15.9.2012   

EN

Official Journal of the European Union

C 280/8

(1)

The decision is addressed to Areva SA (‘Areva’) and Siemens AG (‘Siemens’) and concerns a non-compete obligation and a confidentiality obligation agreed between Siemens and Areva in a broad field of products within the field of civil nuclear technology. The adoption of the decision makes binding the commitments that Areva and Siemens have offered in order to remedy the Commission's competition concerns related to these clauses.

(2)

On 16 October 2009, Siemens filed a complaint with the Commission, followed by a supplementary complaint on 17 February 2010, in relation to Article 101 TFEU and Article 53 of the EEA Agreement. The complaints were later withdrawn by Siemens.

(3)

On 21 May 2010, the Commission opened proceedings with a view to adopting a decision under Chapter III of Regulation (EC) No 1/2003, and on 16 December 2011, it adopted a Preliminary Assessment as referred to in Article 9(1) of Regulation (EC) No 1/2003 which set out the Commission’s competition concerns. These concerns related to the contractual restrictions agreed on a broad field of products within the field of civil nuclear technology, between Siemens and Areva in the framework of their former joint venture Areva NP SAS (‘Areva NP’ or ‘the JV’).

(4)

On 16 February 2012, Areva and Siemens submitted commitments (‘the Commitments’) to the Commission in response to the Preliminary Assessment.

(5)

On 14 March 2012, a notice was published in the Official Journal of the European Union pursuant to Article 27(4) of Regulation (EC) No 1/2003, summarising the case and the Commitments and inviting interested third parties to give their observations on the Commitments within one month of publication.

(6)

On 17 April 2012, the Commission informed Areva and on 18 April 2012 Siemens of the results of the market test. On 6 June 2012, the Advisory Committee approved the draft decision based on Article 9 of Regulation (EC) No 1/2003.

(7)

In 2001, Siemens and Framatome SA, Areva's legal predecessor, created the full-function joint venture Areva NP, in which they combined their respective activities in relation to nuclear power plants (‘NPPs’). The Shareholders' Agreement between the parent companies of the JV includes a non-compete obligation (‘NCO’). This NCO not only covers the lifetime of the JV but, in its original form, was to continue for a period of 8 to 11 years after Siemens' loss of joint control of the JV (‘post-JV NCO’). The post-JV duration of the NCO, but not the product scope, was later reduced by an arbitral award to approximately four years. The Shareholders' Agreement also contains a confidentiality clause which has the same duration as the NCO.

(8)

The post-JV NCO binds Siemens with regard to the ‘exclusive scope’ of the JV. According to the Preliminary Assessment, the post-JV NCO not only covers those markets in which Areva NP has been active itself, such as nuclear islands (‘NI’) for NPP, nuclear services and nuclear fuel assemblies, but also extends to components for NI as well as conventional islands (‘CI’) which were supplied by Siemens and in some instances only resold by Areva NP.

(9)

In its Preliminary Assessment, the Commission came to the conclusion that the post-JV NCO raised concerns as to its compatibility with Article 101 of the Treaty, due to its broad scope and duration.

(10)

According to the Preliminary Assessment, the post-JV NCO is not ancillary to the creation of the JV since it is not directly related to it. The post-JV NCO defines the parent companies' relation to each other after the dissolution of the JV. It is, therefore, directly related to the acquisition of sole control by Areva over Areva NP, i.e. the dissolution of the JV.

(11)

The Commission considered in its Preliminary Assessment that the post-JV NCO is, in principle, objectively necessary for the implementation of the acquisition of sole control of Areva over Areva NP, in order to guarantee the transfer of the full value of the acquired undertaking, Areva NP. During the lifetime of the JV, Siemens had privileged access to confidential business information of Areva NP which it could use after its exit from the JV to enter on this basis into ‘facilitated competition’ against its former subsidiary.

(12)

However, the Commission considered that the post-JV NCO is not proportionate in terms of scope and duration. In its Preliminary Assessment, the Commission took the view that a protection is only warranted as long as the confidential business information to which Siemens had access to is still of sufficient relevance and certainty to allow for such facilitated competition. In its Preliminary Assessment, the Commission considered that this is the case for a period not exceeding three years after Siemens' loss of joint control of Areva NP.

