Commission, September 23, 2011, No M.6296

Dear Sir/Madam,

Subject:  Case No COMP/M.6296 – TRITON/ COMPO

Commission decision pursuant to Article 6(1)(b) of Council Regulation No 139/20041

1.  On 22.08.2011, the European Commission received notification of a proposed concentration pursuant to Article 4 of the Merger Regulation by which Triton Managers III Limited and TFF III Limited as general partners of the various limited partnerships constituting Triton Fund III ("Triton", Jersey) acquire within the meaning of Article 3(1)(b) of the Merger Regulation sole control of the whole of the Compo Consumer and the Compo Expert businesses (together “Compo”, Germany) by way of purchase of shares and assets.2 Triton is designated hereinafter as the "notifying party".

I.            THE PARTIES

2. Triton is a private equity investment company. Through its various funds, Triton indirectly controls a number of undertakings entirely managed as separate businesses with different directors and management teams.

3.   Compo is a European provider of branded consumer products in plant nutrition, plant care and plant protection and provides niche fertilizers and plant protection products to professional users. It has nine production sites, all located in Western Europe. It is 100% owned and controlled indirectly by K+S Aktiengesellschaft ("K+S"). Compo is organised into two divisions, Compo Consumer3  and Compo Expert4.

II.         THE OPERATION

4.  On […], K+S and Triton signed a Share and Asset Sale and Purchase Agreement. Following the completion of the proposed transaction, Triton will indirectly solely control Compo.

5.  […]

6.       The purchaser for the purposes of this transaction is a new company (“NewCo”) formed for the purpose of the acquisition of Compo. […]

III.      CONCENTRATION

7.       The proposed transaction will result in Triton acquiring sole control over Compo. The notified transaction therefore constitutes a concentration within the meaning of Article 3 (1) (b) of the Merger Regulation.

IV.      EU DIMENSION

8.       The undertakings concerned have a combined aggregate world-wide turnover of more than EUR 5 000 million5 ([…]). Each of them has an EU-wide turnover in excess of EUR 250 million ([…]), but they do not achieve more than two-thirds of their aggregate EU-wide turnover within one and the same Member State. The notified operation therefore has an  EU dimension.

V.         COMPETITIVE ASSESSMENT

9.       The proposed transaction does not lead to any horizontal overlaps between the activities of the undertakings concerned as neither Triton nor any of Triton's portfolio companies is active within a market in which Compo is engaged.

10.   However, the transaction leads to two minor vertical relationships. The vertical relationships result from the provision by Lehnkering, a portfolio company controlled by Triton, of contract manufacturing services for agrochemicals and of warehousing services of finished products, both of which are upstream to Compo's activities in non-agricultural plant protection products. Both the supply of warehousing services and contract manufacturing services offered respectively by Lehnkering and by one of its subsidiaries, Schirm, are only in relation to non-agricultural plant protection products. Therefore, although Compo's produces both agricultural and non-agricultural plant protection products, only the latter shall be of relevance6. The relevant vertical relationships each will be elaborated in turn.

A.                 Relevant markets definition

1.                   Downstream markets where Compo is active

Relevant product markets

11.   Compo is active in the manufacture and sale of fertilisers, agrochemical  products, potting soils and packaged treated seeds.

12.   The Commission has considered in previous decisions the existence of separate product markets for fertilisers7 and treated seeds8. The notifying party considers that potting  soils in the absence of a Commission precedent relating to these products also  constitutes a separate product market.

13.   In relation to agrochemicals, the Commission has in the past identified separate product markets for herbicides, fungicides and insecticides9. The Commission has also considered whether non-agricultural crop protection products for home and garden constitute a separate market from agricultural products10. In the case of non-agricultural products a further breakdown of the market by type of plant was not considered appropriate, since most products for home and garden have broad and general application labelling and could be used to protect various types of plants.

14.   In the present case, the exact relevant product market definition for each of the products concerned can also be left open as the transaction would not lead to any competition concerns under any alternative plausible market definition.

Relevant geographic markets

15.   The notifying party, in line with Commission precedents11, considers that the geographic scope of the market for fertilisers is at least EEA-wide except for liquid fertilisers which is considered to be national.

16.   As to agrochemicals, the Commission in its previous decisions, suggested that the relevant product markets could be national in scope although it ultimately left the question open.12

17.   Concerning treated seeds, the Commission previously considered that the geographic market was national13. As to potting soils, the Commission has not previously  considered the geographic scope of this market.

18.   In the present case, the exact relevant geographic market definition of each of the products concerned can also be left open as the transaction would not lead to any competition concerns under any alternative potential market definition.

