Croatia: HeidelbergCement appeals Commission's decision

HeidelbergCement AG has appealed against an EU Commission decision from 10 October 2016 that initiated an in-depth Phase II investigation into the joint acquisition of Cemex Croatia by HeidelbergCement and Schwenk.

HeidelbergCement and Schwenk Cement jointly control Duna Dráva Cement ("DDC"), a Hungarian cement company that is the largest cement importer in Croatia. Cemex Croatia, the largest cement producer in Croatia, is a subsidiary of the Cemex Group. Schwenk has also appealed the decision, but its grounds of appeal remain unpublished.

HeidelbergCement and Schwenk plan to acquire, via DDC, 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 DDC, a full-function joint venture in which HeidelbergCement and Schwenk Zement each hold respectively a controlling interest of 50 per cent, 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.