Commission, July 11, 2017, No M.8533

Dear Sir or Madam,

I. INTRODUCTION

(1) On 20 June 2017, the Commission received by means of a Reasoned Submission a referral request pursuant to Article 4(4) of the Merger Regulation with respect to the concentration cited above. HeidelbergCement AG and Schwenk Zement KG request the concentration to be examined in its entirety by Hungary.

(2) According to Article 4(4) of the Merger Regulation, before a formal notification has been made to the Commission, the parties to a concentration may request that their concentration be referred in whole or in part from the Commission to a Member  State where the concentration may significantly affect competition in a  market within that Member State which presents all the characteristics of a distinct market.

(3) A  copy  of  this  Reasoned  Submission  was  transmitted  to  all  Member  States   on 20 June 2017.

(4) By letter of 5 July 2017, the Gazdasági Versenyhivatal (the "GVH") as the competent authority of Hungary informed the Commission that Hungary agrees with the proposed referral.

II. THE PARTIES

 (5) HeidelbergCement AG ("HeidelbergCement") is a German producer and distributor of cement, clinker and ready-mix concrete, aggregates and other related products. It carries out its commercial activities globally in more than 40 countries and it has several subsidiaries in the territory of the EEA.

(6) Schwenk Zement KG ("Schwenk") is a family-held limited partnership active in the production of cement, clinker, ready-mix concrete, concrete products and services, as well as aggregates. Its business is focused on Germany, which accounts for more than […]% of its turnover, but it also has limited activities in Austria, France, the Netherlands, Poland and the Czech Republic. Through Duna-Dráva Cement Kft., Schwenk is also present in Hungary, Croatia and Slovakia.

(7) HeidelbergCement and Schwenk are jointly referred to hereinafter as the "Submitting Parties".

(8) Duna-Dráva Cement Kft. ("DDC") is a full-function joint venture company equally owned and jointly controlled by HeidelbergCement and Schwenk, which is active in Hungary, Croatia and the Western Balkans in the areas of cement, ready- mix concrete and aggregates. In Hungary, DDC currently operates 2 cement plants, 24 fixed ready mixed concrete plants and 2 aggregates sites. In Croatia and the Western Balkans, DDC operates one cement plant and eleven ready-mix concrete plants.

(9) Cemex, S.A.B. de C.V., is a global building materials company headquartered in Mexico active in cement, ready-mix concrete, aggregates and related building materials. It has operations in Africa, the Americas, Asia, Europe and the Middle East. Along with the rest of the Cemex companies, the group will hereinafter be referred to as "Cemex".

(10) Readymix Hungária Kft ("Readymix Hungary", formerly named Cemex Hungária Építőanyagok Kft)3 is a limited liability company under Hungarian law, which is mainly active in the production and sale of ready-mix concrete, paving stones, and aggregates which are only sold in Hungary. Readymix Hungary currently operates 26 fixed ready-mix concrete plants, three aggregate sites and two paving stone plants in Hungary. Readymix Hungary is not active in the production and sale of cement.

III. THE TRANSACTION

(11) The Commission concludes that the acquisition of joint control over Readymix Hungary by HeidelbergCement and Schwenk through their joint venture company DDC by means of purchase of shares (“the Transaction”) constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation.

(12) On 6 May 2015, Cemex initiated a process for the sale of: (i) its subsidiary Cemex Austria AG ("Cemex Austria"), which held 100% of the shares in Readymix Hungary; and (ii) its subsidiary Cemex Hrvatska dd (“Cemex Croatia”). Against  the background of a framework agreement entered into between DDC and Rohrdorfer Baustoffe Austria AG ("Rohrdorfer") on 27 July 2015, Heidelberg Cement submitted a joint bid to Cemex on behalf of DDC and Rohrdorfer which was selected as the preferred bid. On 11 August 2015, DDC and Cemex entered into a share purchase agreement pursuant to which DDC would have acquired 100% shares in Cemex Croatia. Also on 11 August 2015, Rohrdorfer entered into a share purchase agreement for the acquisition of Cemex Austria and its subsidiary Readymix Hungary, which was implemented on 2 November 20154. On the same day and following what had been agreed in the framework agreement between DDC and Rohrdorfer, DDC and Cemex Austria entered into a share purchase agreement for  the acquisition of Readymix Hungary by DDC.

