Commission, April 10, 2014, No M.7155

Dear Sir/Madam,

Subject:   Case M.7151 - BNP PARIBAS/ Certain Assets of Royal Bank of Scotland Commission decision pursuant to Article 6(1)(b) of Council Regulation No 139/20041

(1)     On 6 March 2014 the Commission received a notification of a proposed concentration pursuant to Article 4 of the Merger Regulation by which BNP  Paribas S.A. ("BNPP", France), hereafter "the notifying party" acquires within the meaning of Article 3(1)(b) of the Merger Regulation sole control of certain assets ("Target Business") of The Royal Bank of Scotland Plc. and The Royal Bank of Scotland N.V. (together "RBS", the United Kingdom) by way of purchase  of assets, hereafter "the proposed transaction". BNPP and the Target Business are jointly referred to as "the Parties".

1.           THE PARTIES

(2)     BNPP is active in the field of retail banking services and corporate and investment banking worldwide. Its subsidiary BNP Paribas Arbitrage Issuance BV, directly concerned by the transaction, is an entity of BNPP located in the Netherlands, specialised in the issuing of securities, such as warrants, certificates, notes and  other financial products, issued under a guarantee of BNPP.

(3)     RBS operates retail and commercial businesses with a focus on the UK, Republic  of Ireland and the United States. Its core business segments include personal banking and corporate banking in the UK and retail and commercial banking in the United  States.  RBS’  investment  banking,  wealth  management  and     payments network have a wider international presence across Europe, the Middle East, the Americas and Asia.

(4)     The Target Business consists in (i) structured investment products and equity derivatives issued by RBS, along with the economic risks and rewards of payments and delivery flows of these products, (ii) financial instruments held by RBS for the purpose of hedging the risks associated with these products and (iii) contracts, staff composed by front office professionals necessary to ensure the continuity of the business, IP rights, proprietary software and proprietary indices information, all related to the assets mentioned previously. Therefore, the transferred assets constitute a business with market presence within the meaning of paragraph 24 of the Commission Consolidated Jurisdictional Notice under the Merger Regulation.2

2.              THE CONCENTRATION

(5)     On 19 February 2014, the Parties signed a Transaction Framework Agreement based on which BNPP will acquire the Target Business as described above. Therefore, the proposed transaction constitutes a concentration by way of acquisition of assets, within the meaning of Article 3(1)(b) of the Merger Regulation.

3.             EU DIMENSION

(6)     The undertakings concerned have a combined aggregate world-wide turnover of more than EUR 5 000 million3 (BNPP: EUR […] million, the Target Business:  EUR […] million). Each of them has an EU-wide turnover in excess of EUR      […] million (BNPP: EUR […], the Target Business: EUR 446 million) but they do not achieve more than two-thirds of their aggregate EU-wide turnover within one and the same Member State.

(7)     Therefore, the proposed transaction has an EU dimension, within the meaning of Article 1(2) of the Merger Regulation.

4.                COMPETITIVE ASSESSMENT

(8)     The Parties’ activities overlap on the market for the sale and trading of equity derivatives in the EEA, namely in the segments of flow equity derivatives, equity financing and corporate derivatives. They also overlap on the market for structuring, issuing and market making of structured investment products, in its sub-segments namely (i) exchange traded structured investment products ("ETSIP") in Germany, Italy, Finland, Norway, the Netherlands, Switzerland and Sweden and (ii) wholesale structured investment products in the EEA.

4.1.                 Equity derivatives

4.1.1.              Product market definition

(9)     Derivatives are financial contracts deriving their value from another asset (called "the underlying"), which could for instance be a commodity, equity or fixed  income instrument or an equity index. The Commission previously analysed the market for trading and clearing of exchange traded derivatives performed by the exchanges, which offer trading platforms and clearing houses. The Commission considered  that  this  market  could  be  subdivided  by  (i)  type  of  contract, (ii) underling asset class such as equities, equity indices, option, swaps or (iii) the execution environment (Over-the-Counter ("OTC"), or on exchange).4 However,  the proposed transaction does not relate to the trading and clearing activity as defined in these previous cases, since the Parties’ activities overlap only in OTC sales and trading of equity derivatives, thus the previous analysis of  the Commission is not fully applicable to the case at hand.

