The European Commission has closed an antitrust investigation of the arrangement that prevents Siemens from selling nuclear products and services, following its withdrawal from the Areva NP business. The Commission has accepted an agreement between the two companies to allow Siemens to sell core products and services later this year.
In 2001, Areva and Siemens created the joint venture Areva NP and agreed on a specific non-compete obligation. This obligation was meant to apply for up to 11 years beyond the duration of the joint venture itself. The joint venture came to an end following Siemens’ exit in 2009, when Areva acquired sole control over Areva NP.
In December 2011, the European Commission expressed concerns that the non-compete obligation and a confidentiality clause may infringe EU antitrust rules.
At that time, the Commission found that the non-compete clause was excessive as it prevents Siemens to compete 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 markets where the joint-venture sold its own products, such as nuclear islands, nuclear services or fuel assemblies (“core products and services”), the Commission also found that the non-compete clause could be accepted in principle but that its duration was excessive. As a parent company, Siemens had had privileged access to the joint venture’s confidential business information, which Siemens could use to compete more easily against Areva NP after its exit from the joint venture. However, on the basis of concrete evidence, the Commission found that protection against such facilitated competition by Siemens was no longer necessary after 3 years, since this information would then become irrelevant or too uncertain.
In response to the Commission’s concerns, Siemens and Areva offered commitments. They agreed to limit the duration of the clause to three years following Areva’s acquisition of sole control over Areva NP in relation to the joint venture’s core products and services. They also agreed to remove it completely for all other products and services. The same commitments apply to the confidentiality clause.
Now, the European Commission has made these committments legally-binding after market-testing them, and has closed its investigation.
However, Siemens’ next move is unclear, as it publicly announced in 2011 that it had pulled out of the nuclear market altogether.