(13) Within the framework of Case M.7878, the Commission previously concluded that the acquisition of Cemex Croatia and Readymix Hungary by HeidelbergCement and Schwenk, through their joint venture DDC, were part of a single concentration5.

(14) The Submitting Parties submit, however, that any pre-existing link between the acquisition of Cemex Croatia, on the one hand, and the acquisition of Readymix Hungary, on the other hand, has now been severed because Rohrdorfer, HeidelbergCement, Schwenk and DDC are in agreement to pursue the acquisition of Readymix Hungary even though the acquisition of Cemex Croatia has been abandoned.  Representatives  of  DDC  and  Rohrdorfer  had   a   personal  meeting on 23 May 2017, where they verbally confirmed their prior views that DDC – with the involvement of HeidelbergCement, Schwenk, and DDC’s external counsels – would seek to close the acquisition of Readymix Hungary independently of the acquisition of Cemex Croatia.

(15) The Commission concludes that the willingness of the Submitting Parties to pursue the acquisition of Readymix Hungary independently of the acquisition of Cemex Croatia demonstrates that there is no longer any conditionality between the acquisition of Cemex Croatia, on the one hand, and the acquisition of Readymix Hungary, on the other hand.

(16) Consequently, the acquisition of Readymix Hungary constitutes a separate concentration from the notified acquisition of Cemex Croatia and Readymix  Hungary in Case M.7878.

IV. EU DIMENSION

 (17) The Commission concludes that because of their significant involvement in the initiation, organisation and financing of the Transaction, HeidelbergCement and Schwenk are the real players behind the Transaction and thus "undertakings concerned" within the meaning of Article 1(2) of the Merger Regulation6.

(18) First, the Commission previously considered in the decisions in Case M.7878 that because of their significant involvement in the initiation, organisation and financing of the acquisition of Cemex Croatia and Readymix Hungary, HeidelbergCement and Schwenk were the real players behind that concentration and thus "undertakings concerned" within the meaning of Article 1(2) of the Merger Regulation.7

(19) Second, the considerations underlying the conclusions in Case M.7878 remain applicable in the present case since: (a) the share purchase agreement for the acquisition of Readymix Hungary by HeidelbergCement and Schwenk has remained unchanged; (b) HeidelbergCement and Schwenk have not modified the transaction structure for the acquisition of Readymix Hungary; (c) no additional negotiations have taken place in relation to the acquisition of Readymix Hungary; (d) the purchase price for the acquisition of Readymix Hungary has not been modified; (e) no additional analysis has been undertaken and no new valuation of the acquisition of Readymix Hungary has been conducted; (f) there have been no updates and no modifications to the valuation of Readymix Hungary; and (g) no changes have been made to the financing structure of the acquisition of Readymix Hungary.

(20) The Transaction therefore has an EU dimension within the meaning of Article 1 of the Merger Regulation since the undertakings concerned have a combined aggregate world-wide turnover  of  more  than  EUR  5  000  million  (HeidelbergCement:  EUR 15,166 million in 2016; Schwenk: EUR […] million in 2016; Readymix Hungary: EUR […] million in 2015). Two of them have an EU-wide turnover in excess of EUR 250 million (HeidelbergCement: EUR […] million in 2016; Schwenk: EUR […] million in 2016).

V. ASSESSMENT

 (21)  On the basis of the information submitted in the Reasoned Submission the Commission concludes that the Transaction may significantly affect competition  with regard to the production and sale of ready-mix concrete in several local markets in Hungary. Each of those markets presents all the characteristics of a  distinct market. Furthermore, the Transaction may significantly affect competition with regard to grey cement (upstream) and the production and supply of ready-mix concrete (downstream) in Hungary.

a) Market definitions

 Ready-mix concrete

 (22) Ready-mix concrete is produced by mixing cement and aggregates with water. Concrete is mixed either on-site or, more commonly, in a dedicated plant before being subsequently transported to the point of use in specific mixer trucks. Transport time and distance are limited, as ready-mix concrete hardens quickly and usually needs to be used within a time of one to two hours.

(23) In past decisions, the Commission has consistently considered ready-mix concrete as a single, distinct product market regardless of different ready-mix concrete specifications and the facilities used (mobile or fixed plants)8.

