Commission, December 9, 2013, No M.7010

Dear Sir/Madam,

Subject:  Case No COMP/M.7010 – Bolton/Tri-Marine/JV

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

(1)   On 4 November 2013, the European Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (the 'Merger Regulation') by which the undertaking Bolton Group International S.r.l. ('Bolton', Italy) intends to acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control over the undertakings Tri-Marine Holdings Coöperatief U.A. (Netherlands), Tri Marine US Holdings, LLC (United States), Cape Fisheries Holdings, LP (United States) and CFH GP, LLC (United States), forming the Tri Marine group, by way of purchase of shares ('the Transaction').2 Bolton and the Tri Marine group are designated hereinafter as ('the Parties' or 'the Merged Entity').

1.           THE PARTIES

(2)   Bolton produces mass consumption products in the following industries, (i) food, (ii) household care, (iii) personal and health, (iv) beauty care, (v) adhesives and glues. In the food sector, Bolton is mainly active in the canned seafood business, namely in the production and sale of canned tuna and other canned pelagic fish products, including popular canned tuna brands such as Rio Mare, Saupiquet, Palmera and Calvo.

(3)  The Tri Marine group is active in the canned seafood supply chain, namely in the fishing, trading and processing of tuna and other pelagic fish.

2.     THE TRANSACTION

(4)  The Transaction entails the acquisition of joint control by Bolton over the undertakings Tri-Marine Holdings Coöperatief U.A. (Netherlands), Tri Marine US Holdings, LLC (United States), Cape Fisheries Holdings, LP (United States) and CFH GP, LLC (United States), forming the Tri Marine group, by way of purchase of shares.

(5)  Prior to the Transaction, the Tri Marine group comprised a total of seven legal entities with a number of subsidiaries.3 Mr Renato Curto, a natural person, holds controlling interests in the holding companies of the Tri Marine Group involved in the Transaction. In view of the proposed Transaction, the Tri Marine Group is being reorganised. Tri-Marine Holdings Coöperatief U.A is established as a new joint venture to which Tri Marine International (PTE) Limited Singapore and Tri Oceanic Overseas Holdings LLC are contributed. Further, three of the Tri Marine group entities are contributed to the new legal entity Tri Marine US Holdings, LLC. As a result, four Tri Marine entities will be subject to the Transaction: (i) Tri-Marine Holdings Coöperatief U.A., (ii) Tri Marine US Holdings, LLC, (iii) CFH GP, LLC, and (iv) Cape Fisheries Holdings, LP.

(6)   Under the terms of an Umbrella Agreement and three Share Purchase Agreements signed on 30 September 2013 Bolton would acquire minority interests in each of those four entities, namely:

-        a […]% interest in Tri-Marine Holdings Coöperatief U.A.,

-        a […]% interest in Tri Marine US Holdings, LLC,

-        a […]% interest in CFH GP, LLC, and

-        a […]% interest in Cape Fisheries Holdings,  LP.4

(7)  Mr Curto will retain (directly or indirectly) the majority interests in these four companies.

(8) The proposed transaction falls within the scope of paragraph 45 of the Commission's Jurisdictional Notice under Council Regulation (EC) No  139/2004 on the control of concentrations between undertakings5 (hereinafter "the JN"). The acquisitions are interdependent as they are subject to the same Umbrella Agreement which stipulates that none of the transactions shall be deemed to have taken place if and until all other transactions have taken place.6 Therefore, the four transactions constitute one concentration in the form of the acquisition of joint control by Bolton of a single business within the meaning of Article 3 of the Merger Regulation.

(9)    Although there is no equality in voting rights or in appointment rights to decision- making bodies, Bolton will have a number of veto rights in all four entities concerned. These veto rights relate to, among other things, the appointment of senior management, the annual budget, the business plan, as well as any investments above […] within the annual budget and above […] outside of the annual budget. These rights go beyond the normal protection of the rights of minority shareholders because they give Bolton the power to block actions which determine the strategic commercial behaviour of the Tri Marine group.7 The Tri Marine group will thus be jointly controlled by Bolton and Mr. Curto after the Transaction.8

3.        EU DIMENSION

(10)  The undertakings concerned have a combined aggregate world-wide turnover9 of more than EUR 2 500 million.10 In each of France,11 Italy12 and Spain13 the combined aggregate turnover of the  undertakings  concerned  is  more  than  EUR 100 million and the aggregate turnover of each of at least two of the undertakings concerned is more than EUR 25 million. The aggregate EU-wide turnover of each of the undertakings concerned is more than  EUR 100 million,14 but they do not achieve more than two-thirds of their aggregate EU-wide turnover within one and the same Member State. The Transaction therefore has an EU dimension pursuant to Article 1(3) of the Merger Regulation.

