Summary of Commission Decision of 5 June 2014 declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case M.7009 — Holcim/Cemex West) (notified under document C(2014) 3649)  Text with EEA relevance
Date: 2014-06-05
Institutions: European Commission
Subjects: Belgium, Germany, building materials, economic concentration, merger control, restriction on competition








C_2014306EN.01000701.xml










10.9.2014   


EN


Official Journal of the European Union


C 306/7





Summary of Commission Decision
of 5 June 2014
declaring a concentration compatible with the internal market and the functioning of the EEA Agreement
(Case M.7009 — Holcim/Cemex West)
(notified under document C(2014) 3649)
(Only the English text is authentic)
(Text with EEA relevance)
2014/C 306/06

On 5 June 2014 the Commission adopted a Decision in a merger case under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings
 (1)
, and in particular Article 8(1) of that Regulation. A non-confidential version of the full Decision can be found in the authentic language of the case on the website of the Directorate-General for Competition, at the following address: http://ec.europa.eu/comm/competition/index_en.html

I.   THE PARTIES







(1)


Holcim Beteiligungs GmbH (Deutschland) is the holding company of Holcim (Deutschland) AG. Holcim Beteiligungs GmbH (Deutschland) is fully controlled by Holcim Ltd, a joint stock company established under Swiss law, which is the ultimate parent company of the Holcim Group (or ‘Holcim’), a global supplier of cement, aggregates, ready-mix concrete as well as asphalt and cementitious materials with operations in more than 70 countries.










(2)


Cemex West consists of a number of operating entities that are wholly-owned or partially-owned by three companies (Cemex Deutschland AG, Cemex Kies and Split GmbH and Cemex Logistik GmbH). All three companies are subsidiaries of Cemex Central Europe GmbH which is a member of the Cemex Group. The Cemex Group (or ‘Cemex’), headquartered in Mexico with Cemex S.A.B. de C.V. as its ultimate parent company, is a global building materials company active in cement, ready-mix concrete, aggregates and related building materials in the Americas, Europe, Africa, the Middle East and Asia.




II.   THE OPERATION







(3)


On 3 September 2013, the European Commission received a notification of a proposed transaction by which Holcim Beteiligungs GmbH (Deutschland) intends to acquire part of the Cemex Group’s activities in cement, ready-mix concrete, aggregates and cementitious materials in western Germany, including a small number of plants and sites located in France and the Netherlands (together ‘Cemex West’).




III.   UNION DIMENSION







(4)


The undertakings concerned have a combined aggregate worldwide turnover of more than EUR 5 000 million in 2012. Each of them has an EU-wide turnover in excess of EUR 250 million in 2012. Although Cemex West achieves more than two-thirds of its EU-wide turnover in one Member State (Germany), Holcim does not. The Notified Transaction therefore has a Union dimension within the meaning of Article 1(2) of Regulation (EC) No 139/2004.




IV.   THE PROCEDURE







(5)


The transaction was notified to the Commission on 3 September 2013. On 22 October 2013, the Commission found that the transaction raised serious doubts as to its compatibility with the internal market and adopted a decision to initiate proceedings pursuant to Article 6(1)(c) of the Merger Regulation.










(6)


On 26 September 2013, the Commission received a request from Germany to refer the whole of the case to the German Competition Authority pursuant to Article 9(2)(a) of the Merger Regulation. After the initiation of proceedings by means of the Article 6(1)(c) decision, Germany sent a reminder of its referral request on 20 November 2013. On 3 January 2014, the Commission adopted a decision pursuant to Article 9(3) of the Merger Regulation, refusing the request. The refusal was based on the fact that the criterion of Article 9(2)(a) of the Merger Regulation was not fulfilled as there are no affected markets for grey cement in this case that present all of the characteristics of distinct markets within Germany.










(7)


The draft Decision was discussed with Member States during the Advisory Committee on Concentrations on 21 May 2014, which provided a favourable opinion. The Hearing Officer provided his favourable opinion on the proceedings on 21 May 2014.




V.   ASSESSMENT


Introduction







(8)


The transaction concerns the building materials industry and notably cement, cementitious materials, aggregates and ready-mix concrete.










(9)


In the decision opening proceedings the Commission raised serious doubts as to the compatibility of the transaction with the internal market and with the EEA Agreement in relation to (i) grey cement and (ii) cementitious materials. Any potential overlaps between the Parties’ activities in other products do not give rise to affected markets.





Grey cement


Relevant product market







(10)


The market investigation in the present case has supported the Commission’s earlier findings and Holcim’s view that the two main types of cement (white and grey) constitute separate product markets.










