Fuel for Thought — Statoilhydro/Conocophillips (Jet) MERGER CONTROL
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Competition Policy Newsletter Fuel for thought — StatoilHydro/ConocoPhillips (Jet) CONTROL MERGER Jérôme Cloarec, Dag Johansson, Philippe Redondo, Daniel Donath, Elzbieta Glowicka and Cyril Hariton (1) Introduction(1 viduals, as it is virtually impossible to access such customers with standard questionnaires, although When faced with a proposed merger, antitrust au- each individual may have a private (and sometimes thorities have to assess the likelihood and the mag- informed and documented) view of the likely ef- nitude of anticompetitive effects that may occur fects of a merger. following the removal of one of the merging par- ties as an independent force in the various markets This was the case for the Norwegian oil company affected by the transaction. These possible anticom- StatoilHydro’s acquisition of Jet petrol stations in petitive effects must then be weighed against poten- Scandinavia (67 in Denmark, 40 in Norway and 163 tial efficiency gains. To enable it to complete this in Sweden), owned by ConocoPhillips of the US task in the limited amount of time provided by the (case COMP/M.4919 — StatoilHydro/ConocoPhil- legislators, the Commission collects and contrasts lips), which was subject to an in-depth investigation information from different sources. The notifying by the Commission. (3) Therefore, in addition to party’s compulsory notification (Form CO) is the the standard market investigation that also included initial source of such information and contains a gathering evidence from internal documents, the Com- description of the industry along with more specific mission structured its market investigation around details regarding the affected markets. In addition, two pillars. First, several econometric studies that were to ensure that it has a complete understanding of based on an extensive request for data relating to the competitive landscape in each of the affected the daily running of the fuel retail businesses were markets, the Commission supplements this infor- carried out to gauge the extent to which the two mation with the views of other market participants merging parties exerted competitive constraint on such as the merging parties’ suppliers, competitors each other. Second, a customer survey was conducted and customers. (2) in selected countries to obtain insights into custom- Competitors are usually well informed about the ers’ views regarding the main questions posed dur- 4 market conditions in the affected markets and the ing the assessment of the transaction. ( ) competitive pressure that each merging party exerts on its counterpart in the transaction. However, com- This article is divided into six sections. The next two petitors’ views may be biased by their own interests. sections describe the Swedish and Norwegian retail fuel markets and discuss the role that Jet played in For example, a competitor can welcome a transac- 5 tion that removes a very competitive market player. those markets. ( ) The econometric and customer In such cases, competitors’ replies to the Commis- survey analyses are described in the fourth and fifth sion’s market investigation may support their strate- sections. The last section offers some general con- gic views of the deal rather than provide an objec- clusions and, in addition, makes some important tive assessment of the transaction. Customers, on points as to the data demands that are associated the other hand, are less likely to have strategic inter- with analysing mergers where the merging firms’ ests in the transaction and are therefore less likely customers are widely dispersed. to provide biased responses. This is particularly the case when there are numerous customers of mod- Sweden est size. Unfortunately, as a result, such customers are also less likely to have the necessary resources StatoilHydro was the largest retail supplier of motor or access to the requisite information to respond fuels in Sweden, with a total of more than 1 000 fuel meaningfully to the Commission’s questionnaires. stations at the end of 2007 and accounting for more An extreme case occurs when customers are indi- (3) Relevant documents issued by the European Commis- (1) The content of this article does not necessarily reflect the sion regarding this case, including the non-confiden- official position of the European Commission. Responsi- tial version of the final decision, can be downloaded at bility for the information and views expressed lies entirely http://ec.europa.eu/competition/mergers/cases/index/ with the authors. m98.html#m_4919 (2) From time to time, experts are directly appointed by the (4) The opinions of some customers’ associations were also Commission to examine certain (usually technical or eco- solicited. nomic) aspects of a transaction. The Directorate-General (5) The Commission’s final decision found that the trans- for Competition also often benefits from the technical