4.       MARKET DEFINITION

4.1.    The value chain

(11)  The Transaction concerns all the phases along the value chain of the fishing industry, from the extraction (catching of raw material, notably tuna and pelagic fish)15 and trade through processing (converting the raw material into semi-finished or finished products) to marketing of canned seafood products (supply of the products to wholesalers, retailers and customers in the food service sector).

(12)  The tuna and pelagic fish industries rely exclusively on wild-caught production. First, fish are caught by fishing vessels in different areas across the world. Fishing vessels sell and deliver their catch directly to the processing plants located near the port where they unload their harvest (i.e. mainly in developing countries) or to traders.16 Fish is then put into cartons, which are either processed in situ or sent to blast freezers.

(13)  Tuna is usually supplied to processors or traders in the form of round tuna,17 which is frozen either directly on-board or once unloaded from the vessels. Once the product is frozen, it is placed in cold storage until it is shipped to the processing plants.

(14)  Once delivered to the processing plant, round tuna is gilled, gutted, headed, cut, loaded into trays and taken to the pre-cooker. After pre-cooking and cooling, the cleaners remove the skin from the fish and separate the loins from the skeleton. This further processing phase is called 'loining'. Tuna loins are then packed and frozen so as to be shipped to canneries, or alternatively they are used directly in situ by the processor for its canned tuna captive production.18

(15)  The last step, canning, is an automated process. Canneries can use both round tuna and tuna loins. Tuna is canned in oil, brine, spring water, sauce, vegetable broth, or in “tuna salad” form. Once the cans are sealed, they are cooked a second time (“retort cooking”), for two to four hours.19 After the retort cooking, the cans are cooled, labelled, and packed into cardboard cases for distribution.

(16) The processing model for canned pelagic fish is similar to that of canned tuna, except for the fact that pelagic fish do not require the intermediate processing phase of loining.

(17)  Once the fish has been fully processed (i.e. canned), it is sold (i) to private labels and/or brand owners who then distribute through the retail channel; (ii) to the food service sector (e.g. restaurants, caterers, etc); or (iii) directly to final consumers through the retail channel if the cannery/processor is a brand owner.

4.2.   The positioning of the Parties in the value chain

(18)  Both Parties are active in the supply chain for canned tuna and canned pelagic fish. Tri Marine mainly operates at the upstream and intermediate levels of the supply chain as a raw material supplier and canned seafood manufacturer. To a much lesser extent, Tri Marine is active in downstream wholesale distribution of canned tuna and in the distribution of canned tuna to the food service sector or the retail channel.

(19)  Bolton is mainly present in the intermediate and downstream levels of the supply chain in the production of canned seafood and the distribution of canned seafood to consumers, especially branded canned tuna.20 To a much lesser extent, Bolton is active in the upstream supply of round tuna or tuna loins to canneries.

(20)  The Transaction would then give rise to some horizontal overlaps between the Parties' activities (in any case with very small market share increments), but it would mainly result in the vertical integration between the Parties' activities along the supply chain. The following tables illustrate the positioning of the Parties in the value chain:

(21)   As regards pelagic fish, the Commission notes that Tri Marine only operates upstream as a supplier of pelagic fish that is addressed to sectors other than canneries (i.e. production of fishing bait and/or animal feed production).21 Therefore, although Bolton has minor activities downstream as a processor and distributor of canned pelagic fish for human consumption, since Tri Marine does not supply pelagic fish for human consumption, the transaction does not give rise to any vertical link between the Parties’ activities in pelagic fish, and thus these markets will not be further discussed in this Decision.

4.3.        Relevant markets

4.3.1.     Relevant product markets

(22)    The markets concerned by the Transaction have not been previously investigated by the Commission.

