As previously reported in the Stibbe's Competition Law Newsletter of July 2012, on 18 June 2012, the European Commission ("Commission") announced its decision to make legally binding the commitments offered by Siemens AG ("Siemens") and Areva SA ("Areva"). The commitments aimed at reducing the product scope and duration of a non-compete obligation and a confidentiality clause in the market for nuclear technologies. The Commission has now published a non-confidential version of its decision ("Decision"), which further clarifies the Commission's stance on a post-joint venture non-compete obligation ("post-JV NCO").
Siemens and the legal predecessor of Areva had established the joint venture Areva NP SAS ("Areva NP"), in which they combined their activities in relation to nuclear power plants. In this respect, the parties agreed on a post-JV NCO and a confidentiality clause which covered the lifetime of the joint venture and was to continue for eight to eleven years after its termination. After Siemens announced its intention to leave the joint venture, Areva acquired sole control over Areva NP.
The Decision makes clear that according to the Commission, a post-JV NCO cannot be considered an ancillary restriction to the creation of the joint venture. In the Commission's view, the protection against competition from one of the parent companies becomes obsolete upon the acquisition of sole control over the joint venture by one of those parent companies. Nevertheless, in the underlying case, the post-JV NCO can still be considered ancillary to the acquisition of sole control by Areva over Areva NP. This led the Commission to conclude that the post-JV NCO falls outside the scope of article 101 of the Treaty on the Functioning of the European Union ("TFEU"), but only in so far as the post-JV NCO prevents Siemens from being active on a certain number of specified markets, and only for a duration of three years following Areva's acquisition of sole control over Areva NP. For the duration exceeding those three years, the post-JV NCO violates in the Commission's view article 101 of the TFEU.