On 20 February 2017, the Official Journal published details of an appeal by HeidelbergCement against a Commission decision from 10 October 2016 that initiated an in-depth investigation into the joint acquisition of Cemex Croatia by HeidelbergCement and Schwenk. Law firm Roschier reports on the case.
HeidelbergCement and Schwenk are both German construction material producers. Together they jointly control Duna Dráva Cement , a Hungarian company that is the largest cement importer in Croatia. Cemex Croatia, the largest cement producer in Croatia, is a subsidiary of the Cemex Group, also a global construction material supplier. Schwenk has also appealed the decision, but its grounds of appeal remain unpublished.
HeidelbergCement and Schwenk plan to acquire, via Duna Dráva Cement, assets in Croatia and Hungary that currently belong to Cemex. HeidelbergCement claims that the Commission committed a manifest error of assessment by considering it and Schwenk, rather than Duna Dráva Cement, a full-function joint venture in which HeidelbergCement and Schwenk Zement each hold respectively a controlling interest of 50%, as "undertakings concerned" and as a result concluded that the transaction has a "Union dimension" which grant the Commission jurisdiction to review the transaction.
HeidelbergCement submits in particular that the Commission erred in relying on, and applying in this case, paragraph 147 of the Consolidated Jurisdictional Notice, which states that when a joint venture can be regarded as a mere vehicle for an acquisition by the parent companies, the parent companies can be considered to be the undertakings concerned, rather than the joint venture.
Source: Case T-902/16 HeidelbergCement v Commission, Official Journal C 053/49, 20 February 2017
