52003XX1108(02)

Opinion of the Advisory Committee on Concentrations given at its 114th meeting on 14 April 2003 concerning a draft decision relating to Case COMP/M.2861 - Siemens/Drägerwerk/JV

(2003/C 269/09)

(Text with EEA relevance)

1. The Advisory Committee agrees with the Commission that the notified operation constitutes a concentration within the meaning of Article 3(2) in conjunction with Article 3(1)(b) of the Merger Regulation and has a Community Dimension as defined by Article 1(2) of that Regulation.

2. The Advisory Committee agrees with the Commission that the relevant product and geographic markets comprise:

(i) the national markets for ventilation equipment for critical care;

(ii) the national markets for anaesthesia equipment;

(iii) the product market for patient monitors whereby the precise definition can be left open. The geographic market for patient monitors can also be left open as to the question whether it is EEA-wide or national;

(iv) the definition of the market for accessoires for ventilation equipment and for accessoires for anaesthesia equipment can be left open.

3. The Advisory Committee agrees with the Commission that the notified transaction raises serious doubts that it would lead to the creation of a dominant position (single dominance) in Austria, Belgium, Denmark, France, Germany, Ireland, Italy, the Netherlands, Portugal, Spain, Sweden, the United Kingdom and Norway on the markets for ventilation equipment for critical care.

4. The majority of the Advisory Committee agrees with the Commission that the notified transaction raises serious doubts that it would lead to the creation of a dominant position (single dominance) on the markets for anaesthesia equipment in Belgium, Denmark, Germany, France, Italy, Netherlands and Portugal. A minority abstains.

5. The Advisory Committee agrees with the Commission that there are serious concerns, due to the vertical effects (market foreclosure) arising from the transaction, that the JV would achieve a dominant position for patient monitors both at EEA level and in those Member States where the JV would achieve a dominant position for anaesthesia or ventilation equipment. And that it cannot be ruled out that as a result of the vertical effects of the JV the dominant position for anaesthesia and ventilation equipment would be strengthened.

6. The Advisory Committee agrees with the Commission that the set of undertakings submitted by the parties regarding the selling of Siemens entire Life Support Systems (LSS) Division are sufficient to remedy the competition concerns in the national markets for ventilation equipment for critical care and the national markets for anaesthesia equipment as described in question 3 and 4.

7. The Advisory Committee agrees with the Commission that the set of undertakings submitted by parties concerning the continued interoperability of their equipment are sufficient to remedy the competition concerns regarding the vertical effects as described in question 5.

8. The Advisory Committee agrees with the Commission's draft Decision that, subject to full compliance with these commitments, the concentration should be declared compatible with the common market and the functioning of the EEA agreement.

9. The Advisory Committee recommends publication of its opinion in the Official Journal of the European Communities.

10. The Advisory Committee asks the Commission to take into account the remarks and comments made by the Advisory Committee.