EUROPEAN COMMISSION DG Competition

Only the English text is available and authentic.

REGULATION (EC) No 139/2004 MERGER PROCEDURE

Article 6(1)(b) NON-OPPOSITION Date: 17/07/2023

In electronic form on the EUR-Lex website under document number 32023M11106

EUROPEAN COMMISSION

Brussels, 17.7.2023 C(2023) 4907 final

PUBLIC VERSION

In the published version of this decision, some information has been omitted pursuant to Article 17(2) of Council Regulation (EC) No 139/2004 concerning non-disclosure of business secrets and other confidential information. The omissions are shown thus […]. Where possible the information omitted has been replaced by ranges of figures or a general description.

PSA Automobiles SA 2-10 boulevard de l’Europe 78300 Poissy France

Spika SAS 23 place des Carmes Déchaux 63000 Clermont-Ferrand France

Faurecia Exhaust International SAS 23-27 avenue des Champs Pierreux 92000 Nanterre France

OJ L 24, 29.1.2004, p. 1 (the “Merger Regulation”). With effect from 1 December 2009, the Treaty on the Functioning of the European Union (“TFEU”) has introduced certain changes, such as the replacement of “Community” by “Union” and “common market” by “internal market”. The terminology of the TFEU will be used throughout this decision.

OJ L 1, 3.1.1994, p. 3 (the “EEA Agreement”).

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111

Dear Sir or Madam,

(1) On 12 June 2023, the European Commission received notification of a proposed concentration pursuant to Article 4 of the Merger Regulation by which PSA Automobiles SA (“PSA”, France), Spika SAS (“Spika”, France), and Faurecia Exhaust International SAS (“Faurecia Exhaust International”, France) will acquire within the meaning of Articles 3(1)(b) and 3(4) of the Merger Regulation joint control of the whole of Symbio SAS (“Symbio” or “JV”, France) by way of purchase of shares (the “Transaction”). PSA, Spika, and Faurecia Exhaust International are designated hereinafter as the “Notifying Parties” and, together with Symbio, as the “Parties”.

1. THE PARTIES

(2) PSA is a fully owned subsidiary of Stellantis N.V., the holding company of the Stellantis Group (“Stellantis”, the Netherlands). Stellantis is a multinational automotive original equipment manufacturer (“OEM”) and dealer of motor vehicles, comprising both passenger cars (“PCs”) and light commercial vehicles (“LCVs”) under the brands Abarth, Alfa Romeo, Chrysler, Citroën, Dodge, DS, Fiat, Fiat Professional, Jeep, Lancia, Opel, Peugeot, Ram, and Vauxhall.

(3) Spika is a fully owned subsidiary of Compagnie Générale des Établissements Michelin, the holding company of the Michelin Group (“Michelin”, France). Spika does not carry out any operational activities within Michelin other than holding other entities and investments. Michelin is a global manufacturer active mainly in the production of tires for motor vehicles and aircrafts.

(4) Faurecia Exhaust International is a fully owned subsidiary of Faurecia SE, the parent company of the Forvia Group (“Forvia”, France). Faurecia Exhaust International does not carry out any operation activities within Forvia other than holding other entities and investments. Forvia is active globally in the manufacture and supply of automotive equipment, including (i) automotive seating, (ii) interior systems, and (iii) emission control technologies.

(5) Symbio is a joint venture between the Michelin and Forvia groups that assembles and supplies fuel cell systems (“FCSs”) for the manufacture and supply of hydrogen electric vehicles, also named fuel cell electric vehicles (“FCEVs”). Depending on its customers’ needs, Symbio may also supply fuel cell power units (“FCPUs”).

2. THE CONCENTRATION

(6) Pursuant to the Share Purchase Agreement concluded on 15 May 2023 between PSA, Spika, and Faurecia Exhaust International (“SPA”), PSA will acquire 33.3% ownership interests in Symbio, a joint venture currently controlled by the initial shareholders, Spika and Faurecia Exhaust International. Post-Transaction, PSA, Spika, and Faurecia Exhaust will (i) each hold 33.3% ownership interests in the JV and (ii) jointly control Symbio.

3 Publication in the Official Journal of the European Union No C 215, 19.6.2023, p. 8.

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(7) Symbio is and will remain a full-function joint venture.