(10)    The notifying party submits that the market for equity derivatives could be segmented into (i) flow equity derivatives, (ii) equity financing, and (iii) corporate derivatives, as these products are not substitutable.

(11)    The market investigation largely confirmed that the market for equity derivatives could be subdivided in the proposed manner,5 therefore, the product market for equity derivatives will be analysed accordingly for the purpose of the present case. Nevertheless, the precise scope of the product market definition can ultimately be left open, given that no competition concerns arise under any plausible market definition.

4.1.1.1.     Flow Equity Derivatives

(12)    The notifying party submits that flow equity derivatives, also referred to as "vanilla equity derivatives" are standard products (as opposed to "exotic equity derivatives", which are more complex, bespoke products) comprising options, swaps and futures on a single stock (single stock derivative) or on an index of stocks (index derivative). Flow equity derivatives are offered to financial institutions (e.g., asset managers, pension funds, banks, insurance companies) and can be listed or OTC traded. However, the distinction between OTC and exchange traded Flow Equity Derivatives is not necessary for the purpose of the present case, since only OTC traded products are concerned.

(13)    The notifying party submits that the question of sub-segmentation of flow equity derivatives according to the type of the contract (i.e. between swaps, options and futures or forwards) or according to the underlying asset class may be left open.

(14)    In this respect, the results of the market investigation are inconclusive.  Some market participants suggest that it might be appropriate to further subdivide the market for flow equity derivatives, in particular based on the underlying asset class, for example equity, commodity, interest rate etc., but not based on the type of contract (swaps, options and future derivatives products). One third of the respondents consider that any subdivision would not be appropriate.6

(15)    Ultimately, the question whether the market for flow equity should be further subdivided can be left open for the purpose of the present case, given that no competition concerns arise under any plausible market definition.

4.1.1.2.     Equity financing

(16)    Equity financing activities comprise stock lending and borrowing activities ("SLAB") operated for both hedge funds and financial institutions offered both on an exchange and OTC. The notifying party considers that prime brokerage services, which consist in offering integrated services to the client, should be included in the equity  financing activities, though it is not relevant for the assessment of the proposed transaction. The equity financing relevant for the case at hand is performed OTC only.

(17)    The Commission has so far not analysed the market for equity financing. However the precise market definition can be left open for the purpose of the present case, given that no competition concerns arise under any plausible market definition.

4.1.1.3.     Corporate Derivatives / Strategic Equity

(18)    Corporate derivatives also referred to as "strategic equity", comprise hedging or financing activities of equity participations of corporate clients. These activities have large size and long maturities and are OTC traded.

(19)    Instruments used include options (for client hedging purposes) and financing of equity participations. The portfolio of assets concerned by the transaction only includes financing instruments.

(20)    Previously, the Commission has examined cases dealing with various private  equity segments (in its widest sense, as equity investments in  unquoted companies), the supply of funds comprising equity and debt finance,7 lending services,8 securities lending,9 Initial Public Offering advisory services and equity and debt underwriting,10 and asset management services.

4.1.2.      Geographic market definition

(21)    The Commission has previously considered that the market for trading and clearing of equity index derivatives could be considered as global.11 The Commission also noted that derivatives markets may be viewed as global in the sense that customers are located all around the world, however the question whether the market is global or EEA wide has been left open.12 As far as the geographical scope of the markets of various private equity segments is concerned (as mentioned in recital (20) above), the Commission considered an EEA-wide or global dimension, without concluding on the exact definition.

(22)    The notifying party submits that that the market for equity derivatives and its respective sub-segments is at least EEA in scope. The notifying party claims that suppliers of equity derivatives are international banks operating essentially from financial hubs such as New York, London and Hong Kong. In the EEA suppliers operate either from London exclusively, or from London and a local historical hub. Similarly, the customers, which are mainly financial institutions, operate from the same places. The notifying party notes that some banks may have small local sales teams, but the structuring, pricing and trading of the products is generally performed in London or in the local historical hub, however as regards the equity derivatives related to the proposed transaction, equity derivatives are only issued in London, to clients based in the EEA.

