CELEX: 32015M7512
Language: en
Date: 2015-05-04 00:00:00
Title: Commission Decision of 04/05/2015 declaring a concentration to be compatible with the common market (Case No COMP/M.7512 - ARDIAN / ABERTIS / TUNELS) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

|[pic]                             |EUROPEAN COMMISSION                                                                                      |

Brussels, 4.5.2015
C(2015) 3096 final

|In the published version of this decision, some information |           |Public version                                                 |
|has been omitted pursuant to Article 17(2) of Council       |           |                                                               |
|Regulation (EC) No 139/2004 concerning non-disclosure of    |           |                                                               |
|business secrets and other confidential information. The    |           |                                                               |
|omissions are shown thus […]. Where possible the information|           |                                                               |
|omitted has been replaced by ranges of figures or a general |           |                                                               |
|description.                                                |           |                                                               |
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|                                                            |           |MERGER PROCEDURE                                               |

                                        |To the notifying parties:                                              |                                                                       |

Dear Sir/Madam,

Subject:    Case M.7512 – Ardian / Abertis / Tunels
Commission decision pursuant to Article 6(1)(b) of Council Regulation No 139/2004[1] and Article 57 of the Agreement  on  the  European  Economic
Area[2]

    0. On 1 April 2015, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council  Regulation  (EC)  No
       139/2004  by which ARDIAN Group ("ARDIAN", France) and Infraestructures Viàries  de  Catalunya,  Societat  Anònima  Concessionària  de  la
       Generalitat de Catalunya (Unipersonal) ("INVICAT", Spain), a subsidiary of  Abertis  Infraestructuras,  S.A.  ("Abertis",  Spain)  acquire
       within the meaning of Article 3(1)(b) of the Merger Regulation joint  control  of  Túnels  de  Barcelona  I  Cadí,  Concessionaria  de  la
       Generalitat de Catalunya, S.A. ("Tunels", Spain), currently jointly controlled  by  INVICAT  and  BTG  Pactual  Iberian  Concessions  Ltd.
       ("BTG"), by way of purchase of shares ("the Transaction"). Ardian, Invicat and Tunels will hereinafter be referred to as "the Parties".

THE PARTIES

    0. ARDIAN is a private investment company, active in various sectors in Europe, North America and Asia. The company is majority-owned by  its
       employees. ARDIAN's activity in toll motorway concessions is limited to France, through its co-controlling stake in Alicorne 88 and a non-
       controlling stake in Sanef, S.A. and in Spain, through its co-controlling stake in Autopista Trados 45, S.A.

    0. INVICAT is a subsidiary of Abertis, which is listed on the Spanish Stock Exchange and part of the Abertis  Group.  The  Abertis  Group  is
       active in toll motorways concessions and telecommunications infrastructures in 11 countries in Europe and America.  Abertis'  activity  in
       toll roads is greater in France, where it controls Sanef, S.A. and Spain, where  it  is  the  largest  toll  road  operator  in  terms  of
       kilometres. The Abertis Group has further toll road activities in UK and Ireland, as well as beyond the EEA.

    0. Tunels is the holder of a 25-year concession, to operate two sets of tunnels and access roads  connecting  Barcelona  with  the  Barcelona
       Outer Ring Road and with Toulouse through the Pyrenees, Túnel de Vallvidrera and Túnel del Cadí. The  concession  was  acquired  when  the
       Catalonian Government privatised Túnels in December 2012 and its term started on 01 January 2013 and will run until 2037. Currently Tunels
       is jointly controlled by BTG, which owns 65% of its shareholding and INVICAT, which owns the remaining 35%.

THE OPERATION AND THE CONCENTRATION

    0. The Transaction consists in the replacement of BTG by ARDIAN as jointly controlling majority shareholder in Tunels.  ARDIAN  will  acquire
       the entire shareholding of BTG in Tunels, thus holding 65% of Tunels' shares post-Transaction, and will replace BTG in all its  rights  in
       Tunels.

      Full functionality

    0. Tunels is a full functioning joint venture, according to paragraphs 94 and  following  of  the  Commission's  Consolidated  Jurisdictional
       Notice ("JN").

    0. First, Tunels establishes an independent presence on the market through the operation of the two toll motorways, performing the  functions
       normally carried out by undertakings active on that market, as provided in paragraph 24 JN. Indeed, Tunels does not receive a fee  by  the
       authority for operating the concession, but is in direct contact with the motorists and collects from them the toll corresponding to their
       use of the two motorways.