(23)     The Parties identify the following relevant product markets along the supply chain for canned tuna:

i.            supply of round tuna;

ii.            supply of tuna loins;

iii.            wholesale supply of canned tuna to private labels/brand owners;

iv.            supply of canned tuna to final customers through retailers;

v.            supply of canned tuna to the food service  sector.22

Tuna species/fishing methods

(24) The Parties submit that none of the markets in the tuna value chain should be sub- segmented on the basis of the different species of tuna (Skipjack, Yellowfin, Albacore, Bigeye or Bluefin) or the fishing method.

(25)  According to the Parties, both from a demand and supply-side perspective, all tuna species belong to the same market. Fishing vessels, catching methods, loining and canning processes do not change on the basis of the tuna species. Moreover, all tuna species are suitable for the canning industry23 and canneries buy a mix of different tuna species based on the different availability and price. As regards final customers, the Parties indicate that they cannot differentiate canned tuna on the basis of the tuna species contained in the cans. According to the Parties, in most countries such information is not provided on the can label, and in any case, once canned, the different tuna species do no present different taste characteristics.

(26)   The Parties only operate fishing through 'purse seiner'24 and 'pole and line'25 vessels. The Parties consider that the relevant markets should not be further segmented based on the fishing method, in particular because processing manufacturers and final customers purchase tuna regardless of the fishing method.

(27)  With regard to a possible segmentation based on the different tuna species, the result of the market investigation confirmed that, from a supply-side perspective, such a segmentation is not applicable throughout the value chain.26 However, from a demand-side perspective, the market investigation indicated that (i) customers in the retail and food service sectors might have specific preferences as regards the tuna species used for canned tuna, and that (ii) their purchase specifications for canned tuna usually include the indication of the desired tuna species. In any event, the precise product market definition can be left open since any segmentation by species does not have any impact on the competitive assessment in this case.

(28)  With regard to the different fishing method, the market investigation showed that neither from a supply-side perspective nor from a demand-side perspective, canned tuna should be further segmented on that basis in this case.27 The Commission notes that this could change one day if EU legislation concerning compulsory information to consumer changes and information on species and fishing gear used could become important for the choice of the consumers.

Fresh market/canning industry and trading activities

(29)   As regards the market for the supply of round tuna, the Parties consider that the market should not be further segmented on the basis of the 'destination' of the tuna, namely whether it is sold to the fresh market or the canning industry.

(30)  Respondents to the market investigation confirmed that all tuna species are equally suitable for the canning industry but not for the fresh market, for which some species (such as Yellowfin and Bluefin) seem to be preferable in view of their larger size.28 The precise scope of the market for the supply of round tuna (i.e. possible further segmentation on the basis of the destination) can be left open, as in any case this would not have an impact on the competitive assessment of the Transaction.29

(31) The canning industry purchases round tuna and tuna loins directly from producers or from traders. Whether or not trading activity constitutes a separate product market can be left open given that such a distinction would not have an impact on the competitive assessment of the Transaction.

Branded v private label tuna

(32)  As regards the markets for the supply of canned tuna (whether at the wholesale level or further downstream), the Parties submit that no further segmentation should be made on the basis of whether canned tuna is marketed as a branded or private label product. On the supply-side, there is no difference in the manufacturing process of branded and private label canned tuna. Canneries often produce canned tuna for both private labels and brand owners. On the demand-side, canned tuna is a low cost product, mainly addressed to price sensitive consumers that can easily switch from brands to private labels and vice versa.30

(33)  The results of the market investigation confirmed that canneries indeed produce canned tuna for both private labels and brand owners and that the commercial relationships with private labels customers and with brand owner customers do not differ to any significant extent. The vast majority of customers confirmed that they consider that branded and private label canned tuna fully compete with each other. For the purpose of this case, branded and private label canned tuna are therefore considered as belonging to the same product market.31

Preservation  liquids/ingredients/canning  material

(34)  The Parties argue that the markets for the supply of canned tuna should not be sub- segmented on the basis of the liquids used to preserve the fish, the ingredients Added to the fish or the canning material used. In fact, the Parties submit that canning is a totally automated process and most canneries can produce any variety of canned tuna products.32

(35)   The results of the market investigation confirmed supply-side substitutability in this respect. However, on the demand-side, some customers in the retail and food service sectors perceived canned tuna in different preserving liquids and/or canning material as different products.33 In any event, the precise product market definition can be left open since the precise delineation has no effect on the competitive assessment in this case.

