CELEX: 62002TJ0282
Language: en
Date: 2006-02-23
Title: Judgment of the Court of First Instance (Fourth Chamber, extended composition) of 23 February 2006.#Cementbouw Handel & Industrie BV v Commission of the European Communities.#Competition - Control of concentration of undertakings - Articles 2, 3 and 8 of Regulation (EEC) No 4064/89 - Concept of concentration - Creation of a dominant position - Authorisation subject to compliance with certain commitments - Principle of proportionality.#Case T-282/02.

Case T-282/02
      Cementbouw Handel & Industrie BV
      v
      Commission of the European Communities
      (Competition – Control of concentration of undertakings – Articles 2, 3 and 8 of Regulation (EEC) No 4064/89 − Concept of concentration – Creation of a dominant position − Authorisation subject to compliance with certain commitments – Principle of proportionality)
      Summary of the Judgment
      1.      Competition – Concentrations – Concept 
      (Council Regulation No 4064/89, Art. 3; Commission Notice 98/C 66/02, point 19)
      2.      Competition – Concentrations – Concept 
      (Council Regulation No 4064/89, Art. 3(2))
      3.      Competition – Concentrations – Acquisition of indirect joint control of a joint undertaking 
      (Council Regulation No 4064/89, Arts 3(1)(b) and (4)(b))
      4.      Community law – Principles – Protection of legitimate expectations – Conditions 
      5.      Competition – Concentrations – Concept 
      (Council Regulation No 4064/89, Art. 3)
      6.      Competition – Concentrations – Existence – Concentration coming within the exclusive competence of the Commission – Conditions
            
      (Council Regulation No 4064/89, Art. 3)
      7.      Competition – Concentrations – Concentration having a Community dimension – Criteria for assessment 
      (Council Regulation No 4064/89, Arts 1 and 5)
      8.      Competition – Concentrations – Examination by the Commission 
      (Council Regulation No 4064/89, Art. 6)
      9.      Competition – Concentrations – Concentration resulting from a number of legal transactions having a unitary nature on account
            of their interdependence 
      (Council Regulation No 4064/89)
      10.    Competition – Concentrations – Assessment of compatibility with the common market – Creation or strengthening of a dominant
            position 
      (Council Regulation No 4064/89, Arts 2(2) and 3)
      11.    Competition – Concentrations – Examination by the Commission – Economic assessments 
      (Council Regulation No 4064/89, Art. 2)
      12.    Competition – Dominant position – Existence – Barriers to market entry
      (Art. 82 EC)
      13.    Competition – Dominant position – Existence – Relevance of the purchasing power of customers vis-à-vis the supplier
      (Art. 82 EC)
      14.    Competition – Concentrations – Assessment of compatibility with the common market – Creation or strengthening of a dominant
            position 
      (Council Regulation No 4064/89)
      15.    Competition – Concentrations – Examination by the Commission – Commitments given by the undertakings concerned of such a kind
            as to render the notified transaction compatible with the common market
      (Council Regulation No 4064/89, Arts 2(2) and 8(2))
      1.      It follows from Article 3 of Regulation No 4064/89 on the control of concentrations between undertakings, entitled ‘Definition
         of concentration’, that a concentration is deemed to arise, in particular, where control of one or more undertakings is acquired
         either by an undertaking acting on its own or by two or more undertakings acting jointly, on the understanding that, no matter
         what form it assumes, the taking of control, having regard to the particular circumstances of fact and of law in each case,
         must confer the possibility of exercising decisive influence on the activity of the acquired undertaking as a consequence
         of rights, contracts or any other means.
      
      In accordance with paragraph 19 of the Commission Notice on the concept of concentration within the meaning of Regulation
         No 4064/89, joint control exists where two or more undertakings or persons have the possibility of exercising decisive influence
         over another undertaking, that is to say, the power to block actions which determine the strategic commercial behaviour of
         an undertaking. Thus, joint control may result in a deadlock situation owing to the power of two or more undertakings to reject
         proposed strategic decisions. Those shareholders must therefore reach understanding in determining the commercial policy of
         the joint venture.
      
      While decisive influence, within the meaning of Article 3(3) of Regulation No 4064/89, need not necessarily be exercised in
         order to exist, the existence of control within the meaning of Article 3 of that regulation requires that the possibility
         of exercising that influence be effective.
      
      (see paras 41-42, 58)
      2.      The fact that a joint undertaking may be a full-function undertaking and therefore economically autonomous from an operational
         viewpoint does not mean that it enjoys autonomy as regards the adoption of its strategic decisions. The opposite conclusion
         would lead to a situation in which there would never be joint control of a ‘joint undertaking’ as soon as it was economically
         autonomous. The condition in Article 3(2) of Regulation No 4064/89 on the control of concentrations between undertakings that
         must be satisfied in order for the creation of a joint undertaking, that is to say one controlled by two or more undertakings,
         to be considered to constitute a concentration, namely that the joint undertaking must ‘[perform] on a lasting basis all the
         functions of an autonomous economic entity’, proves that that is not the case.
      
      (see para. 62)
      3.      Article 3(1)(b) of Regulation No 4064/89 on the control of concentrations between undertakings states that control may be
         acquired ‘direct[ly] or indirect[ly]’ by one or more persons, and Article 3(4)(b) of that regulation accepts that those having
         control may also be persons who, while not being holders of rights or entitled to rights under contracts, have the power to
         exercise the rights deriving therefrom.
      
      The shareholders of the members of a joint undertaking may acquire indirect control within the meaning of Article 3 even where
         they are not direct holders of voting rights in the general assembly of that undertaking, which are exercised by the members
         themselves.
      
      Provided that commercial companies comply in any event with the decisions of their exclusive shareholders, their majority
         shareholders or those jointly controlling the company, it necessarily follows that, where the member companies of the joint
         undertaking are all subsidiaries held either exclusively or jointly by two shareholders, an appointment to the joint undertaking’s
         decision-making bodies presumes the agreement of the two shareholders. Otherwise, the members will be unable to appoint the
         joint undertaking’s decision-making bodies and the joint undertaking will be incapable of functioning.
      
      The fact that representatives of the parent companies are not entitled to sit on the joint undertaking’s managing board or
         that they are able to represent only a minority within its supervisory board does not alter the fact that it is the members
         of that undertaking that decide on the composition of the decision-making bodies and, through the intermediary of those members,
         their two shareholders.
      
      Furthermore, as regards the composition of the joint undertaking’s two decision-making bodies, although its articles do not
         preclude that all the persons sitting on those bodies will themselves carry out functions within the decision-making bodies
         of the member undertakings of the joint undertaking, it is inevitable that those representatives will have been appointed
         by the shareholders of the members of the joint undertaking and that, in performing their functions within the joint undertaking’s
         decision-making bodies, they will have to take those shareholders’ views into account.
      
      (see paras 72-74)
      4.      Three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise,
         unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person
         concerned by the Community authorities. Second, those assurances must be such as to give rise to a legitimate expectation
         on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules.
      
      (see para. 77)
      5.      Whereas Article 3(1)(a) of Regulation No 4064/89 on the control of concentrations between undertakings treats as a concentration
         a relatively simple and identifiable phenomenon – that of a merger between two or more previously independent undertakings
         –, Article 3(1)(b) is intended to cover all the other situations in which one or more undertakings acquire control of the
         whole or parts of one or more other undertakings. That general and teleological definition of a concentration – the result
         being control of one or more undertakings – implies that it makes no difference whether the direct or indirect acquisition
         of control was acquired in one, two or more stages by means of one, two or more transactions, provided that the end result
         constitutes a single concentration.
      
      Nor does it matter whether, when they notify a concentration to the Commission, the parties propose to conclude two or more
         transactions or whether they have already concluded them before notifying them. It is for the Commission, in each case, to
         ascertain whether those transactions are unitary in nature, so that they constitute a single concentration for the purposes
         of Article 3 of Regulation No 4064/89.
      
      Such an approach seeks to identify, in accordance with the circumstances of fact and of law specific to each case and with
         a concern to ascertain the economic reality underlying the transactions, the economic aim pursued by the parties, by examining,
         when faced with a number of legally distinct transactions, whether the undertakings concerned would have been inclined to
         conclude each transaction taken in isolation or whether, on the contrary, each transaction constitutes only an element of
         a more complex operation, without which it would not have been concluded by the parties. In other words, in order to determine
         the unitary nature of the transactions in question, it is necessary, in each individual case, to ascertain whether those transactions
         are interdependent, in such a way that one transaction would not have been carried out without the other.
      
      That approach tends, on the one hand, to ensure that undertakings which notify a concentration have the advantage of legal
         certainty for all the transactions which complete that operation and, on the other, to enable the Commission to carry out
         an effective control of concentrations capable of significantly impeding competition in the common market or a significant
         part thereof. Those two aims constitute, moreover, the principal objective of Regulation No 4064/89.
      
      It follows that a concentration within the meaning of Article 3(1) of Regulation No 4064/89 may be deemed to arise even in
         the case of a number of formally distinct legal transactions, provided that those transactions are interdependent in such
         a way that none of them would be carried out without the others and that the result consists in conferring on one or more
         undertakings direct or indirect economic control over the activities of one or more other undertakings.
      
      (see paras 103-109)
      6.      Article 3 of Regulation No 4064/89 on the control of concentrations between undertakings defines the conditions of the existence
         of a ‘concentration’ and confines itself to defining, generally and materially, what is to be understood by a ‘concentration’;
         it does not determine the question of the Commission’s competence in respect of concentrations. Among the transactions which
         satisfy the definition in Article 3 of Regulation No 4064/89, only those having a ‘Community dimension’, such as those defined
         in Article 1 of that regulation, fall within the exclusive competence of the Commission, save where the regulation provides
         to the contrary. Consequently, the mere fact that a transaction satisfies the definition of Article 3 of Regulation No 4064/89
         does not necessarily mean that it falls within the scope of the Commission’s exclusive competence; the transaction must also
         have a ‘Community dimension’.
      
      (see para. 114)
      7.      It follows from the general structure of Article 5 of Regulation No 4064/89 on the control of concentrations between undertakings
         that the Community legislature intended to specify the scope of that regulation by defining, inter alia, the turnover of the
         participants to a concentration that must be taken into consideration for the purpose of determining whether it has a ‘Community
         dimension’ within the meaning of Article 1 of Regulation No 4064/89. Thus, it follows from Article 5(2) of that regulation
         that, in the context of the acquisition of parts of an undertaking, only the turnover relating to those parts of the undertaking
         which are actually acquired are to be taken into account for the purpose of assessing the dimension of the concentration in
         question.
      
      That global assessment also includes the interpretation of the second subparagraph of Article 5(2) of Regulation No 4064/89,
         so that where the acquisition of parts of one or more undertakings takes place in a number of transactions within a two-year
         period between the same persons or undertakings, the turnover must relate to the acquired parts considered together. The underlying
         reason for the insertion of the second subparagraph of Article 5(2) of Regulation No 4064/89 is to ensure that the same undertakings
         or the same persons do not artificially break a transaction down into a number of partial sales of assets, over a period of
         time, with the aim of avoiding the thresholds laid down in Regulation No 4064/89 which determine the Commission’s competence
         in application of that regulation.
      
      Accordingly, the fact that the second subparagraph of Article 5(2) of Regulation No 4064/89 allows the Commission to consider
         two or more transactions to constitute a single concentration for the purposes of calculating the turnover of the undertakings
         concerned with the aim of preventing any circumvention of the competence conferred on it by that regulation does not mean
         that that provision deprives the Commission of the right to determine, upstream, in application of Article 3 of that regulation,
         whether a number of transactions notified to it give rise to a single concentration or whether, on the contrary, those transactions
         must be regarded as giving rise to a number of concentrations.
      
      If it emerges from the examination carried out by the Commission that two transactions notified to it are not interdependent,
         those transactions will be assessed individually. Where one and/or the other does not have a Community dimension, the Commission
         will decline competence to assess that transaction. If it emerges from that examination that the transactions are of a unitary
         nature and can therefore be considered to be a single concentration, in application of Article 3 of Regulation No 4064/89,
         the Commission will then ascertain whether the transaction thus identified has a Community dimension, for the purposes of
         establishing whether it is competent and of assessing the effects of the transaction on competition.
      
      (see paras 115-120)
      8.      The position defended by each of the parties notifying a concentration is by definition subjective and necessarily reflects
         that party’s own interests. None the less, that cannot mean that the Commission, in its desire to ascertain the economic reality
         of a concentration, is precluded from using the explanations supplied by the parties which enable it to identify the true
         economic purpose pursued by the parties at the time when they concluded the transactions in question. Although the uncontested
         explanations provided by one of the notifying parties cannot be decisive in themselves, the Commission must be permitted to
         rely on those explanations where they enable it to support the assessments on which its analysis is based.
      
      (see para. 147)
      9.      When examining together with a subsequent transaction from which it cannot be dissociated a transaction which, taken on its
         own, would not satisfy the ‘Community dimension’ criteria and which had for that reason been examined by the competent national
         competition authority, which had approved it, the Commission does not disregard the allocation of competence between national
         and Community competition authorities established by Regulation No 4064/89 on the control of concentrations between undertakings,
         provided that, owing to their unitary nature, the two transactions bring about a single concentration of a Community dimension.
         
      
      (see paras 158-161)
      10.    The dominant position referred to in Article 2 of Regulation No 4064/89 on the control of concentrations between undertakings
         is concerned with a situation where one or more undertakings wield economic power which would enable them to prevent effective
         competition from being maintained in the relevant market by giving them the opportunity to act to a considerable extent independently
         of their competitors, their customers and, ultimately, of consumers.
      
      In that regard, the existence of very large market shares is highly important and the relationship between the market shares
         of the undertaking or undertakings involved in the concentration and their competitors, especially those of the next largest
         undertakings, is relevant evidence of the existence of a dominant position. That factor enables the competitive strength of
         the competitors of the undertaking in question to be assessed. Furthermore, a particularly high market share may in itself
         be evidence of a dominant position, especially where the other operators on the market have only much smaller shares.
      
      Likewise, the presence of competitors can as a general rule constitute a factor likely to modify or even eliminate, as the
         case may be, the dominant position of the entity in question only if those competitors hold a strong position which acts as
         a genuine counterweight.
      
      Last, the absence of significant competitive pressure may also, in part, be inferred from the differentiated nature of the
         products on the relevant market. The differentiated nature of the products means that each product is not a perfect substitute
         for the other and that, consequently, an increase in the price of one of them does not necessarily have the effect that the
         undertaking which has increased the price will lose market share to its competitors which produce the other product, as would
         be the case for perfectly substitutable products.
      
      (see paras 195, 198, 201, 212-213)
      11.    The basic provisions of Regulation No 4064/89 on the control of concentrations between undertakings, in particular Article
         2 thereof, confer on the Commission a certain discretion, especially with respect to assessments of an economic nature. Consequently,
         review by the Community judicature of the exercise of that discretion, which is essential for defining the rules on concentrations,
         must take account of the discretionary margin implicit in the provisions of an economic nature which form part of the rules
         on concentrations.
      
      It follows that review by the Community judicature of complex economic assessments made by the Commission in the exercise
         of the discretion conferred on it by Regulation No 4064/89 must be limited to ensuring compliance with the rules of procedure
         and the statement of reasons, as well as the substantive accuracy of the facts, the absence of manifest errors of assessment
         and of any misuse of power. In particular, it is not for the Community judicature to substitute its own economic assessment
         for that of the Commission.
      
      (see paras 196-197)
      12.    Barriers to market entry may be of various kinds, in particular economic, commercial or financial factors, which are likely
         to expose potential competitors of the established undertakings to risks and costs sufficiently high to deter them from entering
         the market within a reasonable time or to make it particularly difficult for them to enter the market, thus depriving them
         of the capacity to exercise a competitive constraint on the conduct of the established undertakings.
      
      (see para. 219)
      13.    The purchasing power of a supplier’s customers may compensate for the supplier’s market power if those customers have the
         ability to resort to credible alternative sources of supply within a reasonable time if the supplier decides to increase its
         prices or to make the conditions of delivery less favourable.
      
      In that regard, the dispersion of operators on the relevant market and the absence of a credible alternative supply for those
         operators on the market are two criteria which, without necessarily constituting exhaustive confirmation or denial of the
         existence of customer buyer power capable of counteracting a supplier’s economic power, are very relevant. The criterion of
         the degree of concentration of buyers on the market means that their limited number may be capable of reinforcing their bargaining
         power vis-à-vis the supplier. Furthermore, the criterion of the presence of credible supply alternatives makes it possible
         to determine whether there is a strong probability that the supplier is forced to limit any increase in prices or indeed to
         refrain from increasing prices.
      
      (see paras 230-232)
      14.    Regulation No 4064/89 on the control of concentrations between undertakings does not prohibit an examination, under its own
         provisions, of the possible aspects of vertical coordination between the joint venture and one or other of its founding undertakings
         which result from a concentration, without any prejudgment of the autonomy of the joint venture. 
      
      (see para. 250)
      15.    Under Regulation No 4064/89 on the control of concentrations between undertakings, the Commission has power to accept only
         such commitments as are capable of rendering the notified transaction compatible with the common market. In other words, the
         commitments offered by the undertakings concerned must enable the Commission to conclude that the concentration at issue would
         not create or strengthen a dominant position within the meaning of Article 2(2) of that regulation.
      
      Thus, in order to be accepted by the Commission with a view to the adoption of a decision under Article 8(2) of Regulation
         No 4064/89, such commitments must not only be proportionate to the competition problem identified by the Commission in its
         decision but must eliminate it entirely.
      
      However, the notifying parties are not required to confine themselves to proposing commitments aimed strictly at restoring
         the competitive situation existing before the concentration in such a way that the Commission may declare that transaction
         compatible with the common market. Under Article 8(2) of Regulation No 4064/89, the Commission is authorised to accept all
         commitments by the parties which allow it to adopt a decision declaring the concentration compatible with the common market.
         
      
      Furthermore, given commitments which go further than the restoration of the situation existing before the concentration, the
         Commission does not have the discretion to refuse them and to adopt either a decision declaring the concentration incompatible
         with the common market pursuant to Article 8(3) of Regulation No 4064/89 or a decision declaring the concentration compatible
         with the common market pursuant to Article 8(2) of that regulation but with conditions attached aimed at restoring the situation
         preceding the concentration which it would impose unilaterally.
      
      In the first hypothesis – involving the adoption of a negative decision – the Commission would fail to comply with Article
         8(2) of Regulation No 4064/89, which requires it to adopt a decision declaring the concentration compatible with the common
         market if it finds that the concentration, following modifications by the undertakings concerned if necessary, satisfies the
         criterion defined in Article 2(2) of that regulation. In the second hypothesis – involving a positive decision with conditions
         attached aimed at strictly restoring the previous situation – the Commission would also come up against the wording of the
         second subparagraph of Article 8(2) of Regulation No 4064/89, which makes no provision for the Commission to make its declaration
         that a concentration is compatible with the common market subject to conditions which it has imposed unilaterally, independently
         of the commitments given by the notifying parties.
      
      (see paras 294, 307-311)
JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber, Extended Composition)
      23 February 2006 (*)
      
      (Competition – Control of concentration of undertakings – Articles 2, 3 and 8 of Regulation (EEC) No 4064/89 − Concept of concentration – Creation of a dominant position − Authorisation subject to compliance with certain commitments – Principle of proportionality)
      In Case T-282/02,
      Cementbouw Handel & Industrie BV, established in Le Cruquius (Netherlands), represented by W. Knibbeler, O. Brouwer and P. Kreijger, lawyers,
      
      applicant,
      v
      Commission of the European Communities, represented initially by A. Nijenhuis, K. Wiedner and W. Mölls, and subsequently by A. Nijenhuis, É. Gippini Fournier and
         A. Whelan, acting as Agents, with an address for service in Luxembourg,
      
      defendant,
      APPLICATION for annulment of Commission Decision 2003/756/EC of 26 June 2002, relating to a procedure pursuant to Council
         Regulation (EEC) No 4064/89, declaring a merger to be compatible with the common market and the EEA Agreement (Case COMP/M.2650
         − Haniel/Cementbouw/JV (CVK)) (OJ 2003 L 282, p. 1, corrigendum published in OJ 2003 L 285, p. 52), 
      
       
      THE COURT OF FIRST INSTANCEOF THE EUROPEAN COMMUNITIES (Fourth Chamber, Extended Composition),
      
      composed of H. Legal, President, P. Lindh, P. Mengozzi, I. Wiszniewska-Białecka and V. Vadapalas, Judges,
      Registrar: K. Andová, Administrator,
      having regard to the written procedure and further to the hearing on 6 July 2005,
      gives the following
      Judgment
       Background
      1        On 24 January 2002 Franz Haniel & Cie GmbH (‘Haniel’) and the applicant notified a concentration to the Commission pursuant
         to Article 4 of Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings (OJ 1989 L 395,
         p. 1, republished, after rectification, in OJ 1990 L 257, p. 13), as amended by Council Regulation (EC) No 1310/97 of 30 June
         1997 (OJ 1997 L 180, p. 1). According to the notification, in 1999 Haniel and the applicant acquired joint control, for the
         purposes of Article 3(1)(b) of Regulation No 4064/89, of the Netherlands undertaking Coöperatieve Verkoop- en Produktievereniging
         van Kalkzandsteenproducenten (‘CVK’) and its 11 member undertakings by means of an agreement and the purchase of shares held
         by the German company RAG AG (‘RAG’). 
      
      2        Haniel is a diversified German holding company active in the building materials sector where it produces and sells wall-building
         materials, such as sand-lime bricks, aerated concrete and ready-mixed concrete. Its activities are mainly in Germany. As regards
         the Netherlands, before the concentration took place Haniel held shares in several other undertakings which produced sand-lime
         bricks and were members of CVK.
      
      3        The applicant, which was previously part of the Netherlands group NBM Amstelland BV, is active in the Netherlands in the building
         materials market and, more generally, the construction, logistics and raw materials supply markets. At the date of adoption
         of Commission Decision 2003/756/EC of 26 June 2002, relating to a procedure pursuant to Council Regulation (EEC) No 4064/89,
         declaring a merger to be compatible with the common market and the EEA Agreement (Case COMP/M.2650 − Haniel/Cementbouw/JV
         (CVK)) (‘the contested decision’), the applicant was owned by CVC Capital Partners Group Ltd, an investment group.
      
      4        CVK has been in existence since 1947 and was initially responsible for selling the output of its member undertakings, the
         Netherlands producers of sand-lime bricks. In 1989 it was transformed into a Netherlands-law cooperative in order to improve
         cooperation between its members. 
      