(13)

The Commission moreover took the view in its Preliminary Assessment, that protection against facilitated competition from Siemens can only be warranted in relation to those markets in which Areva NP had been active with own products and had therefore engaged in own investments, the value of which could be reduced due to such facilitated competition. Insofar as the post-JV NCO extends to Siemens' products for which Areva NP had only been active as a reseller (or not active at all), it would not fulfil the requirement of proportionality.

(14)

In its Preliminary Assessment the Commission analysed whether a post-JV NCO was the least restrictive means to achieve the aim of protecting Areva NP against facilitated competition by Siemens. In this analysis, a differentiation between facilitated competition on the basis of confidential business information and on the basis of confidential technological know-how was warranted. According to the Preliminary Assessment, there was no less restrictive means to achieve such protection in as far as facilitated competition on the basis of confidential business information was concerned. According to the Preliminary Assessment, there would be no sufficient evidence that Siemens did have access to confidential technological know-how to an extent that would allow for facilitated competition. However, even if this had been the case, this would not justify a post-JV NCO since such confidential technological know-how can be and effectively is protected by the less restrictive means of confidentiality obligations as contained in the Shareholders' Agreement. Conversely, in relation to confidential business information, there would not appear to exist any less restrictive means, since Siemens would implicitly and inevitably take such information into account when setting up its own business strategies.

(15)

For this reason, the Commission considered in its Preliminary Assessment that a post-JV NCO is proportionate within the limits defined above for the protection of Areva NP against facilitated competition by Siemens on the basis of its previous access to Areva NP's confidential business information.

(16)

The Commission considered in its Preliminary Assessment that a confidentiality clause as agreed between the Parties amounts to a post-JV NCO, insofar as it prevents Siemens from using confidential business information (but not so in relation to confidential technological know-how) that it had access to during the lifetime of the JV. Siemens would not be able to set up own business strategies without implicitly using the information it had had access to earlier. As opposed to this, a non-disclosure obligation would not prevent Siemens from becoming active on the market. The confidentiality clause therefore amounts to a post-JV NCO insofar as it establishes a non-use obligation regarding confidential business information.

(17)

The non-use obligation regarding confidential business information can according to the Preliminary Assessment be considered ancillary to the acquisition of sole control by Areva over Areva NP for the same duration as defined for the post-JV NCO, and for the same reasons as the ones indicated for the post-JV NCO.

(18)

The Commission considered that, insofar as the post-JV NCO cannot be considered ancillary to the acquisition of sole control by Areva over Areva NP, it would represent a restriction of competition falling under Article 101(1) TFEU. The Commission considered in its Preliminary Assessment that it does not fulfil the requirements of Article 101(3) TFEU since the post-JV NCO as such cannot be considered as producing any efficiencies.

(19)

Even assuming that the absence of a post-JV NCO would have led to a lower level of efficiencies created by the JV, the outcome of the assessment would not change. It is the Commission's preliminary view that in this case the analysis of the indispensability of the post-JV NCO for the achievement of possible efficiencies would not justify a more extensive post-JV NCO than the one considered as ancillary.

(20)

The same assessment under Article 101 TFEU applies to the confidentiality clause.

(21)

On 16 February 2012, Siemens and Areva offered Commitments to the Commission in order to meet the Commission's competition concerns.

(22)

Siemens will be prevented from using any confidential information in relation to Core Products and Core Services to which it may have had access during the lifetime of the JV until 16 October 2012. Even beyond that date, Siemens will be prevented from making available to third parties Areva NP's corporate constitution and administration documents or confidential written technical information, or use such technical information.

(23)

The Commitments meet the concerns identified by the Commission in the Preliminary Assessment in a sufficient manner, without being disproportionate.

(24)

The Commitments are sufficient since they fully address the Commission's concerns as set out in its Preliminary Assessment. The post-JV NCO is reduced to a maximum of three years for the markets in which Areva NP has been active with own products (in the Commitments defined as ‘Core products and Core services’). It is removed for all other products. The same applies for the post-JV confidentiality clause insofar as it represents a non-use obligation for Areva NP's confidential business information.

(25)

The Commitments are not excessive since there is no less restrictive means for addressing the Commission's concerns than to lift the clauses insofar as they apply to product markets and for a duration that exceed what can be accepted as ancillary or covered by Article 101(3) TFEU.

(26)

The decision makes the Commitments binding on Siemens and Areva.