    0. Second, as Tunels' revenues result directly from the toll collected every year, the  operation  of  the  motorways  results  in  taking  a
       financial risk for Tunels. Tunels cannot unilaterally decide on the tolls imposed, as the tariffs charged to the drivers are  set  by  the
       authority and any change to them needs to be approved by the latter. Tunels has committed to a standardised canon fee to be  paid  to  the
       Catalonian Government. [Further details on the financial agreements between the concessionaire and the Catalonian Government]. If  however
       the collected net toll revenues are lower than projected in the financial plan, Tunels bears the full  risk.  Therefore,  Tunels  takes  a
       significant risk associated with the operation of the concession.

    0. Third, Tunels has access to the appropriate resources and specific know-how that allows it to operate the two motorways, primarily through
       a Technical Service Agreement ("TSA") with INVICAT. Through the TSA, INVICAT offers to Tunels [a number  of  services]  required  for  the
       operation of the concession. The Parties explain that INVICAT offers its  services  to  Tunels  [conditions  on  which  the  services  are
       offered]. Tunels is thus free to also engage third parties in the provision of these services.

    0. Fourth, the concession has been granted to Tunels for 25 years, it is therefore sufficiently long, for the latter to operate on a  lasting
       basis on the market for toll motorways.

    0. As a result, Tunels' is economically autonomous from an operational viewpoint  from  its  parents  and  a  full  functioning  undertaking.
       Therefore, a change of control over Tunels constitutes a concentration according to the EUMR.

            Joint control

    0. Reflecting their holding in Tunels, ARDIAN will have 65% and Abertis 35% of the voting rights in the General Shareholders' Meeting. ARDIAN
       will appoint [confidential] and Abertis [confidential] of the [confidential] members of the Board of Directors.

    0. Despite this preponderance of ARDIAN, both ARDIAN and INVICAT will enjoy veto rights in relation  to  the  budget,  business  plan,  major
       investments and the appointment of senior management on the basis of a signed Shareholders' Agreement ("SHA"). Major  strategic  decisions
       will be taken at the Board of Directors' level. [Description of the process to elaborate and approve Tunels' annual budget, business  plan
       and any amendments thereof and the relevant majorities required for such purpose]. Consequently, the agreement of both  INVICAT  [role  in
       the elaboration of the business plan and annual budget] and ARDIAN having [number of votes] at the Board will be ensured.

    0. [Role of ARDIAN and INVICAT in the elaboration of Tunels' business plan and annual budget and  majorities  required  for  their  approval]
       Therefore, both parents of Tunels' have a veto right over its budget and business plan.

    0. Moreover, the SHA provides that the CEO of Tunels will be appointed jointly by ARDIAN and INVICAT, whereas [parent company 1] appoints the
       CFO and [parent company 2] the COO.

    0. On the basis of the above, the Transaction constitutes a change of control over an undertaking on a  lasting  basis  and  therefore  is  a
       concentration within the meaning of the EU Merger Regulation.

EU DIMENSION

    0. The undertakings concerned have a combined aggregate world-wide turnover of more than EUR 5 000 million[3]. Each of them  has  an  EU-wide
       turnover in excess of EUR 250 million, but they do not achieve more than two-thirds of their aggregate EU-wide turnover within one and the
       same Member State. The notified operation therefore has an EU dimension.

COMPETITIVE ASSESSMENT

1 Market Definition

    0. The Parties submit that their activities overlap or are vertically related on the following markets: i) the market for the grant  of  toll
       motorway concessions in Spain, France or the EEA, ii) the market for the provision of transport services on toll motorways  in  Spain  and
       France, iii) the market for infrastructure constructions in Spain, France or the EEA, iv)  the  market  for  the  provision  of  ancillary
       services to the operation of toll motorway facilities in Spain, France or the EEA and v) the market for the distribution of OBE devices in
       Spain or France.

    0. The only product markets, where ARDIAN, Abertis and Tunels are all present are the market for the granting of  toll  motorway  concessions
       and the market for transport on toll motorways. While these two markets might seem closely related,  the  Commission  has  held  that  the
       granting of a licence for the exploitation of a particular State-regulated activity (competition for the market) is  distinguishable  from
       the running of that particular activity (competition in the market). However, the Commission  has  left  open  the  exact  product  market
       definition.[4]

    0. This decision will concentrate on those two markets, as the Parties' activities on a market for infrastructure constructions,[5] a  market
       for the provision of ancillary services to the operation of toll  motorway  facilities[6]  and  a  market  for  the  distribution  of  OBE
       devices[7] are marginal and ancillary to their activity in the other two markets.