      5        Before the concentration, five of the eleven member undertakings of CVK – Kalkzandsteenfabriek De Hazelaar BV (‘De Hazelaar’),
         Kalkzandsteenindustrie Loevestein BV (‘Loevestein’), Steenabriek Boudewijn BV (‘Boudewijn’), Kalkzandsteenfabriek Hoogdonk
         BV (‘Hoogdonk’) and Kalkzandsteenfabriek Rijsbergen BV (‘Rijsbergen’) – were subsidiaries of Haniel. Three brickworks – Kalkzandsteenfabriek
         Harderwijk BV (‘Harderwijk’), Kalkzandsteenfabriek Roelfsema BV (‘Roelfsema’) and Kalkzandsteenfabriek Bergumermeer BV (‘Bergumermeer’)
         – were subsidiaries of the applicant, while two producers – Anker Kalkzandsteenfabriek BV (‘Anker’) and Vogelenzang Fabriek
         van Bouwmaterialen BV (‘Vogelenzang’) were subsidiaries of RAG. Finally, one producer, Van Herwaarden Hillegom BV (‘Van Herwaarden’),
         was owned jointly by Haniel ([confidential]%), (1) the applicant ([confidential]%) and RAG ([confidential]%). 
      
      6        In 1998 the Nederlandse Mededingingsautoriteit, the Netherlands competition authority (‘the NMa’), was notified of a proposed
         concentration whereby CVK was to acquire control of its member undertakings. Control was to be transferred in the context
         of a pooling agreement and by amending CVK’s articles. On 23 April 1998 the NMa decided to open the ‘second phase’ procedure.
         By decision of 20 October 1998, the NMa closed the second phase procedure and authorised the proposed concentration. 
      
      7        Before the transaction was carried out, RAG decided to sell its shares in the member undertakings of CVK to Haniel and the
         applicant. In March 1999 the parties informed the NMa of their intentions. By letter of 26 March 1999 the NMa informed the
         parties that the proposed transfer would not constitute a concentration within the meaning of Article 27 of the wet van 22
         mei 1997 houdende nieuwe regels omtrent de economische mededinging (Medingingswet) (Law of 22 May 1997 laying down new rules
         on economic competition) (Stb. 1997, No 242), provided that the transaction authorised by the decision of 20 October 1998
         was completed no later than the time of the transfer. 
      
      8        On 9 August 1999 CVK and its member undertakings concluded the pooling agreement referred to in paragraph 6 above. CVK’s articles
         were amended on the same date to take account of the provisions of the pooling agreement (these two transactions are designated
         below as constituting ‘the first group of transactions’). Also on the same date, RAG transferred its shares in three of the
         member undertakings of CVK (Anker, Vogelenzang and Van Herwaarden) to Haniel and the applicant (‘the RAG transaction’), and
         Haniel and the applicant concluded a cooperation agreement governing their cooperation within CVK (these two transactions,
         taken together, are designated below as ‘the second group of transactions’).
      
      9        The Commission became aware of the concentration of 9 August 1999 when it examined two other concentrations notified by Haniel
         (Cases COMP/M.2495 – Haniel/Fels and COMP/M.2568 – Haniel/Ytong) and, by letter of 22 October 2001, it informed the applicant
         and the other participating undertakings that the transaction must be notified to it pursuant to Article 4 of Regulation No 4064/89.
         
      
      10      As indicated in paragraph 1 above, Haniel and the applicant notified the concentration pursuant to Article 4 of Regulation
         No 4064/89 on 24 January 2002. 
      
      11      On 25 February 2002 the Commission adopted a decision under Article 6(1)(c) of Regulation No 4064/89, in which it found that
         the notified concentration raised serious doubts as to its compatibility with the common market and with the Agreement on
         the European Economic Area (‘the EEA Agreement’).
      
      12      On 25 April 2002 the Commission sent a statement of objections to the notifying parties. The applicant responded by letter
         of 13 May 2002.
      
      13      On 16 May 2002 the Commission heard the parties concerned.
      
      14      Following the submission of a first set of draft commitments on 28 May 2002, which the Commission regarded as insufficient
         to resolve the competition problem which it had identified, Haniel and the applicant submitted final commitments on 5 June
         2002. 
      
      15      On 26 June 2002 the Commission adopted the contested decision, whereby it considered that the notified concentration was compatible
         with the common market and the EEA Agreement (Article 1 of the contested decision), subject to the condition that the commitments
         set out in points 27, 28, 32 to 35 and 40 of the annex to the contested decision were complied with in full by Haniel and
         the applicant (Article 2 of the contested decision) and that the other commitments set out in the Annex were complied with
         in full (Article 3 of the contested decision). The commitments referred to in Article 2 of the contested decision include,
         in particular, the dissolution of CVK within a period of [confidential] of the adoption of the contested decision. The contested decision, omitting the confidential data, was published in the
         Official Journal of the European Union of 30 October 2003 (OJ 2003 L 282, p. 1, corrigendum published in OJ 2003 L 285, p. 52).
      
       Procedure and forms of order sought by the parties
      16      By application lodged at the Registry of the Court of First Instance on 11 September 2002, the applicant brought the present
         action under Article 230 EC.
      
      17      In application of Article 14 of the Rules of Procedure of the Court of First Instance, the Court, after hearing the parties
         in accordance with Article 51 of the Rules of Procedure, decided to refer the case to a Chamber of extended composition.
      
      18      Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Fourth Chamber, Extended Composition) decided
         to open the oral procedure and, by way of measures of organisation of procedure, requested the parties to answer a number
         of questions in writing and to produce certain documents. The parties complied with those requests within the prescribed period.
         
      
      19      The parties presented oral argument and their answers to the questions put by the Court at the hearing on 6 July 2005.
      
      20      The applicant claims that the Court should:
      
      –        annul the contested decision;
      –        order the Commission to pay the costs.
      21      The Commission contends that the Court should:
      
      –        dismiss the application;
      –        order the applicant to pay the costs.
       Law
      22      In essence, the applicant raises three pleas in support of its application. The first plea alleges that the Commission was
         not competent to examine the transactions in question under Article 3 of Regulation No 4064/89. The second plea alleges errors
         of assessment by the Commission relating to the creation of a dominant position by the concentration, in breach of Article
         2 of Regulation No 4064/89. Last, the third plea alleges breach of Article 3 and Article 8(2) of Regulation No 4064/89 and
         of the principle of proportionality.
      
      1.     First plea: the Commission was not competent to examine the transactions in question under Article 3 of Regulation No 4064/89
      23      This plea is divided into three parts. The first part alleges that the Commission was not competent to examine the RAG transaction,
         on the ground that there was no change in the control of CVK. The second part alleges that the Commission was not competent
         to qualify two separate transactions as a single concentration and that in the present case there was no concentration within
         the meaning of Article 3 of Regulation No 4064/89. The third part alleges that the Commission was not competent to examine
         the taking of control by CVK of its member undertakings, since it had been authorised by the NMa.
      
       First part of the first plea: the Commission was not competent to examine the RAG transaction, on the ground that there was
            no change in the control of CVK
       Arguments of the parties
      24      The applicant maintains that the Commission was not competent, under Regulation No 4064/89, to examine the RAG transaction,
         since that transaction did not lead to the establishment of joint control of CVK by Haniel and itself. 
      
      25      First, the applicant disputes the assertion in the contested decision that before the RAG transaction variable majorities
         at CVK shareholders’ meetings were possible. 
      
      26      In the first place, the applicant finds that assertion surprising, since the NMa’s decisions of 23 April and 20 October 1998
         make no mention of that possibility. 
      
      27      Next, the applicant expresses surprise that the contested decision contains no analysis of whether variable majorities were
         actually possible at CVK shareholders’ meetings before the RAG transaction. The Commission cannot, in the applicant’s contention,
         merely do as it did in the contested decision and state that there were variable majorities before that transaction, without
         adducing the slightest evidence that there was no strong common interest between the shareholders or that there was no stable
         majority, in accordance with paragraph 35 of the Commission’s Notice on the concept of concentration within the meaning of
         Regulation No 4064/89 (OJ 1998 C 66, p. 5). In the applicant’s submission, the Commission did not succeed in establishing
         that there was a ‘no control’ situation in CVK’s case before the RAG transaction, whereas it was incumbent on the Commission
         to demonstrate that there was no control before the RAG transaction, in view of the strong joint interests existing between
         CVK’s ‘shareholders’ before that transaction, in particular on the basis of the pooling agreement. 
      
      28      Second, the applicant maintains that the alleged veto rights which, according to the contested decision, it held with Haniel
         do not give rise to joint control of CVK, which is an independent economic entity. 
      
      29      In the first place, the Commission merely presumed the existence of the applicant’s and Haniel’s veto rights within CVK’s
         decision making bodies.
      
      30      Thus, first of all, the applicant asserts that the Commission ignored the guarantees which the applicant and Haniel gave to
         the NMa when notifying the draft pooling agreement approved by the decision of 20 October 1998. Those guarantees provided,
         first, that CVK’s Board of Management must consist exclusively of representatives of members of CVK or independent persons
         and must not include any representative of companies belonging to a group to which the parent company of one or more of the
         members of CVK belonged. As regards CVK’s supervisory board, moreover, a majority of that board was to be composed of independent
         members. The applicant maintains that those rules ensure that neither the applicant nor Haniel is able to influence CVK’s
         strategic business decisions. 
      
      31      Next, the applicant maintains that under the Netherlands Civil Code the decision-making bodies of a cooperative such as CVK
         must adopt their decisions in the sole interest of the undertaking and not in the interest of its shareholders. Consequently,
         neither the applicant nor Haniel was in a position, in law or in fact, to influence the strategic business decisions of CVK’s
         decision-making bodies. It follows, according to the applicant, that the decision of 20 October 1998 accepting the guarantees
         offered by it and by Haniel gave rise to a legitimate expectation on its part, while it was for the Commission to demonstrate
         specifically that it was possible for Haniel and the applicant to exercise decisive influence on CVK’s decisions. 
      
      32      In the second place, the applicant disputes the Commission’s conclusion in paragraph 19 of the contested decision that the
         cooperation agreement concluded between the applicant and Haniel, the closure of three sand-lime brickworks which were members
         of CVK and certain documents for Haniel’s internal use constituted evidence of the joint control which it and Haniel exerted
         over CVK. As regards the cooperation agreement between Haniel and the applicant, the applicant states that the stipulations
         cited in the contested decision concern only the use of [confidential], which cannot be automatically regarded as involving strategic decisions of CVK. As regards the closure of three undertakings
         which were members of CVK, the applicant observes that no agreement was concluded between it and Haniel on that topic and
         that, after the signing of the pooling agreement, it was CVK that decided, on the basis of its own commercial analyses, to
         close those undertakings. As regards Haniel’s internal documents, the applicant maintains that since it was allowed to peruse
         those documents it is in a position to assert that they do not demonstrate the existence or non-existence of joint control
         for the purposes of the application of Regulation No 4064/89 but reveal the subjective and, for the purposes of the present
         case, irrelevant interests of Haniel. 
      
      33      Third, and last, the applicant maintains that the Commission failed to fulfil its obligation to provide sufficient reasons
         for the contested decision, in three respects: first, as regards the alleged existence of changing coalitions within CVK before
         the RAG transaction, in particular by failing to set out its reasons for adopting a different position from that taken by
         the NMa; then, as regards its reasons for concluding that the guarantees offered by Haniel and by the applicant to eliminate
         the possibility of joint control were insufficient; and, last, as regards the finding that the cooperation agreement between
         Haniel and the applicant, the closure of a number of sand-lime brick producers and Haniel’s internal documents revealed joint
         control of CVK. 
      
      34      The Commission makes the preliminary point that in the contested decision it did not consider the RAG transaction to be a
         separate concentration. The pooling agreement, that is to say, the acquisition of control of CVK from its member undertakings,
         and the RAG transaction, that is to say, the taking of control of CVK by Haniel and the applicant by the acquisition of the
         shares previously held by RAG in the capital of the member companies of CVK, constitute one and the same concentration. 
      
      35      That being so, the Commission replies, first of all, that as a general rule where two shareholders share equally the voting
         rights in an undertaking, that situation, which is described in paragraph 20 of the Commission Notice on the concept of concentration
         cited in paragraph 27 above, confers a veto right and therefore joint control of the undertaking on those shareholders. In
         the present case, before the concentration, neither the applicant, nor Haniel nor RAG had a veto right. Furthermore, while
         it cannot be precluded that in very exceptional cases minority shareholders without a veto right may exercise de facto joint
         control of an undertaking, the applicant did not claim in its application that powerful joint interests existed between the
         three abovementioned shareholders before the concentration was carried out. In that regard, the Commission also observes that
         the attempted argument to that effect outlined by the applicant in its reply, where it claimed that such joint interests existed,
         especially in the light of the pooling agreement, disregards the fact that that agreement is an integral part of the concentration
         and therefore has no relevance during the period before 9 August 1999. In those circumstances, in the Commission’s submission,
         it must be held that the three shareholders had different interests and that variations in the majority within CVK were possible
         before the concentration. 
      
      36      Next, as regards the argument that it ignored the NMa’s decision of 20 October 1998 and the guarantees offered to it by the
         applicant and Haniel, the Commission contends that the NMa examined a different concentration under different legal rules.
         The concentration notified to the NMa was not implemented as such and a different concentration – consisting of the first
         and second groups of transactions –, which ought to have been covered by the obligation to notify under Regulation No 4064/89,
         was concluded on 9 August 1999. Furthermore, the NMa assessed the concept of control by reference to Netherlands competition
         law, whereas the Commission did so by reference to the provisions of Regulation No 4064/89. Thus, in the Commission’s submission,
         although the question of variations in majority was not relevant for the NMa, the Commission, on the contrary, when applying
         Regulation No 4064/89 to a different concentration, considered that those variations in majority were important, since in
         its view the fact that they became possible as a result of the concentration precluded any prior joint control of CVK. The
         guarantees to which the applicant refers do not alter that conclusion, since their sole purpose was to restrict the possibility
         of persons exercising functions within the ‘final shareholders’ of CVK sitting within its management boards. However, the
         members of those bodies are appointed by the meeting of members of CVK, on a proposal by the directors of those members, who
         are themselves appointed by their respective shareholders. The Commission therefore maintains that it is highly unlikely that
         the members of the managing bodies of CVK will act without taking account of the interests of those who ultimately decide
         on their appointment or removal – that is to say, the applicant and Haniel, in their capacity as ‘final shareholders’. 
      
      37      The Commission further submits that the provisions of the Netherlands Civil Code do not alter the conclusion that the applicant
         and Haniel have joint control of CVK. While it is true that in Netherlands law the decisions of the managing bodies of an
         undertaking must be taken in the interest of the undertaking, the interest of the shareholders is still a factor to be taken
         into consideration for the purpose of establishing what is in the interest of the undertaking. Furthermore, the relationship
         between CVK and the applicant may be assimilated to that between a subsidiary and its parent company; since under Netherlands
         law undertakings are required to follow the instructions of the parent company, the same should apply where two undertakings
         – the applicant and Haniel – jointly control a joint undertaking. 
      
      38      The Commission likewise disputes the applicant’s criticisms of paragraph 19 of the contested decision, which states that the
         cooperation agreement, the closure of three member undertakings of CVK and Haniel’s internal documents constitute evidence
         of the joint control exercised over CVK by the applicant and Haniel. In that regard, the Commission recalls that those factors
         serve merely to illustrate the existence of joint control, demonstrated in paragraphs 13 to 17 of the contested decision,
         which, moreover, the applicant acknowledged in its reply. Accordingly, the veto rights which the applicant and Haniel have
         in respect of the appointment of the administrative bodies of CVK are sufficient in themselves to establish their joint control
         of CVK. In any event, the Commission contends that the first two factors actually disclose the possibility for the applicant
         and Haniel to interfere in the activities and strategic decisions of CVK. As regards Haniel’s internal documents, the Commission
         maintains that they support its argument that Haniel and the applicant intended to take joint control of CVK. 
      
      39      Last, the Commission also refutes the applicant’s allegations that the reasoning in the contested decision was insufficient.
         
      
       Findings of the Court
      –       Preliminary observations
      40      It should be recalled in limine that according to Article 3 of Regulation No 4064/89, entitled ‘Definition of concentration’, 
      
      ‘A concentration shall be deemed to arise where: 
      (a)      two or more previously independent undertakings merge,
      or 
      (b)      –       one or more persons already controlling at least one undertaking,
      or
      –        one or more undertakings
      acquire, whether by purchase of securities or assets, by contract or by any other means, direct or indirect control of the
         whole or parts of one or more other undertakings.
      
      2.      The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity shall constitute
         a concentration within the meaning of paragraph 1(b).
      
      3.      For the purposes of this Regulation, control shall be constituted by rights, contracts or any other means which, either separately
         or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive
         influence on an undertaking, in particular by: 
      
      (a)      ownership or the right to use all or part of the assets of an undertaking; 
      (b)      rights or contracts which confer decisive influence on the composition, voting or decisions of the relevant bodies of an undertaking.
         
      
      4.      Control is acquired by persons or undertakings which: 
      (a)      are holders of the rights or entitled to rights under the contracts concerned; 
      or
      (b)      while not being holders of such rights or entitled to rights under such contracts, have the power to exercise the rights deriving
         therefrom.
      
      …’
      41      It follows that a concentration is deemed to arise, in particular, where control of one or more undertakings is acquired either
         by an undertaking acting on its own or by two or more undertakings acting jointly, on the understanding that, no matter what
         form it assumes, the taking of control, having regard to the particular circumstances of fact and of law in each case, must
         confer the possibility of exercising decisive influence on the activity of the acquired undertaking as a consequence of rights,
         contracts or any other means.
      
      42      As the Commission states in paragraph 19 of its Notice on the concept of concentration, cited in paragraph 27 above – and
         reproduced, in substance, in paragraph 14 of the contested decision and not disputed by the applicant –, joint control exists
         where two or more undertakings or persons have the possibility of exercising decisive influence over another undertaking,
         that is to say, the power to block actions which determine the strategic commercial behaviour of an undertaking. Thus, joint
         control may result in a deadlock situation owing to the power of two or more undertakings to reject proposed strategic decisions.
         It follows, therefore, that those shareholders must reach understanding in determining the commercial policy of the joint
         venture.
      
      43      In the present case, the Commission stated as follows in paragraphs 15 to 17 of the contested decision:
      
      ‘(15) By buying RAG’s shares, Haniel and Cementbouw acquired joint control of CVK. Their respective indirect stakes of 50%
         in CVK enable Haniel and Cementbouw to exercise veto rights at the meeting of CVK members (ledenvergadering). These rights
         were created by the withdrawal of RAG, whose presence at the meeting would have made variable majorities possible and hence
         ruled out control of the meeting by the shareholders.
      
      (16) The meeting of members decides who will sit on CVK’s decision-making bodies. These are the managing board (Raad van Bestuur)
         and the supervisory board (Raad van Commissarissen). The articles and the pooling agreement impose restrictions on the meeting’s
         choice, since no member of the managing board, and only a minority of the members of the supervisory board, may at the same
         time hold a position in the companies of the shareowners of the CVK members.
      
      (17) Choosing who sits on the decision-making bodies of a company is a basic strategic decision. A right to veto such a decision
         therefore gives its holder, for the purpose of the Merger Regulation, control over the company, in this case CVK, since the
         members of the decision-making bodies will not disregard the views of those who have the right to veto their decisions.’
      
      44      In paragraph 19 of the contested decision, the Commission also states that:
      
      ‘Further light is shed on Haniel’s and Cementbouw’s acquisition of control of CVK by the cooperation agreement which they
         concluded in the context of the pooling agreement. This [cooperation agreement] regulates various aspects of their cooperation
         within CVK (paragraph 11). In addition, certain strategic decisions implemented by CVK’s corporate management after the [transaction]
         had been [completed] – in particular the closure of three of the eleven sand-lime brickworks – were already being discussed
         in detail by Haniel and Cementbouw before the [transaction] and thus, for the parties, plainly formed the basis for concluding
         the pooling agreement. Collectively, the documents preparing the decisions of the Haniel group’s management with regard to
         the [transaction] in question show that, in Haniel’s eyes at any rate, the pooling agreement would enable the parties jointly
         to control CVK.’
      
      45      It follows from those passages in the contested decision that the Commission found that Haniel and the applicant had taken
         control of CVK, independently of the question, raised in the second part of the present plea, as to whether the present case
         involved one or more concentrations. Accordingly, even though the Commission observes in its written submissions that it did
         not adopt a position in the contested decision solely on the RAG transaction but on a concentration consisting of the first
         and second groups of transactions mentioned in paragraph 8 above, it must none the less be held that, in reaching its decision
         that Haniel and the applicant had taken joint control of CVK, the Commission relied solely on the second group of transactions.
      
      46      In substance, the applicant gives the impression that initially, before the conclusion of the second group of transactions,
         and in particular before the RAG transaction, joint control of CVK was exercised by its three shareholders, namely the applicant,
         Haniel and RAG – as implied by the applicant’s assertion that there were ‘strong common interests between CVK’s shareholders’
         (see paragraph 27 above), of the type indicated in paragraphs 30 to 35 of the Commission Notice on the concept of concentration
         – and criticises the Commission for not having shown ‘the absence of common interests’ between CVK’s shareholders before the
         conclusion of the second group of transactions, prior to the finding of a ‘taking of control’ of CVK by Haniel and the applicant.
         The applicant then maintains that the guarantees offered to the NMa, in the context of the notification of the first group
         of transactions mentioned in paragraph 8 above, as regards the composition of CVK’s managing and supervisory boards, preclude
         any joint control of CVK, namely the absence of rights held by Haniel and the applicant to veto the strategic decisions of
         the undertaking. 
      
      47      The examination which follows will therefore relate, first of all, to the applicant’s assertion that CVK was jointly controlled
         by its three shareholders before the second group of transactions was concluded. Should the Court find that CVK was not so
         jointly controlled, it will then determine, second, whether, as the contested decision found, the second group of transactions,
         in particular the RAG transaction, entailed the taking of joint control of CVK by Haniel and the applicant. Last, and third,
         the Court will examine the applicant’s complaints concerning the insufficiency of the reasoning employed in the contested
         decision to support the finding that those parties took joint control of CVK.
      
      –       The applicant’s assertions relating to the existence of joint control of CVK before the conclusion of the second group of
         transactions
      
      48      It should be observed that the statement in paragraph 15 of the contested decision that RAG’s presence at the meeting of CVK
         members made variable majorities possible and ruled out control of the meeting by the shareholders necessarily relies on the
         interpretation of the data relating to the division of the share capital and the corresponding voting rights set out in paragraph
         5 of the contested decision.
      
      49      Those data, which are reproduced below, represent the share, in percentage points, which each of the 11 members of CVK held
         in CVK’s share capital – and the associated voting rights –, in accordance with CVK’s articles:
      
      –      De Hazelaar          [confidential]%
      
      –      Loevestein          [confidential]% 
      
      –      Boudewijn          [confidential]% 
      
      –      Hoogdonk          [confidential]% 
      
      –      Rijsbergen          [confidential]% 
      
      –      Harderwijk          [confidential]% 
      
      –      Roelfsema          [confidential]% 
      
      –      Bergumermeer          [confidential]% 
      
      –      Anker                   [confidential]% 
      
      –      Vogelenzang          [confidential]% 
      
      –      Van Herwaarden [confidential]% 
      
      50      It should be borne in mind that, before the conclusion of the second group of transactions, Haniel owned the first five undertakings
         mentioned above, the applicant was the parent company of Harderwijk, Roelfsema and Bergumermeer, while RAG owned Anker and
         Vogelenzang. As regards Van Herwaarden, Haniel held [confidential]% of its capital, the applicant [confidential]% and RAG [confidential]%.
      
