Case No COMP/M.2621 - SEB/MOULINEX
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This text is made available for information purposes only.. A summary of this decision is published in all Community languages in the Official Journal of the European Union. EN Case No COMP/M.2621 - SEB/MOULINEX Only the French text is authentic. REGULATION (EEC) No 4064/89 MERGER PROCEDURE Article 8 (2) Date: 11/11/2003 COMMISSION OF THE EUROPEAN COMMUNITIES Brussels, 11.11.2003 C(2003) 4157 final PUBLIC VERSION COMMISSION DECISION of 11 November 2003 declaring a concentration to be compatible with the common market and the EEA Agreement (Case No COMP/M.2621 - SEB/Moulinex) (Only the French text is authentic) (Text with EEA relevance) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to the Agreement on the European Economic Area, and in particular Article 57 thereof, Having regard to Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings1, and in particular Article 8(2) thereof, Having regard to the Commission's decision of 23 May 2003 to initiate proceedings in this case, 1 OJ L 395, 30.12.1989, p. 1. Regulation as last amended by Regulation (EC) No 1310/97 (OJ L 180, 9.7.1997, p. 1). Having regard to the opinion of the Advisory Committee on Concentrations2, Having regard to the final report of the Hearing Officer in this case3, Whereas: (1) On 13 November 2001 the Commission received notification, under Article 4 of Council Regulation No 4064/89 ("the Merger Regulation"), of the planned takeover of part of the assets of Moulinex, a French company, by SEB, another French company. (2) By decision of 8 January 2002, the Commission referred under Article 9 of the Merger Regulation the French aspects of the case to the French competition authorities ("the referral decision") and authorised under Article 6(1)(b) and (2) of the Merger Regulation the operation as regards its effects outside France, provided SEB honoured certain commitments ("the authorising decision"). Philips took legal action against these two Commission decisions in the Court of First Instance of the European Communities (CFI), while BaByliss filed in the same court against the Commission's authorising decision4. On 3 April 2003 the CFI dismissed Philips's action but upheld BaByliss's with regard to Finland, the United Kingdom and Ireland, Italy and Spain. Thus the CFI annulled the authorising decision as far as the markets of Italy, Spain, Finland, the United Kingdom and Ireland were concerned, but rejected the remainder of the application (3) Under Article 10(5) of the Merger Regulation, the notification and the resulting time limits start from the date of the judgment, i.e. 3 April 2003. 1. THE MERGING PARTIES AND THE OPERATION (4) SEB is a French undertaking which designs, manufactures and markets small electrical household appliances worldwide. It markets its products in over 120 countries under two world brands ("Tefal" and "Rowenta") and four local brands ("Calor" and "SEB" in France and Belgium, "Arno" in Brazil and the Mercosur countries and "Samurai" in the Andean Pact countries). The families of products marketed by SEB under these different brands largely belong to the small electrical household appliance category and include cooking appliances (mini-ovens, deep fryers, toasters and appliances for informal meals), hot drinks appliances (filter coffee makers, espresso machines, kettles) food preparation appliances, irons and ironing stations, personal care appliances (hair removal, hair care, shaving, etc.), vacuum cleaners, domestic cooling and heating appliances, and kitchen utensils. (5) Moulinex is also a French undertaking which designs, manufactures and markets small electrical household appliances worldwide. It markets the same families of 2 OJ C …., …., p…. 3 OJ C …, …., p … 4 Cases T-119/02 Royal Philips Electronics NV v Commission and T-114/02 BaByliss SA v Commission respectively. 3 products as SEB under two international brands ("Moulinex" and "Krups") and one local brand ("Swan" in the United Kingdom5). (6) On 7 September 2001 the Nanterre Commercial Court initiated receivership proceedings against the Moulinex group. In accordance with French law, the receivers had to establish whether the undertaking in receivership could continue its activity, should be sold to third parties or should be wound up. In this case, since it proved impossible for Moulinex to continue to operate, the receivers tried to find a buyer for all or part of Moulinex's business. (7) In the course of the proceedings SEB applied to take over some of Moulinex's "small household electrical appliance" business, namely: – all the rights associated with the exploitation of the Moulinex, Krups and Swan brands irrespective of the products concerned; – some of the production facilities (eight industrial sites out of a total of 18 and some of the equipment located at the sites not purchased) allowing the production of at least some models of all the products manufactured by Moulinex apart from vacuum cleaners and microwave ovens; – certain marketing companies - for Europe, only the German and Spanish companies. (8) In a judgment of 22 October 2001, the Nanterre Commercial Court accepted the recovery plan proposed by SEB. 2. CONCENTRATION (9) The notified operation constitutes a concentration whereby SEB acquires, within the meaning of Article 3(1)(b) of the Merger Regulation, control of several parts of Moulinex by purchase of assets. 