the rest, market shares calculated from sales
volumes or turnover do not differ widely.

differences here

(106) The parties admittedly have a relatively large combined
market share at 40 %, twice as large as the next two
competitors, Perstorp and BP. The joint venture will
have
advantage of being the only
European supplier with two production facilities. This is
an advantage in the event of a planned or unplanned
production stoppage.

structural

the

(107)

It can be assumed, however, that the parties will be
to sufficient competitive pressure from other
subject

(108) Perstorp has a tank in Hamburg from which German
customers can be supplied. This means that it is easier
for Perstorp than for other non-German suppliers to
deliver to customers in Germany.

(109) BP obtains

its butanol

In the past,

from Oxochimie,
this

the joint
firm used
venture with Atofina.
virtually all
its butanol production from within the
group. After BP sold its butyl acetate plant in Antwerp
to Ineos, the corresponding deliveries must be regarded
as being on the free market. BP does have a supply
contract with Ineos for
some time but, once that
contract runs out, BP will be an alternative supplier for
other potential customers. And it is already active with
small but by no means negligible sales on the spot
market.

(110) Other suppliers — BASF, Atofina, Zaklady and Sasol —
will also exert competitive pressure. Admittedly, at each
of these competitors there are circumstances suggesting
that their competitive pressure will not be very great.
BASF has a market share of around [0 to 10 %]*. But
several customers have expressed the opinion that, as a
result of its extensive internal demand and its policy of
producing as many final products as possible from a
limited number of input products, BASF is not always
available to supply the market and cannot be seen as a
full alternative. Atofina is also active on this market,
especially in France and Italy. But Atofina's competitive
pressure should also be limited, as it is already operating
at full capacity. Zaklady is also on the EEA market, but
most potential customers do not regard it as a serious
if only because it is in business difficulties
alternative,
and does not enjoy full
freedom of business action.
Customers have, for example, reported that Zaklady has
been reluctant to enter into long-term contracts. The
most likely source of competitive pressure is Sasol. It
produces in South Africa, using coal mined there rather
than petroleum as the raw material to manufacture its
Its cost structure is accordingly
precursor, propylene.
very different from that of the other suppliers. Sasol is

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economically. Sasol has

building a large tank at the Marl Chemsite, from which
it can supply customers in Germany and the Benelux
limited but not
countries
negligible quantities
from its Brunsbüttel
available
facility, where it produces long-chain alcohols, with
butanol coming out as a by-product. Lastly, the parties
refer to imports from the Czech Republic and Russia,
sold in the EEA via dealers. Here again there should be
some competitive pressure, albeit not strong, when
these firms operate on the spot market.

Countervailing power on the demand side

five sixths of

for butanol. The parties' market shares

correspond to the foregoing analysis of the market for
butanol generally. This is already clear from the fact that
the merchant
n-butanol accounts for
market
for
n-butanol are slightly higher than for butanol overall.
The Commission's investigations reveal that the volume
of the market was roughly 152 kt, 168 kt, 214 kt and
203 kt in the years from 1999 to 2002. For 2002 the
parties' market share comes to rather more than 50 %
[… %]*; the figure is even 3 % higher than for butanol
generally. From 1999 to 2001 the parties' combined
market share was always within 4 % of their market
share for butanol generally. The market
share for
n-butanol was slightly lower in 1999 and slightly higher
in 2000 and 2001 than the overall butanol market
share [1999: … %; 2000: … %; 2001: … %]*.

exert

[… %]*. These

(111) Potential customers can also exert competitive pressure
on the parties. Butanol customers include major firms
that are perfectly familiar with market situations and
pricing factors and are capable of exerting demand-side
power. In 2002, for instance, Celanese had only […]*
customers;
just over
the five largest accounted for
[… %]* of turnover. The situation is similar for Oxeno:
the five largest customers accounted for
[… %]* of
turnover, the ten largest for [… %]* and the 20 largest
a degree of
for
customers
countervailing demand-side power. Some of
them
strategy to avoid becoming
operate a multi-vendor
dependent on one or other supplier. Since competitive
pressure is also brought
that
customers cover only part of their total demand from
other suppliers, it can be assumed that buyers exert a
degree of demand-side power that makes it difficult for
the joint venture to exercise market power. Unlike the
position for butyric aldehyde, substantial quantities of
butanol are sold on the free market; Perstorp has no
‘captive use' for butanol and sells its entire production
on the merchant market. It cannot, therefore, be argued
that
the major potential customers do not exercise
demand-side influence since suppliers are not dependent
on sales on the free market.

to bear by the fact

Outcome if a single EEA-wide market for butanol is
posited

(112) There is accordingly no reason to fear that a dominant
position will be created as a result of the merger on the
EEA market
that would restrict effective
competition in the common market.

for butanol

Competitive assessment assuming separate markets for
n- and iso-butanol

(113)

If it is assumed that there are separate markets for n-
and iso-butanol, the market structure and conditions of
for n-butanol broadly
competition on the market

(114) Apart from the fact that (except in 1999) the n-butanol
market share was slightly higher than for butanol
in
general, the analysis given above for the butanol market
applies likewise here. In particular, the parties' combined
market share is still more than double the share of its
nearest competitor, Perstorp.