      51      It follows that, before the conclusion of the second group of transactions, Haniel indirectly held [40 to 45]% (2) of CVK’s capital ([confidential]% corresponding to the total share of the first five undertakings + [confidential]% corresponding to its [confidential]% stake in Van Herwaarden), while the applicant and RAG held, respectively, [40 to 45]% ([confidential]% corresponding to the total stake of its three subsidiaries + [confidential]% corresponding to its [confidential]% stake in Van Herwaarden) and [15 to 20]% [confidential] corresponding to its total stake in its two subsidiaries + [confidential]% corresponding to its [confidential]% stake in Van Herwaarden).
      
      52      Having regard to the voting arrangements within the meeting of members of CVK, it would have followed, in principle, that
         if RAG had kept its stake in CVK, none of the three shareholders in CVK would have been able to block the adoption of decisions
         by that meeting, in particular the adoption of CVK’s strategic decisions.
      
      53      That assertion is not affected by the applicant’s allegation that there were significant joint interests between the shareholders,
         comparable to those indicated by the Commission in its Notice on the concept of concentration, so that in fact CVK was jointly
         controlled by the three shareholders before that transaction.
      
      54      In paragraph 30 of that Notice, the Commission stated that even in the absence of specific veto rights, two or more undertakings
         which acquire majority shareholdings in another undertaking may obtain joint control. It is clear from the Notice that such
         a situation predicates concertation between the minority shareholders resulting either from a legally binding agreement or
         from de facto circumstances. According to the Notice, the legal means of ensuring the joint exercise of voting rights may
         take various forms, such as a holding company or an agreement whereby the shareholders undertake to act in the same way (a
         vote-pooling agreement). As regards the de facto circumstances showing collective action, the Notice states, in paragraph
         32, that, very exceptionally, collective action by the shareholders may be demonstrated where interests which unite the shareholders
         are so strong that they would not act against each other in exercising their rights in relation to the joint venture. 
      
      55      The Notice states, first, that in the case of acquisitions of minority shareholdings in a pre-existing joint venture, the
         prior existence of links between the minority shareholders or the acquisition of the shareholdings by means of concerted action
         will be factors indicating such a common interest. Second, where a new joint venture is established, there is a higher probability
         that the parent companies are carrying out a deliberate common policy when they acquire minority shareholdings in a pre-existing
         undertaking, in particular where each parent company provides a contribution to the joint venture which is vital for its operation
         (specific technologies, know-how, supply agreements, etc.). Last, the Notice points out, in paragraph 35, that in the absence
         of strong common interests such as those outlined above, the possibility of changing coalitions between shareholders will
         normally exclude the assumption of joint control. Where there is no stable majority in the decision-making procedure and a
         majority can on each occasion be any of the various combinations possible amongst the minority shareholders, it cannot be
         presumed that the minority shareholders will jointly control the target undertaking.
      
      56      The applicant does not dispute the general appraisals of the existence of common interests which the Commission sets out in
         its Notice on the concept of concentration, but contends that in the present case the three shareholders already had such
         interests, within the meaning of that Notice, before the second group of transactions was concluded. 
      
      57      However, it must be pointed out that in its written submissions the applicant puts forward no evidence to support its assertion.
         At the most, it indicates that those common interests are based on the pooling agreement, that is to say, on one of the transactions
         forming part of the first group of transactions. In that regard, however, it must be borne in mind that it is common ground
         that the pooling agreement was not concluded until 9 August 1999, that is to say, on the same day as the second group of transactions.
         Contrary to the applicant’s contention, therefore, that agreement cannot constitute the basis of proof of the existence of
         common interests between the three shareholders before the conclusion of the second group of transactions, on which it might
         be determined whether at the time there existed the possibility of exercising decisive influence on the strategic decisions
         of CVK. The fact that the proposed pooling agreement was notified to the NMa does not alter that assertion, since the possibility
         under that contract for the applicant and Haniel to exercise decisive influence on CVK’s strategic decisions was not effective
         before the conclusion of the second group of transactions. 
      
      58      In effect, while decisive influence, within the meaning of Article 3(3) of Regulation No 4064/89, need not necessarily be
         exercised in order to exist, the existence of control within the meaning of Article 3 of that regulation requires that the
         possibility of exercising that influence be effective. The mere fact that the proposed pooling agreement was notified to the
         NMa does not prove that, as a result of that notification, the three shareholders acquired the possibility of exercising decisive
         control over CVK before the second group of transactions was concluded.
      
      59      It follows that, contrary to the applicant’s contention, the Commission cannot be criticised for not having shown that there
         were no significant common interests between the minority shareholders in the joint undertaking CVK before the second group
         of transactions was concluded, since, even before the Court, the applicant was unable to indicate the evidence which would
         support those alleged joint interests. 
      
      60      Furthermore, the applicant’s claim that the NMa’s decisions of 23 April and 20 October 1998 do not mention the possibility
         of changing coalitions between the shareholders, and regard CVK as an autonomous economic entity, is inoperative. 
      
      61      In effect, on the one hand, even on the assumption that the NMa’s decisions may be raised as against the Commission, in those
         decisions the NMa determined whether the proposed transaction forming the subject-matter of the pooling agreement constituted
         a concentration for the purposes of the Netherlands law. The NMa was therefore not requested to make a determination in respect
         of the second group of transactions, of which it was unaware at the time of adopting the decisions. In any event, just as
         it did not mention the changing coalitions, the NMa does not state in its final decision of 20 October 1998 that the three
         shareholders had joint control of CVK before the conclusion of the second group of transactions, as the applicant claims in
         the context of this part of its plea. 
      
      62      On the other hand, the applicant is mistaken as to the concept of autonomous economic entity. The fact that a joint undertaking
         may be a full-function undertaking and therefore economically autonomous from an operational viewpoint does not mean that
         it enjoys autonomy as regards the adoption of its strategic decisions. The opposite conclusion would lead to a situation in
         which there would never be joint control of a ‘joint undertaking’ as soon as it was economically autonomous. The condition
         in Article 3(2) of Regulation No 4064/89 that must be satisfied in order for the creation of a joint undertaking, that is
         to say one controlled by two or more undertakings, to be considered to constitute a concentration, namely that the joint undertaking
         must ‘[perform] on a lasting basis all the functions of an autonomous economic entity’, proves that that is not the case.
      
      63      Consequently, on the basis of the data in the contested decision and the evidence in the file which was available at the time
         of its adoption, the applicant has not shown that there was joint control of CVK by its three shareholders before the conclusion
         of the second group of transactions, the existence of which the Commission is alleged to have wrongly ignored.
      
      64      The Court must therefore ascertain whether the conclusion of the second group of transactions entailed the taking of control
         of CVK by Haniel and the applicant, granting them a right to veto the strategic decisions of CVK.
      
      –       The taking of joint control of CVK by Haniel and the applicant upon the conclusion of the second group of transactions
      65      First of all, it is common ground that by the RAG transaction Haniel and the applicant took joint control of the three undertakings
         Anker, Vogelenzang and Van Herwaarden, all members of CVK. That transaction, consisting in the purchase of RAG’s shares, respectively
         exclusive and minority, in those undertakings constitutes a concentration in itself. The transfer agreement also contains
         restrictive clauses typically linked with concentrations, such as a no-compete clause, to which RAG committed itself for all
         the undertakings in its group, on the Netherlands market for the production of building materials for load-bearing walls.
         
      
      66      Next, it must be observed that, in view of the division of CVK’s share capital between its members as set out in paragraph
         5 of the contested decision, Haniel and the applicant, by, on the one hand, each acquiring [confidential]% of the shares of Anker and Vogelenzang and, on the other hand, agreeing that the applicant would purchase the [confidential]% which RAG held in the share capital of Van Herwaarden, each indirectly acquired 50% of the share capital of CVK. 
      
      67      The fact that the shareholders held equal shares in CVK’s share capital and in the associated voting rights means, in principle,
         that each of the shareholders can block the strategic decisions of the joint undertaking, such as those relating to the appointment
         of the decision-making bodies of the joint undertaking, namely the managing board and the supervisory board. In order to ensure
         that the strategic decisions of the joint undertaking are not thus blocked, the shareholders are therefore required to cooperate
         permanently.
      
      68      In that regard, the applicant maintains, first, that the commitments given to the NMa as regards the composition of CVK’s
         decision-making bodies preclude a right of veto by each of the shareholders over those decisions. It submits, second, that
         under the Netherlands Civil Code CVK’s decision-making bodies are required to take their decisions in the sole interest of
         CVK and not in the interest of the shareholders. Third, it disputes the Commission’s finding that the pooling agreement which
         it concluded with Haniel and the other examples set out in paragraph 19 of the contested decision reflect the existence of
         joint control of CVK.
      
      69      Those arguments cannot succeed.
      
      70      As regards the first allegation, it must be pointed out that, in accordance with Articles 9 and 12 of CVK’s articles, as amended,
         adopted on 9 August 1999, each member of the management board and the supervisory board is chosen by the general meeting of
         the members. Those articles, in accordance with the commitments given to the NMa, provide for certain restrictions concerning
         the persons eligible to sit on the decision-making bodies. Thus, as regards the managing board, Article 9(1) of the articles
         provides that that body is to consist solely of members of CVK or of independent persons and is not to include any representative
         of groups of companies to which the parent company of one or more members of CVK belongs. As regards the supervisory board,
         Article 12(2) of the articles states that the majority of members of that body, including its president, is to consist of
         representatives of the members or of independent persons, while a minority of members may consist of representatives of groups
         of companies to which the parent company of one or more members of CVK belongs.
      
      71      However, as that type of restriction affects only the choice of persons sitting on CVK’s decision-making bodies, it cannot
         preclude every possibility that the shareholders of the members of CVK will exercise decisive influence on CVK.
      
      72      Admittedly, it must be accepted that the shareholders of CVK’s members do not directly have voting rights in the general meeting
         of CVK, as those rights are exercised by the members themselves. None the less, it must be borne in mind that Article 3(1)(b)
         of Regulation No 4064/89 states that control may be acquired ‘direct[ly] or indirect[ly]’ by one or more persons, whereas
         Article 3(4)(b) of that regulation accepts that those having control may also be persons who, while not being holders of rights
         or entitled to rights under contracts, have the power to exercise the rights deriving therefrom. Since commercial companies
         comply in any event with the decisions of their exclusive shareholders, their majority shareholders or those jointly controlling
         the company and since, moreover, the member undertakings of CVK are all subsidiaries held either exclusively or jointly by
         the applicant and Haniel, it necessarily follows that an appointment to CVK’s decision-making bodies presumes the agreement
         of the two shareholders. Otherwise, the members will be unable to appoint CVK’s decision-making bodies and the joint undertaking
         will be incapable of functioning.
      
      73      The fact that representatives of the parent companies are not entitled to sit on CVK’s managing board or that they are able
         to represent only a minority within its supervisory board does not alter the fact that it is the members of CVK that decide
         on the composition of the decision-making bodies and, through the intermediary of those members, their two shareholders.
      
      74      As regards the composition of CVK’s two decision-making bodies, it cannot be precluded that all the persons sitting on those
         bodies will themselves carry out functions within the decision-making bodies of the member undertakings of CVK, as permitted
         by the alternative provisions in Articles 9 and 12 of CVK’s articles, which state that CVK’s decision-making bodies are to
         ‘consist solely of members of CVK or of independent persons’. If that is the case, it is inevitable that those representatives
         will have been appointed by the shareholders of the members of CVK and that, in performing their functions within CVK’s decision-making
         bodies, they will have to take those shareholders’ views into account. 
      
      75      In those circumstances, the applicant has adduced no evidence capable of calling in question the Commission’s finding that
         all possibility of exercising decisive influence on CVK by Haniel and by the applicant following the conclusion of the second
         group of transactions is not excluded.
      
      76      Nor can the applicant rely as against the Commission on an alleged legitimate expectation based on the interpretation of the
         concept of control employed by the NMa under the Netherlands law on competition. 
      
      77      In that regard, it must be borne in mind that three conditions must be satisfied in order to claim entitlement to the protection
         of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable
         sources must have been given to the person concerned by the Community authorities. Second, those assurances must be such as
         to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given
         must comply with the applicable rules (see Case T-347/03 Branco v Commission [2005] ECR II-0000, paragraph 102 and the case-law cited).
      
      78      In the present case, it is sufficient to observe that the applicant received no precise assurance from the Community authorities
         that, even on the assumption that there was any legal basis on which it could bind itself in that way, the Commission would
         assess the concept of control under Regulation No 4064/89 in the same way as the NMa had assessed that concept in its decision
         of 20 October 1998 in application of the Netherlands law on competition. Nor did the applicant receive any precise assurances
         on the part of the NMa, in particular in the letter of 26 March 1999 cited in paragraph 7 above, with which the Commission
         would have acquiesced and according to which the Commission would adopt the same approach as that taken in that letter, after
         the second group of transactions was concluded. In any event, even on the assumption that the applicant did receive such assurances,
         they could not have given rise to well-founded hopes on its part, since according to the reasoning set out above such assurances
         would not have been based on an assessment consistent with Article 3 of Regulation No 4064/89.
      
      79      Nor does the second argument, based on the application of the Netherlands Civil Code, carry conviction. Although, as the applicant
         maintains, the Netherlands Civil Code provides that the decisions of a cooperative company must be taken in the interest of
         that company, the fact remains that it is the persons who directly or indirectly have the voting rights in that company that
         have the power to adopt those decisions. Accordingly, the applicant’s arguments based on the Netherlands Civil Code do not
         call in question the existence of decisive influence on CVK on the part of Haniel and the applicant after the conclusion of
         the second group of transactions.
      
      80      Last, as regards the third allegation, as the applicant accepts in its reply, the pooling agreement which it concluded with
         Haniel, the closure of three member undertakings of CVK and certain of Haniel’s internal documents referred to in paragraph
         19 of the contested decision do not constitute the essential part of the legal reasoning of the contested decision relating
         to the joint control of CVK –which focuses on the existence of veto rights exercisable by Haniel and the applicant – but serve
         to illustrate it. Consequently, even on the assumption that, as the applicant claims, those examples do not demonstrate the
         exercise of decisive influence on CVK – the possibility of which arises owing to the existence of the veto rights, previously
         established in paragraphs 13 to 17 of the contested decision and analysed above – and that, accordingly, the contested decision
         is vitiated by errors of assessment in respect of those elements submitted by way of example, that would not entail annulment
         of the contested decision, as the principle that Haniel and the applicant would be able to exercise the possibility of decisive
         influence on CVK remains perfectly valid.
      
      81      For the sake of completeness, the Court observes that the closure of the three member undertakings of CVK (Boudewijn, Bergumermeer
         and Vogelenzang), which the applicant does not seriously deny constitutes a strategic decision, serves to illustrate sufficiently
         that control of CVK was taken by Haniel and the applicant. 
      
      82      In effect, as regards, more particularly, Vogelenzang – which, before the RAG transaction, was a subsidiary of that undertaking
         – after the conclusion of the second group of transactions, neither Haniel nor the applicant could decide alone to close that
         undertaking, whose shares are held in equal parts by its two shareholders. At no time during the procedure before the Court,
         moreover, was the applicant able to support the assertion that it was CVK, on the basis of its own commercial policy, that
         decided to close that undertaking. It follows that only Haniel and the applicant were able to decide to close Vogelenzang.
      
      83      For all of those reasons, it must be held that the Commission was correct to consider that by concluding the second group
         of transactions Haniel and the applicant took joint control of CVK for the purposes of Article 3 of Regulation No 4064/89.
         
      
      –       The alleged insufficiency of the reasoning
      84      The applicant puts forward three complaints relating to the insufficiency of the reasoning of the contested decision as regards
         the finding that it and Haniel took joint control of CVK (see paragraph 33 above).
      
      85      It must be borne in mind that, according to consistent case-law, the extent of the obligation to state reasons depends on
         the nature of the measure in question and on the context in which it was adopted. The statement of reasons must disclose in
         a clear and unequivocal fashion the reasoning of the institution, in such a way as to give the persons concerned sufficient
         information to enable them to ascertain whether the decision is well founded or whether it is vitiated by a defect which may
         permit its legality to be contested, and to enable the Community judicature to carry out its review of the measure (see Case
         T-251/00 Lagardère and Canal+ v Commission [2002] ECR II-4825, paragraph 155 and the case-law cited).
      
      86      In the present case, in spite of the reasoning implicit in the contested decision as to the absence of joint control of CVK
         by the three shareholders before the conclusion of the second group of transactions and, in particular, of the RAG transaction,
         the contested decision was capable of being understood in the context in which it was adopted, in particular on the basis
         of the data in paragraph 5 of the contested decision, of CVK’s articles and of the contracts concluded on 9 August 1999. As
         the analysis carried out above reveals, the reasoning in the contested decision on this point does not hinder the review carried
         out by the Court either. 
      
      87      Nor can the applicant criticise the Commission for having insufficiently explained its reasons for considering that the guarantees
         provided to the NMa were not sufficient. It is clear from paragraphs 25 and 27 of the contested decision that the Commission
         stated the reasons why it was unable to extend the interpretation which the NMa put on the concept of control, in particular
         in its decision of 20 October 1998, on the basis of Netherlands competition law, to the interpretation of Article 3(3) of
         Regulation No 4064/89, competence for which devolves on the Commission, subject to review by the Community judicature. Those
         explanations were sufficient in themselves. Furthermore, judicial review is not hindered on that question either, as the preceding
         developments show.
      
      88      The same conclusion must be reached as regards the examples which show the existence of joint control which are mentioned
         in paragraph 19 of the contested decision. Although the reasoning in the contested decision is succinct on this point, the
         applicant was perfectly capable of understanding the Commission’s reasons for believing that those elements could reflect
         the existence of joint control of CVK by the applicant and Haniel, without judicial review being hindered. 
      
      89      In those circumstances, the complaints alleging that the reasoning in the contested decision is insufficient must be rejected.
      
      90      Accordingly, the first part of the first plea must also be rejected.
      
       Second part of the first plea: the Commission was not competent to treat two transactions as a single concentration and in
            the present case there was no concentration within the meaning of Article 3 of Regulation No 4064/89
       Arguments of the parties
      91      First, the applicant criticises the Commission for having considered in the contested decision that the taking of control
         by CVK of its member undertakings through the conclusion of, first, the pooling agreement and, second, the RAG transaction
         constituted one and the same concentration, owing to their interdependence from both a temporal and an economic aspect. According
         to the applicant’s written submissions, Regulation No 4064/89 confers no general competence on the Commission to decide that
         two separate transactions must be regarded as a single concentration. 
      
      92      In that regard, the applicant submits that only the second subparagraph of Article 5(2) of Regulation No 4064/89 – which,
         in certain circumstances, authorises the Commission to treat two or more transactions as one and the same concentration for
         the purpose of calculating the turnover of the undertakings concerned which acquire parts of one or more undertakings – refers
         to such a situation. However, the applicant emphasises that that provision is not relevant in the present case. In the first
         place, the second subparagraph of Article 5(2) of Regulation No 4064/89 seeks to ensure that undertakings do not avoid the
         application of that regulation by artificially splitting a transaction into a number of transactions in such a way that it
         would fall below the turnover thresholds laid down in that regulation. In the present case, the contested decision contains
         no evidence that the applicant or Haniel sought to circumvent the application of Regulation No 4064/89. In the second place,
         the applicant observes that in paragraph 23 of the contested decision the Commission concludes that the second subparagraph
         of Article 5(2) of Regulation No 4064/89 is not directly relevant in this case. In any event, the applicant maintains that
         the current limits on the scope of Regulation No 4064/89 were recognised by the Commission itself in the Green Paper on the
         examination of Regulation No 4064/89 (COM(2001) 745 final) and in the proposal for a Council Regulation on the control of
         concentrations between undertakings (OJ 2003 C 20, p. 4) submitted by the Commission and designed to amend Regulation No 4064/89.
         
      
      93      Second, the applicant submits that even on the assumption that Regulation No 4064/89 does confer competence on the Commission
         to treat multiple transactions as a single concentration, the Commission has not provided sufficient support for its finding
         that in the present case there is interdependence between the two groups of transactions in question, in such a way that they
         must be regarded as a single concentration. 
      
      94      The fact that the first and second groups of transactions were concluded on the same date – 9 August 1999 – before the same
         notary does not assume particular importance as regards their interdependence. The applicant emphasises in that regard that
         it had already informed the Commission that both the pooling of profits and losses within CVK, involving several large-scale
         technical and commercial operations, and various ecological studies had delayed the conclusion of the pooling agreement until
         9 August 1999. 
      
      95      Furthermore, the applicant disputes the Commission’s finding that the conclusion of the pooling agreement was conditional
         upon completion of the second group of transactions, more particularly the RAG transaction. On that point, the applicant recalls,
         first of all, that the pooling agreement had been notified to the NMa on 26 February 1998, which means that the intention
         to conclude that agreement was sufficiently precise, without the sale of RAG’s shares in the member undertakings of CVK being
         known to the applicant, and, consequently, being relevant to the interdependence of the two transactions. The applicant further
         emphasises that there is no binding contractual agreement or other arrangement linking the two transactions. Last, the applicant
         claims that Haniel’s opinion that the transactions were interdependent must also be considered irrelevant, since in order
         to assess such interdependence the Commission must base itself on the facts and not on the subjective assessments of one of
         the parties and since, given the background to the present case, Haniel might have had an interest in the dissolution of CVK,
         as required by the contested decision. In the applicant’s submission, there are therefore indeed two separate concentrations.
         
      
      96      As regards, in the first place, the argument relating to the Commission’s general competence to treat a number of transactions
         as a single concentration, the Commission responds that Article 3 of Regulation No 4064/89, which concerns the concept of
         concentration, does not preclude the possibility that a concentration may cover more than one transaction. A concentration
         may, depending on the economic reality, consist of one or more transactions. In the Commission’s submission, its own practice
         in taking decisions reveals several examples where that has been so. 
      
      97      Furthermore, according to the Commission, the applicant’s reference to the second subparagraph of Article 5(2) of Regulation
         No 4064/89 is irrelevant. That provision concerns only the calculation of turnover for the purpose of determining whether
         or not a concentration has a Community dimension and seeks to prevent undertakings from avoiding the application of Regulation
         No 4064/89 by splitting their transactions into a number of separate concentrations carried out over a two-year period and
         not individually reaching the turnover thresholds. The concept of concentration is dealt with in Article 3 of Regulation No 4064/89.
         
      
      98      The Commission also disputes the applicant’s reference to the Green Paper and to the Commission’s proposal to amend Regulation
         No 4064/89. Although the Green Paper proposed to extend the Commission’s competence to certain particular types of transactions,
         it confirmed the general, broad definition of concentration, while the Commission proposal sought only to clarify its existing
         practice in taking decisions. 
      