4.3.2.          Relevant geographic market

(36)  As regards the geographic scope of the markets for the supply of round tuna and tuna loins, the Parties stress that the majority of round tuna or tuna loins that is processed in the EEA is imported from non-EEA countries and that the market is therefore worldwide in scope. According to the Parties, it is common practice in the tuna industry to undertake all the processing stages, up to the loining, as close as possible to the catch areas, and to export the semi-processed product to canneries in developed countries. This allows for an optimization of the shipping/transportation costs.

(37)  The results of the market investigation indicate that the majority of the operators in the value chain in the upstream markets for the supply of round tuna and tuna loins source and sell round tuna and tuna loins at worldwide level. This is confirmed by the import figures provided by the Parties according to which almost the totality of the unprocessed tuna purchased in the EEA is imported from outside the EEA. Furthermore, no specific trading patterns emerged between specific geographic regions.34 Given the worldwide trade patterns, the Commission considers the markets for the supply of round tuna and tuna loins to be worldwide in scope.

(38) The Parties also submit that the market for the supply of canned tuna to private labels/brand owners is worldwide in scope since major brands and private labels in the EEA also source their products to be branded and labelled from low-cost production centres outside the EEA. Within the EEA Spain is the main producing country of canned tuna (69% of the total European production), whereas the Italian production is below one-fifth of the European production and France and Portugal own respectively 7% and 4% of the canned tuna produced in Europe.35 In conclusion the Commission considers that the supply of canned tuna to private labels/brand owners is at least EEA-wide.

(39)  In relation to the downstream market for the supply of canned tuna through retailers, although the Parties consider that the market could be wider than national, in view of previous cases analysed by national competition authorities,36 the Parties ultimately submit market shares on a national basis.

(40)   As far as the downstream market for the supply of canned tuna to the food service sector is concerned, the Parties acknowledge that in its decision making practice, the Commission has considered that the market for the supply of food products to the food service sector is national in scope. However, they also submit that there has been a growing harmonisation and Europeanisation of this market.37 Moreover, the Parties argue that in the food service sector, customers make their purchasing decisions on the basis of the product price rather than on the basis of its quality, taste and brand.38 Consequently, according to the Parties, the market for the distribution of canned tuna to the food sector service should be considered worldwide or at least EEA-wide.

(41)   In respect of the food service sector, all respondents in the market investigation suggested that this is a national market. However, for the purposes of this decision, the exact scope of these markets can be left open, as in any case this would not have an impact on the competitive assessment of the Transaction.

5.       COMPETITIVE  ASSESSMENT

5.1.     Horizontally affected markets

(42)   The horizontal overlaps between the Parties' activities give rise to three affected markets, namely:

-       the worldwide market for the supply of round tuna;

-       the worldwide market for the supply of tuna loins;

-       the French market for the supply of canned tuna to the food service sector.

(43)  The Parties' combined market shares in 201239  are summarised in the tables   below:

(44)  The Commission notes that Bolton's activities in the upstream markets for the supply of round tuna and loins are mainly captive and that the Transaction would not significantly modify the structure of those markets. In both markets, the increment in market shares would be minimal at less than [0-5]%.

(45)  The respondents to the Commission’s market investigation have not raised specific concerns related to the horizontal overlaps between the business activities of the Parties.

(46)  As regards the supply of canned tuna to the food service sector, only the French market would be horizontally affected. In that case, the related market share increments would be [5-10]%. Customers confirmed that alternative suppliers to the Parties exist and none of the respondents raised any concerns.

(47)   Therefore, the Commission concludes that the Transaction is not likely to raise serious doubts as to its compatibility with the internal market in relation to the horizontally affected markets.

5.2.       Vertically affected markets

(48) The Transaction gives rise to vertically affected markets resulting from the vertical link between the upstream market for the supply of round tuna and tuna loins, where Tri Marine is mainly active,40 and the downstream markets for (i) the supply of canned tuna to private labels/brand owners, (ii) the supply of canned tuna to the food service sector and (iii) the distribution of canned tuna to consumers through the retail channel where Bolton is mainly active.

(49)  The Parties' market shares41 in 2012 are summarised in the tables below

5.2.1.           Vertical integration in the tuna value chain and role of traders

(50)  The Parties claim that the Transaction does not give rise to any input or customer foreclosure concerns since their main competitors, such as Thai Union Food and Korean Dong Won, are large vertically integrated international players, which operate at every level of the tuna value chain. As for non-integrated processors and suppliers of canned tuna, the Parties underline that in recent years traders have been playing a crucial role in the industry, by facilitating supplies to non-integrated tuna processors and guaranteeing access to inputs (round tuna and loins).