(24) The Commission has considered that the geographic market for ready-mix concrete can be defined as catchment areas around ready-mix concrete plants  with a radius   of 15-40 km9 or according to more recent decisions with a radius of 25 km10 around production facilities.

(25) The Submitting Parties have provided the Commission with market share data for catchment areas with a radius of 25 km around each of the Submitting Parties' ready- mix concrete plants in Hungary. Cement

 (26) Cement is produced by grinding clinker and alternative cementitious materials. Clinker is the main ingredient in the production of cement and is produced at high temperatures from limestone and other constituents in cement kilns. In some cases, mineral components and other cementitious materials are added to the mixture by either grinding them together with clinker or blending separately ground materials together11.

(27) Cement is used in the building and construction sector mainly to bind other materials for stability and strength as well as an intermediary product mostly for the production of ready-mix concrete, concrete products and mortar12.

(28) In past decisions, the Commission has defined distinct product markets for white cement and grey cement13. Concerning grey cement, the Commission has not further segmented the market according to grades or classes (CEM I to CEM V), mainly since such distinction did not have an impact on the outcome of the competitive assessment14.

(29) In past decisions, the Commission has considered that the geographic market for  grey cement consists of a group of geographic markets centred on different cement plants, overlapping one another. The scope of the relevant geographic markets was determined by the distance from the plant at which cement may be sold15. Generally, radii of 150 km or 250 km have been taken into account16.

b) Assessment

(30) DDC currently operates 24 fixed ready-mix concrete plants in different locations in Hungary, whereas Readymix Hungary operates 26 fixed ready-mix concrete plants  in Hungary.

(31) According to the Reasoned Submission, combined market shares in the catchment areas of 25km around DDC and Cemex's overlapping ready-mix concrete plants in Hungary show at least 28 horizontally affected markets which are situated in Hungarian territory only. Furthermore, according to the Reasoned Submission, combined market shares are at least 40% in at least twelve of the affected markets17. In at least six of these local areas, combined market shares are above 50%18. The Transaction is therefore likely to significantly affect competition in these distinct markets.

(32) With regard to vertical relationships, DDC operates two integrated grey cement plants in Vác and Beremend in Hungary with a combined capacity of 2.500kt whereas Readymix Hungary has no cement production in the country.

(33) According to the Reasoned Submission, the Transaction would also lead to a number of vertically affected markets.

(34) In the downstream market for ready-mix concrete, combined market shares in the catchment areas of 25km around the Parties' overlapping plants in Hungary are above 30% in at least 17 of these catchment areas19 which partly are located in the catchment areas of DDC's grey cement plants in Hungary. Moreover, in the upstream market for the production and sale of grey cement at national level20, DDC has a market share of [40-50]%. In addition, the Submitting Parties reported in the context of case M.7878 that DDC’s market share amounts to [20-30]% for a 150km radius and [20-30]% for a 250km radius21  in the catchment area around DDC's cement  plant in Beremend22.

(35) The principal effects of the Transaction would be restricted to local markets for ready-mix concrete in Hungary which present all the characteristics of distinct markets.

(36) While the Transaction could possibly also affect competition in the vertically related markets, such effects are unlikely to occur outside Hungary. Any input foreclosure concerns due to the addition of market share in the downstream RMX markets in Hungary would be confined to effects in those Hungarian markets. As regards potential customer foreclosure concerns, DDC currently sources […] of its grey cement demand for ready-mix concrete production internally, and Readymix Hungary […] volumes from foreign third party suppliers (amounting to a total of approximately […]kt in 2016, compared with an estimated annual cement consumption in Hungary of more than […]kt), making cross-border customer foreclosure concerns unlikely.

c) Additional factors

 (37) The Commission further concludes that should one or more of the affected markets  in Hungary not constitute a substantial part of the internal market  pursuant  to  Article 2(3) of the Merger Regulation, the GVH would be better placed for dealing with the Transaction.

(38) Moreover, a referral to the GVH would be justified by this authority's prior investigation into the Submitting Parties' proposed acquisition of Cemex Croatia and Readymix Hungary (following the partial referral in Case M.7878) and its prior experience with competition in the ready-mix concrete markets in Hungary23.

VI. REFERRAL

 (39) On the basis of the information provided by the Submitting Parties in the Reasoned Submission, the case meets the legal requirements set out in Article 4(4) of the Merger Regulation in that the concentration may significantly affect competition in markets within a Member State which presents all the characteristics of distinct markets.

