Final report of the Hearing Officer in case COMP/M.2139 — Bombardier/Adtranz

(pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(2005/C 321/02)

(Text with EEA relevance)

On 3 April 2001 the European Commission declared a concentration by which Bombardier acquired within the meaning of Article 3(1)(b) of Council Regulation (EEC) No 4064/89 sole control of the undertaking DaimlerChrysler Rail Systems (Adtranz) compatible with the common market and with the functioning of the EEA Agreement. This declaration of compatibility was subject to compliance with several conditions and obligations.

One of the conditions concerned the Austrian undertaking Elin EBG Traction (‘ETR’), a subsidiary of VA Tech AG, which is a supplier of propulsion technology for, among others, regional trains and trams/light rail vehicles. After ETR's structural link with Bombardier was to be severed to render the proposed merger compatible with the common market, it became necessary to create workload for ETR which would allow the company to survive economically. Therefore, Bombardier was obliged to enter into a Joint Development Agreement with ETR for cooperation between these two companies until 2006 in relation to the tram CityRunner Type Linz, for which ETR supplies the electrical traction.

The justification for this obligation is likely to soon cease to exist: Siemens has proposed to acquire sole control of VA Tech and thereby also control of ETR. Therefore, a change in ETR's financial structure is imminent and ETR does not, in that case, need any longer secured orders from Bombardier for its economic survival. It is, consequently, no longer necessary to impose on Bombardier the condition to source the electrical traction for its CityRunner Type Linz from ETR should Siemens acquire sole control of ETR.

Subject to the clearance decision in case COMP/M.3653 — Siemens/VA Tech entering into force, and the proposed acquisition of sole control of VA Tech by Siemens as approved in that decision being implemented, the present draft decision proposes to revoke the aforementioned obligation imposed on Bombardier pursuant to Article 8(5) of Council Regulation (EEC) No 4064/89.

In view of the fact that the proposed draft decision merely relieves Bombardier of an obligation and given that Siemens, in their letter of 16 June 2005, explicitly dispense with any rights that might follow from this obligation, the case does not call for any particular comments as regards the right to be heard.