(51) The arguments made by the Parties in relation to vertical integration have been confirmed by the results of the market investigation. In particular, respondents confirmed that the industry has been undergoing a sustained process of vertical integration over the last few years and that the industry is characterised by large spare capacity.43

(52)  Furthermore, the market investigation confirmed the important role played by traders. Further details on the role of traders in ensuring access to raw material in the tuna value chain will be discussed in the analysis of potential input foreclosure concerns in section 5.2.2.1 below.

5.2.2.     Markets for the supply of round tuna or tuna loins/Markets for the supply of canned tuna (to private labels/brand owners, through retailers and to the food service sector)

5.2.2.1.   Input foreclosure

(53) The majority of respondents to the market investigation raised no concerns. A few respondents submitted that the Merged Entity would have a strong market presence in the upstream markets for the supply of round tuna and tuna loins and would be in a position to restrict access to products or raise prices to its competitors downstream post-Transaction. Some made specific reference to the Merged Entity’s allegedly strong market position in Yellowfin tuna.

(54)  Tri Marine has a relatively strong presence in particular in the market for the supply of tuna loins ([30-40]% in the worldwide market for all tuna loins).44 However, Tri Marine’s own production of tuna loins accounts for only [5-10]% of the global volumes of tuna loins and of [5-10]% of the global volumes of tuna loins destined for the merchant market (thus excluding volumes used for captive production). Tri Marine’s remaining tuna loins sales are based on its trading activity and not on its own production. According to Tri Marine, its contractual relations with loin processing plants are non-exclusive and short-term meaning that loin processors (i.e. canneries) can switch to alternative purchasers. In 2012, [50-60]% of Tri Marine's sales of loins were made to Bolton.

(55) The Commission notes that several competitors will continue to be active in the supply of tuna loins (including Yellowfin tuna loins). These competitors include the trading companies FCF and Itochu of Japan with estimated market shares of [20- 30]% and [0-5]% in loins at worldwide level respectively. According to the Parties, the remaining market is highly fragmented between several small operators like General Tuna, Marbelize, Tecopesca, Unicord-Sea Value, Eurofish, TUF, Thon de Mascareignes, Wanainchi Marine Products, Actemsa, Commercial Pernas, Jais, Dragon Waves.

(56) Even though Tri Marine may currently be the largest supplier of tuna loins to the EEA,45 given that the markets are worldwide, current EEA-customers of Tri Marine could start sourcing from several competitors, including traders such as FCF.

(57)  Moreover, according to the Parties, Bolton's downstream competitors in the market for canned tuna can use both loins and round tuna as input to their production. The same applies to the branded manufacturers of canned tuna, who can either source raw materials (i.e. round tuna or loins) and internalize production, or buy directly the finished product (i.e. canned tuna) from other suppliers.

(58) The results of the market investigation confirmed that most canned tuna manufacturers can process both loins and round tuna. Moreover, the majority of the suppliers of canned tuna indicate that they can easily switch and change loin suppliers and identified a number of alternative suppliers to the Parties.

(59) The existence of at least a certain degree of input substitutability between round tuna and tuna loins for canned tuna manufacturers would suggest that an input foreclosure strategy in relation to loins might not yield benefits. In fact, suppliers of round tuna are likely to exert a certain degree of additional competitive pressure on the suppliers of loins, including Tri Marine. In this regard, the Commission notes that Tri Marine has a more limited market share in the supply of round tuna ([20-30]% at the worldwide level and [5-10]% at the EEA-wide level) and would be constrained by other international players.

(60) The results of the market investigation confirmed the presence of a relatively large number of potential alternative suppliers to the Merged Entity for round tuna which are essentially the same competitors as in the supply of tuna loins. In particular, the crucial role played by traders in the supply of round tuna to non-integrated operators in the value chain was widely confirmed by the results of the market investigation. The most important traders of round tuna competing with Tri Marine are FCF and Itochu with global market shares in the trading of round tuna to the canning industry of [20-30]% and [5-10]% respectively.