      99      In the second place, the Commission does not subscribe to the applicant’s criticism that it did not sufficiently demonstrate
         the interdependence between the two main transactions in issue. 
      
      100    The Commission submits that three elements, considered as a whole, permit the conclusion that such interdependence existed,
         as demonstrated in paragraphs 20 to 22 of the contested decision. 
      
       Findings of the Court
      101    In the context of the present part, and although it qualified its position at the hearing, the applicant disputes, first,
         the Commission’s general competence to treat a number of transactions as a concentration, in application of Article 3 of Regulation
         No 4064/89. Second, the applicant contends that the Commission’s finding that the transactions concluded on 9 August 1999
         were interdependent and constituted a whole from an economic viewpoint is incorrect. 
      
      –       The possibility for the Commission to treat a number of transactions as a concentration, in application of Article 3 of Regulation
         No 4064/89
      
      102    Under Article 3(1) of Regulation No 4064/89, a concentration is to be deemed to arise either where two or more previously
         independent undertakings merge (Article 3(1)(a)) or where one or more persons already controlling at least one undertaking,
         or one or more undertakings, acquire, whether by purchase of securities or assets, by contract or by any other means, direct
         or indirect control of the whole or parts of one or more other undertakings (Article 3(1)(b)).
      
      103    Whereas Article 3(1)(a) of Regulation No 4064/89 treats as a concentration a relatively simple and identifiable phenomenon
         – that of a merger between two or more previously independent undertakings –, Article 3(1)(b) is intended to cover all the
         other situations in which one or more undertakings acquire control of the whole or parts of one or more other undertakings.
         
      
      104    That general and teleological definition of a concentration – the result being control of one or more undertakings – implies
         that it makes no difference whether the direct or indirect acquisition of control was acquired in one, two or more stages
         by means of one, two or more transactions, provided that the end result constitutes a single concentration.
      
      105    Nor does it matter whether, when they notify a concentration to the Commission, the parties propose to conclude two or more
         transactions or whether they have already concluded them before notifying them. It is for the Commission, in each case, to
         ascertain whether those transactions are unitary in nature, so that they constitute a single concentration for the purposes
         of Article 3 of Regulation No 4064/89.
      
      106    Such an approach seeks to identify, in accordance with the circumstances of fact and of law specific to each case and with
         a concern to ascertain the economic reality underlying the transactions, the economic aim pursued by the parties, by examining,
         when faced with a number of legally distinct transactions, whether the undertakings concerned would have been inclined to
         conclude each transaction taken in isolation or whether, on the contrary, each transaction constitutes only an element of
         a more complex operation, without which it would not have been concluded by the parties. 
      
      107    In other words, in order to determine the unitary nature of the transactions in question, it is necessary, in each individual
         case, to ascertain whether those transactions are interdependent, in such a way that one transaction would not have been carried
         out without the other.
      
      108    That approach tends, on the one hand, to ensure that undertakings which notify a concentration have the advantage of legal
         certainty for all the transactions which complete that operation and, on the other, to enable the Commission to carry out
         an effective control of concentrations capable of significantly impeding competition in the common market or a significant
         part thereof. Those two aims constitute, moreover, the principal objective of Regulation No 4064/89 (judgment in Case T-290/94
         Kaysersberg v Commission [1997] ECR II-2137, paragraph 109; order of the President of the Court of First Instance in Case T-322/94 R Union Carbide v Commission [1994] ECR II-1159, paragraph 36; see also, to that effect, judgment in Case T-3/93 Air France v Commission [1994] ECR II-121, paragraph 48).
      
      109    It follows that a concentration within the meaning of Article 3(1) of Regulation No 4064/89 may be deemed to arise even in
         the case of a number of formally distinct legal transactions, provided that those transactions are interdependent in such
         a way that none of them would be carried out without the others and that the result consists in conferring on one or more
         undertakings direct or indirect economic control over the activities of one or more other undertakings. 
      
      110    That finding is not affected by the various arguments put forward by the applicant.
      
      111    First, the allegation based on the second subparagraph of Article 5(2) of Regulation No 4064/89, which, because in the applicant’s
         submission it is the only provision to make express reference to multiple transactions and because the Commission is alleged
         to have considered that it was not directly applicable in the present case, would deprive the Commission of its competence
         to treat two or more transactions as a single concentration for the purposes of Article 3 of Regulation No 4064/89, must be
         rejected as unfounded. 
      
      112    It must be borne in mind that Article 5 of Regulation No 4064/89, entitled ‘Calculation of turnover’, provides: 
      
      ‘1. Aggregate turnover within the meaning of Article 1(2) shall comprise the amounts derived by the undertakings concerned
         in the preceding financial year from the sale of products and the provision of services falling within the undertakings’ ordinary
         activities after deduction of sales rebates and of value added tax and other taxes directly related to turnover. The aggregate
         turnover of an undertaking concerned shall not include the sale of products or the provision of services between any of the
         undertakings referred to in paragraph 4. 
      
      …
      2. By way of derogation from paragraph 1, where the concentration consists in the acquisition of parts, whether or not constituted
         as legal entities, of one or more undertakings, only the turnover relating to the parts which are the subject of the transaction
         shall be taken into account with regard to the seller or sellers. 
      
      However, two or more transactions within the meaning of the first subparagraph which take place within a two-year period between
         the same persons or undertakings shall be treated as one and the same concentration arising on the date of the last transaction.
      
      …’
      113    It follows from the very wording of that provision that it governs a different question from that referred to by Article 3
         of Regulation No 4064/89.
      
      114    Whereas Article 3 of Regulation No 4064/89 defines the conditions of the existence of a ‘concentration’ and confines itself
         to defining, generally and materially, what is to be understood by a ‘concentration’, it does not determine the question of
         the Commission’s competence in respect of concentrations (see, to that effect, Case T-22/97 Kesko v Commission [1999] ECR II-3775, paragraph 138). Among the transactions which satisfy the definition in Article 3 of Regulation No 4064/89,
         only those having a ‘Community dimension’, such as those defined in Article 1 of that regulation, fall within the exclusive
         competence of the Commission, save where the regulation provides to the contrary. Consequently, the mere fact that a transaction
         satisfies the definition of Article 3 of Regulation No 4064/89 does not necessarily mean that it falls within the scope of
         the Commission’s exclusive competence; the transaction must also have a ‘Community dimension’. 
      
      115    It follows from Article 1 of Regulation No 4064/89 that the Community legislature intended that, in the context of its role
         in respect of concentrations, the Commission would become involved only where the proposed concentration – or the concentration
         already carried out – attains a certain economic size and geographic scope, that is to say, a ‘Community dimension’. It also
         follows from the general structure of Article 5 of Regulation No 4064/89 that the Community legislature intended to specify
         the scope of that regulation by defining, inter alia, the turnover of the participants to a concentration that must be taken
         into consideration for the purpose of determining whether it has a ‘Community dimension’ within the meaning of Article 1 of
         Regulation No 4064/89.
      
      116    Thus, it follows from Article 5(2) of Regulation No 4064/89 that, in the context of the acquisition of parts of an undertaking,
         only the turnover relating to those parts of the undertaking which are actually acquired are to be taken into account for
         the purpose of assessing the dimension of the concentration in question (Air France v Commission, paragraph 108 above, paragraph 103). 
      
      117    That global assessment also includes the interpretation of the second subparagraph of Article 5(2) of Regulation No 4064/89,
         so that where the acquisition of parts of one or more undertakings takes place in a number of transactions within a two-year
         period between the same persons or undertakings, the turnover must relate to the acquired parts considered together.
      
      118    The underlying reason for the insertion of the second subparagraph of Article 5(2) of Regulation No 4064/89 – the analysis
         of which, moreover, is common to the parties to the present dispute – is to ensure that the same undertakings or the same
         persons do not artificially break a transaction down into a number of partial sales of assets, over a period of time, with
         the aim of avoiding the thresholds laid down in Regulation No 4064/89 which determine the Commission’s competence in application
         of that regulation.
      
      119    Accordingly, the fact that the second subparagraph of Article 5(2) of Regulation No 4064/89 allows the Commission to consider
         two or more transactions to constitute a single concentration for the purposes of calculating the turnover of the undertakings
         concerned with the aim of preventing any circumvention of the competence conferred on it by that regulation does not, contrary
         to the applicant’s contention, mean that that provision deprives the Commission of the right to determine, upstream, in application
         of Article 3 of that regulation, whether a number of transactions notified to it give rise to a single concentration or whether,
         on the contrary, those transactions must be regarded as giving rise to a number of concentrations.
      
      120    If it emerges from the examination carried out by the Commission that two transactions notified to it are not interdependent,
         those transactions will be assessed individually. Where one and/or the other does not have a Community dimension, the Commission
         will decline competence to assess that transaction. If it emerges from that examination that the transactions are of a unitary
         nature and can therefore be considered to be a single concentration, in application of Article 3 of Regulation No 4064/89,
         the Commission will then ascertain whether the transaction thus identified has a Community dimension, for the purposes of
         establishing whether it is competent and of assessing the effects of the transaction on competition.
      
      121    In any event, the application of Article 3 of Regulation No 4064/89 to a specific case has neither the object nor the effect
         of determining whether the Commission is competent to examine the concentrations identified, but of ascertaining whether the
         notified transactions constitute one or more concentrations.
      
      122    In those circumstances, the applicant’s argument based on the second subparagraph of Article 5(2) of Regulation No 4064/89
         has no consequence as regards the interpretation of Article 3 of Regulation No 4064/89 which allows the Commission to examine
         whether the transactions in question fell within the scope of that provision owing to their unitary nature.
      
      123    In the second place, concerning the applicant’s claim that the Commission, in the context of the revision of Regulation No
         4064/89, recognised that it was not competent to treat two or more transactions as a concentration within the meaning of Article
         3 of Regulation No 4064/89, it is sufficient to observe that, even if that were so, the fact that the Commission has taken
         such a position is without prejudice to the interpretation of Article 3 of Regulation No 4064/89 stated above by the Court.
      
      124    It follows that the applicant’s complaint alleging that the Commission was not competent to treat a number of transactions
         as a single concentration, in application of Article 3 of Regulation No 4064/89, must be rejected.
      
      –       The independent nature of the transactions concluded on 9 August 1999
      125    The applicant criticises the Commission for having made an error of assessment in considering that in the present case the
         first and second groups of transactions concluded on 9 August 1999, referred to in paragraph 8 above, were interdependent
         in such a way that they constituted a whole from an economic viewpoint.
      
      126    First of all, it must be borne in mind that in the contested decision the Commission stated:
      
      ‘(20) … The operations took place within a narrow time frame and closely resembled each other. The legal acts giving Haniel
         and Cementbouw control of CVK and those giving CVK control of the 11 sand-lime brick companies were performed on the same
         day (9 August 1999) and were recorded by the notary in a uniform document. Moreover, it was the parties’ intention to link
         the two acquisitions of control, so that one did not take place without the other. The conclusion of the agreements, which
         were submitted to the NMa, was thus postponed until the conclusion of the negotiations on the transfer of RAG’s shares. This
         came about because RAG had in the meantime expressed the wish to withdraw from CVK, as it was no longer willing to be part
         of the cooperative’s proposed new corporate structure. Economically too, therefore, the two acquisitions of control should
         be regarded as a unit. Even if one wanted to see these events as two transactions separated in time by a “logical second”,
         they are dependent on each other in such a way that they should be regarded as a single merger.
      
      (21) Haniel, too, took this line in its comments on the statement of objections and in the hearing. Cementbouw, however, proposed
         that, should the departure of RAG be seen as an acquisition of joint control over CVK by Haniel and Cementbouw – which Cementbouw
         disputes – the Commission’s responsibility could relate only to that acquisition. CVK’s acquisition of control over its member
         companies, on the other hand, was legally a separate concentration. It cannot be concluded that because the pooling agreement
         and the transfer of the RAG shares to Haniel and Cementbouw were agreed on the same day they form a single event in a legal
         or business sense; it was merely that practical difficulties which had not been described in full had prevented the pooling
         agreement from being concluded immediately after the NMa’s authorisation on 20 October 1999. CVK’s acquisition of control
         of the member plants, however, was legalised by the NMa’s legally enforceable decision of 20 October 1998, so that there was
         no way the Commission’s investigation in the present proceeding could cover that event as well.
      
      (22) The Commission cannot share Cementbouw’s view. All the agreements concluded on 9 August 1999 constitute a single economic
         event, as a result of which a joint sales organisation for 11 hitherto legally independent sand-lime brickworks belonging
         to a total of three different parent companies was changed into a full-function undertaking jointly controlled by Haniel and
         Cementbouw. Haniel confirmed more than once that for the parties involved in the transaction of 9 August 1999 (Haniel, Cementbouw
         and RAG) all these agreements were interdependent and formed an economically unified whole. When asked, Cementbouw could not
         give a convincing explanation why the transaction authorised by the NMa was postponed for more than nine months and only implemented
         when RAG withdrew. The Commission therefore assumes that RAG would not have been prepared to take part in implementing the
         pooling agreement as an indirect shareholder in CVK.
      
      (23) From a formal point of view, admittedly, RAG did not conclude the pooling agreement before the sale of its share to Haniel
         and Cementbouw was completed. From the fact that the same notary officially recorded the pooling agreement and the alteration
         of the articles immediately before the sale of the RAG shares at the same meeting, and drew up a single document for the purpose,
         it is clear however that RAG can be said to have been involved in the implementation of the CVK structure authorised by the
         NMa only from a superficially formalistic perspective. Such a purely formal perspective is not enough to decide the question
         whether one or more business acquisitions constitute a concentration that has to be vetted under the Merger Regulation. The
         provision in the second [sub]paragraph of Article 5(2) of the Merger Regulation, which is not directly relevant here, also
         shows that an economic perspective is appropriate in this case. It can therefore be assumed that the agreements concluded
         on 9 August 1999 form a single concentration, whereby CVK acquired control over its member undertakings, and at the same time
         Haniel and Cementbouw acquired control over CVK.’
      
      127    It follows from the grounds of the contested decision set out above that the Commission concluded that the transactions were
         interdependent on the basis of the following three factors: economic interdependence; the fact that the transactions were
         concluded at the same time before the same notary; and confirmation by Haniel that the transactions were interdependent.
      
      128    It is common ground that the applicant does not dispute that the second group of transactions (the RAG transaction and the
         pooling agreement between Haniel and the applicant) was dependent on completion of the first group. The Court therefore finds
         that the second group of transactions would not have been concluded in the absence of the first group. 
      
      129    On the other hand, the applicant criticises the Commission for having wrongly considered that the first group of transactions
         was dependent on the second group. The applicant observes that at the time of notification to the NMa of the proposed pooling
         agreement between CVK and its member undertakings in February 1998, RAG had shares in three of the member undertakings. The
         applicant relies on that factor to maintain that at that point it was not aware that RAG would wish to give up its shareholdings
         in those undertakings, which demonstrates that the first group of transactions, of which the pooling agreement formed part,
         is an autonomous concentration. The applicant further maintains that at the time of conclusion of all of the transactions,
         on 9 August 1999, the contract whereby the RAG transaction was concluded stipulated that the parties had subscribed to it
         after the conclusion of the pooling agreement between CVK and the member undertakings, with the aim of complying – at least
         formally – with the NMa’s position expressed in the letter of 26 March 1999, which was that, in order that the RAG transaction
         should not be considered to be a concentration within the meaning of the Netherlands competition law, the pooling agreement
         between CVK and its member undertakings must be concluded by no later than the time of the RAG transaction.
      
      130    Those arguments cannot be accepted.
      
      131    First, although it must, admittedly, be accepted that there is nothing in the case-file to rebut the applicant’s assertion
         that at the time of the notification of the first group of transactions to the NMa, in February 1998, it was not aware that
         RAG would wish to sell its shares in three of the member undertakings of CVK, the fact remains that that transaction was not
         concluded until 9 August 1999, that is to say, the same day on which the second group of transactions was concluded. On that
         date, however, not only was it clear that RAG had decided to sell its shares in the member undertakings of CVK to Haniel and
         to the applicant but, in addition, the first group of transactions had been significantly altered owing to the conclusion
         on the same date of the second group of transactions, including, in particular, the RAG transaction, whereby Haniel and the
         applicant took joint control of CVK.
      
      132    Faced with that situation, the Commission was correct to ask itself why the first group of transactions had not been concluded
         before 9 August 1999, as it did during the administrative procedure and again, in the absence of a satisfactory reply from
         the parties, in the grounds of the contested decision set out above.
      
      133    Although, generally, the fact that a number of transactions are concluded simultaneously does not necessarily prove conclusively
         that they are interdependent, in the present case, on the other hand, the fact that the conclusion of the first group of transactions
         was postponed until the time of conclusion of the second group is a significant factor in so far as it may mean that RAG was
         not prepared to participate in the first group and that, in order that that group of transactions might none the less be concluded,
         it was necessarily conditional upon RAG’s withdrawal as a shareholder in CVK or, in other words, upon the conclusion of the
         second group of transactions.
      
      134    In order to explain why the first group of transactions was postponed until the time of conclusion of the second group, the
         applicant refers in its written pleadings to the technical and commercial difficulties associated with the pooling of profits
         and losses between the member undertakings. In its reply, the applicant also notes that various ecological studies had to
         be carried out and that the summer holidays in the construction sector had also delayed the conclusion of the first group
         of transactions.
      
      135    However, those reasons cannot be deemed to explain why a decision as important as the decision to combine all the activities
         of the member undertakings of CVK within a joint structure should be postponed for more than nine months after being authorised
         by the NMa.
      
      136    First, as regards the alleged ecological studies and the summer holidays which delayed the conclusion of the first group of
         transactions, those reasons, which, moreover, were put forward by the applicant only at the stage of its reply, are unsubstantiated.
      
      137    Second, as regards the allegation relating to the technical and commercial difficulties associated with the pooling of the
         profits and losses of the member undertakings of CVK, it must be pointed out that, apart from the fact that that allegation
         is also unsubstantiated, the weight of that justification would appear to be distinctly reduced by the actual evidence in
         the case-file. It should be noted – and it has not been disputed by the applicant, which was specifically questioned on that
         point by the Court at the hearing – that even at the time of the conclusion of all the transactions, on 9 August 1999, the
         cooperation agreement between Haniel and the applicant stated that the pooling of CVK’s member undertakings’ own accounts
         and funds was not fully settled, in particular for the undertakings formerly owned by RAG. If that question had been sufficiently
         important to require the postponement of the conclusion of the first group of transactions, it certainly ought to have justified
         postponing the conclusion of that group of transactions even beyond 9 August 1999. That was certainly not the case, precisely
         because to have postponed the conclusion of the cooperation agreement beyond the date of conclusion of the second group of
         transactions would also have been a strong indication that the first group of transactions was dependent on the second group.
      
      138    As the applicant has put forward no other grounds, it must therefore be held that the factor on which the conclusion of the
         first group of transactions depended was the conclusion of the second group of transactions, namely the withdrawal of RAG
         from the capital of CVK.
      
      139    Second, the fact that the contract whereby the RAG transaction was concluded refers to the earlier conclusion of the pooling
         agreement cannot mean that the first group of transactions must be recognised as autonomous by reference to the second group
         and, consequently, that the Court must find that the Commission made an error of assessment.
      
      140    Admittedly, it must be noted that, contrary to the Commission’s assertion in paragraph 23 of the contested decision, the notary
         before whom the contracts were concluded did not draw up a single document. 
      
      141    However, that error is not of such a kind as to entail annulment of the contested decision. 
      
      142    In the present case, that error cannot undermine the importance of the basic finding that the contracts were concluded on
         the same day, owing to the fact that RAG was not prepared to consent to the conclusion of the first group of transactions
         independently of the conclusion of the second group, which brought its participation in the first group to an end. From the
         point of view of the economic assessment of the interdependence between the transactions, the fact that the first group of
         transactions preceded the second group by some minutes, or indeed by some hours, is irrelevant.
      
      143    In that regard, the applicant cannot rely as against the Commission on an alleged legitimate expectation in the NMa’s letter
         of 26 March 1999, namely that that procedure for implementing the two groups of transactions was suggested to the applicant
         by the NMa so that the second group of transactions, including the RAG transaction, would not constitute a concentration for
         the purposes of the Netherlands competition law.
      
      144    Without there being any need to take into consideration the reasoning set out by the NMa in that letter, it must be held that
         the applicant never received precise assurances that the transaction consisting in the two groups of transactions would escape
         the application of Regulation No 4064/89 and the competence of the Commission. In so far as the Commission’s competence is
         not determined solely by the transactions which are notified to it beforehand (Case T-310/00 MCI v Commission [2004] ECR II-0000, paragraph 93), it was for the parties, in order to be entitled to benefit from the legal certainty linked
         with approval decisions issued by the Commission, to inform the Commission that they intended to conclude the concentration
         on 9 August 1999. However, they did not do so. 
      
      145    Third, although the applicant maintains that the first group of transactions is an autonomous concentration, it has not explained
         the economic purpose and logic pursued by the three shareholders when they agreed that the member undertakings of CVK would
         be combined within an economic unit under CVK, without those shareholders being able to take control of that undertaking,
         whereas the conclusion of the first group of transactions made full economic sense when, owing to RAG’s withdrawal as a shareholder
         in CVK, Haniel and the applicant took joint control of CVK.
      
      146    Fourth, it is apparent from the cooperation agreement concluded between Haniel and the applicant that those undertakings both
         considered that a legal fusion of the member undertakings of CVK into a single undertaking was desirable and that they would
         closely examine the possibility of such a fusion, so that CVK would be transformed into a single undertaking, owned jointly
         by Haniel and the applicant. That element supports the Commission’s argument by highlighting the fact that the first group
         of transactions was ultimately no more than a step in a larger concentration and had no real autonomy. 
      
      147    Fifth, and last, the Commission’s analysis is also supported by the fact that Haniel maintained during the administrative
         procedure that the transactions were interdependent, while the applicant did not substantially dispute the truth of those
         assertions as described in the contested decision. Admittedly, it must be accepted, as the applicant maintains, that the position
         defended by each of the notifying parties is by definition subjective and that it necessarily reflects that party’s own interests.
         None the less, that cannot mean that the Commission, in its desire to ascertain the economic reality of a concentration, is
         precluded from using the explanations supplied by the parties which enable it to identify the true economic purpose pursued
         by the parties at the time when they concluded the transactions in question. Although the uncontested explanations provided
         by one of the notifying parties cannot be decisive in themselves, the Commission must, as in this case, be permitted to rely
         on those explanations where they enable it to support the assessments on which its analysis is based.
      
      148    It follows that the applicant has not shown that the Commission had made an error of assessment in concluding, in the contested
         decision, that the two groups of transactions in issue in the present case were interdependent in such a way that together
         they constituted a single concentration for the purposes of Article 3 of Regulation No 4064/89.
      