action would not lead to competition concerns in Den- expertise of other Directorates-General. mark. Number 1 — 2009 71 Merger control than 30% of total sales. (6) Jet was the country’s sixth per litre differential if challenged by competitors. (10) largest supplier of retail motor fuels: it accounted Jet’s strategy has been highly successful: while it op- for more than 10% of total sales in 2007 and had by erates only 4.5% of all fuel stations in Sweden, its far the highest average throughput of all fuel station market share amounts to [10-20]%. networks in Sweden. Following the transaction, the The success of Jet’s strategy has also been recog- merged firm’s largest competitor, OK-Q8, would nised by its competitors. In particular, the Swedish have had a market share less than half that of the retail motor fuel market has witnessed an expansion combined entity. The second and third largest com- of the number of automated stations that today rep- petitors, Shell and Preem respectively, would be even resent more than half of all fuel stations, and cer- smaller with market shares of [10-20]% each. (7) By tain market players have shifted their pricing strat- acquiring Jet, StatoilHydro would thus further con- egy from high fuel prices at full-service stations and solidate its position as the leading service-station volume-based rebate schemes towards “net pricing” chain in the Swedish market, in which substantial schemes without rebates. (11) Related to such strategic “green-field” entry of a new competitor is unlikely repositioning, Shell initiated a nation-wide price war due to considerable entry barriers. (8) in April 2005 in order to establish its Shell Express The Jet business model is specific. First, it exclusively brand of automated stations by applying the same operates company-owned and company-operated price differential for petrol in relation to full-service stations only in densely populated areas under the stations and other automated stations that Jet (and unique Jet brand. (9) Second, Jet stations are all un- some other smaller automated networks) applied. manned, with a limited range of services compared While this price war ended in August 2006 when to traditional manned (or full-service) stations. Third, all automated chains started to apply the same SEK contrary to most of its competitors, which offer a 0.25 differential to full-service stations as Jet, it was wide range of fidelity and corporate cards that allow soon followed by a second price war that started in customers to obtain price reductions such as volume April 2007 for both petrol and diesel. ( 12) The second rebates, Jet has built a strong brand position based price war was initiated by StatoilHydro, which sought on a transparent net pricing policy that advertises net to reduce the differential between full-service sta- prices directly on the pump. The company further- tions and unmanned stations from SEK 0.25 per li- more applied a price differential with respect to com- tre to SEK 0.15 per litre. Jet (and other competitors) peting full-service station networks of SEK 0.25 per however resisted StatoilHydro’s initiative and sought litre. The combination of these elements resulted in to maintain the SEK 0.25 per litre differential. Jet becoming the most efficient retail fuel supplier in The important role of Jet as an independent com- Sweden, which allowed Jet to defend the SEK 0.25 petitor was also confirmed by the respondents to the market investigation and StatoilHydro’s internal (6) StatoilHydro operated full-service fuel stations under the Statoil and Hydro brands and automated fuel stations documents. Several respondents to the market in- under the 1-2-3, Hydro and Uno-X brands. Statoil’s own vestigation emphasised the fact that fierce competi- network consists of 562 fuel stations: 478 full-service sta- tion between the Statoil network, Jet and Shell had tions and 84 automated fuel stations branded “Statoil” or decreased the margins and eroded the profitability “1-2-3”. StatoilHydro also owns Hydro’s fuel station net- of smaller and weaker networks that were viewed work, which comprised 426 stations at the end of 2007: 376 automated fuel stations branded “Hydro” or “Uno- as too small to influence price levels in a manner X”, 45 full-service stations under the Hydro brand and similar to Jet. StatoilHydro’s internal documents 5 unbranded stations (“white pumps”). suggested that (i) Jet has a very strong brand image, (7) In addition, there are a number of smaller competitors op- and consumers perceive Jet as the cheapest supplier, erating brands such as Tanka, Din-X, Pump, Gulf, Q-star, and (ii) StatoilHydro views Jet as its most efficient St1 and ICA-Tapp. (8) The availability of suitable sites that can be used for build- competitor. ing fuel stations as well as the need to obtain permits are crucial factors for assessing barriers to entry (as well as (10) It is, however, important to note that Jet was not a mere barriers to expansion) in the fuel retail markets.