1 Market for the award of toll motorway concessions

    0. The Commission has considered in its past decision practice, that the market for the award of toll motorway concessions  consists  in  the
       economic activity where supply is represented by the Public Administration and demand by undertakings or consortia of undertakings with an
       interest in acquiring the right to operate the toll motorway concessions.

    0. While the results of the market investigation in past cases pointed to an at least EEA-wide relevant geographic market for the granting of
       toll motorway concessions, the Commission left the exact definition of the relevant geographic market open, giving the possibility  for  a
       delineation of a national market.

    0. As, irrespective of the exact market definition, the Transaction would not  give  rise  to  any  competition  concerns,  the  product  and
       geographic delineation of the market for the award of toll motorway concessions may also in the present case be left open.

2 Market for the provision of transport services on toll motorways

    0. The Commission considered in its previous decision practice that the market for the provision of  transport  services  on  toll  motorways
       consists in the provision of speedy and secure road transport infrastructure between various geographical points ("routes").

    0. The Commission further considered that the geographical delineation of this market would be organised on a point-to-point basis. Therefore
       every combination of a point of origin and a point of destination is considered a separate market from the demand side.

    0. In the present case, the exact product and geographic market definition may ultimately be left open, as it would not alter the competitive
       assessment of the case.

2 Competitive Assessment

1 Market for the award of toll motorway concessions

    0. The Parties submit that on an EEA market for the award of toll motorway concessions, their combined market share would  be  below  10%  in
       terms of km (more specifically [5-10]%, of which [5-10]% of Abertis and [0-5]% of ARDIAN) and below [10-20]% in  terms  of  toll  revenues
       (more specifically [10-20]%, of which [10-20]% of  Abertis  and  [0-5]%  to  ARDIAN).  Tunels'  market  share  in  the  EEA  is  marginal,
       corresponding to [0-5]% in terms of km and [0-5]% in terms of toll revenues.

    0. On a market for the award of toll motorway concessions in France, the Parties' aggregated market share is [confidential] below [10-20]% in
       terms of km (more specifically [10-20]%, of which [0-5]% of ARDIAN and [10-20]% of Abertis) and [10-20]% in terms  of  toll  revenues  (of
       which [10-20]% of Abertis and [0-5]% of ARDIAN). Moreover, the Parties note that their overlap and aggregated market share on  the  French
       market pre-date the Transaction, as they both hold shares in Sanef S.A.

    0. On a market for the award of toll motorway concessions in Spain, the Transaction would give  rise  to  an  affected  market.  Indeed,  the
       Parties' aggregated market share would amount to [40-50]% in terms of km and [70-80]% in terms of toll revenues.

    0. Despite the fact that the Parties' combined market share is rather high, the increment of the Transaction is very small. This results from
       the fact that ARDIAN is only active on the Spanish market through the operation of  Trados-45  motorway  near  Madrid,  which  it  jointly
       controls together with Abertis. The market share of Trados-45 is [0-5]% in terms of km and [0-5]% in terms of toll  revenues  and  Tunels'
       market share [0-5]% in terms of km and [0-5]% in terms of toll revenues. Therefore, even if the  entire  market  share  of  Trados-45  and
       Tunels were fully attributed to ARDIAN, these would not exceed 5% of the Spanish market; such attribution  however  would  not  take  into
       account that Abertis jointly controls both Trados-45 and Tunels already pre-Transaction.

    0. In addition, the market for the award of toll motorway concessions is a bidding market with a sufficient  degree  of  competition.  ARDIAN
       [information of Ardian's participation in bidding processes] in Spain in the past ten years,  whereas  Abertis  [information  on  Abertis'
       participation in bidding processes]. Given the structure of these bidding markets, market shares have a more limited value, as  the  award
       of each new concession is decided on the basis of the specific bids submitted.

    0. Moreover, a number of other significant competitors, such as Itínere, Ferrovial, Sacyr and Globalvia are active on the Spanish market  for
       the award of toll motorway concessions. Itinére has a market share of [10-20]% in terms of km and [10-20]%  in  terms  of  toll  revenues,
       Ferrovial has a market share of [10-20]% in terms of km and [5-10]% in terms of toll revenues, Sacyr has a share of [5-10]% in terms of km
       and of [0-5]% in terms of toll revenues and Globalvia has a share of [0-5]% in terms of km and of [0-5]% in terms of toll revenues.

    0. In view of the above considerations and given its limited impact on the market for the award of toll motorway concessions  in  Spain,  the
       Transaction does not appear likely to reduce competition in the Spanish Market for the award of toll motorway  concessions  and  therefore
       does not raise any competition concerns on this market.