(115) The Sasol effect is admittedly more powerful here than
in the case of a single market for butanol generally.
Bearing in mind the four effects mentioned above (R&H,
Ineos, Sasol/1 and Sasol/2), on a market totalling 261 kt
the parties have a combined market share of about [40
to 50 %]*. The main competitors are Perstorp, with [20
to 30 %]*, and BP, with [10 to 20 %]*. Even if
the
parties' market position is somewhat stronger than on
the assumption of an aggregate market for butanol, the
assessment
in competition terms remains much the
same.

(116) Assuming a single EEA-wide market

for iso-butanol,
there is likewise no reason to believe that the merger
will create or strengthen a dominant position. The
volume of the market will be around 62 kt or EUR 25
million. The parties' combined market share is still
above that of their competitors. But factoring the above
effects in brings the parties' market share below 40 %
[… %]*. BASF has adequate free capacity and can exert
real competitive pressure. The capacity of the second
largest competitor, Atofina,
is limited but, even so,
represents a share of [10 to 20 %]*. If prices were to
rise substantially, Atofina could divert some of
the
products it consumes internally to the merchant market.
And the smaller suppliers — BP, Zaklady, Perstorp and,
in future, Sasol — can exert a measure of competitive
pressure.

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(117) The Commission has

the
merger
in
relation to the market or markets for butanol, however
demarcated.

is compatible with the common market

therefore concluded that

3. 2-ETHYL-HEXANOL (2-EH)

(1) THE RELEVANT PRODUCT MARKET

hydration

(118) 2-EH is a downstream product of n-butyric aldehyde. It
is produced through aldolisation of n-butyric aldehyde,
downstream catalytic
subsequent
distillation. 2-EH is an oxo-alcohol that is used as an
intermediate product in the produce of plasticisers such
as dioctylphthalate (DOP) and dioctyladipate (DOA)
applied
solvents
(2-ethylacrylate; application: paints and varnishes), diesel
additives (2-ethylhexylnitrate) and lubricants.

synthetic

fabrics,

(PVC-)

and

in

(119)

In the EEA the use of 2-EH for these purposes is
distributed as follows:

— PVC plasticisers

— Diesel additives (Cetan improvers)

— Solvents

— Lubricant additives

— Other

66 %

13 %

12 %

5 %

4 %.

(120)

In the application as alcohol-plasticiser for the produce
of PVC plasticisers, 2-EH can technically be substituted
by polyalcohols. According to Chemical Economics
Handbook 2002, about 70 % of 2-EH applications as
PVC plasticisers can be replaced by polyalcohols. For
solvents,
other 2-EH applications
lubricants, etc.) there are no substitute products. The
outcome is that 2-EH is technically substitutable in
approximately 46 % of all applications. Admittedly, as a
result of differing process features, replacing 2-EH by
formulation and
requires
polyalcohols
reorganised production.

a different

additives,

(diesel

(121) The

as

polyalcohols

2-EH substitutes

in
used
(INA),
manufacturing plasticisers are iso-nonylalcohol
iso-decylalcohol
(IDA) and propylheptanol. The most
important of these is INA, from which the plasticiser
di-isononylphthalate (DINP)
is produced. DINP is also
the
the most
plasticiser DOP made from 2-EH. Prices of the precursor
INA, however, behave differently from those for 2-EH.
The annual average prices of INA rose sharply from
1998 to 2001 and only slackened again in 2002, after
Degussa's new capacity hit the market. According to

competing product

important

for

in 1998 and
ICIS-LOR, by contrast, 2-EH prices fell
1999 and rose again until 2002. Comparison of the
prices charged by Degussa as the largest INA producer
in the EEA and the larger of the only two suppliers in
the EEA over that period shows that INA was between
20 % cheaper and 30 % more expensive than 2-EH.

(122) Given that 2-EH is only partly substitutable,

that
conversion costs are considerable and, above all, that
INA prices behave so differently, it is assumed for the
purposes of this Decision that 2-EH is a distinct relevant
product market.

(2) THE RELEVANT GEOGRAPHIC MARKETS

(123) For all relevant product markets,

the parties to the
merger proceed on the basis of at
least EEA-wide
geographic markets. Since bulk products are concerned,
all products are stated to be offered by all substantial
suppliers on an EEA-wide basis.