2.1. Joint control

(8) Pursuant to the shareholders’ agreement on the structure of governance of Symbio, each of the Notifying Parties will hold a 33.3% ownership interest in the JV.

(9) The JV will be governed by a Board of Directors (“BoD”) consisting of six members. Each of the Notifying Parties will appoint […] members. […].

(10) The BoD will only validly deliberate if one board member appointed by each Notifying Party is present or represented. The approval of decisions relating to Reserved Matters will require […]. Reserved Matters include the approval of (i) the annual budget, (ii) the new business plan and any updates to it, and (iii) the appointment, dismissal, and remuneration of the President of the JV, the General Manager of the JV, as well as the appointment of any Key Manager of the JV.

(11) Each of the Notifying Parties will therefore have the right to veto strategic decisions made by the BoD regarding the JV’s business.

(12) As a result of the Transaction, the Notifying Parties will jointly control Symbio within the meaning of Article 3(1)(b) of the Merger Regulation.

2.2. Full-functionality

(13) The JV is active in the design, engineering, development, testing, production, marketing, and sale of FCS and FCPUs to be integrated by automotive OEMs in FCEVs.

(14) Symbio has and will continue to have its own financial resources, management and staff, intellectual property rights, manufacturing plants and office premises to operate independently on the market. Notably, Symbio has its own management team and its current staff is composed of 400 employees, including 150 engineers. It owns more than 300 patents and a manufacturing plant in Vénissieux, France.

(15) Symbio has and will continue having its own activity that is not limited to those of its shareholders. Symbio obtains parts from third parties to assemble and sell its own FCSs and FCPUs. It sells the assembled FCSs/FCPUs to OEMs. As such, it has its own presence on the market.

(16) Symbio does not have, and will continue not having, a significant supply or purchase relationship with the Notifying Parties. The JV is not bound by […]. Symbio already has several third-party clients and the proportion of sales made to Stellantis is expected to decrease over time to [10-20]% of Symbio’s total sales of FCSs/FCPUs by 2030. In addition, all sales to Stellantis are made on an arm’s

4 Under the terms of recital J of the draft shareholders’ agreement, each shareholder will own 33.33% of the JV. Form CO, paragraph 113 and Annex 4.

5 Clause 3.4.1 of the draft shareholders’ agreement. Form CO, paragraph 114 and Annex 4.

6 Clauses 3.2, 3.3, and 3.4.1 of the draft shareholders’ agreement. Form CO, paragraph 114 and Annex 4.

length basis, following competitive requests for quotation (“RFQ”) processes organised by Stellantis.

(17) Finally, the JV is intended to operate on a lasting basis.

(18) Therefore, post-Transaction, Symbio will continue to be a full-function joint venture within the meaning of Article 3(4) of the Merger Regulation.

3. UNION DIMENSION

(19) The undertakings concerned have a combined aggregate world-wide turnover of more than EUR 5 000 million (Forvia: EUR 25 458 million; Michelin: EUR 28 590 million; Stellantis: EUR […]; Symbio: EUR […]). Three of them have a Union-wide turnover in excess of EUR 250 million (Forvia: EUR […]; Michelin: EUR […]; Stellantis: EUR […]), and they do not achieve more than two-thirds of their aggregate Union-wide turnover within one and the same Member State. The notified operation therefore has a Union dimension pursuant to Article 1(2) of the Merger Regulation.

4. RELEVANT MARKETS

4.1. Introduction

(20) In contrast to other electric vehicles, FCEVs use electricity produced using a fuel cell powered by hydrogen to power an electric motor (rather than drawing electricity from a battery). During the vehicle design process, the vehicle manufacturer defines the power of the vehicle by determining the size of the fuel cell and the amount of energy to be stored on board by the size of the fuel tank. These vehicles, which are currently sold in limited volumes in comparison to conventional vehicles and other low-emission vehicles, can be seen as a response to the need to reduce vehicle emissions and fuel consumption by replacing the vehicle’s internal combustion engine with an FCEV engine.

(21) According to the Notifying Parties, an FCS is composed of two main elements: (i) the FCPU, which is itself composed of the fuel cell stack (acting like a battery by releasing electricity in a constant flow to power the vehicle’s electric motor and auxiliary electronics), the fuel cell supply units (i.e., air loop, cooling loop and fuel loop) and the fuel cell electric and electronics (e.g., electronic control unit, sensor, wiring, connectors and DC/DC converters); and (ii) the hydrogen storage system, which is composed of a hydrogen tank, valves and a balance plant.

