On February 5, 2021, the Commission unconditionally cleared the creation of a joint venture (“JV”) between the Volvo Group (“Volvo”) and Daimler Truck AG (“Daimler”).[1] The JV will be active in the relatively novel, but rapidly evolving, hydrogen fuel-cell technology sector, which promises a “green” future in particular for transport.[2]

The JV is set to develop, produce, and sell hydrogen fuel-cell systems (“FCS”)—a key technology for enabling CO2-neutral transportation—primarily for use in heavy-duty trucks (“HDTs”). This partnership in FCS between two major European truck manufacturers constitutes “a major step towards climate-neutral and sustainable transportation by 2050,” in line with the Paris Climate Agreement and hence the European Green Deal’s objectives.[3]

The Commission’s key observations while analyzing this deal were as follows:

  • The Commission confirmed that FCS are “only at development stage” and left the precise market definition open.[4] The Commission has examined the market for the manufacture and supply of FCS before in Faurecia/Michelin/ Symbio/JV in 2019.[5] Similar to the present transaction, Faurecia/Michelin/Symbio/JV did not raise serious competition concerns. The Commission therefore left the precise market definition open in both cases,[6] although in Volvo/Daimler/JV it considered the market’s geographic scope to be “at least EEA-wide.”[7]
  • The Commission did not identify any vertical concerns regarding Volvo and Daimler’s activities in the manufacture and sale of HDTs, a downstream market to the FCS The Commission concluded that the transaction did not raise input or customer foreclosure concerns, notably because the JV ’s market share is currently zero in the upstream FCS market and the JV’s success “likely depend[s] much more on its technological skills than on a possible customer base.”[8] The Commission reached this finding notwithstanding the JV partners’ significant combined market shares in the manufacture and sale of HDTs, considering inter alia that original equipment manufacturers (“OEMs”)—making up “[60- 70]% of the EEA-wide market of FCS-sourced” HDTs—would remain available as potential customers, in addition to manufacturers of other vehicles/applications e.g., marine, railway, aeronautics, to whom the JV can sell their FCS.[9]

Also, the fact that its parent companies are not themselves active in the FCS market facilitated the Commission’s review.[10]

[1]      See Commission Daily News MEX/21/461, “Mergers: Commission clears creation of the joint venture Daimler Truck Fuel Cell by Volvo and Daimler,” February 8, 2021, available at: https://ec.europa.eu/commission/presscorner/detail/en/MEX_21_461.

[2]      Most notably, hydrogen fuel-cell technology is used to power vehicles and trains as a “green” alternative to the use of petrol and diesel.

[3]      See Volvo’s Press Release, February 11, 2020, available at: https://www.volvogroup.com/en-en/news/2020/nov/news-3817249.html; Commission, Climate Action, “Paris Climate Agreement,” available at: https://ec.europa.eu/clima/policies/international/negotiations/paris_en#:~:text=The%20Paris%20 Agreement%20sets%20out,support%20them%20in%20their%20efforts; Commission, The European Green Deal, “Sustainable Mobility,” December 2019, available at: https://ec.europa.eu/commission/presscorner/detail/en/fs_19_6726.

[4]      Ibid.

[5]      Faurecia/Michelin/Symbio/JV (Case COMP/M.9474), Commission decision of November 12, 2019, para. 30.

[6]      Ibid., paras. 30 and 33; Volvo/Daimler/JV (Case COMP/M.9857), Commission decision of February 5, 2021, para. 23.

[7]      Volvo/Daimler/JV (Case COMP.M.9857), Commission decision of February 5, 2021, paras. 24–32.

[8]      Ibid., paras. 48–49, 60.

[9]      Ibid., paras. 56– 57. In particular, the Commission emphasized at para. 59 the FCS market’s strong dependency “on an overall hydrogen infrastructure,” explicitly acknowledging that “companies providing such infrastructure will need a strong market penetration with fuel-cell equipped heavy-duty trucks, which is something that the JV will not be able to achieve without other competitors.”

[10]    Volvo/Daimler/JV (Case COMP/M.9857), Commission decision of February 5, 2021, para. 42 and fn. 15. For further reporting on the Volvo/Daimler/JV decision, as well as for an analysis of the current legal uncertainty and possible solutions as regards the relationship between the European Green Deal and EU competition law, see Antoine Winckler and Daniela Weerasinghe, “The EU Commission unconditionally clears a fuel-cell joint venture aiming to achieve climate-neutral and sustainable transportation (Volvo/Daimler),” Concurrences, March 24, 2021, available at: https://www.concurrences.com/en/bulletin/ news-issues/preview/the-eu-commission-unconditionally-clears-a-fuel-cell-joint-venture-aiming-to-en?var_mode=calcul.