(124) Some players on the market, however, were of

in

EEA

States,

individual

the
opinion that narrower national or
regional markets
should be used for 2-EH, primarily on account of
transport costs. The market analysis also revealed that
the market shares of Celanese and Degussa and the
other competitors doing business throughout the EEA
differed
sometimes
considerably. Unlike the position regarding butyric
aldehyde, there is no clear demarcation of markets for
2-EH on the basis of the producer's home country or
country of production. In Germany and in France, two
countries in which 2-EH is produced, imports account
for over 25 % and over 50 % respectively. The Swedish
firm Perstorp Oxo is the only dominant 2-EH supplier
in Sweden. But the main reason for this is that the level
of demand in Sweden, at less than 1 000 tonnes,
is
minimal and there is no incentive for competitors to do
business there.

(125) 2-EH can be and is carried by all means of transport —
tankers or in barrels. To keep
by road, sea or rail
transport costs as low as possible and to be able to
supply more distant customers, all EEA suppliers except
Atofina have storage tanks in the EEA. Degussa has two,
one in Rotterdam and one in West Thurrock. BASF has
a 2-EH storage tank in Tarragona. The Swedish producer
Perstorp has three 2-EH storage tanks in the EU: one in
Hamburg, one in Rotterdam and one on Teesside (GB).
These storage tanks mean that Perstorp can achieve
market shares of over 15 % in the three regions. The
Polish firm Zaklady also has a storage tank in Antwerp.

(126) The relevant geographic market for 2-EH is accordingly

the EEA.

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(3) COMPATIBILITY OF THE MERGER WITH THE COMMON

MARKET

(127) As a result of the merger, the number of significant
suppliers in the EEA will fall from five to four. In 2002

the JV would have had a market share of [30 to 40 %]*
(Celanese [20 to 30 %]*, Degussa [10 to 20 %]*). The
other competitors are Atofina ([10 to 20 %]*), BP ([10 to
20 %]*) and Perstorp ([10 to 20 %]*). BASF has a share
of [0 to 5 %]* and Zaklady one of [0 to 10 %]*.

Table 13

Market shares for 2-EH

1999

2000

2001

2002

Quantity kt

Market share

Quantity kt

Market share

Quantity kt

Market share

Quantity kt

Market share

Celanese

Degussa

JV

Atofina

BP

BASF

Perstorp

Zaklady

Others

Total

[20 to 30 %]*

[20 to 30 %]*

[20 to 30 %]*

[20 to 30 %]*

[20 to 30 %]*

[20 to 30 %]*

[20 to 30 %]*

[10 to 20 %]*

[40 to 50 %]*

[40 to 50 %]*

[40 to 50 %]*

[30 to 40 %]*

[10 to 20 %]*

[10 to 20 %]*

[10 to 20 %]*

[10 to 20 %]*

[10 to 20 %]*

[10 to 20 %]*

[10 to 20 %]*

[10 to 20 %]*

[10 to 20 %]*

[0 to 10 %]*

[0 to 10 %]*

[0 to 10 %]*

[10 to 20 %]*

[10 to 20 %]*

[10 to 20 %]*

[10 to 20 %]*

[0 to 10 %]*

[0 to 10 %]*

[0 to 10 %]*

[0 to 10 %]*

5

[…]*

2

100

5

[…]*

2

100

5

[…]*

2

100

5

[…]*

3

100

(128) According to the information provided by the parties,
there are ‘Other' suppliers that account for about 10 %
of the market. In addition to sales by BP, not listed by
the parties as an independent supplier, these are mainly
imports by firms in Russia and from Romania by
Oltchim via dealers in the EEA. The Commission has
not been able to verify the figures. But the answers to
questions put to dealers and customers reveal that the
figure quoted by the parties is too high. In recent years,
imports from Russia and Romania probably ran at no
more than 5 kt annually.

competitors, Atofina

(129) The parties' market share was constantly well above
40 % between 1999 and 2001 and fell below 40 % only
in 2002. The JV would be twice as large as its two
nearest
and Perstorp. BASF's
market share has shrunk in recent years and for the last
two years has been below [5]* %. A few players on the
market even believe that BASF is about to withdraw
altogether. However, BASF itself denies this. But both
BASF and the Polish firm Zaklady must be classified, if
anything, as ‘also-rans'.