(22) Once the FCS has been assembled, it is integrated into the vehicle together with the motor and the battery to power the vehicle.

(23) In the present case, the JV is active in the supply of FCSs and FCPUs to be integrated in FCEVs and Stellantis is active in the manufacture and supply of low-emission vehicles, including FCEVs that integrate FCSs/FCPUs.

4.2. Supply of FCSs

4.2.1. Product market definition

(24) In previous cases, the Commission considered that the manufacture and supply of FCSs constitutes a separate market from combustion and battery electric engines.

(25) In addition, the Commission has considered, but ultimately left open, whether this market should be further segmented according to the sector/end-use applications where FCSs are used, e.g., stationary applications, construction equipment, forklifts, trains, ships, among other applications.

(26) The Notifying Parties consider that a number of constraints specific to the automotive sector (e.g., costs and cycle time, design, and safety, quality and regulatory requirements) may require defining a product market for the supply of FCSs for the automotive sector, but submit that, in any event, the exact product market definition can remain open.

(27) In relation to whether the manufacture and supply of FCSs constitutes a separate market from combustion and battery electric engines, the results of the market investigation reflect the fact that OEMs consider that FCSs, combustion, and battery electric engines all serve the same purpose. However, the results also indicate that the propulsion technologies used in each are fundamentally different.

(28) As regards a potential distinction according to the sector in which FCSs are used, the results of the market investigation suggest that the market for the manufacture and supply of FCSs could be segmented according to different end-use applications (e.g., automotive, stationary applications, construction equipment, forklifts, trains, ships). While some respondents indicated that currently there may be a certain degree of supply-side substitutability, respondents also indicated that, as the market matures, the differences between FCSs for different applications will be greater.

(29) In light of the above, for the purposes of the present decision, the Commission considers that it can be left open whether the market for the supply of FCSs may be further segmented according to the sector in which FCSs may be used since the Transaction does not raise serious doubts as to its compatibility with the internal market or the functioning of the EEA Agreement, under any plausible product market definition. The Commission’s assessment will focus on the narrowest plausible market in which vertical effects could arise, i.e., the manufacture and supply of FCSs (excluding combustion and battery electric engines) for automotive end-use applications.

4.2.2. Geographic market definition

(30) In previous cases, the Commission considered that the geographic relevant market for the supply of FCSs was at least EEA-wide, and likely to be world-wide, although it left the precise market definition open.

(31) The Notifying Parties indicate that the geographic scope is world-wide for the reasons set out by the Commission in Case M.9857 – Volvo / Daimler / JV but submit that, in any event, the precise geographic market can be left open given the absence of competition concerns.

(32) The results of the market investigation indicate that the geographic market for the supply of FCSs is world-wide. Respondents indicated that FCS suppliers operate, and FCSs customers mainly purchase, at the global level.

(33) In light of the above, for the purposes of the present decision, the Commission considers that it can be left open whether the geographic market is global or EEA-wide, as the Transaction does not give rise to serious doubts as to its compatibility with the internal market or the functioning of the EEA Agreement, under any plausible geographic market definition. The Commission’s assessment will consider an EEA-wide geographic market delimitation.

4.3. Supply of FCPUs

4.3.1. Product market definition

(34) According to the Notifying Parties, while the JV will mainly supply FCSs, it may also supply FCPUs to be integrated into FCSs, depending on its customers’ needs. In previous cases, the Commission considered that the supply of FCPUs constitutes a separate relevant market. In addition, the Commission also considered, but ultimately left open, whether this market should be further segmented according to the different end-use applications (e.g., FCPUs to the automotive sector).

(35) The Notifying Parties consider that the market for the supply of FCPUs to be integrated into FCSs should be limited to the automotive sector for the same reasons as those described in relation to FCSs but submit that, in any event, the market definition can be left open.

4.3.2. Geographic market definition

(36) The results of the market investigation with respect to the distinction by end-use applications were the same as those described in relation to FCSs.

