On December 3, 2019, the Commission published its decision granting steel company Evraz Group S.A.’s (“Evraz”) request for a partial waiver of commitments it submitted as part of its acquisition of Highveld Steel and Vanadium Corporation Limited (“Highveld”). The Commission cleared the transaction in 2007, subject to divestment and behavioral commitments to address its concerns regarding anticompetitive effects in the markets for the supply of high-purity vanadium pentoxide and vanadium chemicals. The commitments also addressed concerns regarding a potential foreclosure of downstream competitors on the markets for vanadium oxides and finished vanadium products.

Evraz honored its commitment to divest Highveld’s vanadium business—including a stake in Highveld’s Mapochs Mine—and entered into long-term supply agreements with three of its main customers and with the Divestment Business.[1] While the supply agreements with two of the customers were limited in time, and had lapsed by the time of the decision, the agreements with one of the customers and the Divestment Business were not limited in time and remained applicable.

On January 14, 2019, Evraz requested a waiver of all commitments that were still applicable, in particular, the vanadium feedstock supply agreements. The waiver request follows Highveld and the Mapochs Mine falling into financial difficulty, both of which entities had been under the control of insolvency administrators since April 2015. As part of the rescue attempts, the administrators sold Evraz’s steel mill to AcelorMittal South Africa, and the Mapochs Mine assets to International Resources Ltd. in 2017.

Evraz based its waiver request on the standard review clause contained in the commitments, according to which the Commission could waive, modify, or substitute in part or in full, if (i) Evraz showed good cause; and (ii) proved exceptional circumstances.[2] In line with the legal test set forth in the Remedies Notice, the Commission found that the circumstances in Evraz’ case amounted to a significant, permanent, and unforeseeable change in market conditions leading to Evraz’ inability to fulfil its commitments and to the initial competition concerns no longer arising. This change of circumstances was permanent as the rescue proceedings were likely to result in the liquidation of Highveld following the sale of its final assets. These circumstances made it impossible for Evraz to honor its long-term supply obligation.[3]

While requests for waivers or modifications of divestment commitments are less common,[4] the Commission has occasionally granted waivers or modifications of behavioral commitments in similar situations in the past, where, often many years after the original decision, market conditions had changed so significantly that it would have been unfair to hold a company to the commitment,[5] or where commitments of unlimited duration proved no longer necessary.[6] The Commission likely also considered the General Court’s recent criticism of the Commission’s failure to conduct a proper assessment of the changes in market conditions in previous cases.[7]

[1]      The Divestment Business was sold to Duferco, see Duferco/Mitsui/Nippon Denko/SAJV (Case COMP/M.5205), Commission decision of August 21, 2008.

[2]      See also Commission Notice on remedies acceptable under Council Regulation (EC) No. 139/2004 and under Commission Regulation (EC) No. 802/2004 (“Remedies Notice”), paras. 73–74.

[3]      The Commission contacted Evraz’ customers with whom the supply agreements remained applicable, to gather their views on the potential impact of the partial waiver. One customer did not comment, while the other—the Divestment Business—disagreed with the partial waiver. In a footnote, the Commission noted that due to the loss of supply from Highveld and the Mapochs Mine, the Divestment Business had also entered into insolvency proceedings in late 2015.

[4]      Requests for waiver of divestment commitments have been brought in early stages of divestment proceedings, e.g., to align with requirements set by other global competition authorities. See, for example, Shell/Montecatini (Case IV/M.269), Commission decision of June 8, 1994. Such requests have also been brought in light of significant changes to the value or viability of a divestment business between the approval of a remedy and the time of foreseen divestiture. See, for example, Hoechst/Rhône-Poulenc (Case IV/M.269), Commission decision of January 30, 2004. The Commission, however, applies strict standards regarding the proof of significant impediments to the value or viability of a divestment business, as determined in, for example, Outokumpu/Inoxum (Case COMP/M.6471), and ThyssenKrupp/AST/Outokumpu VDM (Case COMP/M.7138), see press release, available at: https://ec.europa.eu/commission/presscorner/ detail/en/IP_14_143.

[5]      See, e.g., NewsCorp/Telepiù (Case COMP/M.2876), Commission decision of April 2, 2003.

[6]      See, e.g., Nordbanken/Postgirot (Case IV/M.2567), Commission decision of November 8, 2001 and the waiver decision Case IV/M.2567, Commission decision of October 14, 2014.

[7]      See the General Court’s reversal of the Commission’s decision to reject Lufthansa’s request for a waiver of commitments in connection with its acquisition of Swiss in 2005, the first time such a decision had been challenged, in Deutsche Lufthansa AG v. Commission (Case T-712/16) EU:T:2018:269.