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Table 14

Capacity and production of 2-EH

1999

2000

2001

2002

Capacity (kt)

Production

Capacity (kt)

Production

Capacity (kt)

Production

Capacity (kt)

Production

[200 to 300]*

[200 to 300]*

[200 to 300]*

[200 to 300]*

[<100]*

[<100]*

[<100]*

[<100]*

[300 to 400]*

[300 to 400]*

[300 to 400]*

[300 to 400]*

[<100]*

[<100]*

[<200]*

[<100]*

[<100]*

[<100]*

[<200]*

[<100]*

[<100]*

[<100]*

[<200]*

[<100]*

[<100]*

[<100]*

[<200]*

[<100]*

Celanese

Degussa

JV

Atofina

BP

BASF

Perstorp

Total EEA

1 040

[…]*

1 040

[…]*

1 020

[…]*

1 000

[…]*

(130) Moreover, the JV also had the largest capacity on the
market. With [50 to 60 %]* in 2002, it accounted for
more than half of aggregate EEA capacity of a good
1 000 kt. Its free capacity is also by far the largest on
the market and would be enough to serve the entire
merchant market. But the parties are of the opinion
that, despite high market shares and capacities, there is
no threat to competition.

(131) The two parent companies' market share slipped steadily
from [nearly 50 %]* in 1999 to [30 to 40 %]* in 2002.
While,
in a generally contracting market Celanese was
able to maintain its market share at around [20 to
30 %]*, Degussa's market share fell from [20 to 30 %]*
in 1999 to [10 to 20 %]* now. In recent years Degussa
has steadily cut its 2-EH production. The reason for this
lies in the strategic decision it took two years ago to
withdraw from the downstream market for DOP,
for
which the bulk of the 2-EH it produced was needed,
and to produce DINP instead. DOP production has
fallen in recent years from […]* kt in 1998 to just […]*
kt
in 2002. There was a corresponding decline in
internal consumption of 2-EH from […]* kt in 1998 to
just […]* kt in 2002.

(132) Degussa has declared that

it

is abandoning 2-EH
production in Marl whether or not the notified joint
venture is set up. This decision was taken back in 1999.
The number of significant suppliers in the EEA would
the joint
from five to four even without
then fall
venture.

(133) Parts of

are

such as

the 2-EH production facility,

the
hydration plant,
refitted for butanol
to be
production that is to be transferred to the JV. All 2-EH
production is to be concentrated in Oberhausen. As a
result, […]* kt of 2-EH production capacity would be
taken off the market. This corresponds to a quarter of
aggregate capacity available in the EEA. The JV would
even then still have the largest capacity in the EEA,
though with sharply reduced free capacity.

(134) For

the above reasons,

the
the proposed merger will not create a
opinion that
dominant position for the joint venture in the supply of
2-EH in the EEA.

the Commission is of

4. DOP

(1) THE RELEVANT MARKETS

(135) Dioctyl phthalate

(DOP),

is derived from 2-EH.

also known as diethyl
hexylphthalate (DEHP),
It is a
chemical
in the phtalates group that is produced by
in this case 2-EH, with
esterisation of an alcohol,
phthalic anhydride (PSA). It is the standard plasticiser
for synthetic materials, in particular PVC. In addition to
its use as a plasticiser, DOP is used on a small scale as a
in varnishes and glues and to dilute
bonding agent
pigments.

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(136) DOP is a bulk product. All producers have comparable
quantities. But a distinction is made between technical
quality and food quality. To manufacture food quality, a
further distillation stage is needed.

(140)

In Case COMP/M.2314 — BASF/Eurodiol/Pantochim, a
distinction was made between short-chain phtalates (C1
to C4) and standard phtalates on the basis of C4-or
polyalcohols (12). But in the present case there is no
need to consider whether there is objectively a distinct
market (only) for DOP, as the parties argue, for DOP
and DINP or for all PVC plasticisers, as the JV will not
have a dominant position in any event.

(137)

In recent years DOP has attracted attention since it is
toxic to reproduction. The skull symbol must therefore
accordingly fallen,
be placed on it. Demand has
particularly in its application as a PVC plasticiser. DOP
is now hardly ever used as a plasticiser
in the
manufacture of toys.

(138)

In this primary use as a PVC plasticiser, DOP can be
replaced by plasticisers made from polyalcohols. These
include the C9-phtalate di-isononylphthalate (DINP), the
polyalcohol derivative isononylalcohol, the C10-phtalate
isodecylalcohol derivatives
di-isodecylphthalate (DIDP),
and dibutylphthalate
di-isobutylphthalate
(DBP) or
(DIBP), which are butanol derivatives. The most
important substitute product is DINP.

(2) THE RELEVANT GEOGRAPHIC MARKET

(141)

In Case BASF/Eurodiol/Pantochim (13) the Commission
made its competition assessment on the basis of an EEA
market but left open the question whether the relevant
geographic market
to which DOP
belongs, was the EEA alone or included eastern Europe.

for phthalates,

(142) The investigations in the present case have shown that
there is an EEA market. All competitors represented
with production facilities on the European market
supply the EEA. The Polish firm Zaklady has a tank in
Antwerp and also delivers via dealers. For the purposes
of this decision, an EEA market is assumed.