(37) In light of the above, for the purposes of the present decision, the Commission considers that it can be left open whether the market for the supply of FCPUs may be further segmented according to the sector in which FCPUs may be used since the Transaction does not raise serious doubts as to its compatibility with the internal market or the functioning of the EEA Agreement, under any plausible product market definition. The Commission’s assessment will focus on the narrowest plausible market in which vertical effects could arise, i.e., the manufacture and supply of FCPUs for automotive end-use applications.

4.4. Manufacture and supply of passenger cars and light commercial vehicles

4.4.1. Product market definition

(42) In prior decisions, the Commission has defined separate markets for the manufacture and supply of PCs, on the one hand, and LCVs, on the other hand.

4.4.1.1. PCs

(43) Within the PC market, the Commission has previously defined separate product markets for (i) mini cars, (ii) small cars, (iii) medium cars, (iv) large cars, (v) executive cars, (vi) luxury cars, (vii) sport cars, (viii) sport utility vehicles (“SUV”), and (ix) multipurpose vehicles. The Commission further considered a segmentation of the SUV market by size into separate markets for (x) mini SUVs (A-SUVs) to (xi) luxury SUVs (E-SUVs).

(44) The Commission previously considered, but ultimately left open, further segmentations by size and weight.

(45) In addition, the Commission previously considered, but ultimately left open whether PCs overall or each vehicle segment should be further segmented by type of propulsion technology between vehicles with internal combustion engines (“ICE”) and low-emission vehicles (“LEVs”).

(46) Within LEVs, a possible further segmentation could exist based on technology, between battery electric vehicles (“BEVs”), hybrid electric vehicles (“HEVs”), and FCEVs, among others.

(47) In previous cases, however, the Commission has based its competitive analysis of the impact of concentrations on the LEVs markets separately on BEVs, HEVs, and FCEVs as the narrowest plausible market segments.

(48) The Notifying Parties argue that FCEVs are part of the same market as other LEVs, such as BEVs and HEVs. They submit that the Transaction only concerns the supply of FCSs/FCPUs to OEMs for the sole purpose of equipping FCEVs that the latter may manufacture and supply. Ultimately, for the Notifying Parties, the exact product market definition can be left open.

(49) Regarding a possible market for FCEVs, the majority of OEMs responding to the market investigation indicated that FCEVs are part of the same market as other LEVs. The results of the market investigation remained inconclusive regarding a further possible segmentation between FCEVs, BEVs and HEVs, among others, and, within each of these segments, by size/loading capacity of the vehicle. Nothing in the results of the market investigation contradicts the Commission’s conclusions in previous decisions, where the impact of concentrations was assessed with reference to the separate segments of BEVs, HEVs, and FCEVs as the narrowest plausible segments.

(50) In light of the above, for purposes of the present decision, the Commission considers that the exact market definition for the downstream market for the manufacture and supply of PCs and its potential sub-segments can be left open, since the Transaction does not raise serious doubts as to its compatibility with the internal market or the functioning of the EEA Agreement, under any plausible product market definition. Since FCSs and FCPUs are integrated into FCEVs only, the Transaction could only give rise to vertical effects in the putative markets for the manufacture and supply of FCEVs. In addition, the Commission considers that, given the nascent character of the hydrogen vehicle markets, it is not necessary or appropriate, for purposes of the present decision, to assess the impact of the Transaction separately in the markets for the manufacture and supply of FCEVs of different sizes/loading capacities, as the results of the competitive assessment would not significantly differ.

4.4.2. Geographic market definition

(58) The Commission has considered the markets for the manufacturing and supply of PCs and LCVs to be national in scope.

(59) The Notifying Parties argue that these markets could be EEA-wide or national in scope, ultimately defending that the precise geographic market definition can be left open.

(60) The results of the market investigation indicate that FCEV suppliers sell vehicles to customers located across the EEA. With respect to the sale of FCEVs, the majority of the OEMs responding to the market investigation indicated that they supply, or will supply in the future, any regions where the hydrogen infrastructure is well-developed, regardless of their customers’ location.

(61) In light of the above, for the purposes of the present decision, it can be left open whether the markets for the manufacture and supply of PCs and LCVs are EEA-wide or national in scope, since the Transaction does not raise serious doubts as to its compatibility with the internal market or the functioning of the EEA Agreement, under any plausible geographic market definition. The Commission’s assessment will focus on the narrowest plausible geographic market definition, i.e., national in scope.