2.         Upstream markets where Lehnkering and Schirm are active

Relevant product markets

19.  The Commission has identified in its previous decisions the existence of separate  product markets for contract manufacturing14 and for warehousing services15. Regarding the provision of contract manufacturing services, so far the Commission has left open its precise market definition16. Regarding warehousing services the Commission has considered them to be part of freight forwarding services17. This position was confirmed in Marfrig/Keystone18, although the Commission ultimately left the question open. Also in the present case, the exact relevant product market definition for contract manufacturing services and warehousing services can be left open as the transaction would not lead to any competition concerns under any alternative plausible market definition.

Relevant geographic markets

20.  As to contract manufacturing services, the notifying party considers that the geographic scope of the market is at least EEA-wide. This view is in line with a previous Commission decision where although ultimately leaving open the precise scope of the geographic market it suggested that it might be considered as being at least EEA-wide19. This view that the market for contract manufacturing may be considered wider than national has also found support in the current market investigation.

21.  As to warehousing services, in its previous decisions the Commission considered whether the market was national or EEA-wide although it ultimately left the question open20 .

22.  In the present case the exact relevant geographic market definition for contract manufacturing services and warehousing services can be left open as the transaction would not lead to any competition concerns under any alternative plausible market definition.

B.                 Competitive assessment

 1.   Contract manufacturing services relationship

23.  Schirm, a subsidiary of Lehnkering, provides contract manufacturing services for non- agricultural plant protection products to Compo […]21. Schirm also provides these services to a number of competitors of Compo.

24.  Compo's market share in non-agricultural plant protection products on an EEA-wide level never exceeds [10-20]% for any individual category of plant protection product as shown in Table 1. At a national level, the transaction would result in technically vertically affected markets only in Spain. The market share of Compo in Spain as shown in Table 1 would exceed 25% in several non-agricultural plant protection products such as herbicides, insecticides, fungicides, mixed insecticides and fungicides, slug killers, ant killers and rodenticides.

Table 1: Compo's market shares for Non-Agricultural Plant Protection Products, by value (2010)

Source: Notifying party estimates

25.  As to the competitive situation in non-agricultural plant protection products in Spain, Table 2 shows the market shares by sales value of Compo and its main competitors in 2010.

Table 2: Market shares – Non-agricultural Plant Protection Products in Spain, by sales value (2010)

Source: Notifying party estimates

26.  Likewise, the market shares of Schirm and its main competitors in contract manufacturing services for agricultural products are shown in Table 3. At an EEA-wide level, according to the notifying party estimates, Schirm market share of total warehousing and logistics services is [0-5]%. If the geographic market for the supply of warehousing services for chemical goods were to be defined as national in scope, the vertical relationship would be  limited  to  Germany22.  The  market  investigation  showed  the  existence  of   other competitors providing contract manufacturing services such as DSM, ICIG Group and CABB. The market investigation also revealed the increasing competition of contract manufacturers from China and India since transport costs are small relative to manufacturing costs.

Table 3: Estimated Market Shares for Contract Manufacturing Services for Agricultural Products, by value, 2010

Source: Notifying party estimates

27.  Since this vertical relationship between Schirm and Compo gives rise to a series of vertically affected markets in Spain, the issue of foreclosure is relevant for the competitive assessment of the proposed transaction. The assessment that follows therefore examines whether for this vertical relationship the notified transaction would result in input or customer foreclosure.

a.                            Input foreclosure

28.  As regards input foreclosure, the merged entity lacks the ability to foreclose competitors downstream from access to contract manufacturing services. In particular, Schirm, given its limited EEA-wide market share ([0-5]%), does not hold the necessary market power to foreclose Compo's competitors from their access to contract manufacturing services. The market investigation confirmed that given its small size, Schirm is not considered to pose a competitive constraint on other contract manufacturers. The market investigation also revealed that most of the large companies present in agrochemical plant protection products such as Bayer, Syngenta, Dow and DuPont are vertically integrated, having the capacity to develop and manufacture internally most of their products23. Therefore these companies already pose a competitive constraint on the ability of the merged entity to engage in a foreclosure strategy.

29.  The merged entity would not have the incentive to foreclose since contract manufacturing services represent a small share of the cost of the downstream product relative to the cost of other inputs such as the raw materials and active ingredients needed to produce the non- agricultural plant protection product. In addition, […] Furthermore, the market investigation did not reveal that the transaction will have any negative impact on competition.

