CCE, 11 avril 1995, n° M.573

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

1. This notification concerns the acquisition of substantially all the assets and liabilities of Baring Brothers & Co. Limited, including all the Baring Brothers & Co. Limited subsidiaries except Baring Securities Limited; all the Baring Securities Limited subsidiaries (except Baring Futures (Singapore) Pte Limited); and, Baring Asset Management Holdings and all its subsidiaries, which are collectively referred to as "Barings" in this decision, by subsidiaries of Internationale Nederlanden Groep NV ("ING").

2. After examination of the notification the Commission has concluded that the proposed operation falls within the scope of Council Regulation n° 4064-89 and does not give rise to serious doubts as to its compatibility with the common market and the EEA Agreement.

I THE PARTIES

3. ING is a worldwide organization, with its base and origins located in the Netherlands, offering a comprehensive range of financial products and services, including but not limited to banking and insurance.

4. Barings plc, the holding company of the assets acquired by ING, together with certain subsidiaries, was placed in administration, within the meaning of the Insolvency Act 1986 on 27 and 28 February 1995.

5. Barings is involved in merchant banking activities, including investment banking, corporate banking, venture capital and capital markets operations together with securities trading and asset management. Whilst Barings is predominantly UK based it has a worldwide sphere of operations.

II THE OPERATION

6. The proposed operation concerns the acquisition, by ING, of Barings, together with Barings Securities (Japan) Limited, from their administrators. This involves the assumption of certain liabilities of Barings together with the recapitalisation of the new group owned by ING.

7. The Commission granted a derogation, on the basis of Article 7(4), on 6 March 1995 whereby the suspensive effect of the Merger Regulation, on concentrations with a community dimension, was waived in relation to this operation. This was necessary given the need to effect a rapid completion of the operation in order to prevent serious damage to Barings and third parties.

III CONCENTRATION

8. Whilst Barings plc was placed in administration on 27 and 28 February 1995 and control therefore passed to the administrators, this transaction did not form a concentration by virtue of Article 3(5)(b).

9. As the result of the operation ING will have sole control of Barings and Barings Securities (Japan) Limited and consequently the operation constitutes a concentration within the meaning of Article 3 of the Merger Regulation.

IV COMMUNITY DIMENSION

10. Based on audited financial statements the parties' combined aggregate worldwide turnover, calculated in accordance with Article 5(3), is more than ECU 5 000 million; in addition, the aggregate Communitywide turnover of both ING and Barings exceeds ECU 250 million.

11. Moreover, neither undertaking achieves more than two thirds of its Communitywide turnover within one and the same Member State. The concentration therefore has a Community dimension.

V COMPATIBILITY WITH THE COMMON MARKET

Relevant product market

12. The parties have notified that they operate in a number of product areas which they identify as the following: retail banking, private banking, venture capital, corporate banking, investment banking, foreign exchange and money market trading, securities' issuing and trading which may be subdivided into equities, derivatives and fixed income instruments and asset management.

13. The Commission, in earlier decisions, has already identified a number of areas in which banks operate: retail banking [IV-M.391 BAI/Banca Popolare di Lecco], corporate banking [IV-M.213 Hong Kong & Shanghai Bank/Midland.], investment banking [IV-M.319 BHF/CCF/Charterhouse.], foreign exchange trading [IV-M.319 BHF/CCF/Charterhouse.], asset managemen [IV-M.357 Commerzbank/CCR.]t, money market trading [IV-M.319 BHF/CCF/Charterhouse.], derivative trading [IV-M.319 BHF/CCF/Charterhouse.], securities trading [IV-M.357 Commerzbank/CCR.] and bond and commercial paper issues and facilities [IV-M.069 Kyowa/Saitama Banks.]. For the purposes of the present case, however, it is not necessary to provide a definitive conclusion on the relevant product market since, on the basis of the assessment set out below, a dominant position would not be created or reinforced even on the narrowest product market definition.