      149    Accordingly, the second part of the first plea must be rejected.
      
       Third part of the first plea: the Commission was not competent to examine the taking of control over CVK by its member undertakings,
            as it had been authorised by the NMa
       Arguments of the parties
      150    In this part, the applicant maintains that even on the assumption that the Commission is competent to examine the RAG transaction
         under Article 3 of Regulation No 4064/89, it cannot examine the taking of control by CVK over its member undertakings by means
         of the pooling agreement, since that transaction has already been authorised by the NMa. 
      
      151    In support of its argument, the applicant states, first, that, contrary to what the Commission claims in the contested decision,
         there is no difference between the transaction as notified to, and then approved, by the NMa on 20 October 1998 and the transaction
         finally concluded on 9 August 1999. The applicant further notes that the Commission acknowledged that the transaction did
         not have a Community dimension and did not officially challenge the NMa’s decision, as it ought to have done under Articles
         226 EC and 228 EC, which created a legitimate expectation on the applicant’s part. Next, the applicant submits that the Commission’s
         argument that the NMa’s decision is irrelevant on the sole ground that it is based on a national law is unconvincing. That
         argument, in the applicant’s submission, overlooks the fact that the provisions of Netherlands competition law derive from
         those of Community law and must be interpreted in accordance with Community law. Last, the applicant disputes the Commission’s
         suggestion in paragraph 30 of the contested decision that the parties concerned did not comply with guarantees which they
         had offered to the NMa in order to secure the NMa’s authorisation of the transaction in question. The applicant maintains
         that that suggestion is unfounded. 
      
      152    Second, the applicant contends that the Commission failed to comply with its duty to state its reasons for considering that
         the NMa’s decision was wrong. 
      
      153    The Commission rejects all of those arguments and contends that it neither disregarded Article 3 of Regulation No 4064/89
         nor failed to comply with its duty to state the reasons on which the contested decision was based. 
      
       Findings of the Court
      154    In the first place, as held in the context of the second part of this plea, examined above, the applicant has not shown that
         the Commission made an error of assessment in considering that the first and second groups of transactions referred to in
         paragraph 8 above constitute a single transaction for the purposes of Regulation No 4064/89. 
      
      155    Consequently, the fact that the NMa authorised the completion of the first group of transactions certainly did not allow the
         parties to carry out the concentration concluded on 9 August 1999. Because the concentration consisting in all of the transactions
         concluded on 9 August 1999 had a Community dimension, as found in paragraph 33 of the contested decision and not disputed
         by the applicant, the Commission was the only authority competent to examine and, if appropriate, to authorise that transaction.
      
      156    In the second place, the applicant cannot rely on a legitimate expectation based on the fact that the Commission did not dispute
         the authorisation granted by the NMa for completion of the first group of transactions. 
      
      157    In effect, the authorisation granted by the NMa for completion of the first group of transactions, on the basis of an interpretation
         of the provisions of the Netherlands competition law, does not confer a right to claim the protection of a legitimate expectation
         as against the Commission, as that authorisation was not given by the Community authorities in accordance with the provisions
         applicable in the present case, namely, in particular, with Article 3 of Regulation No 4064/89 (see, to that effect, Branco v Commission, cited in paragraph 77 above, paragraph 102). In any event, the first group of transactions was not concluded on the same
         terms as those in which it had been notified to the NMa. The fact that its conclusion was postponed until the day on which
         the second group of transactions was itself concluded entailed a significant change in the elements of fact and of law on
         which the NMa had relied when authorising the first proposed group of transactions. As the Commission has rightly submitted,
         by the concentration concluded on 9 August 1999, the parties not only carried out a de facto fusion between the members of
         CVK and CVK but established a full-function joint venture jointly controlled by Haniel and the applicant. In short, the NMa
         authorised the completion of a group of transactions which was not in fact competed in that form.
      
      158    Since the two groups of transactions cannot be severed, owing to their unitary nature, the Commission could make a determination
         only on the concentration in its entirety, owing to its Community dimension. 
      
      159    Nor does such an approach have the consequence of disregarding the allocation of competence between the national competition
         authorities and the Commission, as provided for in Regulation No 4064/89. 
      
      160    Admittedly, the result to which the Commission’s approach may lead may, in certain circumstances, have the consequence that
         even though a transaction does not satisfy the criteria of a Community dimension, within the meaning of Regulation No 4064/89,
         it may fall within the scope of that regulation owing to the interdependence which links it to one or more other transactions.
         
      
      161    None the less, in that situation it is artificial to consider that the first transaction is economically autonomous.
      
      162    In the third place, the applicant’s argument that the Commission ought to have initiated infringement proceedings under Article
         226 EC is inoperative. First, there is nothing in the case-file to indicate that the Commission disputed the NMa’s competence
         to make a determination, in the decision of 20 October 1998, which was adopted on the basis of national law, on the first
         group of transactions, so that that decision might possibly constitute a breach of Community law by the Kingdom of the Netherlands.
         Quite to the contrary, the Commission acknowledged such competence and emphasised on a number of occasions that the contested
         decision did not relate to the same concentration owing to the postponement of the conclusion of the first group of transactions
         until the day on which the second group of transactions was concluded, that is to say, 9 August 1999. Second, having regard
         to the Commission’s discretion in relation to the use of its resources and to its actions, there is no requirement for it
         to initiate proceedings under Article 226 EC against a Member State before adopting a decision relating to the assessment
         of a concentration having a Community dimension.
      
      163    Last, and in the fourth place, as regards the applicant’s other observations set out in paragraph 151 above, relating to the
         similarity of the provisions of the Netherlands competition law and those of Regulation No 4064/89 and also to compliance
         with the guarantees offered to the NMa by the notifying parties, those observations, which were rejected in the context of
         the first part of the present plea (see paragraphs 70 to 78 above), cannot in any event entail the annulment of the contested
         decision. Furthermore, the applicant’s allegation that the contested decision is insufficiently reasoned must also be rejected.
         Having regard to the circumstances of the present case, the Commission was not required to explain the reasons why the NMa’s
         decision, which was adopted on the basis of the national legislation, was alleged to be incorrect.
      
      164    Consequently, the third part of the first plea must be rejected, as must this plea in its entirety.
      
      2.     Second plea: errors of assessment by the Commission relating to the creation of a dominant position by the concentration,
            contrary to Article 2 of Regulation No 4064/89 
      165    The present plea may be divided into two parts. The first part alleges errors of assessment by the Commission as regards the
         existence of a dominant position of CVK. The second claims failure to show a causal link between the concentration and the
         creation of the dominant position alleged by the Commission.
      
       First part of the second plea: errors of assessment by the Commission as regards the existence of a dominant position of CVK
            
       Arguments of the parties
      166    The applicant disputes the Commission’s assessment of five factors which led it to find that CVK had a dominant position on
         the Netherlands market for building materials for load-bearing walls (‘the relevant market’).
      
      167    In the first place, the applicant criticises the Commission for having incorrectly assessed the role played by materials competing
         with calcium-silicate bricks for the construction of load-bearing walls. 
      
      168    The applicant maintains that the Commission’s finding in paragraph 96 of the contested decision that CVK is the only producer
         and supplier of sand-lime products in the Netherlands ignores the fact that sand-lime products are imported from Germany and
         that, according to the contested decision itself, there is no market for sand-lime bricks. 
      
      169    The applicant also disputes the Commission’s conclusion, in paragraph 97 of the contested decision, that the concrete sector
         cannot be considered to exercise competitive pressure on CVK. The applicant maintains that the information provided by third
         parties to the effect that the market share of concrete in the market for building materials for walls cannot in itself lead
         to such a conclusion. In the applicant’s submission, the Commission neither examined progressive changes in market shares
         in order to determine the competitive pressure brought to bear on CVK nor took into account the size of the concrete market
         and the significant financial and economic capacities of the operators active in that sector. Those elements, in the applicant’s
         contention, mean that CVK is forced to take account of the concrete sector when determining its behaviour on the relevant
         market. Last, in order to evaluate the competitive pressure exercised by the in situ concrete market, the applicant claims, in its reply, that it is necessary to take into consideration the market share of
         in situ concrete on the relevant market ([10 to 15]%) and not only that held by the largest in situ concrete producer ([2 to 5]%). 
      
      170    In the second place, the applicant disputes the Commission’s finding, in paragraphs 99 to 101 of the contested decision, that
         there are significant barriers to entry to the relevant market. In its analysis, the Commission, according to the applicant,
         ought to have examined all the costs and other potential barriers with regard to all the products competing with sand-lime
         bricks. On the contrary, the Commission essentially confined its analysis to investment costs and to the long periods required
         to build sand-lime brick factories and commence production. The applicant also denies that the periods and capital requirements
         may constitute real barriers to market entry for the purposes of Regulation No 4064/89, in particular where capital markets
         function efficiently. The applicant further criticises the Commission for not having clearly examined the costs which other
         producers of building materials would have incurred if they had had to replace part of their production by materials competing
         with sand-lime bricks, even though the applicant had stated in response to the statement of objections that concrete could
         be produced for various uses, including wall construction, just like other materials such as bricks, gypsum and wood. Last,
         the applicant observes that the mere fact that, as stated in paragraph 101 of the contested decision, there is excess capacity
         for the production of sand-lime bricks, which makes market entry less attractive, is not sufficient for that excess capacity
         to be qualified as a barrier to entry to the relevant market. 
      
      171    In the third place, the applicant disputes a number of elements in the Commission’s assessment as set out in the contested
         decision, according to which neither building material distributors nor building contractors have sufficient buyer power to
         offset CVK’s supply-side dominant position. 
      
      172    As regards the distributors’ buyer power, the applicant observes that the distributors belong to international groups or are
         composed of purchasing cooperatives, which means that they are in a position of strength vis-à-vis CVK. The fact, set out
         in paragraph 102 of the contested decision, that the five largest building materials wholesalers in the Netherlands represent
         almost [60 to 80]% of CVK’s sales, including [20 to 30]% for the largest wholesalers, clearly shows that the wholesalers have
         significant buyer power and, with the exception of in situ concrete, may turn to products substitutable for sand-lime bricks. Furthermore, according to the applicant, the fact that
         wholesalers are unable to supply in situ concrete gives them a greater incentive to obtain from CVK prices and other conditions which enable them to compete with
         concrete producers. Last, the applicant maintains that the wholesalers are also able to import sand-lime materials from Germany.
         
      
      173    As regards relations between CVK, wholesalers and building contractors, the applicant disputes a number of the findings made
         in paragraphs 75 and 103 of the contested decision. The applicant thus disputes the Commission’s assertion that CVK is generally
         well informed about the identity of users and the use to which its products are put, in particular by having access to architects’
         drawings, for deliveries of building materials accounting for half of its turnover. Furthermore, although the applicant acknowledges
         that CVK supplies a number of builders directly, it denies that CVK is able to know the use to which the products delivered
         are put, including where it knows the thickness of the sand-lime products delivered. Furthermore, the applicant indicates
         that the discounts granted to wholesalers by CVK, depending on sales for certain projects or for certain builders, are revealed
         only rarely and incidentally. In any event, that circumstance does not call in question the existence of buyer power on the
         part of wholesalers. 
      
      174    In the fourth place, the applicant maintains that the Commission’s analysis concerning the absence of influence from the neighbouring
         market in non-load-bearing wall materials, on which CVK has a weaker position, is incorrect. The applicant observes that CVK
         cannot know whether its products will be used for load-bearing or for non-load-bearing walls. The applicant submits that CVK
         is therefore required to take account of its competitive situation on the market for non-load-bearing walls in order to determine
         its behaviour on the relevant market, independently of the fact that it sells [60 to 80]% of its sand-lime bricks on the latter
         market. The applicant further contends that a ‘disciplinary effect’ exercised by the non-load-bearing wall materials market
         on the relevant market is evident from the economic analysis carried out by Professor von Wieszäcker and Professor Elberfeld,
         which was communicated to the Commission but not referred to in the contested decision. 
      
      175    In the fifth place, the applicant disputes the Commission’s finding that CVK’s dominant position would be strengthened by
         the structural links between it and the applicant. First, the applicant recalls that it does not control CVK, which operates
         completely independently. Next, the applicant contends that the Commission wrongly ascribes to it a ‘strong position’ on the
         Netherlands market for wall-building materials, since its market share, at [2 to 5]%, is comparable with that held by a number
         of other operators and cannot lead to such a position. The same applies as regards the applicant’s activities on the wholesale
         building materials market, where the Commission merely made simple allegations and suppositions, in particular as regards
         the reference to the annual report of NBM Amstelland, the group to which the applicant belongs, whereas the applicant’s market
         share is only [2 to 5]%. Last, the applicant denies that CVK gives it preferential treatment at the wholesale building materials
         stage, contrary to the claims of third parties reported in the contested decision. In any event, even on the assumption that
         it does receive such preferential treatment, the applicant maintains that the evidence from those third parties is not in
         itself capable of giving rise to a presumption of a dominant position for the purposes of the application of Regulation No
         4064/89. 
      
      176    In the sixth, and last, place, the applicant criticises the Commission for not having sufficiently stated in the contested
         decision its reasons for departing from the conclusion reached by the NMa in the decision of 20 October 1998 that CVK did
         not have a dominant position, although that decision and the market investigations carried out by the NMa precede the adoption
         of the contested decision by less than three years. 
      
      177    By way of preliminary observation, the Commission notes that the applicant has not disputed the factor concerning the market
         structure examined in paragraphs 90 to 95 of the contested decision. It contends that the elements found in regard to the
         market shares of CVK, the applicant and Haniel would already constitute in themselves a clear indication of the existence
         of a dominant position. 
      
      178    Having noted that, the Commission disputes all of the criticisms formulated by the applicant against the assessment of the
         other factors used to support the conclusion that CVK has a dominant position on the relevant market. 
      
      179    First, as regards the role of the various wall-building materials, the Commission observes that the applicant does dispute
         either that the geographic market is confined to the Netherlands, as imports of sand-lime bricks from Germany are purely marginal,
         or that CVK is the Netherlands’ only producer of sand-lime bricks, the most popular building material in that State, as indicated
         in paragraph 98 of the contested decision. That situation, in the Commission’s submission, helps to strengthen CVK’s position
         on the relevant market, since owing to the high fixed investment costs, in situ concrete, even on the assumption that it forms part of the same market, competes with sand-lime products only in the case
         of large building projects. 
      
      180    The Commission further refutes the applicant’s allegation that the contested decision did not show to the requisite standard
         that the concrete sector did not exert any competitive pressure on CVK. In that regard, the Commission observes that the wording
         of paragraph 97 of the contested decision refers solely to the absence of significant competitive pressure on the part of
         in situ concrete and not of the concrete sector in general. Nor is that conclusion based on a consideration of the in situ concrete sector alone. In examining the competitive pressure brought to bear by producers of in situ concrete, the Commission reiterates its position, indicated in the grounds of the contested decision, that it is necessary
         to take into account the market shares of competing producers of in situ concrete, none of which exceeds [2 to 5]% of the relevant market, and not the market share of the in situ concrete sector, as a product ([10 to 15]%), on that market. The Commission submits that such an approach is justified, in
         particular, by the fact that the relevant market is a differentiated product market and the percentage of [10 to 15]% ‘of
         market share’ tends to overestimate the competitive pressure on CVK, since it includes the market share held by the applicant
         itself in the in situ concrete sector. Having specified that, the Commission maintains that during the three years preceding the adoption of the
         contested decision no concrete supplier obtained a market share greater than [2 to 5]%, while CVK’s market share remained
         at [50 to 60]% on the relevant market. The Commission thus disputes the applicant’s argument that the importance of the concrete
         sector and the weight of the operators in that sector might affect CVK’s activity as a producer of sand-lime bricks and its
         position on the relevant market.
      
      181    Second, the Commission rejects the applicant’s allegations that it did not correctly assess the barriers to market entry described
         in the contested decision. 
      
      182    The Commission begins by observing that, contrary to what the applicant claims, the contested decision referred to the barriers
         existing to the production of all load-bearing wall materials and not just for sand-lime products. 
      
      183    The Commission then refutes the applicant’s assertion that market entry costs and periods do not constitute real entry barriers
         for the purposes of Regulation No 4064/89. As the contested decision made clear, those costs and periods are considerable.
         In its rejoinder, the Commission recalls that market entries are rare and limited to the concrete sector, an assertion that
         has not been disputed by the applicant. Furthermore, the applicant’s complaint that the Commission did not analyse the costs
         that would be incurred by other undertakings producing building materials which transferred part of their production (bricks,
         gypsum, wood) to products, such as concrete, which compete with sand-lime products is unfounded. The Commission contends that
         that analysis was irrelevant, since owing to the structure and characteristics of the construction sector in the Netherlands,
         producers of building materials other than concrete would not merely have had to transfer their production, but rather begin
         from zero to produce materials competing with sand-lime products. 
      
      184    Last, unlike the applicant, the Commission is of the view that the existence of excess capacity on a given market plays an
         important part in determining whether an entry on to that market may be foreseeable, that is to say, whether it will be sufficiently
         profitable. In the present case, the considerable excess capacity on the relevant market, owing to CVK, makes such an entry
         unattractive. 
      
      185    Third, the Commission maintains that the analysis carried out in the contested decision, which established that CVK’s dominant
         position is not offset by buyer power on the part of building materials distributors, is correct. 
      
      186    First of all, the Commission maintains, generally, that in the context of Regulation No 4064/89, buyer power must be understood
         as the ability of large customers – in this case wholesale distributors of building materials – to resort to credible alternatives
         within a reasonable time if the supplier decides to increase its prices or to make the conditions of delivery less favourable.
         In the present case, the Commission emphasises that even if wholesale building materials distributors may have an incentive
         to ensure that CVK offers prices that can compete with those offered by concrete producers, those distributors have no alternative,
         since they do not sell in situ concrete, which represents [10 to 15]% of the relevant market, and therefore lack the necessary buyer power vis-à-vis CVK.
         
      
      187    Next, as regards the applicant’s argument that distributors could import sand-lime products from Germany, the Commission observes
         that the applicant has not denied that those imports were marginal and that one distributor had indicated at the hearing that
         those imports were hindered by Haniel or by CVK. 
      
      188    Last, the Commission restates its finding that CVK is generally informed about the identity of users and the intended use
         of its products, contrary to what the applicant maintains, albeit not without some contradiction and imprecision. In that
         context, the Commission observes that the discounts which CVK grants to wholesale distributors provided that they supply specific
         building projects or specific construction undertakings show that CVK is capable of influencing distributors’ pricing policies
         vis-à-vis customer undertakings and therefore their margins for specific projects, which limits, if not excludes, their capacity
         to use their purchasing volume to exercise general pressure on CVK’s pricing policy. 
      
      189    Fourth, as regards the applicant’s criticisms concerning the influence of competition on the neighbouring market of building
         materials for non-load-bearing walls, the Commission maintains that it has demonstrated to a sufficient standard that CVK
         was capable of tracking or foreseeing whether its products would be used for load-bearing or non-load-bearing walls and also
         that in any event CVK established its price strategy mainly in the light of the relevant market. As regards the report by
         Professor von Wieszäcker and Professor Elberfeld, which, according to the applicant, demonstrates that CVK’s position on the
         market for building materials for non-load-bearing walls has a disciplinary effect on the relevant market, while the Commission
         acknowledges that it did not expressly examine that report in the contested decision, it submits three observations. First,
         it claims that the pricing model set out in that report does not constitute an appropriate description of the relevant market,
         in particular where it proceeds from the assumption that CVK had to charge the same price in the relevant market and in the
         market for building materials for non-load-bearing walls. Second, the report examines what the Commission considers to be
         the irrelevant question of the circumstances in which CVK would set its prices at such a high level that it would make no
         sales on the market for building materials for non-load-bearing walls. Third, the Commission contends that, even on the assumption
         that the same prices were charged on both markets, the report is wholly consistent with the finding in the contested decision
         that CVK sets its prices principally on the basis of its position on the relevant market. It was for those reasons that the
         Commission deemed it unnecessary to address the report explicitly in the contested decision. 
      
      190    Fifth, the Commission maintains the analysis which it made in the contested decision, according to which CVK’s dominant position
         is strengthened by the structural links between it and the applicant. 
      
      191    Sixth, the Commission also disputes the applicant’s assertion that the reasoning in the contested decision is insufficient.
         
      
       Findings of the Court
      –       Preliminary observations
      192    Before the Court examines CVK’s dominant position, it is appropriate to note at the outset that the applicant does not dispute
         the definition of the relevant market in the contested decision, namely the market for building materials for load-bearing
         walls in the Netherlands, a definition which is justified owing to the load-bearing function of the walls. It must be observed
         in that regard that the contested decision left open the question whether in situ concrete – owing in particular to the high investment costs which its use entails (see paragraph 77 of the contested decision),
         implying that that material competes with sand-lime bricks only for certain large projects – is to be included in the definition
         of the relevant product market, since the Commission considered that that question had no bearing on the assessment of the
         concentration (see paragraph 81 of the contested decision). 
      
      193    It should also be noted that it follows from the contested decision – and that finding has not been invalidated by the applicant
         – that the materials most used on the relevant market are, in descending order, as follows: sand-lime brick ([50 to 60]% of
         all load-bearing walls being built with that material), in situ concrete ([10 to 15]%), precast concrete units ([5 to 10]%), bricks ([2 to 5]%) and aerated concrete ([0 to 2])%.
      
      194    Next, it must be borne in mind that Article 2 of Regulation No 4064/89, entitled ‘Appraisal of concentrations’, provides:
      
      ‘Concentrations within the scope of this Regulation shall be appraised in accordance with the following provisions with a
         view to establishing whether or not they are compatible with the common market. 
      
      In making this appraisal, the Commission shall take into account: 
      (a)       the need to maintain and develop effective competition within the common market in view of, among other things, the structure
         of all the markets concerned and the actual or potential competition from undertakings located either within or outwith the
         Community; 
      
      (b)       the market position of the undertakings concerned and their economic and financial power, the alternatives available to suppliers
         and users, their access to supplies or markets, any legal or other barriers to entry, supply and demand trends for the relevant
         goods and services, the interests of the intermediate and ultimate consumers, and the development of technical and economic
         progress provided that it is to consumers’ advantage and does not form an obstacle to competition. 
      
      2. A concentration which does not create or strengthen a dominant position as a result of which effective competition would
         be significantly impeded in the common market or in a substantial part of it shall be declared compatible with the common
         market. 
      
      3. A concentration which creates or strengthens a dominant position as a result of which effective competition would be significantly
         impeded in the common market or in a substantial part of it shall be declared incompatible with the common market.’
      
      195    The dominant position referred to in Article 2 of Regulation No 4064/89 is concerned with a situation where one or more undertakings
         wield economic power which would enable them to prevent effective competition from being maintained in the relevant market
         by giving them the opportunity to act to a considerable extent independently of their competitors, their customers and, ultimately,
         of consumers (Case T-102/96 Gencor v Commission [1999] ECR II-753, paragraph 200; see also, to that effect, Case 85/76 Hoffman-La Roche v Commission [1979] ECR 461, paragraph 38).
      
