9.2.2006   

EN

Official Journal of the European Union

C 33/1

9.2.2006   

EN

Official Journal of the European Union

C 33/2

1.

The petition is based on Section 71(2) of the Wet Toezicht Kredietwezen [Act on the supervision of the banking industry] (WTK). The provisions of Section 71(2) empower the court, at the request of DNB, to declare that, if the solvency or liquidity of a credit institution subject to the prohibition contained in Section 6 of that Act is such that DNB is of the opinion that the credit institution cannot, or cannot fully, meet its obligations in respect of the monies obtained by it, the credit institution is in a situation requiring a special remedy in the interests of the joint creditors. DNB states that, where GZH is concerned, a situation as referred to in Section 71(2) of the WTK exists and a special remedy is required.

2.

DNB claims that GZH is a company or institution the business of which is to obtain accounts payable, whether or not on the due date, and to extend credit and/or make investments for its own account. The company is therefore a credit institution within the meaning of Section 1(1) of the WTK. Such an institution is prohibited from carrying on the business of credit institution unless it has received a licence for that purpose from DNB, been granted exemption from that prohibition by the Minister for Finance or been given a dispensation from that prohibition by DNB. DNB claims that no such licence or dispensation has been granted to GZH. GZH did not contest in court that it is a credit institution within the meaning of the Act. It declared that it based itself on information obtained from the Autoriteit Financiële Markten [Financial Markets Authority] (AFM). As the AFM did not refer it to DNB for a licence or dispensation, it was therefore acting in good faith. However, that does not detract from the fact that GZH has acted and is acting in contravention of Section 1(1) of the WTK.

3.

Research by DNB's enforcement division revealed that GZH did not satisfy the requirements as to liquidity and solvency. The research was based on figures supplied by GZH. The figures were provisional and unaudited and did not take account of any tax aspects. It was found that, by means of interest guarantee certificates, GZH had concluded agreements whereby lenders invested various amounts of money at a fixed yield of between 7 % and 9 % per annum. In total, GZH had received monies amounting to at least EUR 2 033 574,70. Part of that money had been put out in the form of loans and used to make the monthly interest repayments on the guarantee certificates. There were also investments in property and a loan of EUR 980 533,03 was granted to Muller & De Graaf Financieel Advies B.V. GZH is the sole shareholder in Muller & De Graaf Financieel Advies B.V. DNB claimed that GZH's liquidity was insufficient to cover the repayment obligation arising from the interest guarantee certificates. That obligation amounts to EUR 2 158 574,70. GZH has EUR 424 159,10 immediately available. There is therefore a short-term shortfall of EUR 1 734 415,60. Key to the ability to cover the repayment obligation is the value placed on the current account claims on Muller & De Graaf Financieel Advies B.V. GZH stated in court that the money it lent to Muller & De Graaf Financieel Advies B.V cannot be repaid to GZH in the short term.

The medium-term shortfall is EUR 1 605 848,60, the long-term shortfall EUR 320 368,10.

As far as solvency is concerned, the research showed that equity, which consists solely of paid-up share capital less losses incurred, is a negative figure, EUR 67 399,54. By DNB's criteria, that negative equity cannot produce adequate solvency. The equity will be below any standard in DNB's solvency guidelines as applicable to credit institutions. DNB believes that application of the emergency arrangements is a way to safeguard the interests of creditors and arrive at the most prudent possible settlement of their claims.

4.

In court GZH unconvincingly argued that it did not satisfy the solvency and liquidity requirements set. Although it did demonstrate that DNB, in the form of its enforcement division, did not take into account all the financial information and potential revenue that was made available, its explanation did reveal that the amounts involved were not substantial enough to lower the value assigned to DNB's calculations. The court then ruled that it had been adequately demonstrated that GZH's solvency and liquidity were such as to permit the conclusion that it was in a situation requiring a special remedy in the interests of the joint creditors.

5.

In court GZH also claimed that application of the emergency arrangements with the concomitant public announcements would have an adverse effect on GZH and Muller & De Graaf Financieel Advies B.V and that the effect would be to damage precisely those interests that DNB was trying to protect. The court concluded that the publicity generated in this case could not stand in the way of application of the emergency arrangements. Whether deliberately or not, GZH had breached the provisions of the WTK and created a situation of inadequate solvency and liquidity. That necessitates intervention. The fact that this will or could lead to publicity does not make intervention unnecessary or unwanted. GZH also noted that DNB has the opportunity to appoint a ‘stille curator’ [a silent administrator]. That does not require the court's approval nor does it have to be publicised. However, DNB did not opt for that solution and GZH did not request beforehand the appointment of a silent administrator. The court will therefore ignore this defence.

6.

In light of the above, the court rules that GZH is in a situation requiring a special remedy in the interests of the joint creditors. It will therefore appoint an administrator. DNB has, under Section 71(7) of the WTK, requested the appointment of J.A.D.M. Daniëls (of Daniëls, Dijkman & Huisman, lawyers, of Almelo), business address: Ootmarsumsestraat 72, 7602 JR Almelo, Nederland (postal address: PO Box 31, 7600 AA Almelo, Nederland) as administrator. The court concurred.

7.

The court will set the duration of the remedy at eighteen months, stipulating that it will run until 16 December 2006. The remedy can, if required, be prolonged pursuant to Section 71(15) of the WTK.

I.

declares that Geregelde Zaken Holding B.V. is in a situation requiring a special remedy in the interests of the joint creditors;

II.

appoints as delegated judge member of the court A.E. Zweers and as administrator J.A.D.M. Daniëls, procurator litis and lawyer at Almelo;

III.

stipulates that the remedy shall be in force until 16 December 2006;

IV.

stipulates that the administrator shall without delay publish the announcement prescribed by Section 71(8) of the WTK in the following publications: the Dutch Government Gazette, the Official Journal of the European Union, the Twentsche Courant Tubantia and NRC-Handelsblad;

V.

declares that this ruling be executable with immediate effect, retroactive to the beginning of the day of pronouncement.

9.2.2006   

EN

Official Journal of the European Union

C 33/4

1.

On 1 February 2006, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking Lehman Brothers Merchant Banking Partners III L.P. (‘Lehman Brothers’, USA) belonging to the Lehman Brothers Group acquires within the meaning of Article 3(1)(b) of the Council Regulation control of the European seafood business of HJ Heinz Company (‘Heinz’, USA) by way of purchase of shares and assets.

2.

The business activities of the undertakings concerned are:

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (No (32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M. 4132 — Lehman Brothers/Heinz European Seafood, to the following address:

9.2.2006   

EN

Official Journal of the European Union

C 33/5

9.2.2006   

EN

Official Journal of the European Union

C 33/6

9.2.2006   

EN

Official Journal of the European Union

C 33/7

1.

On 2 February 2006, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking Adecco SA (‘Adecco’, Switzerland) acquires within the meaning of Article 3(1)(b) of the Council Regulation control of the whole of the undertaking Deutscher Industrie Service AG (‘DIS’, Germany) by way of public bid.

2.

The business activities of the undertakings concerned are:

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (No (32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.4128 — Adecco/Deutscher Industrie Service, to the following address:

9.2.2006   

EN

Official Journal of the European Union

C 33/8

9.2.2006   

EN

Official Journal of the European Union

C 33/9

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from the Europa competition website (http://europa.eu.int/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

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in electronic form on the EUR-Lex website under document number 32006M4028. EUR-Lex is the on-line access to European law. (http://europa.eu.int/eur-lex/lex)