(61) The competing traders have a global reach, raw material is available in the short term because there are generally no long-term supply contracts and there are generally no quotas in place to restrict tuna fishing activities. In the course of the market investigation, competitors in the supply of round tuna, including FCF, indicated that they do not anticipate any impact of the transaction on the availability of round tuna.

(62) The Commission therefore finds that a price increase in tuna loins (or in round tuna) would likely be undercut by alternative producers of round tuna and tuna loins as well as by trading competitors who would continue to have access to both round tuna and tuna loins and who could increase their trading volumes.

(63) Despite Tri Marine’s relatively strong position in the production of tuna loins, given the degree of substitutability between round tuna and tuna loins, the existence of alternative suppliers in the supply of round tuna and tuna loins, the role of competing traders, and the fact that Bolton already sources [60-70]% of its external needs from Tri Marine and is therefore unlikely to be able to absorb all the volumes produced/traded by Tri Marine without significant capacity expansion, the Commission concludes that the Merged Entity would unlikely be able to implement an input foreclose strategy vis-à-vis it competitors in the markets for the supply of canned tuna.

5.2.2.2.     Customer foreclosure

(64)  In view of the vertical relationship between the Parties' activities, the Commission has also analysed whether post-Transaction the Merged Entity could successfully implement a customer foreclosure strategy, whereby the Merged Entity would disrupt competition in the market for the supply of tuna loins by sourcing loins exclusively internally or by increasing the competitors’ cost to access downstream customers.

(65) The Commission notes that in the downstream markets for (i) the supply of unbranded canned tuna to private labels/brand owners and for (ii) the supply of canned tuna for food service sectors, Bolton is a small buyer since most of its production is captive. Therefore, Bolton is unlikely to be a crucial or significant customer in these two markets. However, it could be argued that in the downstream market for (iii) the distribution of canned tuna to consumers through retailers, Bolton has a significant market position in some countries (e.g. [50-60]% market share in Slovenia). Therefore, Bolton might represent a significant customer in this downstream market.

(66)  However, the Commission has taken into account that Bolton and Tri Marine have had a close business relationship including significant sale purchase relations in tuna raw materials for many years. For example, in 2012, about [60-70]% of Bolton's requirement for loins was purchased from Tri Marine (and [50-60]% of Tri Marine's sales of loins were made to Bolton). Moreover Bolton only represents [20-30]% of the demand on the worldwide merchant market for loins. The Commission thus finds that the quantity of sales that could be withdrawn from Tri Marine's competitors is relatively small since Tri Marine is already Bolton's major supplier of tuna loins.

(67)    Some operators acknowledged in the course of the market investigation that in the last few years Bolton has already been sourcing loins predominantly from Tri Marine, and hence de facto the Transaction would not significantly alter the market structure.46 Furthermore, none of the respondents raised any specific concern in relation to the likelihood of a customer foreclosure scenario.

(68)  Therefore, the Commission concludes that the Merged Entity would unlikely be able to implement a customer foreclosure strategy vis-à-vis competitors in the market for the supply of tuna loins.

5.2.3.        Market for the supply of canned tuna to private labels and brand owners/Market for the supply of canned tuna through retailers

5.2.3.1.     Input foreclosure

(69)    The Commission has analysed whether the Merged Entity might be in a position to restrict supply of canned tuna or raise prices of canned tuna for private labels and brand owners which compete with Bolton in the market for the supply of canned tuna for distribution through the retail channel.

(70)    At the EEA-wide level, the Merged Entity would not be a significant player in the market for the supply of canned tuna to private labels and brand owners (with a [5- 10]% volume market share and a [5-10]% value market share).47 The market investigation confirmed that the majority of customers sources at a worldwide level48 and that the majority of suppliers are willing to supply customers regardless of their geographic location.49 In addition, the respondents confirmed that traders also play a role in the supply of canned tuna and did not raise any specific concerns relation to the likelihood of an input foreclosure scenario in these markets. Therefore, the Merged Entity is unlikely to have a significant degree of market power in the upstream market and thus the ability to implement an input foreclose strategy.

(71)    Therefore, the Commission concludes that the Merged Entity would unlikely be able to implement an input foreclose strategy vis-à-vis competitors in the markets for the supply of canned tuna through retailers.