5. COMPETITIVE ASSESSMENT

5.1. Affected markets

(62) The Transaction does not lead to any horizontally affected markets.

(63) The Transaction results in merger-specific vertical relationships between (i) the possible upstream markets for the manufacture and supply of FCSs and FCPUs for automotive end-use applications in the EEA, where Symbio is active, and (ii) the possible downstream markets for the manufacture and supply of fuel cell LCVs and PCs at the national level, where Stellantis is active.

(64) At the upstream level, Symbio’s market shares in the respective markets for the manufacture of FCSs and FCPUs for automotive end-use applications in the EEA were below 30% and are expected not to exceed 30% in the next three years.

(65) At the downstream level, however, Stellantis’ individual market share exceeds 30% in one national market for the supply of FCEVs – the market for the manufacture and supply of fuel cell LCVs (FCEVs-LCVs) in Germany –, giving rise to affected markets within the meaning of the Implementing Regulation.

5.2. Substantive assessment

(66) According to the Commission’s Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of concentrations between undertakings (“Non-horizontal Merger Guidelines”), foreclosure effects may occur where actual or potential rivals’ access to supplies or markets is hampered or eliminated as a result of the concentration, thereby reducing these companies’ ability and/or incentive to compete.

(67) The Commission has therefore assessed the risk of non-coordinated effects with regard to the vertical relationship between the JV’s activities in the upstream markets (manufacture and supply of FCSs and FCPUs for automotive end-use applications in the EEA), and Stellantis’ activities in the vertically affected downstream market (manufacture and supply of FCEVs-LCVs in Germany).

5.2.1. Input foreclosure

(68) Input foreclosure arises where, post-concentration, the new entity would be likely to restrict access to the products that it would have otherwise supplied absent the merger, thereby raising its downstream rivals’ costs by making it harder for them to obtain supplies of the input under similar prices and conditions as in the absence of the concentration.

(69) In assessing the likelihood of an anticompetitive input foreclosure scenario, the Commission examines, first, whether the merged entity would have, post-concentration, the ability to substantially foreclose access to inputs, second, whether it would have the incentive to do so, and third, whether a foreclosure strategy would have a significant detrimental effect on competition downstream.

(70) The Notifying Parties submit that, post-Transaction, the JV will not have the ability or incentive to foreclose Stellantis’ competitors in the downstream market for the manufacture and sale of FCEVs-LCVs by denying them access to FCSs and/or FCPUs.

(71) In relation to the lack of ability to foreclose, the Notifying Parties claim that: (i) Symbio does not have enough market power to raise the costs of Stellantis’ rivals

46 As explained in paragraph ((56), the Commission considers that, given the nascent character of the hydrogen vehicle markets, it is not necessary or appropriate, for purposes of the present decision, to assess the impact of the Transaction in the overall markets for the manufacture and supply of low-emission LCVs or separately in the markets for fuel cell LCVs of different sizes/loading capacities, as the results of the competitive assessment would not significantly differ. The nascent nature of the hydrogen vehicle markets is evidenced by the small number of FCEVs registered in the EEA in 2022 (1,249).

47 Commission Implementing Regulation (EC) No 1269/2013 of 5 December 2013 amending Regulation (EC) No 802/2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 336/1, 14.12.2013).

48 OJ C 265, 18.10.2008.

49 Non-horizontal Merger Guidelines, paragraph 31.

50 Non-horizontal Merger Guidelines, paragraph 32.

51 Form CO, paragraphs 235-253.

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by restricting access to FCSs and/or FCPUs and (ii) there are many alternative actual and potential suppliers of FCSs and FCPUs active in the EEA.

(72) In relation to the lack of incentive to foreclose, the Notifying Parties argue that it is in the JV’s commercial interest to diversify its sales to various OEMs on a non-exclusive basis. Stellantis’ expected yearly manufacture of FCEVs as from 2024 will represent only [10-20]% of the JV’s production capacity over the next five years and the gap between Stellantis’ production and the JV’s capacity is expected to widen in the future.

(73) The Commission notes that Symbio’s market shares in the markets for the manufacture and supply of FCSs and FCPUs for automotive end-use applications in the EEA were both below 10% in 2022 and have not changed materially since at least 2019. Further, Symbio’s shares in these markets are expected to remain well below 30% in the next three years.