(139) DINP is both technically and economically a very close
substitute for the standard plasticiser DOP. Price trends
for the two products between 1998 and 2002, without
being actually parallel, are very close to each other. In
some years DOP is more expensive than DINP, in other
years the opposite applies. The trend is influenced
primarily by the trend in prices for the precursor INA.
But the margin of fluctuation is generally narrower and
usually is below 5 %.

(3) ASSESSMENT IN COMPETITION TERMS

(143)

In 2002 the JV had a market share of [20 to 30 %]*
(Celanese [10 to 20 %]*, Degussa [below 10 %]*). The
other competitors are BASF ([20 to 30 %]*), Atofina
([10 to 20 %]*), Perstorp ([10 to 20 %]*), Lonza ([below
10 %]*), Zaklady ([below 10 %]*) and Cepsa ([below
10 %]*). BP abandoned DOP production in 2001.

(12) Case COMP/M.2314 BASF/Eurodiol/Pantochim, 11 July 2001,

point 11.

(13) Case COMP/M.2314 BASF/Eurodiol/Pantochim, 11 July 2001,

point 42.

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Table 15

Market shares for DOP

2000

2001

2002

Quantity kt

Market share %

Quantity kt

Market share %

Quantity kt

Market share %

[10 to 20 %]*

[0 to 10 %]*

[20 to 30 %]*

[10 to 20 %]*

[0 to 10 %]*

[10 to 20 %]*

[10 to 20 %]*

[0 to 10 %]*

[0 to 10 %]*

[0 to 10 %]*

6

100

[10 to 20 %]*

[0 to 10 %]*

[20 to 30 %]*

[10 to 20 %]*

[0 to 10 %]*

[20 to 30 %]*

[10 to 20 %]*

[0 to 10 %]*

[0 to 10 %]*

[0 to 10 %]*

7

100

401

409

[…]*

[10 to 20 %]*

[0 to 10 %]*

[20 to 30 %]*

[10 to 20 %]*

—

[20 to 30 %]*

[10 to 20 %]*

[0 to 10 %]*

[0 to 10 %]*

[0 to 10 %]*

7

100

Celanese

Degussa

JV

Atofina

BP

BASF

Perstorp

Lonza

Zaklady

Cepsa

Others

Total

(144) The size of the market shares is such that there appears
to be no risk of a dominant position being created.
Moreover, after abandoning production of the precursor
2-EH, Degussa will
abandon production of DOP
whether or not the JV is formed. Degussa will transfer
only its residual clientele to the JV.

(146) Against

this background, there are no objections on
competition grounds
to the planned joint venture
between Celanese and Degussa in relation to the EEA
market for DOP or the combined DOP/DINP plasticisers
market.

(145) Celanese produces no other high-grade plasticisers.
Degussa produces minimum amounts of DBP and DIBP
but has a dominant position for DINP. DOP can be
replaced in virtually all PVC plasticiser applications by
DINP. Unlike DOP, DINP is not classified as toxic to
reproduction and sales have been expanding steadily in
recent years. In the EEA there are three producers of
DINP: Degussa, BASF and Exxon Mobil. On this growth
market Degussa raised its market share to about [35 to
three years, while BASF and
45 %]*
ExxonMobil have taken roughly equal shares of the rest.
If DOP and DINP were assumed to be part of the same
product market, Degussa and the JV would have a
combined market share of [30 to 40 %]*, followed by
BASF with [20 to 30 %]*.

in the

last

5. BUTYL ACETATE

(1) THE RELEVANT PRODUCT MARKET

(147) Butyl acetate is derived from butanol by esterifying
acetic acid with butanol. It is used mainly as a solvent.
It can be used in varnish kits, as a cosolvent
in
low-solvent varnishes with high solid concentrations. It
dissolves substances such as fats, oils, cellulose nitrate
and both natural and synthetic resins. There are no
substitute products that can replace butyl acetate in all
circumstances. In view of its specific applications, the
parties consider that the relevant product market does
not extend beyond the product butyl acetate.

(148) Butyl acetate also occurs in the two isomers n-butyl
acetate and iso-butyl acetate. Unlike in the case of

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butyric aldehyde, the Commission is inclined to accept
the idea of a single market as the same reactors can be
used to produce either n- or iso-butyl acetate. It can
also be produced in batches, where the plant is used for
a specific period to produce one of the isomers and
then cleaned before being used for the other. From the
producer's point of view, therefore, there is a degree of
flexibility. Here too, however, it is unclear whether both
isomers have their own product markets or are part of a
single product market, as the competition assessment
makes no significant distinction. N-butanol has the lion's
share of
acetate
accounting for only about 10 %. Accordingly, it makes
little or no difference to the assessment whether a single
market for butyl acetate is assumed or whether n-butyl
acetate alone is taken into consideration. However, the
merger has no competition implications as regards a
possible market for iso-butyl acetate.