5.2.3.2.     Customer foreclosure

(72) In view of the fact that Bolton is a significant player on the downstream market for the supply of canned tuna for distribution through the retail channel in a number of countries, the Commission has also analysed whether the Merged Entity would be in a position to implement a customer foreclosure strategy.

(73)   However, this scenario would seem unlikely because despite its strong market presence in certain countries, Bolton does not represent an important customer of canned tuna given that it produces most of its branded canned tuna captively. In fact, the amount of canned tuna purchased by Bolton for the subsequent sale through the retail channel accounts for less than [5-10]% of the total European demand for canned tuna. Following the business model adopted by all the major players active in this market, Bolton has already internalised the production of canned tuna and relies on third-party suppliers of canned tuna only to a very limited extent.

(74)  The market investigation confirmed that the majority of the suppliers of canned tuna to private labels/brand owners are ready to supply any customers regardless of their geographic location. The same is true for customers of (unbranded) canned tuna, who in most cases source at worldwide level. This implies that even if post-Transaction Bolton were to stop sourcing (unbranded) canned tuna from third parties or tried to increase the competitors’ cost to access customers, suppliers of canned tuna could easily access a broader customer base than the European one and easily find alternative  customers.

(75)  Finally, during the market investigation, no specific concerns were raised in relation to the likelihood of a customer foreclosure scenario in these markets.

(76) Therefore, the Commission concludes that the Merged Entity would unlikely be able to implement a customer foreclose strategy vis-à-vis competitors in the market for the supply of canned tuna to private labels/brand owners.

5.2.4.           Conclusion on the competitive assessment

(77)   Therefore the Commission concludes that the Transaction is not likely to raise serious doubts as to its compatibility with the internal market in relation to the vertically affected markets.

6.        CONCLUSION

(78)   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. 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 326, 12.11.2013, p.7.

3.        The seven Tri Marine group entities are (i) Tri Oceanic Overseas Holdings LLC, (ii) Tri Marine Management Company, (iii) Tri Marine Fish Co, (iv) The Tuna Store, LLC, (v) CFH GP, LLC,   and

(vi) Cape Fisheries Holdings, LP, (vii) Tri Marine International (PTE) Limited Singapore.

4.        Bolton will acquire a […]% interest directly. Bolton will acquire the remaining […]% indirectly through its […]% shareholding in CFH GP, LLC, which holds a […]% interest in Cape Fisheries Holdings, LP.

5         OJ C95, 16.04.2008, p1.

6         Clause 8 of the Umbrella Agreement, Annex 3 to the Form CO.

7         Paragraphs 65ff JN.

8         Given that Mr Curto is a natural person without any economic activities other than his interests in the Tri- Marine target companies he is not considered an undertaking concerned and a notifying party under the Merger Regulation. Paragraph 12 JN; see similarly case COMP/M.3762 – Apax/Travelex, Commission decision of 16 June 2005, paragraph 6, and Case COMP/M.6411 – Advent/Maxam, Commission decision of 6 February 2012, paragraphs 6 and 7.

9         Turnover calculated in accordance with Article 5(1) of the Merger Regulation and the JN.

10      Bolton: EUR […]; Tri Marine group: EUR […].

11      Bolton: EUR […]; Tri Marine group: EUR […].

12      Bolton: EUR […]; Tri Marine group: EUR […].

13      Bolton: EUR […]; Tri Marine group: EUR […].

14      Bolton: EUR […]; Tri Marine group: EUR […].

15      Pelagic fishes swim in shoals close to the surface of coastal waters and often travel long distances. Sardines, squids, anchovies, herring and mackerels are types of pelagic fish.

16      Traders help vessel operators with the financial and administrative burdens associated with marketing their catch and ensure that processors have continued access to large volumes of raw material.

17      Round tuna refers to tuna not subjected to any transformation except for chopping and freezing.

18      A substantial volume of loins is intended for the captive supply of vertically integrated companies which, through their own processing plants, convert the round fish into loins in situ or in canneries located in the destination markets. It is a relatively common practice of the EU and United States’ tuna industry to carry out all the processing stages, including loining, as close as possible to the fish landing areas in the developing countries, and then to export the semi-processed product (frozen pre- cooked tuna loins for canning) to canneries in developed countries.

19      The Parties explain that the canning process illustrated is used by market operators representing 90% of the total market. The remaining 10%, mainly located in Brazil and France, does not cook seafood before canning it.