(40) The Commission notice on case referral in respect of concentrations24 (point 17) indicates that, in seeking a referral under Article 4(4), “the requesting parties are … required to demonstrate that the transaction is liable to have a potential impact on competition in a distinct market within a Member State, which may prove to be significant, thus deserving close scrutiny”, and that “such indications may be no more than preliminary in nature…”.

 (41) The Commission considers, on the basis of the information submitted in the Reasoned Submission, that the principal impact on competition of the concentration is liable to take place on distinct markets in Hungary, and that the requested referral would be consistent with point 20 of the notice.

VII. CONCLUSION

 (42) For the above reasons, and given that Hungary has expressed its agreement, the Commission has decided to refer the transaction in its entirety to be examined by Hungary. This decision is adopted in application of Article 4(4) of the Merger Regulation and Article 57 of the EEA Agreement.

1. Catchment areas around DDC ready-mix concrete plants in Balatonboglári, Kaposvári, Kecskeméti, Nagykanizsai, Pécs, Siófoki and around Readymix Hungary ready-mix concrete plants in Kaposvár, Kecskemét, Nagykanizsa, Pécs, Siófok and Veszprém. This list takes into account only the catchment areas were the Transaction will entail an increment in combined market shares.

2. Catchment areas around DDC ready-mix concrete plants in Balatonboglári, Nagykanizsai, Siófok and around Readymix Hungary ready-mix concrete plants in Nagykanizsa, Siófok and Veszprém.

3. Catchment areas around DDC ready-mix concrete plants in Balatonboglári, Besenyszög, Dunakeszi, Kaposvári, Kecskeméti, Nagykanizsai, Pécs, Siófoki and Székes-fehérvár and around Readymix Hungary ready-mix concrete plants in Kaposvár, Kecskemét, Keszthely, Nagykanizsa, Pécs, Siófoki, Székesfehérvar and Veszprém.

4. According to the Parties' internal estimates.

5. […] combined market shares would amount to [30-40]% for a 150km radius and [30-40]% for a 250km radius.

6. M.7878 – HeidelbergCement/Schwenk/Cemex Hungary/Cemex Croatia, decision of 22 June 2016, recital 40.

7. Cases M.7878  –  HeidelbergCement/Schwenk/Cemex  Hungary/Cemex  Croatia,  5  April  2017,  recital 131; M.7550 – CRH/Holcim Lafarge Divestment Business, 24 April 2015, recital 16.

8. Cases M.7878  –  HeidelbergCement/Schwenk/Cemex  Hungary/Cemex  Croatia,  5  April  2017,  recital 132; M.7550 – CRH/Holcim Lafarge Divestment Business, 24 April 2015, recital 13.

9. Cases M.7550 – CRH/Holcim Lafarge divestment business, 24 April 2015, recitals 35-36; M.7252 – Holcim/Lafarge 15 December 2014, recital 10; M.7054 – Cemex/Holcim Assets, 9 September 2014, recital 39; M.7009 – Holcim/Cemex West, 5 June 2014, recitals 24 and 41; M.3713 – Holcim/Aggregate Industries, 14 March 2005, recital 7; M.3572 – Cemex/RMC, 8 December 2004, recital 11; M.3415 – CRH/SEMAPA/Secil JV, 28 May 2004, recital 10; M.2317 – Lafarge/Blue    Circle (II), 1 March 2001, recital 9; M.1157 – Skanska/Scancem, 11 November 1998, recital 31.

10. Cases M.7878 –  HeidelbergCement/Schwenk/Cemex  Hungary/Cemex  Croatia,  5  April  2017,  recitals 144 and 156-159; M.7009 – Holcim/Cemex West, 5 June 2014, recital 14, M.7252 – Holcim/Lafarge, 15 December 2014, recital 36.

11. Cases M.7878 –  HeidelbergCement/Schwenk/Cemex  Hungary/Cemex  Croatia,  5  April  2017,  recitals 164 and 178-184; M.7054 – Cemex/Holcim Assets, 9 September 2014, recital 52; M.7009 – Holcim/Cemex West, 5 June 2014, recital 64; M.460 – Holdercim/Cedest, 6 July 1994, recital 16; M.1030  –   Lafarge/Redland,   16   December   1997,   recital   16;   M.1157   –   Skanska/Scancem,   11 November 1998, recital 56; M.2317 – Lafarge/Blue Circle (II), 1 March 2001, recital 8; and M.3572– Cemex/RMC, 8 December 2004, recital 20.