2 Market for the provision of transport services on toll motorways

    0. The Parties submit that there are no horizontal overlaps between the toll motorways operated by the Parties on a market for the  provision
       of transport services on toll motorways.

    0. ARDIAN is only active on the Spanish market for the provision of transport services through  the  operation  of  Trados-45,  jointly  with
       Abertis. As Trados-45 however is located in the Region of Madrid, this does not lead to any overlaps with  the  activities  of  Tunels  or
       Abertis in this market.

    0. The toll motorways operated by Tunels cannot be seen as a substitute to other toll motorways operated by Abertis in Spain. Indeed,  Tunels
       connect Barcelona Outer Ring to the city of Barcelona, whereas Abertis operates this Barcelona Outer Ring, connecting different points  of
       origin and destination. The Parties submit that these toll motorways serve different types  of  traffic  and  that  there  are  sufficient
       alternatives to Tunels in connecting the Barcelona Outer Ring with the city. Moreover, any overlap between the activities  of  Tunels  and
       Abertis predates the Transaction, which therefore does not give rise to any competition concern in this market.

    0. Moreover, the ARDIAN and Abertis' activities in France would also not give rise to any competition concern,  as  Abertis  is  only  active
       through the operation of the Sanef toll motorway, which it jointly controls with ARDIAN already pre-Transaction.

3 Coordinated effects

    0. Furthermore, the Transaction is not likely to give rise to any coordinated effects. Tunels' activity is very limited in terms of scope and
       only on the Spanish markets for the award of toll motorway concessions and the provision  of  transport  services  thereon.  In  addition,
       ARDIAN is already present in the Spanish and the French market, in which Abertis is also active and more importantly, there is  already  a
       link between the two companies' activities, through Trados-45 in Spain, which they jointly control, and through Sanef in France, which  is
       controlled by Abertis and in which ARDIAN already has a minority stake. Lastly, the fact that the markets for the award of  toll  motorway
       concessions are bidding markets in which several competitors are active impedes further the effectiveness of any potential coordination.

CONCLUSION

    0. For the above reasons, the European Commission has decided not to oppose the notified operation and to  declare  it  compatible  with  the
       internal market and with the EEA Agreement. This decision is adopted in application of  Article  6(1)(b)  of  the  Merger  Regulation  and
       Article 57 of the EEA Agreement.

For the Commission

Signed
Margrethe VESTAGER
Member of the Commission

-----------------------
[1]   OJ L 24, 29.1.2004, p. 1 ('the Merger Regulation'). With effect from 1 December 2009, the Treaty on the Functioning of the  European  Union
('TFEU') has introduced certain changes, such as the replacement of 'Community'  by  'Union'  and  'common  market'  by  'internal  market'.  The
terminology of the TFEU will be used throughout this decision.

[2]   OJ L 1, 3.1.1994, p. 3 ("the EEA Agreement").

[3]   Turnover calculated in accordance with Article 5 of the Merger Regulation.

[4]   See among others, cases M.4087 - Eiffage/Macquarie/APRR, M.5974 - Finavias/Abertis / Autopista Trados M-45.

[5]   The Parties submit that construction works aimed at the maintenance of the  toll  motorways  that  they  operate  constitute  part  of  the
corresponding concession and are ancillary  to  the  provision  of  transport  services  on  said  toll  motorways.  The  Parties  do  not  offer
infrastructure construction services independently on the market and do not directly perform infrastructure construction  services  on  the  toll
motorways they operate, but outsource them to specialised companies.

[6]   ARDIAN has no activity on a market for the provision of ancillary services to the operation of toll motorway facilities (e.g. operation  of
service stations etc.). INVICAT and Tunels have an indirect presence on this market, through the service stations  on  the  toll  motorways  they
operate; this overlap however pre-dates the Transaction. In any event, no Party offers such services independently on  the  market,  INVICAT  and
Tunels merely undertake such activities to the extent that these are linked to the toll motorways they operate.

[7]   Only Abertis is active on a market for the distribution of OBE devices, there are therefore no overlaps between  the  Parties'  activities.
As Abertis offers such services on the market in France and Spain through dedicated subsidiaries, a vertical  relationship  could  arise  between
Abertis and Tunels and Abertis and ARDIAN. Any such relationship between Abertis and Tunels pre-dates the Transaction. Similarly,  such  vertical
relationship pre-exists between Abertis and ARDIAN, as they already jointly control the Trados 45 toll motorway in Spain.  The  Transaction  will
merely lead to a minimal increase in Abertis' and ARDIAN's aggregate market share in the upstream market for the provision of transport  services
on toll motorways; this change however will not give rise to any foreclosure risk.