free market, with iso-butyl

the

(2) THE RELEVANT GEOGRAPHIC MARKET

(149) The parties believe that the market for butyl acetate
covers the whole of the EEA. Operators questioned have
also endorsed this view. Some have even said that butyl
acetate was also obtained from overseas; Celanese also
sells products produced in its US plant in Europe. It
must therefore be assumed that the market covers the
the
whole of
be
assessment
remembered that imports from non-EEA countries are
not without significance.

the purposes of
it must
terms,

the EEA; but,

competition

for

in

(3) COMPATIBILITY WITH THE COMMON MARKET

One-sided contribution

this provision to the

(150) The only party to assign its trade in butyl acetate to the
JV is Oxeno. The parties take the view that, where the
the
contribution to a JV is one-sided in this way,
competitive assessment should not add together
the
market shares. This follows from the established practice
of the Commission under Article 81 of the EC Treaty,
which applies
competitive
relationship between a full-function cooperative joint
venture and one of its parent companies. They also refer
to Article 2(4) of the Merger Regulation and the (new)
Commission Notice of 4 July 2001 on restrictions
It
directly related and necessary to concentrations.
the
from recital 35 and following
follows
Commission assumes
competition between a
that
full-function cooperative joint venture and its parent
companies is protected under Article 81.
it were
assumed that the JV and its parent companies formed a
clauses would
competitive

non-competition

unit,

that

If

states

simply

for
limited

eligible
a
for

automatically need to be removed from the field of
application of Article 81(1) of
the EC Treaty (and
exemptions would not need to be made), much like
restrictions on competition within groups. However, the
such
notice
on
that
restrictions
exemption and may
competition are
exempted
time.
only
Furthermore,
in the present case no non-competition
agreement between the JV and Celanese has been
concluded, and so it must be assumed that Celanese and
the JV will continue to compete on the markets for
butyl acetate and carboxylic acids after the merger. Any
other conclusion would amount to implying that the
parties have infringed Article 81 of the EC Treaty. The
situation would be different only if, as in Viho v
Commission (14), the parent company and the subsidiary
formed an economic unit managed on a unified basis.

period

of

(151) The legal interpretation is not compelling. But, for the
purposes of this Decision, there is no need to settle the
issue as the merger is compatible with the common
market even if Celanese and the JV are regarded as a
single business unit.

Competition assessment assuming that the market for
butyl acetate covers the whole of the EEA

(152)

If it is assumed that the market for butyl acetate is the
whole of the EEA and if no distinction is made between
n-butyl acetate and iso-butyl acetate, there is no reason
to assume that
the merger will create a dominant
position.

(153) The Commission has calculated that the market volume
was around 275 kt in 2002, which is in line with the
parties' estimates. When making these calculations,
it
attributed to ‘other suppliers', i.e. suppliers other than
the parties, namely BASF, BP/Ineos and Cepsa, sales of
[…]* kt. It has established that the market volume was
between 240 kt and 260 kt in the years from 1999 to
2001.

(154) On this market, taking Celanese and the joint venture
EOC as a single business entity,
the merger would
reduce the number of major suppliers in the EEA from
four to three. With sales in 2002 of […]* kt (Degussa)

(14) Case C-73/95 P [1996] ECR I-5457.

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(Celanese including Celanese USA),

the
and […]* kt
parties would have a market share of around [40 to
50 %]*; using turnover figures in euros, the sum of the
market shares is slightly lower, at around […]* %.

(155) The parties' market share is also far greater than those
of the two next largest suppliers, BASF and Ineos, each
with a market share of about 20 %. The remainder of
the market
is taken by the Spanish supplier Cepsa,
which is in business mainly in Spain and Portugal but,
to a lesser extent, also in France, and by imports from
outside the EEA. Significant here are the American firms
Dow and Eastman; there were also imports from Poland
and Russia.

But Ineos produces n-butyl acetate, iso-butyl acetate and
iso-propylacetate in batches at the same plants. As Ineos
has confirmed, additional quantities of butyl acetate can
be produced by lengthening production batches through
less frequent changeovers, each of which takes a day for
cleaning. Sales on the European market could also be
expanded if exports to non-EEA countries were diverted
to the EEA market. The parties add that capacity
extensions are both technically easy and financially
inexpensive to make. Companies questioned by the
the technology is available
Commission confirm that
and that the requisite extra facilities should not be too
expensive. But there were doubts as to the profitability
of investments for the manufacture of butyl acetate for
firms that are not vertically integrated in the production
of acetyl acid and butanol.

(156) Between 1999 and 2002,

the market shares of

the
parties and the competitors remained more or less
constant. Over the four year there was a slight increase
in the parties' total market share. The Commission has
calculated that the parties' total market share was 4,2 %
lower than the 2002 figure in 1999 and 2,7 % lower in
2000; in 2001 it was at the 2002 level.