      196    It has consistently been held that the basic provisions of Regulation No 4064/89, in particular Article 2 thereof, confer
         on the Commission a certain discretion, especially with respect to assessments of an economic nature. Consequently, review
         by the Community judicature of the exercise of that discretion, which is essential for defining the rules on concentrations,
         must take account of the discretionary margin implicit in the provisions of an economic nature which form part of the rules
         on concentrations (Joined Cases C-68/94 and C-30/95 France and Others v Commission (Kali und Salz) [1998] ECR I-1375, paragraphs 223 and 224; Case C‑12/03 P Commission v Tetra Laval [2005] ECR I-0000, paragraph 38; Gencor v Commission, paragraph 195 above, paragraphs 164 and 165; and Case T-432/99 Airtours v Commission [2002] ECR II-2585, paragraph 64).
      
      197    It follows that review by the Community Court of complex economic assessments made by the Commission in the exercise of the
         discretion conferred on it by Regulation No 4064/89 must be limited to ensuring compliance with the rules of procedure and
         the statement of reasons, as well as the substantive accuracy of the facts, the absence of manifest errors of assessment and
         of any misuse of power. In particular, it is not for the Court of First Instance to substitute its own economic assessment
         for that of the Commission (Case T-342/00 Petrolessence and SG2R v Commission [2003] ECR II-1161, paragraph 101).
      
      198    Last, it must also be observed that in paragraphs 90 to 108 of the contested decision the Commission relied on six factors
         in order to establish the dominant position of CVK. Those factors are: (i) market structure; (ii) the absence of significant
         competitive pressure on CVK from producers of in situ concrete, whereas CVK is the only producer and supplier of sand-lime bricks, traditionally used in the Netherlands in the
         construction of walls; (iii) the existence of significant barriers to market entry; (iv) the absence of buyer power among
         CVK’s customers; (v) the absence of any limitation of CVK’s room for manoeuvre on the relevant market by the conditions of
         competition on the neighbouring market for building materials for non-load-bearing walls; and (vi) the existence of a structural
         link between CVK and the applicant which allows them, at the level of supply and also that of the distribution of building
         materials for load-bearing walls, to enjoy a significantly wider scope for manoeuvre than that enjoyed by their competitors.
      
      199    In that regard, it is common ground that the applicant does not dispute any of the assessments set out in paragraphs 90 to
         95 of the contested decision in respect of the first factor, concerning market structure, that is to say, the market shares
         of CVK, the notifying parties and their competitors.
      
      200    It follows from the abovementioned grounds of the contested decision that CVK holds more than [50 to 60]% of the relevant
         market, in so far as that market includes in situ concrete, whereas the second operator on the market as thus defined is the applicant, with approximately [2 to 5]% of the
         market, while the main competitor of the notifying parties has only [2 to 5]% and the remaining competitors have only market
         shares of below [0 to 2]%. It follows from the data provided in paragraph 91 of the contested decision that that situation
         is the one that is most favourable to the notifying parties, since, supposing that in situ concrete were wholly excluded from the relevant market, CVK’s market share would be more than [60 to 70]%, whereas the market
         shares of all of its competitors would be, at most, [0 to 2]%. It is also common ground that the configuration of the relevant
         market has not substantially altered in recent years. 
      
      201    The existence of very large market shares is highly important and the relationship between the market shares of the undertakings
         involved in the concentration and their competitors, especially those of the next largest, is relevant evidence of the existence
         of a dominant position. That factor enables the competitive strength of the competitors of the undertaking in question to
         be assessed (Hoffmann-La Roche v Commission, paragraph 195 above, paragraphs 39, 40 and 48, and Gencor v Commission, paragraph 195 above, paragraphs 201 and 202). Furthermore, a particularly high market share may in itself be evidence of
         the existence of a dominant position, in particular where the other operators on the market hold only much smaller shares
         (Case T-221/95 Endemol v Commission [1999] ECR II-1299, paragraph 134). 
      
      202    For all of those reasons, the fact that CVK has a market share at least 14 times higher than that of its largest competitor,
         which the applicant does not deny, constitutes strong evidence that CVK has a dominant position on the relevant market.
      
      203    The Court must consider whether the applicant has none the less been able to show that the Commission had made a manifest
         error of assessment of the other five factors analysed in the contested decision which would constitute a ground for its annulment.
      
      –       The factor consisting in the absence of significant competitive pressure on CVK from producers of in situ concrete
      
      204    It should be borne in mind that in paragraphs 96 to 98 of the contested decision the Commission indicated that neither in situ concrete nor the producers of that material could exercise significant competitive pressure on CVK, which is the Netherlands’
         only producer of sand-lime bricks, the traditional material for wall construction and widely used in the construction of load-bearing
         walls. That assessment is based, in particular, on the market shares of CVK’s competitors and on the differentiated nature
         of the products on the market in question, which allows an undertaking such as CVK to increase its influence beyond its apparent
         market share, owing to the fact that it is the only one to offer a product particularly appreciated by consumers or for certain
         applications.
      
      205    In substance, without disputing the relevance of the factor identified by the Commission, the applicant contends that the
         assertion in paragraph 97 of the contested decision that CVK is the only producer of sand-lime bricks ignores the fact that
         sand-lime products are imported from Germany and that there is no market in sand-lime bricks. The applicant then refutes the
         Commission’s conclusion, in paragraph 97 of the contested decision, that the concrete sector exerted no competitive pressure
         on CVK. In the applicant’s submission, the Commission should have examined the changes in market shares and taken into account,
         in particular, the financial and economic capacities of the operators in that sector. Furthermore, the applicant maintains
         that it is not only the market share ([2 to 5]%) of the largest competitor producing in situ concrete that must be taken into account. 
      
      206    Those allegations must be rejected.
      
      207    First, as regards the Commission’s alleged failure to take into account the fact that sand-lime products are imported into
         the Netherlands from Germany, it must be pointed out that, in paragraph 84 of the contested decision, the Commission, when
         defining the market, said:
      
      ‘Although imports of wall building materials from … Germany do apparently take place in the border regions of the Netherlands,
         these are marginal and do not justify incorporating parts of … Germany into the relevant geographic market. The market investigation
         has revealed the existence of barriers to market entry based, in particular, on building and industrial safety regulations.
         For example, … building standards in Germany mean that walls of comparable wall thickness must be stronger and, given the
         extra materials that requires, are more expensive than in the Netherlands …’
      
      208    It should also be borne in mind that the applicant does not dispute either the definition of the relevant market or the finding
         that CVK is the only producer of sand-lime bricks in the Netherlands. Furthermore, the applicant merely indicates that building-materials
         wholesalers place sand-lime products on the Netherlands market, without providing any specific information as to the volume
         or the value of those imports, since in its response to the statement of objections, to which it referred in its written submissions,
         it merely stated that the range of sand-lime products offered by one of those wholesalers or importers and that offered by
         CVK were very similar. 
      
      209    In the second place, the applicant misreads the contested decision where it maintains that that decision found that there
         was no competitive pressure from the concrete sector. Paragraph 97 of the contested decision indicates, more specifically,
         that there is no significant competitive pressure from the in situ concrete sector and its producers, not that there is no such pressure from the concrete sector. Consequently, in the relevant
         grounds of the contested decision, the Commission did not deny the existence of competitive pressure from in situ concrete, but deemed that it was insufficient in the light of CVK’s position. In that regard, it is important to note that
         the Commission’s analysis, which focused on in situ concrete, is shown to be correct by the fact that at least CVK’s two immediate competitors on the relevant market produce
         only in situ concrete, a circumstance which must allow the Commission to consider whether CVK’s position, as reflected by its market shares,
         could be counterbalanced by the presence of competitors offering that type of material on the relevant market. 
      
      210    The Commission also acted correctly when it did not merely take into account the share representing in situ concrete in general ([10 to 15]%) in the construction of load-bearing walls in the Netherlands, but also took into consideration
         the market share of CVK’s main competitor ([2 to 5]%). As the first figure ([10 to 15]%) also includes the market share held
         by the applicant, which, owing to the control – as established above – which it exercises over CVK, cannot be regarded as
         an undertaking in competition with CVK, it was necessary to weight that percentage by also taking into consideration the market
         share of CVK’s immediate competitor, in order not to overestimate any competitive pressure on CVK. 
      
      211    Furthermore, as regards the allegation that the Commission ought to have taken into account changing market shares in the
         concrete sector, in so far as that argument relates to in situ concrete, it was sufficient for the Commission to state, as it did in paragraph 97 of the contested decision, that the share
         of in situ concrete seemed to have remained stable, according to the information supplied by a Netherlands trade industry association,
         or even to have declined slightly according to certain operators, and it cannot be concluded that the competitive pressure
         on CVK from that sector of the market was significant. Furthermore, as regards the shares of the undertakings on the market,
         it is common ground that between 2000 and the time of adoption of the contested decision CVK’s position and also that of its
         competitors, referred to above, had also remained virtually unaltered, as stated in paragraph 95 of the contested decision.
         That assessment necessarily refers to the in situ concrete sector, in which, as is apparent from the table in paragraph 91 of the contested decision, CVK’s two largest competitors
         were active, but in which one of them had a market share of less than [2 to 5]% and the other a market share of less than
         [0 to 2]%. 
      
      212    In that regard, it must be emphasised that, in general, the presence of competitors can constitute a factor likely to modify
         or even eliminate, as the case may be, the dominant position of the entity in question only if those competitors hold a strong
         position which acts as a genuine counterweight (see, to that effect, Case T-114/02 BaByliss v Commission [2003] ECR II-1279, paragraph 329). The applicant has not adduced probative evidence capable of invalidating the assessment
         which emerges from paragraph 97 of the contested decision that producers of in situ concrete – which, moreover, are CVK’s immediate competitors on the relevant market – do not act as such a counterweight.
      
      213    Last, it must be held that the absence of significant competitive pressure from the in situ concrete sector may also, in part, be inferred from the differentiated nature of the products on the relevant market, as
         the Commission emphasised in paragraph 98 of the contested decision. The differentiated nature of the products means that
         each product is not a perfect substitute for the other and that, consequently, an increase in the price of one of them does
         not necessarily have the effect that the undertaking which has increased the price will lose market share to its competitors
         which produce the other product, as would be the case for perfectly substitutable products. The fact that in situ concrete is not perfectly substitutable for sand-lime bricks, owing in particular to the high costs which the use of in situ concrete entails, as explained in paragraphs 58 and 77 of the contested decision, without being disputed by the applicant,
         makes it possible to relativise the competitive pressure which that material and its producers exert on CVK.
      
      214    Furthermore, even on the assumption that the Commission’s assessment concerned the concrete sector in general, the applicant
         has still been unable to show, with the help of precise and consistent evidence, that the producers on that segment of the
         relevant market were capable of acting as a genuine counterweight to CVK’s position.
      
      215    It follows that the Commission’s assessment of the second factor in the contested decision is not vitiated by a manifest error.
      
      –       The factor consisting in the existence of significant barriers to market entry
      216    In paragraphs 99 to 101 of the contested decision, the Commission states:
      
      ‘(99) Notwithstanding the parties’ and CVK’s comments on the statement of objections and the discussion during the hearing,
         the Commission takes the view that there are substantial barriers to market entry. CVK controls all the sand-lime brickworks
         in the Netherlands and hence the production of by far the most important wall-building material in the relevant product market.
         The Commission’s market investigation has shown that it would be possible for manufacturers of other wall-building materials
         to undertake the manufacture of sand-lime brick products only at great expense in terms of time and investment. The same is
         also true of other wall-building materials such as aerated concrete. The production processes and hence the production plants
         are different for each wall-building material.
      
      (100) … Haniel has put the investment costs for a sand-lime brickworks at only some EUR [confidential]. The setting-up of a ready-mix concrete plant costs, according to Haniel, EUR [confidential]; Cementbouw has estimated these investment costs to be much higher. Moreover, the competitors questioned in connection with
         the investigation of the market have all stated that they would have considerable difficulties in expanding their existing
         capacities or launching production of another wall-building material. One competitor indicated that the establishment of a
         new sand-lime brickworks would require an investment of EUR [confidential] to [confidential], that the necessary official authorisation would be difficult to obtain, and that building the works alone would take two
         years. In contrast to the parties’ view that the market entry barriers are low, the Commission accordingly assumes that no
         competitive pressure is exerted by possible market entries such as to control CVK’s room for manoeuvre on the relevant market.
         Consequently, there have been only a few market entrants in recent times, and these were all limited to the concrete sector.
      
      (101) There are also considerable excess capacities for sand-lime products, a fact which makes market entry an unattractive
         prospect, even now that CVK has closed 3 of its original 11 sand-lime brickworks. Moreover, CVK’s remaining production facilities
         are evenly dispersed across the Netherlands, and it is therefore able to supply any customer from a local brickworks. The
         Commission’s market investigation has shown that this factor also strengthens CVK’s market position.’
      
      217    The applicant complains that the Commission has essentially limited its analysis to the investment costs and long lead times
         for the construction and operation of sand-lime brickworks, whereas it ought to have examined all the costs and other potential
         barriers affecting all products competing with sand-lime bricks. The applicant also disputes the claim that the lead times
         and costs set out in the contested decision constitute genuine barriers to market entry, particularly if the capital markets
         operate efficiently. The applicant also complains that the Commission did not examine the costs that other producers of building
         materials would incur if they were to replace a part of their production by materials competing with sand-lime bricks, even
         though the applicant indicated, in response to the statement of objections, that concrete could be produced for various applications,
         including wall construction. Last, the applicant denies that the excess capacities in the sand-lime bricks sector could constitute
         genuine barriers to entry to the relevant market.
      
      218    First of all, the applicant’s complaint that the Commission examined exclusively the lead times and costs necessary to undertake
         production in the sand-lime bricks sector must be rejected. The Commission’s analysis also covers the other building materials,
         such as in situ concrete, as is clear from, inter alia, paragraph 100 of the contested decision. It also follows from paragraph 99 of the
         contested decision that the Commission stated that the long lead times and heavy costs were not confined to entry into the
         sand-lime bricks production sector but also applied to entry into the production of other building materials in the relevant
         market, such as aerated concrete. It follows that, contrary to the applicant’s contention, the Commission did not confine
         its assessment of the barriers to entry to the relevant market to the sand-lime bricks sector.
      
      219    Next, as regards the question whether the investment costs and the long lead periods described in the contested decision constitute
         ‘barriers to market entry’, the Court considers, first, and generally, that such barriers may consist in elements of various
         natures, in particular economic, commercial or financial elements, which are likely to expose potential competitors of the
         established undertakings to risks and costs sufficiently high to deter them from entering the market within a reasonable time
         or to make it particularly difficult for them to enter the market, thus depriving them of the capacity to exercise a competitive
         constraint on the conduct of the established undertakings. 
      
      220    Second, while it cannot be precluded, in principle, that in highly capital-intensive sectors the financial resources necessary
         for the investments may be obtained on the capital markets, it must be held that in the present case the applicant has failed
         to show that the Commission made a manifest error of assessment in finding that there were significant barriers to entry to
         the relevant market, in the light of all the factors used to support the contested decision.
      
      221    As regards entry to the sand-lime bricks sector, the Commission relied on a series of factors of a regulatory and economic
         nature relating to the need to obtain administrative authorisation, the two-year period necessary for the construction of
         a brickworks and the high level of investment costs, while taking account of the fact that there were considerable excess
         capacities, even after the closure of three of the eleven manufacturing members of CVK (Boudewijn, Bergumermeer and Vogelenzang),
         making market entry less attractive, as CVK is able to supply any customer in the Netherlands from the other eight remaining
         undertakings. 
      
      222    Those factors, taken in conjunction with the fact, which the applicant has not succeeded in rebutting, that it would have
         been extremely difficult for the undertakings active on other sectors of the market to commence production of a different
         wall-building material, are sufficient to preclude any manifest error on the part of the Commission as regards the probability
         that a potential competitor of CVK would enter the sector. Incidentally, as regards the investments costs necessary to build
         a complete brickworks, the applicant, in answer to the written questions put by the Court, put forward the figure of EUR [confidential] million, an estimate which falls very precisely within the bracket indicated in paragraph 100 of the contested decision,
         without stating the reasons why the investment of a lower amount, also put forward in its answer, would be sufficient to permit
         entry to the relevant market.
      
      223    As regards the other sectors of the relevant market, it must be held, first, that the applicant has not criticised the finding,
         in paragraph 100 of the contested decision, that there had been only a few entrants to the reference market, limited solely
         to the concrete sector. It follows in that regard from the Commission’s answers to the questions put by the Court, which were
         not disputed by the applicant, that those new entrants, active in the in situ concrete sector, were able to obtain at the most only [0 to 2]% market shares, whereas at the time of the adoption of the
         contested decision the concentration had taken place more than two years previously. Second, and although it follows from
         the documents in the file that the applicant effectively maintained its position that the investment costs of building a new
         in situ concrete facility, in the order of EUR [confidential] million, were significantly higher than the figure put forward by Haniel (EUR [confidential] million) and reproduced in the contested decision, the applicant has not denied that even CVK’s present competitors find
         it extremely difficult to increase their production capacities, owing in particular to existing excess capacities, or to commence
         production of a different wall-building material, as the Commission further stated in its answers to the written questions
         put by the Court. All of those factors permit the conclusion that the Commission did not make a manifest error of assessment
         when it considered that there were also significant barriers to entry to the other sectors of the relevant market, thus preventing
         any effective competition for CVK on that market.
      
      224    Incidentally, it should be noted that, generally, while the applicant refused to treat the existence of excess capacities
         on the relevant market as barriers to entry to that market, it none the less acknowledged at the hearing, in answer to a question
         from the Court, that such excess capacities had ‘effects like a barrier to entry to the market’. 
      
      225    Third, the applicant’s allegation that the Commission did not examine the capacity of producers of bricks, gypsum and wood,
         which are used in applications other than wall construction, to enter the market for the construction of load-bearing walls
         is ineffective. Having regard to the structure of the product market, it is common ground that the use of bricks in building
         load-bearing walls is quite secondary (see paragraphs 61 and 66 of the contested decision), while neither gypsum nor wood
         is a material used in building load-bearing walls (see paragraphs 53 and 60 of the contested decision). It follows that an
         examination of the capacity of producers of bricks, gypsum and wood to use those materials in building load-bearing walls
         would clearly have been unable to alter the finding in the contested decision that there were significant barriers to entry
         on to the relevant market.
      
      226    For all of those reasons, the Court rejects the complaints which the applicant has formulated in respect of the third factor
         alleging the existence of significant barriers to market entry.
      
      –       The factor based on the absence of buyer power among CVK’s customers
      227    Paragraphs 102 and 103 of the contested decision are worded as follows:
      
      ‘(102) Notwithstanding the parties’ and CVK’s comments on the statement of objections and the discussion during the hearing,
         the Commission takes the view that the customers of CVK have no buyer power. No one customer buys a substantial part of CVK’s
         output. Although the five largest building materials traders (the largest of which has a sales share of [20 to 30]%) account
         for [60 to 80]% of CVK’s sales, this does not give the largest buyer any power since there are enough other traders on the
         market. Moreover, some of these traders are buying associations (inkoopcombinaties). What is important is the fact that the dealers are dependent on dealing in CVK’s products. Sand-lime is the most important
         building material in the Netherlands. The next most important is concrete. However, this does not constitute an alternative
         for traders because neither in situ  concrete nor, to any appreciable extent, precast concrete walling units are marketed via them. Consequently, no other building
         material can replace sand-lime products for traders. This was confirmed by Raab Karcher during the hearing. It may be true
         that – as Haniel argued – the building materials trader risks losing the building project to concrete if his sand-lime brick
         offer is not cheap enough. However, this only means that the trader with his sand-lime brick offer – and indirectly also CVK
         – is in competition with concrete suppliers, not that the trader is in a position to exert buyer power on CVK.
      
      (103) Moreover, CVK has considerable influence on determining the prices charged to building firms. Although materials traders
         bear the financial risk of sale, it is building firms and not traders that decide which materials to use. As already explained
         in detail, CVK is generally well informed about the identity of users and the use to which its products are put. For example,
         bricks are supplied direct by the works situated closest to the construction project. According to CVK, discounts are granted
         to dealers, whereby they might be bound to supply certain construction firms or projects. Moreover, construction firms are
         widely dispersed and not in a position to exert buyer power themselves. Similarly, the demand component of the large Dutch
         building groups such as Bam Groep, Koninklijke Volker Wessels Stevin, Heijmans, Ballast Nedam and HBG is too small individually
         to exert any buyer power such as could offset CVK’s dominance on the supply side.’
      
      228    The applicant maintains that the Commission’s figures show that the distributors exert buyer power on CVK, especially where
         they belong to international groups or are organised in buying cooperatives. The distributors are therefore able to resort
         to products which compete with sand-lime bricks, with the exception of in situ  concrete. The fact that distributors do not distribute in situ  concrete gives them a greater incentive to obtain advantageous prices and conditions from CVK in order to compete with producers
         of concrete. The applicant reiterates its allegations that the distributors also obtain sand-lime materials from Germany.
         Last, it disputes the Commission’s finding that CVK is well informed about the users of its products and the use to which
         they are put and also rejects the significance and the frequency of the rebates granted to distributors, a fact which, in
         any event, does not alter the fact that the distributors have buyer power vis-à-vis CVK.
      
      229    Those allegations cannot be upheld.
      
      230    First of all, it should be observed that, as the Commission maintained in its written submissions, without being challenged
         by the applicant, the buyer power of a supplier’s customers may compensate for the supplier’s market power if those customers
         have the ability to resort to credible alternative sources of supply within a reasonable time if the supplier decides to increase
         its prices or to make the conditions of delivery less favourable.
      
      231    In the present case, in order to reject the existence of buyer power on the part of the distributors of building materials
         that would offset the power which CVK derives in particular from its market shares and from the supply structure examined
         above, the Commission relied, first, on the dispersion of those operators on the market, that is to say, on the fact that
         the structure of the market for the distribution of load-bearing-wall building materials in the Netherlands is not concentrated
         and, second, on the absence of a credible alternative supply for those operators on the market, that is to say, in short,
         on the fact that those operators are dependent on CVK.
      
      232    Although those two conditions do not necessarily constitute exhaustive confirmation or denial of the existence of customer
         buyer power capable of counteracting a supplier’s economic power, they are very relevant. The criterion of the degree of concentration
         of buyers on the market means that their limited number may be capable of reinforcing their bargaining power vis-à-vis the
         supplier. Furthermore, the criterion of the presence of credible supply alternatives makes it possible to determine whether
         there is a strong probability that the supplier is forced to limit any increase in prices or indeed to refrain from increasing
         prices.
      
      233    In the present case, as regards the dispersion of the distributors, and although it is common ground that the five main distributors
         of building materials in the Netherlands represent almost [60 to 80]% of CVK’s sales, of which [20 to 30]% are sold to the
         largest distributor, the Court considers that, contrary to the applicant’s contention, those data cannot in themselves prove
         that the distributors had buyer power vis-à-vis CVK. In effect, it is also common ground that no single customer accounts
         for a substantial part of CVK’s turnover; and the applicant does not deny that there are other distributors, organised in
         buyer groups, and therefore capable of obtaining supplies in significant volumes, towards which CVK could if necessary steer
         its production, just as the applicant has not rebutted the fact that CVK directly supplies certain building firms (the end
         customers), which naturally increases the number of undertakings at which its supply of sand-lime bricks can be targeted.
         