20      In Europe, Bolton sells canned tuna under the Rio Mare, Saupiquet, Palmera and Calvo brands.

21      See reply of the Parties to the request for information dated 21 November 2013.

22      The Parties acknowledge that the supply of canned tuna to the food services sector could represent a separate market from the market for the supply of canned tuna to retailers. On the demand side, the configuration and pack sizes demanded by customers in the food service sector are likely to be different from those demanded by retailers.

23      The Parties acknowledge that canneries process mainly certain tuna species, such as Yellowfin and Skipjack. However, such preference is simply driven by the large availability of these two species as compared to other species (the two species together represent approximately 82% of the worldwide tuna catches).

24      A purse seiner is a net set vertically in the water. When a school of tuna is sighted, the purse seiner vessel encircles the school and traps it by closing the net.

25      A pole and line consists of a hooked line attached to a pole. On pole and line vessels, fishermen stand on vessels and fish with the poles.

26      See replies to question 11 of questionnaire Q1 (Supply chain operators).

27      See replies to question 11 of questionnaire Q1 (Supply chain operators).

28      See replies to question 11 of questionnaire Q1 (Supply chain operators).

29      Only [0-5]% of Tri Marine's catches are addressed to the fresh market. Bolton is not active at all in the supply of round tuna to the fresh market. Hence, this decision will only consider the narrower segment of supply of round tuna to the canning industry.

30      The Parties refer to the decision of 6 September 2012 in case C11589 – Bolton Group International/Luis Calvo Sanz, where the Italian NCA established that branded and unbranded canned tuna belongs to the same product market.

31      See replies to question 32 of questionnaire Q1 (Supply chain operators), question 9 of questionnaire Q2(Retail) and question 11 of questionnaire Q3(Food service).

32      The Parties refer to the decision of 20 December 2007 in case C8971 - Bolton Alimentari/Rami d’azienda di brands, where the Italian NCA established that oil free tuna, oil tuna, tuna salad and tuna fillets belong to the same market.

33      29 of questionnaire Q1 (Supply chain operators).

34      The largest tuna loin suppliers of the EU are Ecuador, Thailand, Mauritius, El Salvador/Guatemala and Papua New Guinea. 35% of EEA supplies of tuna loins originate in Ecuador.

35      Internal EU production represents around 40% of EU estimated consumption of canned and preserved tuna.

36      See OFT decision CR/46/10 - Thai Union Frozen Products /MW Brands Holdings and the Italian NCA decision C11589 - Bolton/Calvo.

37      The Parties refer to the decision in case COMP/M.6813 - McCain Foods Group/Lutosa Business. In the decision, the Commission argued that the market for the supply of potato products to quick service restaurants is EEA wide since, from the supply side, these products are homogeneous and do not differ in taste or quality from country to country and, from the demand side, customers purchase them by way of global tenders.

38      The investigation conducted by the OFT in case CR/46/10 - Thai Union Frozen Products /MW Brands Holdings, demonstrated that “for those products where the end-consumer does not see the brand (for example where tuna is an input to a ready-meal or sandwich),” branding is not important.

39      Unless differently specified, value market shares are used which are generally higher than the volume market shares.

40      Bolton has a limited production of loins outside the EEA. In the EEA, its production of loins is only for captive purposes.

41      Unless differently specified, value market shares are used which are generally higher than the volume market shares.

42      Market shares include both branded and private label products and are provided on a national basis only when they exceed 25%.

43      See Minutes of the conference call with FCF of 20 November 2013.

44      Given that a concern was raised in respect of Yellowfin tuna specifically, it is worth noting that Tri Marine's position in Yellowfin tuna loins is weaker than when considering all tuna species together with a market share of [10-20]% at worldwide level.

45      With a market share of [40-50]% of the supply of tuna loins to customers in the EEA.

46      See Minutes of the conference call with Frinsa of 18 November 2013, and Minutes of the conference call with FCF of 20 November 2013.

47      Tri Marine would have the following (volume) market shares: [0-5]% in Spain; [0-5]% in France; [5- 10]% in Belgium; [5-10]% in Germany; [0-5]% in Poland. For this market reference is made to volume market shares rather than value market shares, because the volume market shares are higher than the value market shares.

48      See replies to questionnaire 11 of Q2 (retailers).

49      See replies to questionnaire 47 of Q1 (supply chain operators).