52003XX0121(03)

Opinion of the Advisory Committee on Concentrations

given at its 104th meeting on 10 December 2001 concerning a preliminary draft decision relating to case COMP/M.2389 - Shell/DEA

(2003/C 14/04)

(Text with EEA relevance)

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

2. The Advisory Committee agrees with the Commission that, for the purposes of this case, ethylene and toluene constitute the relevant separate product markets.

3. The Advisory Committee agrees with the Commission's assessment on the geographic market, i.e. the pipeline network for ethylene transport and its extensions (ARG+), as well as a European market (EEA and Switzerland) for toluene.

4. The majority of the Advisory Committee agrees with the Commission to jointly assess BP/E.ON and Shell/DEA concentration cases. A minority of the Advisory Committee abstained and one Member State disagrees.

5. The majority of the Committee agrees with the Commission that the notified concentration assessed jointly with the case M.2533 BP/E.ON, leads to the creation of a collective dominant position in the supply of ethylene in the ARG+ as a result of which effective competition would be significantly impeded in the common market or in a substantial part of it. A minority did not agree with the collective dominance finding but agreed with the finding that there would result a loss of competition and a danger of market partitioning. A minority of the Advisory Committee abstains.

6. The majority of the Advisory Committee agrees with the Commission that, taking into account the undertakings offered by the parties, the proposed operation will not lead to the creation of a dominant position in the market for the supply of the ethylene on the ARG+, and hence should be declared compatible with the common market and the functioning of the EEA Agreement. A minority of the Advisory Committee abstains.

7. The majority of the Advisory Committee agrees with the Commission that the proposed entity will not create or strengthen a dominant position as a result of which effective competition would be significantly impeded in the common market or in a substantial part of it as regards toluene. A minority considers that the Shell/DEA operation can be declared compatible without commitments. A minority of the Advisory Committee abstains. One Member State disagrees.

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

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