Commission Decision of 31/08/2012 declaring a concentration to be compatible with the common market (Case No COMP/M.6644 - APG / PGGM / CHALLENGER LBC TERMINALS) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic) |EUROPEAN COMMISSION | Brussels, 31.08.2012 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 Where possible the information omitted has been replaced by ranges of figures or a general description.
C(2012) 6114 MERGER PROCEDURE To the notifying parties: | Dear Sir/Madam, Subject: Case No COMP/M.6644 – APG / PGGM / Challenger LBC Terminals Commission decision pursuant to Article 6(1)(b) of Council Regulation No 139/2004 [1] 1. On 27.07.2012, the European Commission received notification of a proposed concentration pursuant to Article 4 of the Merger Regulation by which APG Algemene Pensioen Groep N.V. ("APG", Netherlands) and PGGM N.V. ("PGGM", Netherlands) acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control of Challenger LBC Terminals Jersey Limited ("LBC Terminals", Jersey), by way of purchase of shares [2] (APG and PGGM are designated hereinafter as the "notifying parties").
I. THE PARTIES 2. APG carries out collective pension schemes for participants in the education, government, and construction sectors, cleaning and window-cleaning companies, housing corporations and energy and utility companies as well as social or sheltered employment. 3. PGGM is a Dutch pension administrator. It provides services in the field of pension fund management, asset management, management support and policy advice to various pension funds. 4. LBC Terminals is an operator of bulk liquid storage terminals. It operates 14 terminals located at key locations in Belgium, France, the Netherlands, Portugal, Spain, China and the United States of America.
II. THE OPERATION AND THE CONCENTRATION 5. APG and PGGM will each acquire 32.5% of the issued shares in LBC Terminals. The remaining shares will be held by two non-controlling minority shareholders with stakes of 15% and 20% respectively. 6. APG and PGGM will be given certain veto rights through a shareholders' agreement, inter alia over the approval of the annual business plan and annual budget, the appointment of the CEO and CFO. The minority shareholders will also have certain veto rights, however, these do not relate to the strategic commercial behaviour of the company and do not go beyond the veto rights normally accorded to minority shareholders in order to protect their financial interests.
APG and PGGM will thus acquire joint control over LBC Terminals. 7. The proposed transaction is an acquisition of joint control by APG and PGGM over the whole of LBC Terminals and therefore a concentration within the meaning of Article 3(1)(b) of the Merger Regulation. III. EU DIMENSION 8. The undertakings concerned have a combined aggregate world-wide turnover [3] of more than EUR 5 000 million (APG: EUR […]; PGGM: […] and LBC Terminals: […]). The aggregate EU-wide turnover of two of the undertakings concerned is more than EUR 250 million (APG: […] and PGGM: […]). Only one of the undertakings concerned achieves more than two-thirds of its aggregate EU-wide turnover within one and the same Member State.
The notified operation therefore has an EU dimension under Article 1(2) of the Merger Regulation. IV. COMPETITIVE ASSESSMENT 1. Market definition Product market definition 9. LBC Terminals operates bulk liquid storage terminals located in Belgium, France, the Netherlands, Portugal, Spain, China and the United States. It supplies the following categories of services to customers in the EEA: bulk storage of chemicals; bulk storage of petroleum products; bulk storage of vegetable oils; and services related to bulk storage (including blending, heating, drumming, warehousing, container and railcar cleaning).
10. In the past, the Commission considered with regard to bulk liquid storage that "distinct markets for the storage of crude oil, petroleum, vegetable oils and chemicals and gas should be distinguished owing to technical and commercial considerations" [4] . With respect to chemical storage, the Commission considered the distinction between easy chemicals (e.g. methanol, aromatics, etc.) and speciality chemicals (e.g. acrylates), however found that it was not appropriate to define separate markets [5] . With respect to storage of petroleum, the Commission found that it was not appropriate to define separate markets for the storage of petroleum products in tanks of different levels of sophistication [6] .
11. The notifying parties generally agree with the Commission's approach. 12. In light of the absence of any horizontal overlaps or any vertical relationships between APG and PGGM on one hand and LBC Terminals on the other under any alternative market definition, the precise product market definition can be left open for the purpose of this decision. Geographic market definition 13. The Commission held in the past that storage facilities have, to a large degree, customers in a particular area which can be referred to as the 'Hinterland' and it considered the geographic market on this basis [7] .
14. The notifying parties consider the relevant geographic market for bulk storage of chemicals to be i) Amsterdam-Rotterdam-Antwerp ("ARA"), ii) Le Havre and Hinterland [8] , iii) Nantes and Hinterland, iv) Bayonne and Hinterland, v) Santander and Hinterland, vi) Lisbon and Hinterland, vii) Cartagena and Hinterland and viii) Marseille and Hinterland. With regard to bulk storage of petroleum products the parties claim the same scope with the exception of Cartagena and its Hinterland. For bulk storage of vegetable oils the geographic scope is claimed to be i) Le Havre, ii) Nantes and iii) Bayonne, respectively with their Hinterlands.
15. However, in light of the absence of any horizontal overlaps or any vertical relationships between APG and PGGM on one hand and LBC Terminals on the other under any alternative market definition, the precise geographic market definition can be left open for the purpose of this decision. 2. Assessment 16. Neither of the notifying parties carries on any business activities in the markets in which LBC Terminals operates nor is engaged in such activities in a product market which is upstream or downstream of such markets. 17. For these reasons, the Commission concludes that the concentration will not lead to a significant impediment of competition in those markets.
18. Furthermore, spill-over effects in the meaning of Article 2(4) of the Merger Regulation as a result of the proposed transaction can be discarded. None of the notifying parties has activities in the same markets as LBC Terminals or in a market which is up- or downstream from those of LBC Terminals or in neighbouring markets closely related to these markets. Indeed, LBC Terminals and the notifying parties perform different types of activities. The notifying parties are active in the fields of pension management and administration and asset management, while LBC Terminals is an operator of bulk liquid storage terminals.
Furthermore the notifying parties envisage that no information obtained as a result of their respective activities in retirement benefits consultancy and pension administration, and which is confidential to their respective pension fund clients, will be transmitted to LBC Terminals. 19. For these reasons, the Commission concludes that the concentration will not affect competition between APG and PGGM in the markets for pension management and administration and asset management. V. CONCLUSION 20. 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. For the Commission (signed) Joaquín ALMUNIA Vice-President [1] 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. [2] Publication in the Official Journal of the European Union No C 232, 03.08.2012, p.11. [3] Turnover calculated in accordance with Article 5 of the Merger Regulation. [4] Commission decision of 10.09.1999 in Case No COMP/M.1621 – Pakhoed / Van Ommeren (II), para.
8 [5] See COMP/ M.1621, para. 10 [6] See COMP/M.1621, para. 11 [7] See COMP/ M.1621, para. 15 [8] Hinterland corresponds to a 100 km radius