On 18 June 2012, the European Commission ("Commission") announced its decision ("Decision") to make legally binding the commitments offered by Siemens AG ("Siemens") and Areva SA ("Areva"), to reduce the product scope and duration of a non-compete obligation in the market for nuclear technologies. The Decision demonstrates that a three year non-compete obligation in relation to a joint venture's core business (i.e. nuclear services) may be acceptable under EU competition law rules. However, a non-compete obligation in relation to the non-core business of the joint venture, which continues after the termination of the joint venture, violates EU competition law. The same principles apply to confidentiality obligations.
In 2001, Siemens and the legal predecessor of Areva established the joint venture Areva NP SAS ("Areva NP") in which they combined their activities in relation to nuclear power plants. The joint venture's shareholders agreement included a non-compete obligation and a confidentiality clause which covered the lifetime of the agreement and were to continue for eight to eleven years after the termination of the joint venture.
In 2009, Siemens announced its intention to leave the joint venture. Areva subsequently acquired sole control of Areva NP. In December 2011 the Commission adopted a preliminary assessment in which it set out its view that the post joint venture non-compete obligation and confidentiality clause may violate EU competition law due to their excessive product scope and duration. According to the Commission, these clauses prevented competition by Siemens on the markets of the joint venture's core business (nuclear products and services) to the extent that the clauses exceeded a duration of three years. In addition, the Commission argued that the clauses prevented competition by Siemens on markets where Areva NP was not active with its own products and on markets where Areva NP accepted sales by Siemens during the lifetime of the joint venture.
In response, the parties offered commitments to reduce the duration of the non-compete obligation and confidentiality clause to a period of three years. With respect to the non-core products the parties offered to release the non-compete obligations in their entirety. As from 16 October 2012 Siemens will remain bound by a non-disclosure obligation to third parties in relation to Areva NP's corporate constitution and administration documents and by a non-use and non-disclosure obligation in relation to Areva's confidential written technical information.