On February 6, 2019—the same day the Siemens/Alstom decision was adopted—and again following a Phase II investigation, the Commission prohibited German rolled copper products manufacturer Wieland’s proposed acquisition of Aurubis’s rival business and of its 50% stake in the parties’ pre-rolled strip manufacturing joint-venture Schwermetall.[1]

Parallel Mergers and the Effect of the “Priority” Rule

The assessment of the transaction was influenced by the fact that rivals KME and MKM formally notified their transaction 11 days before Wieland and Aurubis. It meant that the so-called “priority” (or “first-in”) rule applied. The Commission assessed Wieland/Aurubis/Schwermetal[2] by taking into account the more concentrated market conditions following KME/MKM,[3] which the Commission unconditionally cleared on December 11, 2018. KME and MKM were considered to remain sufficiently constrained by Wieland and Aurubis.

The Commission’s Concerns

In Wieland/Aurubis/Schwermetall, however, the Commission found that the acquisition would have been a 3-to-2 merger in the EEA market for rolled copper products, which, according to Commissioner Vestager, constitutes a “key input for many industries in Europe,”[4] such as electric cars, trains, and electronic devices. The new Wieland would have been a dominant player with a market share in excess of 50% competing against the newly merged KME/ MKM, as the only other supplier with a market share above 20%. The Commission concluded that Wieland would have been able to raise prices because European customers cannot rely on suppliers outside the EEA due to “import duties and just-in-time requirements,” as well as the “superior technical capabilities of EU suppliers.”[5]

The Commission also identified vertical concerns arising from the parties’ rolled copper products businesses downstream and the upstream market for pre-rolled strip in the EEA where Schwermetall was found to have a market share exceeding 60%.[6] The Commission concluded that the transaction would have eliminated Schwermetall’s operational independence from its shareholders Wieland and Aurubis, and would have allowed Wieland to raise input costs for smaller downstream competitors in rolled copper products and to obtain access to their confidential information post-transaction.

Proposed Remedies

The parties offered to divest two Aurubis rolled copper plants in Germany and the Netherlands but were unable to present a buyer suitable to the Commission. The Commission found that the parties failed to show that the potential buyer would compensate for the lack of access to cost-competitive pre-rolled strip from Schwermetall after a transitional period or would not create new competition concerns. The Commission considered the proposed remedy to be insufficient also because it did not include the divestment of Aurubis’ stake in Schwermetall and thus did not address its vertical concerns.

[1]      Pre-rolled strip is an input in the manufacturing of rolled copper products. See Commission Press Release IP/19/883, “Mergers: Commission prohibits Wieland’s proposed acquisition of Aurubis Rolled Products and Schwermetall”, February 6, 2019.

[2]      Wieland/Aurubis/Schwermetall (Case COMP/M.8900), decision not yet published.

[3]      KME/ MKM (Case COMP/M.8909), decision not yet published.

[4]      See Commission Press Release IP/19/883, “Mergers: Commission prohibits Wieland’s proposed acquisition of Aurubis Rolled Products and Schwermetall”, February 6, 2019.

[5]      Ibid.

[6]      Ibid.