(23)    The market investigation confirmed that the market for equity derivatives and its respective  sub-segments  should  be  considered  as  EEA–wide  or  as  global    (as indicated by approximately two thirds of the respondents). Only a minority of market participants suggested that the segments of flow equity derivatives and of corporate derivatives could be considered as national in scope due to, e.g.,  customer purchasing patterns.13

(24)    In view of the fact that the majority of market participants confirmed that the market should be considered as EEA-wide or global, and that as regards the proposed transaction all the equity derivatives are issued in London for clients in the EEA, for the purpose of the present case, the geographic market for equity derivatives and its respective sub-segments can be considered as wider than national. Nevertheless, the precise scope of the geographic market definition, whether EEA wide or global, can be left open, given that no competition concerns arise under the alterative geographic market definitions.

4.2.       Structured Investment products

4.2.1.    Product market definition

(25)    Structured products are securities that can be issued – as stock and other equities listed and traded on exchanges. They are based on an underlying such as an index,  a company-issued equity, a currency or a commodity and they are issued by banks, offer a return which is fixed at issuance and are often designed for local (retail) investors.

(26)    The Commission has previously analysed the market for listing of structured investment products, in the context of a broader category of listing of cash instruments: equities and bonds. The Commission considered that there are three equity categories (i) company-issued equity, (ii) exchange traded products (comprising Exchange Traded Funds, Exchange Traded Commodities and Vehicles), (iii) and structured products (including warrants and certificates), each  of which should be regarded as a separate product market.14

(27)    In previous cases, the Commission has also considered that there is a separate market for equity trading on regulated markets (exchanges) and OTC trading. The Commission noted that the decision for OTC appeared to be determined by factors such as the size of the deal, specific client requirements and liquidity considerations.15

(28)    The notifying party defines activities concerned in the present transaction as structuring, issuance and market making of structured derivatives based on one or more underlying asset classes such as equity, commodities and fixed income.

(29)    Structuring of financial products consists in designing tailor made products for customers. The design involves choosing or building an underlying (e.g. a basket   of stocks, a custom-made index, a combination of stocks, commodities, foreign exchange, interest rates products etc.), wrapping the product(s) in the adequate  legal wrapper (e.g. insurance policy, collective investment scheme, fund, term deposit etc.) and testing the behaviour of the product on historical data.

(30)    Market making consists in selling and buying from clients and making profit on price differentials. Market making is done by brokers/dealers that accept the risk of holding certain number of financial instruments in order to facilitate their trading.

(31)    The notifying party agrees with the previous assessment of the Commission that structured investment products should be regarded as a distinct category of  products alongside cash equities, bonds or equity derivatives. Furthermore, the notifying party also agrees that the market for structured investment products could be further segmented into (i) exchange traded structured investment products (hereinafter "ETSIP") and (ii) wholesale structured investment products, offered OTC.

(32)    The market investigation largely confirmed that the market can be segmented at (i) ETSIP comprising products listed and traded on exchange, including notes, warrants and certificates and (ii) Wholesale Structured Products, traded over the counter.16

(33)    For the purpose of the assessment of the present case the market would be segmented at ETSIP and wholesale structured product, nevertheless, the precise product market definition can be left open, since it is unlikely that the proposed transaction would give rise to serious doubts as to its compatibility with  the  internal market under any alternative market definition.

4.2.1.1.     ETSIP

(34)    The category of ETSIP includes listed structured products, notes, and certificates and exchanged traded funds. They are issued by product issuers such as the Parties. These products are standardized across the range of providers which allows them to be listed on exchanges, where they are made accessible, along with stocks, bonds, futures, etc. to retail clients and financial institutions.