(74) Further, the market investigation indicates that there are several alternative FCSs and FCPUs suppliers, notably Ballard Power Systems, Bosch, Cummins, Cellcentric, EKPO, HYVIA, Hyundai, PowerCell, Re-Fire, and Toyota, among others. In addition, some OEMs, such as BMW, Hyundai, Toyota and Volkswagen, have developed the competence to manufacture FCSs and FCPUs in-house and are perceived by Symbio as actual or potential competitors.

(75) The Commission therefore considers that Symbio will lack the ability to engage in any input foreclosure strategies affecting Stellantis’ competitors in the affected downstream market, since it does not have a sufficient degree of market power in the upstream markets. In light of Symbio’s lack of ability to engage in input foreclosure strategies, it is not necessary to assess whether Symbio would have the incentive to engage in such strategies or if such hypothetical foreclosure strategy could have a significant detrimental effect on competition.

5.2.2. Customer foreclosure

(76) Customer foreclosure may occur when a supplier integrates with an important customer in the downstream market. Because of this downstream presence, the merged entity may foreclose access to a sufficient customer base to its actual or potential rivals in the upstream market (the input market) and reduce their ability or incentive to compete.

(77) In assessing the likelihood of an anticompetitive customer foreclosure scenario, the Commission examines, first, whether the merged entity would have the ability to foreclose access to downstream markets by reducing its purchases from its upstream rivals, second, whether it would have the incentive to reduce its purchases upstream, and third, whether a foreclosure strategy would have a significant detrimental effect on consumers in the downstream market.

(78) The Notifying Parties submit that, post-Transaction, Stellantis will not have the ability or the incentive to restrict Symbio’s competitors from accessing a sufficiently large customer base.

(79) The Notifying Parties argue that Stellantis will lack the ability to foreclose Symbio’s competitors because: (i) Stellantis’ market shares remain below 30% in the EEA, regardless of the precise market definition, including on the narrower segment of FCEVs, (ii) post-Transaction, an extensive customer base will remain available to Symbio’s competitors (e.g., Hyundai, Hyzon, and Toyota), (iii) various players in the automotive industry not yet active in the FCEV segment are preparing to enter (e.g., Audi, BMW, Honda, Jaguar Land Rover, Renault), and (iv) the FCEV market is an emerging industry in continuous expansion, partially due to the current wave of investment in environmentally-friendly mobility solutions.

(80) Further, the Notifying Parties state that Stellantis would lack the incentive to foreclose Symbio’s competitors. According to the Notifying Parties, it is very likely that the future of the market for FCSs will strongly depend on an overall hydrogen infrastructure, including hydrogen refuelling stations within the EEA and outside. Without this infrastructure, possible customers will probably not purchase any FCSs (and/or the equipped vehicles). To make such infrastructure financially interesting, the companies providing such infrastructure will need a strong market penetration of vehicles equipped with fuel cells, notably FCEVs. Stellantis will not be able to achieve this goal without its competitors and, therefore, has no incentives to limit the development of the sector.

(81) The Commission is of the view that, post-Transaction, the combined entity is unlikely to have the ability to carry out customer foreclosure strategies, for the reasons set out below. While one of Symbio’s competitors argued that it could be affected by a hypothetical customer foreclosure strategy, the information and data that it and other participants to the market investigation have adduced, as summarised below, dissipate any concerns.

(82) First, Stellantis has entered the market for the manufacture and supply of FCEVs-LCVs only in 2022, with the registration of its first-ever […] fuel cell LCV units in the EEA ([…]). The registration of these vehicles did not yield any revenue for Stellantis in 2022 because, as explained by the Notifying Parties, the […] units were merely […].

(83) If, […], Stellantis is deemed to be active in the sale of FCEVs and an EEA-wide market for the manufacture and supply of FCEVs (including both PCs and LCVs) is considered, the sale of […] units corresponds to a market share of [0-5]% in 2022. The EEA-wide FCEV market, while nascent, is relatively fragmented with other strong competitors, such as Hyundai, Hyzon, SAIC, and Toyota. Accordingly, Stellantis estimates that its EEA-wide market share in the possible market for the supply of LEVs (including FCEVs) and in the possible segment for the supply of FCEVs (including both PCs and LCVs) to remain below 30% in the next three years.