(11)


The market investigation in the present case has also supported the Commission’s findings in previous cases that a further distinction within grey cement can be made according to whether it is sold bulk or bagged. However, given that there is no overlap in bagged cement, it is not necessary to conclude on this point.










(12)


The Commission also investigated whether grey cement should be further segmented according to grades or classes. However, the market investigation did not confirm that such a further segmentation would be appropriate.










(13)


The Commission therefore considers that the relevant product market for the assessment of the effects of the transaction is the overall market for grey cement. As the competitive assessment would not change even if a narrower market for bulk cement were considered, the exact product market definition can be left open in this respect.





Relevant geographic market







(14)


The Commission considers in the circumstances of the present case that the relevant geographic markets should be defined as circular areas around the relevant cement plants, in line with the previous practice of the Commission. This approach allows the Commission to identify the customers which are likely to be affected by the transaction.










(15)


The Commission concludes in light of the existing and potential demand and supply patterns and the views of market participants that it is most appropriate in this case to assess the competitive effects of the transaction on different geographic markets on the basis of radii of 150 and 250 km around Cemex West.





Competitive assessment







(16)


Both Parties are active in the production and supply of grey cement. The grey cement production facilities of Cemex West are located in North Rhine-Westphalia. The Holcim grey cement production facilities closest to those of Cemex West are located in northern Germany and in Belgium. Holcim operates two integrated cement plants in Lower Saxony (in Lägerdorf and Höver) and one in Belgium (in Obourg). In addition it operates one grinding station in Bremen and one blending station in Belgium (in Antwerp).










(17)


The Commission notes that in North Rhine-Westphalia, where Cemex West operates its cement plants, competitors operate a total of ten integrated cement plants. Both competitors and customers confirmed in the market investigation that there are a large number of firms competing out of North Rhine-Westphalia.










(18)


The Parties’ combined market share in the 150 km cluster around Cemex West plants is [10-20] %, followed by competitors Heidelberg ([10-20] %) and Miebach ([10-20] %). Several other competitors are active in this area each having a market share in excess of 5 %: Spenner, Dyckerhoff, Seibel & Söhne, Gebrüder Seibel and Phoenix.










(19)


The Parties’ combined market share in the 250 km cluster around Cemex West plants is [20-30] %, followed by competitors Heidelberg ([10-20] %) and Dyckerhoff ([5-10] %). Several other competitors (Miebach, Spenner, Schwenk, Seibel & Söhne, Gebrüder Seibel and Phoenix) are active in this area with appreciable market shares.










(20)


The Commission assesses whether Cemex West imposes a competitive constraint on Holcim’s northern German plants in Bremen, Höver and Lägerdorf on the one hand and the Belgian plant in Obourg on the other hand. In that regard, the Commission concludes on the basis of the results of the market investigation that the transaction is unlikely to lead to the elimination of an important actual or potential competitor in the clusters around those Holcim plants.










(21)


The Commission also analyses potential coordinated effects on the various geographic markets defined by circles with radii of 150 km or 250 km drawn around the Parties’ cement production facilities in Germany, Belgium and North-eastern France.










(22)


The Commission considers that the most likely coordination scheme in the grey cement markets under investigation is customer allocation whereby competitors refrain from approaching rivals’ customers with low prices. The Commission has thus investigated whether cement competitors might face limited incentives to enter significantly into competitors’ geographic strongholds or, more generally, to address new customers aggressively. In this particular case, Holcim could be considered to have a geographic stronghold in Northern Germany and a significant position in certain parts of Belgium.










(23)


The Commission considers that there are several features of the grey cement markets under investigation that point to the existence of current coordination. The Commission thus concludes that while the affected cement markets around the Cemex West plants are not highly concentrated, which in itself could speak against coordinated behaviour, other features of the market make it prone to coordination. Moreover, various elements such as the relatively high gross margins and competitors’ expectations of targeted reactions to aggressive competition point towards coordination rather than short term profit maximization.










(24)


At the same time, however, other elements speak against any such coordination in the markets under investigation, notably the relatively high number of cement suppliers or the limited sustainability of a potential coordination scheme based on customer allocation. As such, although it cannot be excluded that there is a degree of coordination in the grey cement markets under investigation, the decision does not have to conclude on this point due to the lack of merger-specific effects.










(25)


As regards such merger-specific effects, the decision summarizes the results of the Commission’s investigation as to whether Holcim’s acquisition of Cemex West would make any possible current coordination in the cement markets under investigation easier, more stable or more effective in terms of facilitating (i) reaching a common understanding on the terms of coordination, (ii) monitoring deviations from coordination, (iii) deterring deviations from coordination and (iv) weakening the reactions of non-coordinating firms or potential competitors. In particular, the Commission assesses in depth the plausibility of a potential increase in retaliatory power through Holcim’s acquisition of Cemex West as well as the potential magnitude of such coordinated effects.