(35)    The notifying party considers that stocks, bonds, and listed equity derivatives do  not belong to the same market as ETSIP, since there is limited substitutability between them. The notifying party submits that the relevant market ought to be limited to ETSIP, including warrants and certificates.

(36)    The notifying party submits that providers advertise their products through four main channels (i) brokers, (ii) mailing lists of retail and institutional investors, (iii) media (including the press), and (iv) proprietary websites. Retail customers purchase and sell ETSIP via brokers, generally independent from the issuer.

(37)    The notifying party argues that the ETSIP should not be subdivided according to the underlying products (equities, commodities, fixed income), and referred to several reason pointing against this segmentation. First, clients choose between various ETSIP with various underlying depending on the yield target and pay-out characteristics (in accordance with their risk appetite) and the selection does not focus on the underlying asset class. Second, many ETSIP combine several asset classes as underlying (so it would be difficult to distinguish segments for those ETSIP). Finally, in general, ETSIP have homogenous pay-out and wrapper characteristics irrespective of the underlying. These characteristics make ETSIP with different underlyings perfectly comparable and interchangeable from the demand side perspective.

(38)    The notifying party argues that for similar reasons ETSIP should not be subdivided according to the type, e.g. investment products or leverage products, since in fact, clients often combine various products and also change their choices depending to their risk appetite in a given moment.

(39)    The market investigation revealed a degree of supply side substitutability between the structured exchanges traded products and stocks, bonds, and listed equity derivatives.17 Nevertheless, the market investigation also revealed that structured products are legally debt products and cannot seamlessly replace equity products like stocks. Competitors also pointed out that the issuance and listing of exchange traded derivatives such as warrants and certificates require less administration compared to the listing of company's shares or bonds on a stock exchange. Further, warrants and options could be considered as financially equivalent, nevertheless  the ETSIP are designed for retail customers while listed equity derivatives are  rather dedicated to professionals. Lastly, ETSIP imply different type and risk when compared to stock, bonds and listed equity derivatives.18

(40)    From the demand side, the market investigation revealed limited substitutability between the ETSIP and stocks, bonds, and listed equity derivatives.19 Market participants indicate that the levels of return and risk are very different for an investment in stocks or bonds compared to listed equity derivatives for which the risks and complexity are higher. It is difficult for a customer to replicate the market exposure and pay-off structures with other financial instruments. Therefore, on balance, the market investigation confirmed the line proposed by the notifying party, i.e. that the ETSIP could be considered as a separate market excluding  stocks, bonds, and listed equity derivatives.

(41)    In addition, the market investigation largely confirmed that a market for ETSIP should not be further segmented based on the different underling asset classes (equities, commodities, fixed income).20

(42)    Lastly, some competitors identified a separate market segment for "mini futures" products within the market for ETSIP.21 Mini-futures are a type of leverage product a category which comprises (i) leverage products without knock-out (warrants and spread warrants), leverage products with knock-out (knock out warrants, mini- futures and double knock-out warrants) and constant leverage (constant leverage certificates). The market investigation, however, made clear that both from the demand-side and the supply-side it would not be justified to consider mini-futures as a separate market segment: customers switch easily, and it is largely the marketing choice of suppliers whether they focus on this segment or not. In particular, the mini-futures have similar characteristics to knock-out warrants and double knock-out warrants and any provider of ETSIP can easily provide also the mini-futures products.

(43)    In view of the findings of the market investigation, the Commission considers that for the purpose of the present case the narrowest product market definition encompasses all structured ETSIP.

4.2.1.2.     Wholesale Structured Investment Products

(44)    Wholesale structured investment products are traded OTC, issued by financial institutions and sold to another financial institution to address their needs (such as hedging, investment or balance sheet management) or for them to distribute them  to their clients or as a hedge related to structured products distributed to their clients.

(45)    Wholesale structured investment products are generally based on one underlying asset class (e.g., equities, commodities, fixed income), but can also include a combination of different asset classes ("hybrid structured products"). They can be sold using various legal forms or "wrappers", such as notes / certificates, OTC instruments covered by standard International Swaps and Derivatives Association's contracts, structured deposits, funds and collective investment  schemes  or insurance policies.