(157) Despite the parties'

large combined market share and
the substantial gap between them and the nearest
competitors, the merger cannot be expected to create a
dominant position.

(158)

the two larger competitors,

Ineos and
In particular
BASF, each with a market share of around 20 %, can
exert competitive pressure that is enough to control the
room for manoeuvre of Celanese and the JV.

(159)

the other

suppliers can exert

In addition,
tangible
competitive pressure. In the recent past, the American
into
producers have imported substantial quantities
Europe.
If prices for butyl acetate were to rise to
supra-competitive levels, it would be particularly useful
for those firms to enter the EEA market on a larger
scale. The fact that imports from America to Europe are
currently a realistic business proposition can also be
seen from the example of Celanese, which takes a
market share of more than […]* % with imports from
the United States. The
from
share of
non-EEA countries
between 5 % and 10 %.

still achieve a market

remaining suppliers

(161) Lastly, there is no reason to believe that the merger will
create a collective dominant position. After the merger
the parties, together with BP and Ineos, will have a very
large market share of 90 % or so, but there is no reason
to expect tacit coordination between them. Their market
shares differ too widely and their cost structures also
diverge substantially. They differ in size, in the number
and location of their production facilities, and in the use
they make of
the two precursors, acetyl acid and
butanol. The parties (Celanese and the JV seen as a
single entity) have two production facilities in Europe
and one in the United States. In addition, Celanese is the
market leader for acetyl acid, so that the parties describe
Celanese's US butyl acetate business as ‘acetyl-acid-led',
unlike Oxeno's business, which rather
to be
‘butanol-led'. BASF is an integrated business while Ineos
has to buy in the butanol it needs to produce butyl acid.

tends

Competition assessment assuming separate markets
for n-butyl acetate and iso-butyl acetate

(162) Basing the competition assessment on separate markets
for the two butyl acetate isomers does not significantly
alter the outcome.

(160) The absence of spare capacity cannot be taken as an
argument against the possibility of competitive pressure
from these firms. It is true that,
in Europe especially,
capacity is close to being fully utilised. BASF has some
capacity and could easily enough step up
spare
production. Ineos's capacity is being extensively utilised.

(163)

In this case, the sum total of the market shares on the
larger market
for n-butyl acetate would be slightly
greater (by less than 2 %) than if a single market were
taken as the basis; however, there would be no notable
change to the market structure.

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(164)

(165)

It must be taken into consideration that BP/Ineos are in
a significantly stronger position on the smaller market
for
share
iso-butyl acetate. The company's market
remains far smaller than the sum of the parties' market
shares but is still sufficiently significant at more than
35 % for the Commission to assume that a dominant
position is unlikely to be created on that market.

It has
objections
regards
acetate.

therefore been decided that

are no
in competition terms as
the European market or markets for butyl

to the merger

there

6. CARBON ACIDS

(1) THE RELEVANT PRODUCT MARKET

(166) Carbon acids are generally made by the oxidation of
aldehydes such as butyric aldehyde (15). In all, there are
more
different
carbon
chain-lengths, specifications and raw materials (olefins
or naturally occurring substances).

acids with

1 500

than

chloric

products,

(167) Carbon acids are used in the following applications
for varnish
among others: metal carboxylates (salts)
input
organic
peroxydes/peroxydesters, polyolesters for the production
of synthetic lubricants,
lubricant additives, esters for
plasticisers in safety glass panes, basic materials for the
flavour
catalysts,
pharma-chemicals, UV stabilisators and plant-protection
substances.

fragrance

industry,

acid

and

for

imports into the EEA. Exports
evidence of substantial
from the EEA are also only on a limited scale. The
Commission
the
assumption of an EEA market for the purposes of this
decision.

accordingly

proceeding

on

is

(3) COMPATIBILITY WITH THE COMMON MARKET

(171) There are many suppliers of carbon acids. Not all of
them offer the full range of carbon acids. Since carbon
acids can be produced at multi-purpose facilities on
demand, it is difficult to estimate the capacities available
to competitors. Since various carbon acids can be
produced on demand depending on the availability of
aldehydes, the individual suppliers' market volumes and
market shares fluctuate.

(172) Celanese will not be contributing its carbon acid
production to the JV but will continue in its speciality
chemicals division. Celanese produces
ten different
carbon acids,
two of which overlap with the JV's
production — butyric acid and 2-ethylhexane acid.
According to the parties' own information for 2002, the
combined market share is [30 to 40 %]*. Perstorp Oxo
is the market leader with a market share of around
40 %,
followed by BASF and ExxonMobil with more
than 10 % each. These figures were broadly confirmed
three principal
investigation. All
by
competitors have their own production of the precursor
butyric
the
case,
corresponding olefins such as heptane and nonane.