(84) At the national level, Stellantis’ market share exceeds 30% in the manufacture and supply of FCEVs-LCVs in Germany in 2022, […]. While technically Stellantis does not face any competition in this market in Germany (Stellantis’ […] FCEVs-LCVs registered in Germany in 2022 were the first registered by Stellantis or any other OEM in the country), it is unlikely that Stellantis enjoys significant, actual, and long-lasting market power, given that the competitive landscape in the near future is unlikely to mirror the 2022 status quo.

(85) Specifically, the nascent nature of the market, the low volumes sold, and the fact that Hyundai and Toyota are already active in the fuel cell PCs segment in Germany, indicate that Stellantis’ position in Germany, achieved by being the first pioneer to register a small number of units, is unlikely to be long-lasting. In fact, the Notifying Parties estimate that, in 2022, 784 fuel cell PCs (FCEVs-PCs) units were sold in Germany by its competitors Hyundai and Toyota.

(86) In addition, the Parties confirmed that Stellantis’ position in Germany will soon be diluted by the entry of additional competitors in the fuel cell LCV segment in the country, possibly Hyundai, SAIC, Toyota, Renault, and Ford. Stellantis expects, based on the likely entry of new undertakings in the market for the manufacture and supply of FCEVs-LCVs in Germany, that its share is likely to decrease below 50% by 2025.

(87) Second, according to publicly available sources, other OEMs are preparing to enter the EEA FCEV markets, such as Audi, BMW/Toyota Motors, Honda, Jaguar Land Rover, and Renault.

(88) Third, the FCEVs markets are embryonic and in continuous expansion. Due to the role hydrogen plays in the decarbonisation of the EU, this sector has attracted and is expected to continue attracting significant investment. For example, the investments in the overall hydrogen value chain have increased by 50% between 2021 and 2022. This is further confirmed by the Fuel Cells and Hydrogen Observatory – co-founded by the European Commission – in a 2021 study: “2021 saw a continuation of the trend observed in 2020, with continued growth in fuel cell passenger cars”.

(89) For the reasons stated above, the Commission considers that Symbio would lack the ability to engage in customer foreclosure strategies and, consequently, that it is not necessary to assess whether Symbio would have the incentive to do so.

(90) Even if Symbio hypothetically had the ability and incentive to attempt customer foreclosure, these strategies would likely not have a significant detrimental effect in the market. In this respect, it bears emphasis that, despite the downstream markets for the manufacture and supply of PCs and LCVs possibly being national in scope, automotive OEMs issue EEA-wide or global RFQs for the procurement of FCSs and FCPUs. Stellantis’ purchasing share of FCSs/FCPUs in the EEA in 2022 is expected to be minimal ([…]) given that, out of the 1,249 FCEVs registered in the EEA in 2022, only […] were registered by Stellantis ([…]). As such, even if the combined entity would attempt to foreclose, Symbio’s competitors would continue having access to a large customer base in the EEA.

(91) The market investigation confirmed this, with most of the respondents finding that, if post-Transaction Stellantis would source most or all FCSs and FCPUs from Symbio, there would still be enough OEM customers in the market to whom other fuel cell suppliers could sell to.

(92) Finally, some respondents to the market investigation considered that the Transaction would have an overall positive impact. One of Stellantis’ competitors expressed the view that the Transaction could “push the transformation of the automotive branch (especially the infrastructure) to fuel-cell electric vehicles in the future”. Similarly, a competitor of Symbio defended that the Transaction would have a pro-competitive effect because, specifically for new technologies such as FCSs and FCPUs, the industry should welcome and encourage the emergence of strong players that create an incentive for stakeholders to invest in the associated infrastructure.

(93) The Commission therefore considers that, despite Stellantis’ strong position in the market for the manufacture and supply of fuel cell LCVs in Germany, the merged entity will lack the ability and incentive to engage in strategies aimed at foreclosing Symbio’s competitors’ access to a sufficiently large customer base. Even if it had the ability and incentive to engage in a customer foreclosure strategy, such strategy would be unlikely to result in a significant detrimental effect on competition.

6. CONCLUSION

(94) For the above reasons, the European Commission has decided not to oppose the notified operation and to declare it compatible with the internal market and with the EEA Agreement. This decision is adopted in application of Article 6(1)(b) of the Merger Regulation and Article 57 of the EEA Agreement.

For the Commission

(Signed) Margrethe VESTAGER Executive Vice-President

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