(46)    The notifying party submits that the market for wholesale structured investment products should not be further segmented.

(47)    The market investigation confirmed that a further segmentation of the wholesale structured investment products based on the underlying asset class (equities, commodities, fixed income) is not appropriate. Competitors point out that from the supply side, issuers can rather easily adapt the classes of underlying assets according to the demands of investors. Further, some products are multi-asset and the diversification would not be accurately reflected under a segmentation based on the underlying asset classes.22

(48)    Consequently, in view of the result of the market investigation the Commission considers that for the purpose of the assessment of the present transaction  as regards the structured products the narrowest relevant product market encompasses all wholesale structured investment products.

4.2.2.        Geographic market definition

4.2.2.1.     ETSIP

(49)    The Commission has previously considered that the market for trading of  structured products is likely to be national in scope, since they are designed for specific customer needs that vary from Member State to Member State. Therefore, the Commission considered that structured products listed in a particular country are specifically designed for domestic investors and do not seem to attract other investors.23

(50)    The notifying party submits that the market should be deemed to be EEA-wide from a supply-side perspective, while it may be considered as national from a demand-side perspective.

(51)    Regarding the supply side, the notifying party submits that there are no legal or regulatory barriers to entry preventing international banks from issuing ETSIP throughout the EEA. Consequently, the ETSIP suppliers are either international banks with a significant investment banking division using their economy of scale or local banks with a large retail network.

(52)    From the demand side, ETSIP are designed for retail clients (albeit are bought also by financial institutions) and customers have very low or no barriers to buy  ETSIP from any exchange in the EEA. The notifying party admits, however, that some retail clients buy the products on the national markets since they are tailored to local clients' need.

(53)    In view of these considerations, the narrowest geographical market for the  issuance, structuring and market making of ETSIP would be national in scope. The market investigations confirmed that market should be considered as national in scope since the competition between suppliers takes place at the national level.24

4.2.2.2.     Wholesale Structured Investment Products

(54)    The Commission has not previously analysed the geographic market for structured products offered OTC, i.e. for the wholesale structured investment products.

(55)    The notifying party submits that the market for wholesale structured products is EEA in scope. In fact in, general these products are offered by international banks operating from New York, London and Hong Kong. In Europe, suppliers operate either from London exclusively, or from London and a local historical hub. The legal documentation of most wholesale structured products is drafted in English  and is governed by English law, and each product is sold in one or many European Member States. The EU regulation in the field of financial services, namely the Prospectus Directive and the Directive relative to Undertakings for Collective Investments in Transferable Securities (the "UCITS Directive"), allows the issuers to structure the product in one Member State under an issuance program approved by a national regulator and to passport it to another Member States for subsequent distribution to the public.

(56)    From the demand side, in the EEA customers purchase wholesale structured products mainly in London. Clients may ask suppliers to structure the product to address national preferences such as national currency, local underling stocks etc., nevertheless the structuring, pricing and trading is generally performed in London or in the local historical hub.

(57)    With respect to the proposed transaction, the wholesale structured products are  only issued from London, to clients based in Europe. Consequently, the Parties consider that the market for wholesale structured investment products is EEA in scope.

(58)    The market investigation was inconclusive regarding the level at which  competition between suppliers of wholesale structured products takes place, but the majority of the respondents indicated that the market should be consider as EEA wide or global in scope.25

(59)    In view of the results of the market investigation and the fact that as regards the proposed transaction is concerned all the wholesale structured investment products are issued from London to customers in the EEA, it can be considered that the market is at least EEA-wide. However, the precise geographic market definition as regards the wholesale structured products can be left open, since the proposed transaction is unlikely to give rise to serious doubts as to its compatibility with the internal market under any alternative geographic market definition.

4.3.          Competitive assessment

4.3.1.       Equity derivatives

(60)    The proposed transaction leads to limited horizontal overlaps regarding the equity derivatives market and its respective sub-segment, which do not result in any affected markets, since the combined market shares of the Parties would not exceed 20%.