ExxonMobil's

the market

aldehyde

or,

in

acid (2-EH-Säure), butyric

(168) The JV is expected to produce three carbon acids:
2-ethylhexane
acid and
trimethylhexane acid (TMH). 2-EH acids and butyric
acids are downstream products of butyric aldehyde;
TMH
of
is
trimethylhexanal.

from the

oxidation

produced

(173) No dominant position can therefore be expected to be

created or strengthened.

7. VERTICALLY RELEVANT MARKETS

(169) Carbon acids are produced at multi-purpose facilities; a
single plant can be used to produce different carbon
acids depending on the aldehyde that is available for
use. They are in part mutually substitutable on both the
supply and the demand sides. The Commission is
therefore proceeding on the assumption of a single
market
this
decision.

for carbon acids

the purposes of

for

(174) The merger further affects a series of markets in vertical
butylamine,

terms.
2-ethylhexacrylate and for butyl acrylate.

the markets

These

are

for

(a) BUTYLAMINE

(2) THE RELEVANT GEOGRAPHIC MARKET

(170) Basically, carbon acids can be transported safely and
marketed in cross-border business. In the EEA there is
cross-border demand for carbon acids. There is no

(15) In some cases, further intermediate stages are required.

(175) Butylamine is a derivative of butanol used as an
the manufacture of plant
intermediate product
for
protection substances, sealants, specialty plasticisers for
synthetic additives and other products.
polyamides,
Given its
lack of
applications
specific
substitutability, butylamine is an individual product
market.

and the

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(176) There is cross-border business in the product. Imports
into the EEA are unknown, however. It can therefore be
assumed that the butylamine market is EEA-wide.

sealants, and textile and paper coatings. Given its
specific applications, it is a distinct product market.

(177) The butylamine market

consider

[… %]*. The parties

is affect by the merger

in
vertical terms as only Celanese but not Degussa is in
business. On its own estimate, Celanese has a market
share of
the most
important competitors to be BASF, with around [… %]*,
and Atofina. Given BASF's strong position Celanese does
not consider itself to be dominant. The merger would,
however,
in relation to the
butylamine market even if Celanese was dominant. The
two competitors obtain their butanol from their own
production and are not dependent on deliveries from
the parties or the JV. Consequently, no negative effects
are to be feared.

raise no objections

(182) There is cross-border trade in butyl acrylate; there are
no barriers to trade in the EEA. Imports into the EEA
run at a low level. It can therefore be assumed that that
the relevant geographic market is the EEA.

(183) Only Celanese but not Oxeno is active in the butyl
acrylate business. Celanese is the self-declared market
leader with a market share of [30 to 40 %]*. BASF and
Atofina are once again its main competitors with
comparable market shares. The merger will have no
two
effects on the market
noteworthy
competitors obtain the butanol needed for butyl acrylate
production from their own production. No dominant
position can be expected to created or strengthened on
this market,

the

as

(b) 2-ETHYLHEXYL-ACRYLAT

(178) 2-ethylhexyl-acrylate (2-EH-acrylat)

is a downstream
product of 2-EH used for the production of fertilisers,
sealants, press-down adhesives, paints, and textile and
paper coatings. It is a distinct product market.

(179) Here again the geographic market can be taken to
include the entire EEA as there are no barriers to trade;
small quantities are imported from Asia.

(180) This market is also vertically affected by the merger as
only Celanese is
in business here but not Oxeno.
Celanese estimates its own market share at around
[…]* %. Still according to the parties' information, the
main competitors are BASF and Atofina, with market
shares of the same order of magnitude. No negative
effects are to be feared from the merger here either.
for
BASF and Atofina obtain their
2-EH-Acrylat from their own production and are not
dependent on deliveries from Celanese or the JV. There
is no dominant position for 2-EH. Consequently, no
negative effects are to be feared.

input material

(c) BUTYL ACRYLATE

(181) Butyl acrylate is a downstream product of butanol. It is
latex paints, adhesives,

used in solvent-based enamels,

HAS ADOPTED THIS DECISION:

Article 1

The notified operation whereby Celanese AG and Degussa AG
acquire joint control within the meaning of Article 3(1)(b) of
Regulation (EEC) No 4064/89 over
joint venture
European Oxo Chemicals GmbH is declared compatible with
the common market and the EEA Agreement.

their

Article 2

This Decision is addressed to:

Celanese AG
Frankfurter Straße 111
D-61476 Kronberg im Taunus

Oxeno Olefinchemie GmbH
Paul-Baumann-Straße 1
D-45764 Marl.

Done at Brussels, 11 June 2003.

For the Commission

Mario MONTI

Member of the Commission