5 This brand was abandoned by SEB in 2002. 4 3. COMMUNITY DIMENSION (10) Whichever method is used to calculate Moulinex's turnover6, the undertakings concerned attained an aggregate worldwide turnover of more than EUR 2.5 billion7 in 2001 (SEB: EUR […]* million; Moulinex: EUR […]* million (method 1) or EUR […]* million (method 2)). In Germany, France and the United Kingdom, the aggregate turnover attained by SEB and Moulinex was greater than EUR 100 million, and each of the parties achieved in each of these three Member States a turnover of at least EUR 25 million8. In addition, the two undertakings each achieved a turnover of at least EUR 100 million in the Community (SEB: EUR […]* million; Moulinex: EUR […]* million (method 1) or EUR […]* million (method 2)). Under Article 1(3) of the Merger Regulation, therefore, the operation has a Community dimension. 4. PROCEDURE 4.1. Derogation from suspension (11) On an application from SEB, the Commission on 27 September 2001 granted a derogation from suspension, as provided for by Article 7(4) of the Merger Regulation. The basic reason for this decision was that the receivers had insisted that any offer to buy should be unconditional. The derogation granted by the Commission was limited to the management of the purchased assets and ran until the authorising decision was adopted. It did not, however, authorise SEB to carry out the operation immediately, since the business was to be transferred only after the Commission's authorisation had been given. 6 Turnover excluding only the activities not taken over (vacuum cleaners and microwave ovens) (method 1), or excluding the turnover of the commercial subsidiaries not taken over but including the transfer prices invoiced by Moulinex to the commercial subsidiaries not taken over (method 2). 7 Turnover calculated in accordance with Article 5(1) of the Merger Regulation and the Commission Notice on the calculation of turnover (OJ C 66, 2.3.2999, p. 25). 8 SEB: EUR […]* million in Germany, EUR […]* million in France and EUR […]* million in the United Kingdom. Moulinex: - Method 1: EUR […]* million in Germany, EUR […]* million in France and EUR […]* million in the United Kingdom. - Method 2: EUR […]* million in Germany, EUR […]* million in France and EUR […]* million in the United Kingdom. * Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. 5 4.2. Article 9 request by the French authorities (12) On 7 December 2001, the French competition authorities made a request for a partial referral under Article 9(2)(a) of the Merger Regulation as regards the merger's effects on competition in France on certain sales markets for small electrical household appliances. The Commission granted this request by decision dated 8 January 2002. The CFI confirmed the validity of this referral decision in its judgment in Case T-119/02. 4.3. Commitments made by SEB in the first proceedings (13) On 7 January 2002, SEB gave a commitment to the Commission that, for five years, it would grant a licence for the Moulinex brand to independent third parties for all categories of product in nine Member States (Belgium, Luxembourg, Netherlands, Germany, Austria, Portugal, Sweden, Denmark and Greece). The five-year period will be followed by one of three years in which the Moulinex brand may not be exploited by SEB. The commitments were intended to allow the third-party licensee to migrate from the Moulinex brand to its own brand. The Commission’s authorising decision was conditional upon these commitments being fulfilled. In its judgments in Cases T-114/02 and T-119/02, the CFI considered that these remedies were sufficient to remove the serious doubts raised by the operation in respect of these nine countries. (14) On 31 October 2002, one licence was awarded to Benrubi for Greece, and eight to Saeco for the other countries. 4.4. Updating of the information in the first notification (15) In response to a request from the Commission, on 14 April 2003 SEB provided further information on the markets for small electrical household appliances in Spain, Italy, the United Kingdom/Ireland and Finland. 4.5. Suspension of the current proceedings (16) To enable it to assess the merger in the light of the Merger Regulation, the Commission, under Article 11, sent two requests for information to SEB on 28 May and 4 June 2003 respectively.