      
      234    Furthermore, according to the information provided by CVK in an annex to the rejoinder, the applicant itself is among the
         five main distributors mentioned in the contested decision. Owing to the control which the applicant exercises over CVK, it
         is highly unlikely at the least that the applicant will participate in the implementation of any buyer power of CVK’s customers
         likely to counterbalance the latter’s economic power. 
      
      235    As regards the absence of a credible alternative source of supply, the applicant admits that the building materials distributors
         do not distribute in situ  concrete to an appreciable extent and did not comment on the suggestion that they do not distribute precast concrete units.
         In those circumstances, as regards in situ concrete, although the suppliers of that material are CVK’s main competitors on the relevant market, they cannot constitute
         a credible alternative for distributors. The same applies to obtaining supplies from the producers of precast concrete units,
         which are used in [5 to 10]% of all load-bearing walls in the Netherlands. 
      
      236    That finding is not undermined by the applicant’s argument that the distributors would be able to obtain supplies of sand-lime
         products from Germany. It is sufficient to observe that it is common ground that imports of sand-lime materials from that
         State are marginal and that the applicant puts forward no specific data to support its allegation.
      
      237    Furthermore, one of the main distributors of building materials for load-bearing walls in the Netherlands, Raab Karcher, confirmed
         at the hearing before the Commission on 16 May 2002 that CVK was not subject to any buyer power, and that assertion was not
         denied by the applicant; Raab Karcher had stated that its attempt to find alternatives, even minimum alternatives, had been
         unsuccessful owing to the significance of sand-lime bricks on the relevant market. 
      
      238    Next, as regards the Commission’s finding that CVK is generally well informed of the identity of its users and the use to
         which its products are put, and is thereby able to exercise significant influence in fixing prices for building firms (the
         final customers), that possibility has no impact on any buyer power that the distributors would have over CVK. Since the Commission
         was able to conclude, without making a manifest error of assessment, that such buyer power on the part of the distributors
         did not exist, it is sufficient to state that the applicant’s argument is inoperative; furthermore, no possible buyer power
         over CVK on the part of the building firms themselves was alleged.
      
      239    It follows that the applicant’s complaints in respect of the fourth factor relied on in the contested decision, based on the
         absence of buyer power on the part of CVK’s customers, must be rejected. 
      
      –       The factor based on the absence of a limitation on CVK’s operational scope on the market for building materials for load-bearing
         walls by the conditions of competition on the neighbouring market for building materials for non-load-bearing walls
      
      240    In paragraph 104 of the contested decision, the Commission stated:
      
      ‘CVK’s operational scope on the market in wall-building materials for load-bearing walls is not limited either by the conditions
         of competition on the [neighbouring] market in wall-building materials for non-load-bearing walls, on which its market position
         is weaker. The Commission’s comment in the statement of objections that CVK is aware, when setting prices, of whether its
         products will be used for load-bearing or non-load-bearing walls and gears its prices primarily to the conditions of competition
         on the load-bearing-walls market, which for it is more important, was not refuted by the parties and CVK. Reference should
         be made to the comments in [paragraphs] 75 and 76 in this respect.’
      
      241    According to those paragraphs:
      
      ‘(75) In setting its prices for products used in load-bearing walls, CVK, as the only sand-lime brick producer in the Netherlands,
         is not restricted by prices charged on the market in products intended for non-load-bearing walls. The Commission’s market
         investigation shows that CVK is often aware of the specific use of its products. Firstly, in many cases, the company knows
         the place where its products will be used, since it is itself often responsible for delivering them to a particular building
         site. Secondly, as regards the delivery of sand-lime walling units, that make up half its turnover, CVK has access to the
         architect’s plans. In addition, Haniel has indicated that the thickness of a substantial portion of sand-lime products means
         that they can be used in load-bearing or non-load-bearing walls. This information was confirmed by Raab Karcher during the
         hearing. In view of the comments of the parties and CVK on the statement of objections and the discussion of this question
         at the hearing, the Commission therefore takes the view that CVK is in a position to differentiate its prices according to
         the perceived competitive situation. In this respect, implicit price differentiation between large and small building projects
         through bulk discounts and uniform transport prices is possible. CVK has said that it grants builders’ merchants project-
         and contractor-specific discounts.
      
      (76) Even if CVK cannot differentiate the prices of sand-lime brick products for load-bearing walls from those for non-load-bearing
         walls, it is to be assumed that it tailors its pricing strategy primarily to the requirements of the market in load-bearing
         walls, since it sells [60 to 80]% of its products on that market.’
      
      242    The applicant claims, first, that CVK would be required to take account of its competitive situation on the market in building
         materials for non-load-bearing walls, irrespective of the fact that CVK sells [60 to 80]% of its sand-lime bricks on the relevant
         market. Second, it maintains that there is a ‘disciplinary effect’ exercised by the neighbouring market in building materials
         for non-load-bearing walls on the relevant market, which is apparent from the report of Professor von Wieszäcker and Professor
         Elberfeld, which was communicated to the Commission but to which the contested decision makes no reference.
      
      243    As regards the first argument, it should be observed that, irrespective of whether or not CVK is aware of the use to which
         its products will be put, and even on the assumption that, as the applicant contends, CVK is not aware of their intended use,
         that does not mean that CVK would be limited, in setting its prices on the relevant market, by the competitive situation on
         the neighbouring market for building materials for non-load-bearing walls, since it is common ground that CVK sells [60 to
         80]% of its production of sand-lime bricks on the former market. Accordingly, it is not manifestly incorrect to find, as the
         Commission did in paragraph 104 of the contested decision, with reference to paragraph 76 of that decision, that CVK ‘gears
         its prices primarily to the conditions of competition on the load-bearing-walls market, which for it is more important’.
      
      244    As regards the applicant’s allegation concerning a ‘disciplinary effect’ exerted on the relevant market by the market for
         building materials for non-load-bearing walls in the Netherlands, as established by Professor von Wieszäcker and Professor
         Elberfeld, the Court notes that that study was not actually cited in the contested decision. None the less, that fact is not
         capable of altering the finding made in paragraphs 76 and 104 of the contested decision. The analyses in that study correspond
         to the finding made in the contested decision that CVK gears its prices primarily to the relevant market. In particular, it
         follows from that study that if the fact that demand conditions on the ‘marginal segment’, namely the market in building materials
         for non-load-bearing walls, are taken into account results in price levels on the ‘principal segment’, namely the relevant
         market, lower than the price which would result if only the main segment were taken into account, the fact remains that even
         in those circumstances CVK gears its prices primarily to its position on the main segment, that is to say, the relevant market.
      
      245    It should be added that in its reply the applicant confined itself to general considerations already submitted in the application
         and did not seriously contest the reasons, set out by the Commission in its written submissions and summarised in paragraph
         189 above, which the Commission had given for not referring to the study by Professor von Wieszäcker and Professor Elberfeld
         in the grounds of the contested decision.
      
      246    It follows that the applicant has not shown that the analysis of the fifth factor, based on the absence of a limit to CVK’s
         operating scope on the relevant market by the conditions of competition on the neighbouring market for building materials
         for non-load-bearing walls, was vitiated by a manifest error of assessment.
      
      –       The factor based on the existence of a structural link between CVK and the applicant enabling them, both at the level of supply
         and of the distribution of building materials for load-bearing walls, to benefit from an operating scope appreciably wider
         than their competitors
      
      247    It must be borne in mind that in paragraph 105 of the contested decision the Commission considered that CVK’s dominant position
         was characterised by its structural links with the applicant, its controlling parent company. In the first place, as regards
         the relevant market, the contested decision stated, in paragraph 106, that taking into account the fact that the applicant
         supplied in situ concrete and precast concrete walling units, it, together with CVK, could offer, depending on the market definition employed,
         two or three of the main building materials for load-bearing walls. The Commission considered that that situation was likely
         to secure for those undertakings a wider operational scope than their competitors. In the second place, as regards the neighbouring
         market in the distribution of building materials, the Commission stated in paragraph 107 of the contested decision that the
         applicant was one of the largest wholesalers in the Netherlands and that, according to certain distributors, it received preferential
         treatment from CVK by comparison with independent distributors.
      
      248    It should also be borne in mind that the applicant denies having control of CVK and maintains that it does not have a strong
         position on the relevant market, as its market share is only [2 to 5]%. It also explains that, as regards its building material
         distribution activities, its market share is only [0 to 2]%, that is not given preferential treatment by CVK and that even
         if that were the case, statements by third parties cannot found a presumption of a dominant position for the purposes of Regulation
         No 4064/89.
      
      249    Those allegations must be rejected.
      
      250    It is necessary first of all to reject the applicant’s argument that it does not control CVK, for the reasons set out in the
         context of the assessment of the first part of the first plea. Nor is there any reason why the Commission should not take
         the structural link between the applicant and CVK into consideration as an element characterising CVK’s economic power or
         being to a certain extent capable of strengthening it. In so far as the applicant is present on the market of the joint venture
         and also on the downstream wholesale distribution market, the fact that it controls the joint venture may enable CVK to benefit
         from additional economic power necessarily arising from the coordination which will take place between those two undertakings
         on the market. Regulation No 4064/89 does not prohibit an examination, under its own provisions, of the possible aspects of
         vertical coordination between the joint venture and one or other of its founding undertakings which result from a concentration,
         without any prejudgment of the autonomy of the joint venture.
      
      251    Next, as regards the alleged strong position on the relevant market which, in the applicant’s contention, the contested decision
         finds the applicant to have, the applicant misreads paragraph 106 of the contested decision. The contested decision merely
         finds that the applicant has a strong position on the sector for small units used principally in the residential construction
         sector and not on the relevant market in general. In any event, the fact that the applicant has a market share of [2 to 5]%
         on the relevant market, as it is able to supply precast concrete units and in situ concrete, while CVK’s immediate competitor holds only a [2 to 5]% market share, allowed the Commission to conclude, without
         making a manifest error of assessment, that CVK and the applicant could supply a range of products – according to the definition
         of the relevant market employed – that none of their competitors was able to supply.
      
      252    Last, as regards the applicant’s presence on the wholesale building materials distribution market, which the applicant does
         not dispute, it is permissible to conclude, in the absence of proof to the contrary, that the applicant’s presence on that
         market enables CVK to take advantage of its founder’s distribution network, regardless, moreover, of the size and market position
         of that network, in particular if the parties’ competitors do not themselves have the advantage of vertical integration. Questioned
         on this point by the Court, the Commission stated at the hearing, without being contradicted by the applicant, that on the
         basis of the evidence in the file, only one brick producer had such an advantage. It must be made clear, however, that that
         circumstance has no real significance from the point of view of competition, since, in particular, having regard to the market
         structure, bricks, which represent approximately [2 to 5]% of all building materials used in the construction of load-bearing
         walls in the Netherlands, constitute material which is quite secondary on the relevant market. Consequently, the Commission’s
         finding as to the power of the applicant’s distribution network and as to the preferential treatment of the applicant by CVK
         cannot be called in question. In any event, even on the assumption that that finding were incorrect, it could not entail the
         annulment of the contested decision, as such a finding was made purely for the sake of completeness. 
      
      253    Furthermore, as regards the applicant’s criticisms concerning the insufficiency of the reasoning in the contested decision,
         in so far as it departed from the conclusion of the NMa (see paragraph 176 above), it is sufficient to recall, first, that
         it follows from the answer to the first plea that the transactions concluded on 9 August 1999 constituted a single concentration
         coming within the exclusive competence of the Commission and, second, that the foregoing examination of the factors identified
         in the contested decision enables the Court to ascertain that the Commission had not made a manifest error of assessment in
         finding that CVK held a dominant position on the relevant market. It follows that, contrary to the applicant’s contention,
         the Commission was not required to indicate specifically its reasons for not sharing, where appropriate, the allegedly different
         assessment of the NMa.
      
      254    For all of those reasons, it must be held that the Commission was correct to consider that CVK held a dominant position on
         the relevant market. 
      
      255    Accordingly, the first part of the second plea must be rejected.
      
       Second part of the second plea: failure to demonstrate a causal link between the concentration and the creation of the dominant
            position
       Arguments of the parties
      256    The applicant maintains, in the first place, that even on the assumption that the RAG transaction constitutes a concentration,
         as the Commission contends, that transaction is separate from the pooling arrangement notified to the NMa, whereby CVK acquired
         control of its member undertakings, and clearly does not lead to the creation of a dominant position. In effect, the RAG transaction
         would merely have involved a change in the structure of control in CVK and would have had no effect on the latter’s position
         on the market. 
      
      257    In the second place, the applicant claims that, contrary to what it is required to do under Article 2(2) of Regulation No
         4064/89, the Commission has failed to show that there was a causal link between the concentration in question and the creation
         or strengthening of the dominant position. In the applicant’s submission, even before the RAG transaction, CVK, as a cooperative
         formed under Netherlands law, operated as a single economic entity and adopted the strategic decisions applying to its member
         undertakings and relating not only to sales of sand-lime products but also to pricing, sales conditions, production and purchases.
         
      
      258    Contrary to what is stated in the contested decision, the applicant contends that the fact that it is easier to unravel the
         economic links which existed within a common distribution structure than those existing in the context of a full-function
         joint venture is irrelevant as regards the question whether the concentration has actually led to the creation of a dominant
         position. On the contrary, the Commission must demonstrate a causal link between the concentration and the creation of the
         dominant position. In the present case, the applicant observes that the contested decision did not analyse CVK’s market shares
         both before and after the RAG transaction. If the Commission had carried out such an analysis, the analysis would have shown
         that the RAG transaction would not have had any effect on CVK’s market share, as is illustrated by a comparison of the NMa’s
         decision of 20 October 1998 and the contested decision. 
      
      259    Last, the applicant claims that the reasons why, according to the contested decision, it follows from the RAG transaction
         that the applicant’s market share on the market for the wholesale distribution of wall-building materials must be attributed
         to CVK are not clear. In the applicant’s submission, a similar appraisal could just as easily have been made before the shares
         were sold. In any event, the applicant contends that the attribution to CVK of the applicant’s market shares on the wholesale
         wall-building materials market cannot lead to the creation of a dominant position. 
      
      260    In the third place, the applicant maintains that the Commission has not adduced additional evidence that the RAG transaction
         would have led to the creation of a dominant position.
      
      261    First of all, the applicant does not agree that the increases in the price of sand-lime bricks described in paragraph 117
         of the contested decision can amount to evidence of the creation of a dominant position. Like CVK at the hearing on 16 May
         2002, the applicant maintains that those price increases can be attributed to increased costs and are consistent with general
         price fluctuations and not with a change in the structure of the market created by the RAG transaction. The applicant further
         notes that the periods taken into account in the contested decision all occurred after the RAG transaction and that the Commission
         made no attempt to compare prices before and after that transaction for the purpose of identifying the true effect of the
         RAG transaction on CVK’s prices. In its reply, the applicant adds that the statements by competitors and purchasers reproduced
         in the contested decision, to the effect that the prices of CVK’s products have risen abnormally since 1999, are not decisive
         either, since the Commission’s file to which the applicant had access mentions numerous declarations which indicate the opposite.
         
      
      262    The applicant then claims that the statements by operators and customers referred to in paragraphs 119 to 121 of the contested
         decision, concerning CVK’s conduct, also fail to demonstrate that the RAG transaction led to the creation of a dominant position.
         Likewise the statements by operators concerning Haniel’s conduct, referred to in paragraph 120 of the contested decision,
         are irrelevant, since, although they concern a shareholder in certain members of CVK, they relate to a third party to the
         dominant position. Furthermore, since the RAG transaction did not lead to an increase in CVK’s market share, the applicant
         disagrees with the Commission’s conclusion that CVK had greater freedom to act independently of its competitors and its customers
         after that transaction. 
      
      263    Last, the applicant maintains that the reference in paragraph 125 of the contested decision to the ‘cartel procedure’ before
         the NMa is also irrelevant for the purpose of determining whether the RAG transaction led to the creation of a dominant position.
         That reference, moreover, is difficult to reconcile with the Commission’s general position that it is not bound by the decisions
         of other authorities adopted under different laws. 
      
      264    The Commission recalls the content of the relevant grounds of the contested decision and disputes all of the applicant’s arguments.
      
      265    First, the Commission contends that if the applicant’s assertion that CVK was already operating on the relevant market as
         a single entity before the concentration were correct, that would deprive ex post facto control of the concentration of its practical effect. It would mean that where independent undertakings which were part of
         a joint selling organisation combine their activities in a full-function joint venture, the latter could not lead to the creation
         of a dominant position. The Commission maintains that the transformation of a joint sales organisation into a full-function
         joint venture constitutes a structural change on the market which can lead to the creation of a dominant position and should
         therefore in principle be subject to control under the provisions on concentrations. 
      
      266    In the present case, the Commission observes that, following the concentration, CVK has sole management of the 11 member undertakings
         for the entire Netherlands sand-lime sector, which enables it to focus all of the competition parameters centrally in order
         to maximise the profits of the joint venture, incorporating far more functions than the marketing-related functions which
         it performed before the concentration. The Commission also observes that the applicant’s assertion that before the concentration
         CVK carried out, in particular, production and buying functions are imprecise and were never supported during the administrative
         procedure. Nor does the applicant explain why if, as it contends, CVK was already a ‘single economic entity’ before the concentration,
         it was then necessary for the applicant to conclude a cooperation agreement with Haniel and for the parties to initiate a
         notification procedure before the NMa. The Commission observes that the difference in terms of stability between the joint
         venture and a distribution organisation is a relevant factor which shows that the market underwent a lasting structural change.
         
      
      267    Second, as regards the causal link, the Commission rejects the applicant’s argument that it did not analyse the market shares
         before and after the RAG transaction. The RAG transaction is not distinct from the merger and CVK had no market share before
         the concentration. In that regard, the Commission states that the market share calculated by the NMa in the decision of 20
         October 1998, to which the applicant refers, constituted the sum of the shares of the independent undertakings before any
         concentration. Furthermore, the attribution to CVK of the applicant’s market shares on the market for the wholesale distribution
         of building materials may be explained by the fact that, owing to the joint control which it exercises over CVK with Haniel,
         the applicant cannot be regarded as an operator competing with CVK. 
      
      268    Third, as regards the ‘additional evidence’ to establish the existence of a causal link between the concentration and the
         creation of a dominant position, the Commission observes, generally, that the concentration had already been implemented at
         the time of the adoption of the contested decision, which explains why it was able, in paragraphs 117 to 121 of the contested
         decision, to carry out an ex post analysis which confirmed that the concentration had led to the creation of a dominant position. For the remainder, the Commission
         contests the other arguments put forward by the applicant.
      
       Findings of the Court
      269    The Court observes at the outset that under Article 2(2) of Regulation No 4064/89 a concentration which does not create or
         strengthen a dominant position as a result of which effective competition would be significantly impeded on the relevant market
         is to be declared compatible with the common market (Kali und Salz, paragraph 196 above, paragraphs 109 and 110).
      
      270    In the present case, the Court must therefore ascertain whether the concentration concluded on 9 August 1999 is the cause
         of the dominant position examined in the first part of the present plea. Contrary to the applicant’s contention, review by
         the Court is not confined to the link between CVK’s dominant position and the RAG transaction, since, as the Court held when
         it examined the second part of the first plea, the first and second groups of transactions referred to in paragraph 8 above
         have a unitary character owing to their interdependence, so that they form a single concentration. Furthermore, in so far
         as examination of the first part of the present plea led the Court to find that CVK has a dominant position on the relevant
         market, to disregard the causal link between the creation of that dominant position and the concentration, as the applicant
         claims, could be logically possible only if a dominant position existed before the transaction of 9 August 1999. 
      
      271    Next, it must be borne in mind that in paragraphs 110 to 115 of the contested decision the Commission rejected both the existence
         of an individual dominant position of CVK and the existence of a joint dominant position of the three groups of producers
         of sand-lime bricks – namely the producers controlled by the applicant, those wholly controlled by Haniel and those in which
         RAG had shares  –, before the concentration of 9 August 1999, specifying the market shares of those three groups on the relevant
         market. It should further be pointed out that in paragraphs 116 to 125 of the contested decision the Commission identified
         certain elements which confirmed the causal link between the concentration and CVK’s dominant position.
      
      272    In the first place, as regards the applicant’s assertions relating to the individual dominant position which CVK is alleged
         to have held before the concentration, it is necessary to reject the claims which the applicant bases on the failure to analyse
         in the contested decision CVK’s market shares before the concentration and also on the Commission’s refusal, set out in particular
         in paragraphs 113 and 114 of the contested decision, to regard CVK as an independent economic entity before the concentration.
      
      273    On the first point, it is sufficient to observe that the lack of analysis is to be explained by the fact that the question
         of the attribution of market shares to CVK is conditioned by the question raised by the second point, namely whether, before
         the concentration, CVK was to be regarded as a full-function joint venture for the purposes of Regulation No 4064/89 and not
         merely as an instrument of cooperation between its members in relation to the marketing of sand-lime bricks in the Netherlands,
         a situation in which the market shares must be attributed to the groups to which the members of CVK belonged.
      
      274    As regards the second point, it must be borne in mind that, as the pooling agreement concluded on 9 August 1999 states, the
         ‘parties form an economic entity, under the conduct of CVK, having as its object the production and marketing of sand-lime
         brick products and of anything capable of assisting it in the wide sense’ (recital B of the pooling agreement). It follows
         from Article 1 of that agreement that management is centralised within CVK under the direction of the managing board, which
         is responsible for ‘the administration of CVK and of its brickworks, in the sense that, as regards total production and marketing
         of … sand-lime bricks and of everything that may assist it in the wide sense, the managing board is responsible for the central
         management of CVK and of the brickworks, as it deems appropriate, taking account of the interests of CVK and of its members’.
         According to the same provision, the tasks of the managing board include giving directions to the member undertakings of CVK
         relating, in particular, to product development, marketing and sales, purchases, investments and disposals, orders, sand exploitation
         and personnel.
      
      275    On the contrary, there is no indication in the case-file that such an economic unit existed before the transaction of 9 August
         1999. Before the concentration, CVK existed as a common distribution organisation for the sand-lime bricks produced by the
         member undertakings of CVK in the Netherlands and it had no other economic function. Before the concentration, CVK could therefore
         be treated by the Commission as a sales counter for the benefit of its members. Although the applicant claims in its reply
         that at that time CVK also carried out functions relating to the production of sand-lime bricks, it has failed to demonstrate
         that that was really the case.
      
      276    Admittedly, in general, it is not precluded that a joint distribution organisation may possibly assume the character of a
         full-function joint venture if, at the level of that organisation, the products or services which it distributes acquire significant
         added value or if it functions as a genuine player on the market by obtaining supplies, to an appreciable extent, from other
         suppliers which compete with its own member undertakings. 
      