(61)    On the market for flow equity derivatives, the Parties’ combined market share in the EEA amounts to around [10-20]% with an increment of [0-5]% for the Target Business. Thus, the transaction does not give rise to serious doubts regarding its compatibility with the internal market. The same conclusion can be reached regarding the segments for equity financing and corporate derivatives where the combined markets shares are well below [20-30]%: below [0-5]% and below [0- 5]% respectively. The Parties’ combined market shares will be even lower if the market is considered to be global in scope.

(62)    Furthermore, the notifying party notes that market share data is in this case very conservative. First, the revenues generated by the Target Business will not replicate in BNPP post-transaction due to expected clients attrition and the impossibility to transfer for some revenues. Second, since these are instruments traded OTC there is limited availability of accurate and complete data on the size of the market for equity derivatives, and, thus, the data is based on revenues generated in Europe by top 10 capital market players, which are estimated to account for approximately 79% of the market. Should the data be based on the total market volume, the Parties’ shares would be even lower.

(63)    The market investigation confirmed that the Parties are not particularly close competitors in the market for equity derivatives and the market is composed by several other players among which Commerzbank, Deutsche Bank and Société Générale.26 Furthermore, the merger will not remove a particular important competition source, since vast majority of the respondents do not consider RBS as an aggressive competitor.27 The market investigation indicated that the transaction will not have material impact or will have very limited impact on this market segment.28

(64)    Based on these arguments, the Commission considers that the proposed transaction does not raise serious doubts as to its compatibility with the internal market.

4.3.2.        Structured investment products

4.3.2.1.     ETSIP

(65)    The proposed transaction leads to affected markets in the Netherlands and in Sweden.

(66)    In the Netherlands the combined market share amounts to [40-50]%; however there is very limited increment, since BNPP had a market share of [0-5]% in 2012 and [0-5]% in 2013. Thus, the proposed transaction does not raise competition concerns as regards ETSIP in the Netherlands.

(67)    In Sweden the Parties’ combined market share in 2013 amounts to [30-40]% with an increment of [10-20]% for the Target Business. The combined market share is lower, [10-20]%, with an increment of [10-20]% for the Target Business if viewed as an average of the last five years, in order to discount for the volatility of market shares (see Table 1 below). Post transaction, BNPP will be the market leader; however it will continue to face competition in Sweden from Commerzbank ([20- 30]% market share in 2013), Handelsbanken ([5-10]%) and Société Générale which has also entered this market recently and gained market share of [5-10]% in 2013.

(68)    The notifying party notes that, similarly to the case of equity derivatives, the theoretical combined market shares on the ETSIP market provide a very conservative view, since the revenues of the Target Business will not be simply replicable within BNPP post-transaction.

(69)    Furthermore, the notifying party emphasises very high market shares volatility in the Swedish market for ETSIP issuance, structuring and market making. In fact, the data provided by the notifying party shows that BNPP market share has increased from [5-10]% in 2012 to [20-30]% in 2013 (see Table 1 below). The notifying  party explains this rapid expansion of its market share by the success of a new product launched in Sweden which addressed clients’ demand that previously had not been identified. The significant increase in the market share indicates that customers can switch easily their issuers of ETSIP, and that the market is highly contestable. This is further illustrated by the fact that, Commerzbank, the market leader, had a market share of [30-40]% in 2012 which dropped significantly to [20- 30]% in 2013. The same observation can be made regarding the local bank Handelsbanken which had market share of [20-30]% in 2012 and [5-10]% in 2013. Market share data for the past 10 years indicates that high volatility is a structural characteristic of the market.

Table 1. Market shares of BNPP and the Target Business in ETSIP in Sweden over the last five years

(70)    The notifying party considers that the Parties’ combined market share should be viewed as a snapshot of the ETSIP market in Sweden in a given point in time and should not be considered as a reliable description of the weight of the Parties on this market.