Relevant geographic market

14. It is considered that certain services such as retail banking [IV-M.391 BAI/Banca Popolare di Lecco] and, to a certain extent, investment banking [IV-M.319 BHF/CCF/Charterhouse.] are limited to national or regional boundaries. These limitations are due to local language preferences and business cultures and, for retail banking, the fact that generally individual customers make use of a local branch of a bank.

15. More generally, financial markets, are in principle international in scope and the Commission has already concluded that "money markets trading, foreign exchange trading and derivative trading [are] activities whose geographic scope is international and are part of the normal business of any bank." [IV-M.319 BHF/CCF/Charterhouse] Nevertheless services are often provided through national outlets to local clients. For the purposes of the present case, however, it is not necessary to provide a definitive conclusion on the relevant geographic market since, on the basis of the assessment set out below, a dominant position would not be created or reinforced even on the narrowest geographic market definition.

Assessment

16. In order to gauge the magnitude of the operation, the impact of the acquisition of Barings on ING's position in a table of world rankings has been calculated. According to a survey published in The Banker in July 1994, and based on core capital, as defined by the Bank for International Settlements, ING is ranked number 15. As a result of its acquisition of Barings ING's position is unchanged. If the core capital of ING Bank, the ING banking subgroup, is employed instead, ING Bank's ranking improves from number 74 to 63 as the result of the acquisition of Barings. Therefore it is clear that the operation does not appear to change the overall relative position of the undertakings.

17. In general the two undertakings are complementary by way of operation and geographic spread. There is no appreciable overlap in any Member State in each of the areas concerned by the merger, a fact which is demonstrated below:

retail banking : Barings does not have a retail banking business whilst ING's operations are predominantly in the Netherlands;

private banking : Barings has principally UK clients as customers for this service which is provided through its offices in Guernsey and Switzerland. ING's operations are directed towards Dutch individuals in the Netherlands, Far East and Latin America;

venture capital : Barings is one of some 60 venture capital fund managers in the UK and serves UK companies. ING operates predominantly in the Netherlands;

corporate banking : Barings provides services to UK companies whilst ING serves Dutch clients located both in the Netherlands and overseas;

investment banking : Barings' business is both in developed and emerging markets: in the former about 75 % of itsincome is derived in the UK and the rest from other European countries; for emerging markets 50 % of Barings' income is derived from Asia and a further 25 % from Latin America. ING's activities in this area are very limited and confined to the Netherlands;

foreign exchange and money market trading : Barings' business is confined to acting on behalf of UK clients; ING is itself active on the international markets;

securities' trading:

equities : Barings provides an international service, largely on behalf of US and UK clients, for investment in markets outside the US or UK. ING trades principally Dutch equities on behalf of Dutch clients in the Netherlands.

derivatives : although both ING and Barings are active in derivatives trading their activities are focused on various instruments in a number of international locations. Therefore neither party is considered to have a significant share of trading on any exchange.

fixed income : Barings is a very small player in the fixed income bond markets; on the other hand ING's market activities are centred principally in the New York and Sao Paulo markets for Latin American debt and London for European debt.

asset management : nearly half of the assets managed by Barings are for UK clients with a negligible amount under management for Dutch undertakings. ING's activities are focused on Dutch clients and invested in Dutch equities and bonds.

18. The Commission has contacted a number of the merged entity's competitors operating in both the banking and securities' trading businesses. To the extent that either banking or securities' trading may be international in scope, in areas where an overlap occurs, ING/Barings would not have a market share of any significance.

19. In view of the market shares resulting from the concentration and the structure of the various markets concerned, the operation will not create or strengthen a dominant position such as to impede effective competition within the common market.

VI CONCLUSION

20. Based on the above findings, the proposed transaction does not raise serious doubts as to its compatibility with the common market.

For the above reasons, the Commission has decided not to oppose the notified operation and to declare it compatible with the common market and with the functioning of the EEA Agreement. This decision is adopted in application of Article 6(1)(b) of Council Regulation n° 4064-89.