(26)


On balance, the Commission considers that there is not sufficient evidence to conclude that the acquisition of Cemex West would appreciably increase Holcim’s retaliation potential against suppliers in North Rhine-Westphalia by making any possible coordination easier, more stable or more effective. Hence it is also concluded that it is unlikely that the transaction will make coordination easier, more stable or more effective to a degree that could be considered to constitute a significant impediment to effective competition.










(27)


For similar reasons, the Commission also concludes that it is unlikely that competitors that were previously not coordinating are significantly more likely to engage in coordination as a result of the transaction.










(28)


It is therefore considered that the transaction is unlikely to significantly impede effective competition in the markets for grey cement within the 150 km and 250 km clusters around the Parties’ plants due to coordinated effects.





Cementitious materials


Relevant product market







(29)


Cementitious materials refer to substances that have cementitious or pozzolanic characteristics and are used in the production of cement. The basic cementitious material is clinker. However, alternative or supplementary materials such as blast furnace slag and fly ash can also be used in the production of cement and concrete.










(30)


The transaction gives rise to affected markets with respect to blast furnace slag derived cementitious materials. Blast furnace slag is a by-product of steel production. When the liquid slag that is obtained from the blast furnace is cooled quickly by quenching in water or steam, it generates a glassy or amorphous granular structure and is known as granulated blast furnace slag (‘GBS’). For the production of cement, GBS needs to be ground. This grinding often takes place together with other cement constituents (‘co-grinding’) but it can also be done separately. If GBS is ground separately, the resulting product is known as ground granulated blast furnace slag (‘GGBS’).










(31)


Even though the respondents to the market investigation also pointed to a certain degree of demand-side substitutability between blast furnace slag derived products and other cementitious materials, the market investigation has in general indicated that blast furnace slag derived products are likely to constitute a distinct relevant product market, separate from other alternative cementitious materials such as fly ash. Given the absence of concerns, however, the precise product market definitions are left open in the decision.





Relevant geographic market







(32)


The market investigation in the present case has indicated that 250 km radii around Cemex West’s GBS sourcing sites and any Holcim GBS sourcing sites falling within these radii constitute the relevant geographic market most likely to be affected by the transaction. However, the precise geographic market definition can be left open.





Competitive assessment







(33)


The Parties’ sourcing of GBS and liquid slag is based on long-term contractual arrangements with steel companies. These long-term agreements on the one hand guarantee the Parties a constant supply of GBS but, on the other hand, also oblige them to take deliveries regardless of whether they are able to absorb the amounts in their internal cement production or to sell them to the merchant market. As a result, the Parties have had to store significant amounts of GBS. This is in line with the market investigation indicating some levels of GBS oversupply in Germany.










(34)


The Parties’ 2012 sourcing of GBS represented approximately 40–50 % of all GBS produced in the 250 km radii. However, the merged entity will continue to face competition from other suppliers of GBS, namely the steel companies themselves, and it would not be in a position to limit its downstream competitors’ access to GBS: First, the Parties use notable amounts of GBS internally and their share of sales to the merchant market was more modest in 2012, approximately 20–30 %. Second, Cemex West’s sourcing agreements have been subject to a voluntary arrangement with the German Competition Authority, reducing Cemex West’s sourcing amounts significantly from the pre-arrangement amounts of 2007. Third, the Parties have taken further steps during 2012 and 2013 to reduce their sourcing of GBS and have re-negotiated some of their agreements with the steel manufacturers meaning that those companies are now able to commercialise amounts no longer sourced by the Parties (in addition to the amounts already sold to the merchant market by them). Fourth, many of the agreements the Parties have with the steel companies are coming to an end in the near future.










(35)


As to the potential separate market for GGBS, the Commission notes that access to the raw material GBS will be sufficient as noted above. The merged entity will also continue to face competition from alternative suppliers of GGBS.










(36)


The Commission therefore considers that the transaction is unlikely to significantly impede effective competition on the relevant markets for cementitious materials.




VI.   CONCLUSION







(37)


It is concluded that it is unlikely that the Notified Transaction will significantly impede effective competition in the internal market or a substantial part thereof.










(38)


The notified operation is therefore declared compatible with the internal market and the functioning of the EEA Agreement, in accordance with Article 2(2) and Article 8(1) of the Merger Regulation and Article 57 of the EEA Agreement.






(1)  OJ L 24, 29.1.2004, p. 1.