(71)    The notifying party further emphasised that customers are self-advised retail clients who purchase products on the exchange in accordance with their investment strategy, showing little loyalty to a specific product provider and typically holding portfolios of products from different ETSIP issuers.

(72)    The market investigation revealed that the majority of the respondents perceived  the Parties as close competitors on the market for ETSIP in Sweden. However, the majority of the respondents consider that an issuer active in one of the sub- segments  of  structured  investment  products in Sweden, can easily start    offering structured investment products in another segments without incurring significant costs or facing other barriers.29  Furthermore the market investigation confirmed  that the ETSIP market is highly volatile: BNPP and Société Générale are the recent new entrants in this market and already gained high market shares; respondents also explained that all major European and American players are present in Sweden in the market of ETSIP.30 Overall, companies who are interested in entering this market would face low entry barriers, consisting mainly in regulatory requirements or good knowledge of the local demand.31 Ultimately, the respondents unanimously indicate that the market for ETSIP in Sweden will remain competitive following  the transaction.32

(73)    In general as regards the market for ETSIP, the Parties’ combined market shares will be lower if the market is considered to be EEA-wide or global in scope.

(74)    Based on the above, it can be concluded that, the proposed transaction does not  give rise to serious doubts as to its compatibility with the internal market regarding the market for ETSIP in Sweden.

4.3.2.2.     Wholesales Structured Investment Products

(75)    Regarding the market for wholesale structured products, the Parties' combined market share in the EEA will amount to [10-20]% of the revenues generated in Europe by the top 10 capital market players, with an increment of [0-5]% for BNPP. Since the combined market share is well below [20-30]%, the proposed transaction does not result in an affected market. The Parties’ combined market shares will be even lower if the market is considered to be global in scope.

(76)    In light of the above, the proposed transaction does not give rise to serious doubts  as regards the market for Wholesale Structured Investment Products.

5.         CONCLUSION

(77)    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              OJ C 95, 16.04.2008, p.1.

3             Turnover calculated in accordance with Article 5(1) of the Merger Regulation and the Commission Consolidated Jurisdictional Notice (OJ C95, 16.04.2008, p1).

4             Case No COMP/M.6166 - Deutsche Börse / Nyse Euronext, recital 254, case M. Case No COMP/M.6873 - INTERCONTINENTAL EXCHANGE / NYSE EURONEXT, recitals 18-21.

5             Replies to question 21 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

6             Replies to questions 22 and 22.1 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

7             Case No COMP/M.2577 – GE Capital / Heller recital 15.

8             Case No COMP/M.2577 – GE Capital / Heller rectial 16.

9             Case No COMP/M.3511 – Wiener Boerse et al/Budapest Stock Exchange/Budapest Commodity Exchange / KELER / JV rectial 14.

10          Case No COMP/M.2158 – Credit Suisse Group / Donaldson, Lufkin & Jenrette recital 7.

11          COMP/M.6873 – INTERCONTINENTAL EXCHANGE / NYSE EURONEXT, recital 75.

12          No COMP/M.6166 - Deutsche Börse / Nyse Euronext, recital 452.

13          Replies to questions 23 to 23.3 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

14          Case No COMP/M.6166 - Deutsche Börse / Nyse Euronext, recitals 28-30, 67-69.

15          Case No COMP/M.6166 - Deutsche Börse / Nyse Euronext, recitals 63-64.

16          Replies to question 6 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

17          Replies 7 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

18          Replies to question 7.1 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

19          Replies to question 8.1 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

20          Replies to questions 9 and 10 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

21          Replies to questions 15.1 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

22          Replies to questions 11 and 11.1 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

23          Case No COMP/M.6166 - Deutsche Börse / Nyse Euronext, recital 77.

24           Replies to question 12 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors

25          Replies to question 13 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

26          Replies to question 24-24.3 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

27          Replies to question 25 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

28          Replies to question 26.3 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

29          Replies to questions 16 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

30          Replies to questions 18 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

31          Replies to questions 19 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.

32          Replies to questions 20 of Q-1 M.7151 BNP Paribas / RBS - Questionnaire to Competitors.