12.  In Case M.7009 – Holcim/Cemex West, 5 June 2014, the Commission considered that the appropriate radii around the relevant grey cement plants to be taken into account were 150 km and 250 km in Western Germany and the Benelux. In Case M.7054 – Cemex/Holcim Assets, 9 September 2014, the market was defined as circles of 150 km radii around the cement plants in Spain. In Case M.7252 – Holcim/Lafarge, 15  December  2014, the relevant geographic  market  was defined  as circular  areas  of 150 km and 250 km around the relevant cement plants in several regions in Western, Central and Eastern Europe, reflecting the distance up to which cement suppliers can economically sell cement. In Case M.7878 – HeidelbergCement/Schwenk/Cemex Hungary/Cemex Croatia, 5 April 2017, the market was defined as a circle of a 250 km radius around the relevant cement plant in Croatia or, alternatively, as a modified 250km circle around that plant based on specific delivery distances to individual customers and the actual road network conditions.

 13. Cases M.3572  – Cemex/RMC, 8 December 2004, recital 12; M.4719  – HeidelbergCement/Hanson,     7 August 2007, recital 21; M.6153 – Anglo American/Lafarge/JV, 16 May 2011, recital 22; M.7054 – Cemex/Holcim Assets, 9 September 2014, recital 319. In Case M.7550 – CRH/Holcim Lafarge Divestment Business, 24 April 2015, para. 108 the Commission left open whether a radius of 15-40 km or of 25 km would be appropriate to define the geographic market for ready-mix concrete.

14. Cases M.7252 – Holcim/Lafarge, 15 December 2014, recital 283; M.7009  – Holcim/Cemex West,        5 June 2014; M.4719 – HeidelbergCement/Hanson, 7 August 2007, recitals 21 and 29; M.3713 – Holcim/Aggregate Industries, 14 March 2005, recital 9; M.3572 – Cemex/RMC, 8 December 2004, recital 24; M.2317 – Lafarge/Blue Circle (II), 1 March 2001, recital 11.

15. Cases M.7252  – Holcim/Lafarge, 15 December 2014, recital 286; M.7054  – Cemex/Holcim Assets,    9 September 2014, recital 325; M.7550 – CRH/Holcim Lafarge Divestment Business, 24 April 2015, para. 110.

 16. See paragraphs 129 and 145 to 147 of the Commission’s Consolidated Jurisdictional Notice, OJ C 37, 30.01.2016, p. 3.

17. Decision of 22 June 2016 pursuant to Article 4(4) of the Merger Regulation, recitals 18-26; Decision of 10  October 2016  pursuant to  Article 6(1)(c)  of the Merger  Regulation,  recitals 14-22; decision of     5 April 2017 pursuant to Article 8(3) of the Merger Regulation, recitals 37-117.

 18. Merger  control  clearance  by   the   Austrian   Federal   Competition   Authority   was   obtained   on 19 October 2015.

19. Decision of 22 June 2016 pursuant to Article 4(4) of the Merger Regulation, recitals 15-16; Decision of 10  October 2016  pursuant to  Article 6(1)(c)  of the Merger  Regulation,  recitals 11-12; decision of     5 April 2017 pursuant to Article 8(3) of the Merger Regulation, recitals 34-35 (together "the Decisions in Case M.7878).

20. Cemex Hungária Építőanyagok Kft has been renamed Readymix Hungária Kft after the acquisition by Rohrdorfer.

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

22. OJ L 1, 3.1.1994, p. 3 (the 'EEA Agreement').

23. Case Strabag/Cemex, para. 16; Case Vj-81/2007 – Holcim Hungária/Pannonbeton (regarding ready-mix concrete); Case Vj-193/2006 – Hans Kostmann Beteiligungs/Wopfinger Transportbeton/CEE Chemicals Vagyonkezelő/Lasselsberger Hungária (regarding ready-mix concrete); Case Vj-110/2006 – Holcim Cesko , C.B s r.o (regarding ready-mix concrete).

24. OJ C 56, 5.3.2005, p. 2.