The European Commission has accepted and made legally binding the commitments made by Germany’s Siemens AG and France’s Areva SA to reduce the product scope and duration of a non-compete obligation on the nuclear technology market. After market testing the commitments made by Siemens and Areva (see Europolitics 4385), the executive found that they address its concerns and consequently closed its investigation. It announced its decision on 18 June.

In 2001, Areva and Siemens set up the joint venture Areva NP and agreed on a specific non-compete obligation, meant to apply for up to 11 years beyond the duration of the joint venture itself. In 2009, Areva acquired exclusive control of Areva NP and the non-compete clause of the agreements between Areva and Siemens was therefore due to apply until 2020. The Commission opened an investigation, in 2010, and in December 2011 expressed concerns about the compatibility of this clause with EU anti-trust rules (Article 101 TFEU). It found that the non-compete clause was excessive in that it prevents Siemens from competing with Areva NP on markets on which the joint venture only acted as re-seller of Siemens’ products, such as conventional islands and certain components for nuclear islands.

For Areva NP’s core products and services (nuclear islands, nuclear services and fuel assemblies), it concluded that the non-compete clause could be accepted in principle but that its duration was excessive. Protection against such facilitated competition by Siemens, which had had privileged access to the joint venture’s confidential business information, was conceivable but no longer necessary after three years, since the information would by that time become irrelevant or too uncertain.

To address these concerns, Siemens and Areva offered, in February 2012, to limit the non-compete obligation to three years from the time of Areva’s acquisition of sole control of Areva NP for the venture’s core products and services and to abolish it completely for other products and services. The same concessions apply to a confidentiality clause as it produces the same effects as the non-compete clause. Since the other operators consulted by the Commission responded positively to these commitments, the Commission decided to make them legally binding and to close its investigation.

If Siemens or Areva should break the commitments, the Commission could impose a fine of up to 10% of the total annual turnover of the company concerned without having to prove a violation of EU competition rules.