30.  In view of the above, it is concluded the proposed transaction does not rise competition concerns as to possible input foreclosure.

b.         Customer foreclosure

31.  As regards customer foreclosure, the merged entity lacks the ability to foreclose upstream contract manufacturers of plant protection products since there is a sufficiently large customer base within Europe to which they could turn in case Compo were to engage in such a strategy. According to the notifying party estimates, Compo's share of the EEA-wide demand for contract manufacturing services is only [5-10]%. Thus, the merged entity will not possess the ability to foreclose the access of contract manufacturers to the downstream market. Additionally, it will lack the incentive because it will be competitively constrained by other competitors which also in the case of Spain enjoy market shares of around [20- 30]% for individual product markets.

32.  In view of the above, it is concluded the proposed transaction does not rise competition concerns as to possible customer foreclosure.

2.   Warehousing services relationship

33.  Lehnkering offers distribution logistics and services, including warehousing of finished products. Manufacturers turn to undertakings offering warehousing services when their own capacities for storage are fully depleted.

34.  Lehnkering's warehousing activities do not give rise to a vertically affected market. On the one hand, according to the notifying party estimates, Lehnkering's share of total warehousing and logistics services of chemical goods on an EEA-wide basis is only [0-5]% and, assuming the geographic market is national in scope, a vertical relationship would be limited to Germany where it would have a market share of approximately [5-10]%. On the other hand, either at the EEA level or in Germany, Compo's market shares for any individual category of agricultural and non-agricultural plant protection product would not exceed 25%.

VII. CONCLUSION

35.  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.

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 253, 30.08.2011, p. 6.

3        Compo Consumer sells potting soils, plant care, lawn care, lawn and garden fertilizers, lawn seeds and plant protection products for the indoor and outdoor gardening sector, inter alia, under three well-known brands: "Compo", "Algoflash" and "Gesal". It also sells various private label products

4        Compo Expert sells speciality fertilizers and services to professional customers such as the public green segment, plant nurseries, horticulture and the agricultural sector. In some regions it also sells plant protection products

5        Turnover calculated in accordance with Article 5 of the Merger Regulation.

6        Moreover, Compo's activities in agricultural plant protection products are very limited. Compo’s market share in agricultural plant protection products at the EEA level, even on the narrowest possible product market definition (i.e. for each type of crop or plant treated for either herbicides, fungicides or insecticides) is less than 25%. Even on the narrowest possible market definition for those national markets within the EEA in which Compo is active (France and Germany in particular), Compo does not exceed a 25% market share.

7        COMP/M.4730 – Yara/ Kemira GrowHow; COMP/M.2524 Hydro/SQM/ROTEM/JV.

8        COMP/M.5675 – Syngenta/Monsanto’s sunflower seed business; COMP/M.3465 – Syngenta  CP/Advanta.

9        COMP/M.737 – Ciba-Geigy/Sandoz ; COMP/M.1932 – BASF/American Cyanamid (AHP).

10     COMP/M.2547 – Bayer/Aventis Crop Science.

11     COMP/M.4730 – Yara/Kemira Growhow.

12     COMP/M.737 – Ciba-Geigy/Sandoz ; COMP/M.1932 – BASF/American Cyanamid (AHP).

13     COMP/M.5675 – Syngenta/Monsanto’s sunflower seed business; COMP/M.3465 – Syngenta  CP/Advanta.

14     COMP/M.5253 – Sanofi-Aventis/Zentiva.

15     COMP/M.5933 – Marfrig/Keystone.

16     COMP/M.5253 – Sanofi-Aventis/Zentiva; COMP/M.5479 – Lonza/TEVA/JV; COMP/M.5555 – Novartis/Ebewe; COMP/M.3394 – Johnson & Johnson / Johnson & Johnson MSD Europe; COMP/M.3751 – Novartis/Hexal.

17     COMP/M.5450 – Kühne/HGV/TUI/Hapag Lloyd.

18     COMP/M.5933 – Marfrig/Keystone.

19     COMP/M.5253 – Sanofi-Aventis/Zentiva.

20     COMP/M.5933 – Marfrig/Keystone; IV/M.197 – Deutsche Post / Air Express International.

21     The services Schirm provides include packaging, mixing and formulation. Formulation involves combining active ingredients provided by the counterparty to the agreement according to the latter's specifications and instructions. Mixing involves combining inputs to create the finished product. Packaging involves packing the finished products in packages ready for sale to customers.

22     The market investigation has allowed to confirm that Lehnkering is not present as a provider of contract manufacturing  services in Spain.

23     In some cases such companies do not want to invest in developing the expertise and the required equipment for developing some specific products and therefore outsource this work to contract manufacturers.