      277    However, that is not what the applicant claims in the present case. 
      
      278    The applicant disputes only the less lasting nature of the joint distribution organisation, described in paragraph 114 of
         the contested decision, by comparison with what is known as a ‘full-function’ joint venture. In that regard, it is sufficient
         to observe that the assessment set out in paragraph 114 of the contested decision, introduced by the adverb ‘[m]oreover’,
         was formulated only for the sake of completeness. For the remainder, the applicant has failed to upset the Commission’s finding
         that it followed from the concentration that CVK had become a full-function undertaking responsible for the various functions
         of the previously separate undertakings, a fact which determined the attribution of market shares to that new entity and,
         accordingly, its possible dominant position on the relevant market.
      
      279    In the second place, as regards the question of the absence of a joint dominant position of the three groups of producers
         of sand-lime bricks, it is sufficient to observe that the applicant has not claimed that the three groups held such a position.
         Furthermore, the evidence in the case-file, in particular the market shares attributed to the three groups before the concentration,
         namely [20 to 30]% for Haniel and the applicant and [5 to 10]% for RAG, do not in themselves permit the conclusion that a
         joint dominant position existed before the concentration of 9 August 1999.
      
      280    In the third place, as regards the evidence confirming the existence of a causal link between the concentration of 9 August
         1999 and CVK’s dominant position, the Court considers that although the Commission is entitled to take such evidence into
         account in a situation, such as that in the present case, where the concentration has already been completed when the contested
         decision is adopted, such evidence is not by definition strictly necessary for the finding, criticised by the applicant, that
         CVK’s dominant position is the result of the concentration of 9 August 1999. It follows that, even on the assumption that
         the applicant’s arguments are well founded, they cannot have the effect of invalidating the assessment made on the basis of
         the above paragraphs.
      
      281    In any event, as regards in particular the analysis in paragraph 117 of the contested decision, concerning CVK’s pricing approach
         after the concentration, it must be held that the applicant has not demonstrated with the help of specific and consistent
         evidence that it was manifestly incorrect. 
      
      282    More specifically, the applicant has not, first, disputed the reality of the price increases applied by CVK since the implementation
         of the concentration ([5 to 10]% in 2001 and [5 to 10]% in 2002) or the Commission’s assertions in its written submissions
         that the information on price changes since 1997 was based on a methodological study of all producers and 18 distributors
         of wall-building materials, explaining accordingly that the level of price increases for 1999 and 2000 ([0 to 5]%) were examples
         reflecting the period before the date on which the actual effects of the concentration were felt on the market. Nor has the
         applicant disputed that there is excess capacity in the sand-lime bricks segment, or that demand for wall-building materials
         fell somewhat during the reference period taken by the Commission. In those circumstances, the applicant’s unsubstantiated
         allegation that the price increase was due solely to an increase in production costs and to the change in the general level
         of prices seems unrealistic, since after the implementation of the concentration it would have been more likely that a fall
         in demand and the existence of excess capacity would lead to a reduction or, at the very least, stability in the prices of
         sand-lime bricks. 
      
      283    In that regard, the applicant’s complaints concerning the relevance of the statements obtained by the Commission from operators
         on the market as regards the level – stable or falling – of the prices of other building materials between 1999 and 2002 cannot
         be upheld. It follows in particular from the statement for February 2002 of the distributor Stenncentrum Utrecht, contained
         in the Commission’s file and relied on by the applicant in support of its theory that the prices of sand-lime bricks applied
         by CVK would not have increased or that, on the other hand, that ‘the prices applied by certain brick producers had fallen
         by [20 to 30]% regard being had to the market mechanisms’, that ‘the same thing had happened in the ready-mix concrete sector’,
         whereas ‘for CVK, the sole supplier of sand-lime bricks, that undertaking had not encountered that handicap and had increased
         its prices significantly in 2001 and 2002’. That statement therefore does not support, in the least, the applicant’s claims.
         
      
      284    Furthermore, the applicant has also failed to explain the reasons why the explanations of Raab Karcher – given at the hearing
         before the Commission on 16 May 2002 – to the effect that before the concentration price negotiations with individual producers
         of sand-lime bricks were still possible in certain cases, whereas since the operation those undertakings refused to enter
         into individual discussions with customers and referred them to CVK, were incorrect. 
      
      285    It follows that the Commission’s assessment concerning CVK’s pricing conduct after the implementation of the concentration
         confirms to the requisite legal standard that a dominant position was created by the concentration in question, allowing that
         undertaking to act, to a large extent, independently of its competitors and of its customers. Accordingly, there is no need
         to examine the applicant’s other complaints.
      
      286    In those circumstances, the Commission did not breach Article 2 of Regulation No 4064/89 when it concluded, in paragraph 126
         of the contested decision, that the concentration in question had led to the emergence of a dominant position on the part
         of CVK on the relevant market as a result of which effective competition within the common market or a substantial part thereof
         was significantly obstructed.
      
      287    Accordingly, the second part of the second plea must be rejected in its entirety.
      
      3.     Third plea: breach of Article 3 and Article 8(2) of Regulation No 4064/89 and also of the principle of proportionality
       Arguments of the parties
      288    The applicant maintains, first, that the Commission was not competent to require further commitments under Regulation No 4064/89
         in addition to the commitments proposed by Haniel and the applicant which were to put an end to those undertakings’ joint
         control of CVK and to enable changing coalitions once again within CVK, since by that proposal the concentration which had
         to be notified under Regulation No 4064/89 ceased to exist. In the applicant’s submission, following the proposed commitments,
         as there was no longer a concentration within the meaning of Regulation No 4064/89, the Commission could no longer require
         further commitments under that regulation leading to the splitting-up of CVK, as required by the contested decision. In its
         reply, the applicant states that that rule is also valid in the case of a concentration which has already been brought about,
         as here. The applicant also emphasises that, contrary to the Commission’s contention, it is irrelevant that in spite of the
         first commitments CVK would still hold a dominant position on the relevant market. Regulation No 4064/89 requires the adoption
         of legally binding decisions only in respect of concentrations having a Community dimension and does not allow the Commission
         to adopt measures aimed at breaking up any undertaking alleged to be in a dominant position. Consequently, by requiring commitments
         in addition to the initial commitments proposed, the Commission exceeded its competence, in breach of Article 3 and Article
         8(2) of Regulation No 4064/89. 
      
      289    Second, the applicant contends that by requiring commitments leading to the dissolution of CVK, going beyond the reinstatement
         of the situation existing before the concentration, the Commission also breached the principle of proportionality. In so far
         as commitments satisfy the requirements laid down in Regulation No 4064/89, the Commission is required to accept the least
         restrictive set of commitments proposed, which in the present case it failed to do. 
      
      290    As regards the question relating to its competence, the Commission accepts at the outset that if the notifying parties decide
         not to proceed with the notified concentration and withdraw the notification, it does not have to insist on commitments.
      
      291    In the present case, however, the Commission considers that the situation is different, since the concentration in question
         had already been carried out. In such a case, the Commission considers that it has to take action under Article 8(4) of Regulation
         No 4064/89 to dissolve the concentration or to restore effective competition by other appropriate actions. The Commission
         also observes that in this case the concentration is made up of two transactions. In its view, termination of joint control
         of CVK by Haniel and the applicant would not suffice to restore effective competition, since CVK would continue to hold a
         dominant position on the relevant market. If the parties gave a commitment to end joint control, then in the Commission’s
         contention it would not thereby lose its competence to examine the concentration under Regulation No 4064/89. Its competence
         is to be determined solely by reference to the transaction which gave rise to the obligation to notify and not by the fact
         that a commitment proposal is submitted. The Commission concludes that, subject to compliance with the commitments set out
         in the annex to the contested decision, it was required to declare the concentration compatible with the common market under
         Article 8(2) of Regulation No 4064/89. 
      
      292    As regards the alleged breach of the principle of proportionality, the Commission contends that it fully respected that principle.
         The first set of commitments simply did not allow it to ensure effective competition in the common market, since CVK would
         still have held a dominant position on the relevant market. Only the second set of commitments would have remedied that situation.
         
      
       Findings of the Court
      293    It should be borne in mind at the outset that Article 8(2) of Regulation No 4064/89 provides: 
      
      ‘Where the Commission finds that, following modification by the undertakings concerned if necessary, a notified concentration
         fulfils the criterion laid down in Article 2(2), it shall issue a decision declaring the concentration compatible with the
         common market. 
      
      It may attach to its decision conditions and obligations intended to ensure that the undertakings concerned comply with the
         commitments they have entered into vis-à-vis the Commission with a view to rendering the concentration compatible with the
         common market. …’ 
      
      294    It should also be noted that under Regulation No 4064/89 the Commission has power to accept only such commitments as are capable
         of rendering the notified transaction compatible with the common market. In other words, the commitments offered by the undertakings
         concerned must enable the Commission to conclude that the concentration at issue would not create or strengthen a dominant
         position within the meaning of Article 2(2) of that regulation (Gencor v Commission, paragraph 195 above, paragraph 318).
      
      295    Next, in the present case, it is apparent from paragraph 127 of the contested decision and from paragraph 13 of the annex
         thereto that the Commission initially refused a draft commitment which provided that Haniel and the applicant would end the
         cooperation agreement which they had concluded, and that their shares in Anker, Vogelenzang and Van Herwaarden, acquired following
         the RAG transaction, would be sold to an independent third party, whereas the pooling agreement and CVK’s articles would be
         maintained. 
      
      296    In paragraph 132 of the contested decision, the Commission gave the following reasons for its refusal: 
      
      ‘The commitments submitted by the parties initially in draft form are, in the Commission’s view, not sufficient to dispel
         the competitive doubts as regards the Dutch market in wall-building materials for load-bearing walls. The draft commitments
         remove only the joint control of Haniel and Cementbouw over CVK, without at the same time removing CVK’s dominant position
         created by the merger. The draft commitments are based on the assumption, which as explained in Section II of this Decision
         is incorrect, that only the acquisition of joint control by Haniel and Cementbouw over CVK was subject to examination by the
         Commission in these proceedings, while the simultaneously completed acquisition of control by CVK over its member undertakings
         was, because of the decision taken by the NMa on 20 October 1998, not subject to the Commission’s jurisdiction.’
      
      297    However, the Commission accepted the final commitments described in paragraphs 129 to 131 of the contested decision, being
         of the view that they were sufficient to allow it to declare the concentration compatible with the common market.
      
      298    The terms of the commitments are as follows:
      
      –        within [confidential] of the adoption of the Commission Decision, revocation of the pooling agreement, undoing of the amendment to CVK’s articles
         and dissolution of CVK;
      
      –        revocation of the cooperation agreement with immediate effect;
      –        simultaneously with the ending of the pooling agreement, a commitment by the applicant and Haniel to end joint control of
         the firms Anker and Van Herwaarden, according to the procedures described in paragraph 129 of the contested decision;
      
      –        commitment of the applicant and Haniel to end joint control of Vogelenzang according to the same procedures as for Anker and
         Van Herwaarden, should Vogelenzang resume its activities;
      
      –        commitment of Haniel and Cementbouw to [commitment concerning CVK’s internal organisation]; (3)
      
      –        appointment of a trustee with responsibility for supervising compliance with the commitments by the parties.
      299    Although it does not deny that the notifying parties were in a position to propose adequate corrective measures capable of
         putting an end to the ‘competition problems’ identified by the Commission in the statement of objections, the applicant maintains,
         in substance, that since only the second group of transactions had to be notified to the Commission under Regulation No 4064/89,
         the first draft commitments, which consisted in terminating the second group of transactions and restoring the situation which
         existed before the concentration, as the applicant understands it, entails the amendment of the transaction in such a way
         that it no longer exists. In those circumstances, the Commission was no longer competent to ask the parties to propose further
         commitments, in particular the dissolution of CVK, since the basis of its competence under Regulation No 4064/89 had ceased
         to exist. At the same time, the applicant contends that the Commission was obliged to accept the first draft proposals, since
         they were sufficient and less restrictive than the final commitments. The applicant therefore submits that the Commission
         has breached the principle of proportionality.
      
      300    However, that line of argument must be rejected.
      
      301    In the first place, the applicant’s claims are once again based on an incorrect premiss, which was rejected by the Court when
         it examined the second part of the first plea. In effect, there is only one concentration, concluded on 9 August 1999, comprising
         the first and second groups of transactions, which comes within the competence of the Commission under Regulation No 4064/89.
         Consequently, contrary to the applicant’s contention, the first draft commitments do not alter the concentration in such a
         way that it no longer exists. 
      
      302    The argument that the Commission lacked competence must therefore be rejected.
      
      303    In the second place, the same conclusion must be reached in respect of the complaint alleging that the first draft commitments
         were proportionate and that the final commitments accepted by the Commission were disproportionate, in particular the commitment
         to dissolve CVK within [confidential] of the adoption of the contested decision, on which the declaration of compatibility was made conditional.
      
      304    First, it must be noted that the applicant has not explained how the first draft proposals, set out in paragraph 295 above,
         could have allowed the Commission to conclude that the concentration was compatible with the common market, when it is common
         ground that, in the context of those draft proposals, CVK’s dominant position as resulting from the concentration concluded
         on 9 August 1999 would have remained unaltered. In effect, in particular, in spite of the fact that joint control of CVK would
         have been abandoned, it would have continued, depending on the definition of the market, to hold at least [50 to 60]% of the
         relevant market, with no increase in the market shares of its main competitors.
      
      305    Contrary to the applicant’s contention, therefore, the Commission was not required to accept the first draft commitments,
         in application of Article 8(2) of Regulation No 4064/89, since they did not allow it to conclude that the concentration of
         9 August 1999 would not create a dominant position within the meaning of Article 2(2) of that regulation. 
      
      306    That finding is supported, moreover, by the wording of the eighth recital to Regulation No 1310/97, cited by the applicant
         in its written submissions, which states that ‘… the Commission may declare a concentration compatible with the common market
         in the second phase of the procedure, following commitments by the parties that are proportional to and would entirely eliminate
         the competition problem …’.
      
      307    Thus, in order to be accepted by the Commission with a view to the adoption of a decision under Article 8(2) of Regulation
         No 4064/89, the parties’ commitments must not only be proportionate to the competition problem identified by the Commission
         in its decision but must eliminate it entirely; and that objective was clearly not achieved in the present case by the first
         draft commitments proposed by the notifying parties.
      
      308    Second, as regards the final commitment whereby the parties proposed to dissolve CVK within [confidential] of the adoption of the contested decision – the only commitment really at issue between the parties to these proceedings
         –, while it is true that that commitment goes further than restoring the situation preceding the concentration, since, upon
         expiry of that period, CVK will have ceased to exist even in its previous form of a sales counter, the fact none the less
         remains that the notifying parties are not required to confine themselves to proposing commitments aimed strictly at restoring
         the competitive situation existing before the concentration in order to allow the Commission to declare that transaction compatible
         with the common market. Under Article 8(2) of Regulation No 4064/89, the Commission is authorised to accept all commitments
         by the parties which allow it to adopt a decision declaring the concentration compatible with the common market. 
      
      309    It should be noted, moreover, that, given the final commitments of the notifying parties, as summarised in paragraph 298 above,
         the Commission did not have the discretion to refuse them and to adopt either a decision declaring the concentration incompatible
         with the common market pursuant to Article 8(3) of Regulation No 4064/89 or a decision declaring the concentration compatible
         with the common market pursuant to Article 8(2) of that regulation but with conditions attached aimed at restoring the situation
         preceding the concentration which it would have imposed unilaterally.
      
      310    In the first hypothesis – involving the adoption of a negative decision – the Commission would have failed to comply with
         Article 8(2) of Regulation No 4064/89, which requires it to adopt a decision declaring the concentration compatible with the
         common market if it finds that the concentration, following modifications by the undertakings concerned if necessary, satisfies
         the criterion defined in Article 2(2) of Regulation No 4064/89.
      
      311    In the second hypothesis – involving a positive decision with conditions attached aimed at strictly restoring the previous
         situation – the Commission would also have come up against the wording of the second subparagraph of Article 8(2) of Regulation
         No 4064/89, which makes no provision for the Commission to make its declaration that a concentration is compatible with the
         common market subject to conditions which it has imposed unilaterally, independently of the commitments given by the notifying
         parties. 
      
      312    In those circumstances, the applicant cannot plead failure to respect the principle of proportionality. In the light of the
         circumstances of the present case, only the final commitments given by the notifying parties could allow the Commission to
         declare the concentration in question compatible with the common market, in application of Article 8(2) of Regulation No 4064/89.
         
      
      313    That finding is not affected by the applicant’s allegation that the notifying parties would have been arbitrarily required
         by the Commission to propose to dissolve CVK within a period of [confidential] from the adoption of the contested decision.
      
      314    Admittedly, upon reading the statement of objections and the applicant’s response, it must be acknowledged that the Commission
         may have exercised a certain influence on the terms of the commitments proposed by the parties, which it finally accepted
         in the contested decision. The statement of objections indicated that the Commission was prepared, in application of Article
         8(4) of Regulation No 4064/89, to adopt measures which would restore effective competition, including the dissolution of CVK,
         if the parties did not propose corrective measures.
      
      315    It is also true that, so far as Haniel is concerned, the proposal to dissolve CVK may have been based on the fact that it
         might allow Haniel to acquire shares in Ytong Netherlands, which was active in the production of aerated concrete, in accordance
         with recitals 141, 142 and 151 to Commission Decision 2003/292/EC of 9 April 2002 declaring a concentration to be compatible
         with the common market and the EEA Agreement (Case COMP/M.2568 – Haniel/Ytong) (OJ 2003 L 111, p. 1).
      
      316    However, it is common ground that, as stated in paragraph 138 of the contested decision, the parties gave the commitment to
         dissolve CVK within the relevant period ‘because they consider[ed] that in the event of termination of the pooling agreement,
         it was not foreseeable that CVK [would] continue to exist as a joint distribution organisation’. 
      
      317    Furthermore, as regards the Commission Decision of 9 April 2002 (see paragraph 315 above), which concerns only Haniel, that
         decision does not require any particular procedure in relation to the future structure of CVK in order for the condition relating
         to the sale of Haniel’s shares in Ytong Netherlands to be lifted. That decision states that the sale commitment given by Haniel
         would be devoid of purpose if CVK were dissolved or if another undertaking in which Haniel had a direct or indirect share
         no longer had a stake in CVK (recital 142). Recital 151 to the decision of 9 April 2002 further states that the commitment
         would also be unnecessary if CVK should be dissolved. In any event, it cannot be inferred from the grounds of that decision
         that it required the applicant to propose the final commitments referred to above in the context of the present case, as the
         applicant was not concerned by the decision of 9 April 2002.
      
      318    Last, the applicant does not explain how the period of [confidential] from the date of adoption of the contested decision within which CVK was to be dissolved, which was accepted by the Commission
         in the light of the exceptional circumstances of the present case, was proposed under the arbitrary constraint of the Commission
         and was disproportionate.
      
      319    Accordingly, it must be held that it has not been established that the notifying parties were arbitrarily forced by the Commission
         to propose the corrective measure consisting in the dissolution of CVK within a period of [confidential] from the adoption of the contested decision. Nor is it apparent from the documents in the case-file that the parties were
         arbitrarily forced to propose the other corrective measures in their final commitments designed to restore effective competition.
      
      320    In those circumstances, and since the applicant does not maintain that the Commission made a manifest error of assessment
         in considering that the final commitments proposed by the parties, including the commitment to dissolve CVK within a period
         of [confidential] from the adoption of the contested decision, allowed effective competition to be restored, the Court considers that the
         Commission was correct to conclude that those commitments, provided that the parties complied with them, allowed it to declare
         the concentration in question to be compatible with the common market and the operation of the EEA Agreement.
      
      321    It follows that the third plea must be rejected and the application dismissed in its entirety.
      
       Costs
      322    Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay
         the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, it must
         be ordered to pay the costs, in accordance with the form of order sought by the Commission.
      
      On those grounds,
      THE COURT OF FIRST INSTANCE (Fourth Chamber, Extended Composition)
      hereby:
      1.      Dismisses the application;
      2.      Orders the applicant to pay the costs.
      
      
      
      
      
               Legal 
            
            
               Lindh
            
            
               Mengozzi
            
         
               Wiszniewska-Białecka 
            
             
            
                     Vadapalas
            
         Delivered in open court in Luxembourg on 23 February 2006.
      
      
      
      
      
               E. Coulon
            
             
            
                     H. Legal
            
         
               Registrar
            
             
            
                     President
            
         
      Table of contents
      
      Background
      Procedure and forms of order sought by the parties
      Law
      1.  First plea: the Commission was not competent to examine the transactions in question under Article 3 of Regulation No 4064/89
      First part of the first plea: the Commission was not competent to examine the RAG transaction, on the ground that there was
         no change in the control of CVK
      
      Arguments of the parties
      Findings of the Court
      –  Preliminary observations
      –  The applicant’s assertions relating to the existence of joint control of CVK before the conclusion of the second group
         of transactions
      
      –  The taking of joint control of CVK by Haniel and the applicant upon the conclusion of the second group of transactions
      –  The alleged insufficiency of the reasoning
      Second part of the first plea: the Commission was not competent to treat two transactions as a single concentration and in
         the present case there was no concentration within the meaning of Article 3 of Regulation No 4064/89
      
      Arguments of the parties
      Findings of the Court
      –  The possibility for the Commission to treat a number of transactions as a concentration, in application of Article 3 of
         Regulation No 4064/89
      
      –  The independent nature of the transactions concluded on 9 August 1999
      Third part of the first plea: the Commission was not competent to examine the taking of control over CVK by its member undertakings,
         as it had been authorised by the NMa
      
      Arguments of the parties
      Findings of the Court
      2.  Second plea: errors of assessment by the Commission relating to the creation of a dominant position by the concentration,
         contrary to Article 2 of Regulation No 4064/89
      
      First part of the second plea: errors of assessment by the Commission as regards the existence of a dominant position of CVK
      Arguments of the parties
      Findings of the Court
      –  Preliminary observations
      –  The factor consisting in the absence of significant competitive pressure on CVK from producers of in situ concrete
      –  The factor consisting in the existence of significant barriers to market entry
      –  The factor based on the absence of buyer power among CVK’s customers
      –  The factor based on the absence of a limitation on CVK’s operational scope on the market for building materials for load-bearing
         walls by the conditions of competition on the neighbouring market for building materials for non-load-bearing walls
      
      –  The factor based on the existence of a structural link between CVK and the applicant enabling them, both at the level of
         supply and of the distribution of building materials for load-bearing walls, to benefit from an operating scope appreciably
         wider than their competitors
      
      Second part of the second plea: failure to demonstrate a causal link between the concentration and the creation of the dominant
         position
      
      Arguments of the parties
      Findings of the Court
      3.  Third plea: breach of Article 3 and Article 8(2) of Regulation No 4064/89 and also of the principle of proportionality
      Arguments of the parties
      Findings of the Court
      Costs
      * Language of the case: English.
      
      1 –	Confidential data omitted.
      
      2 –	Confidential data omitted.
      
      3 –	Confidential data omitted.