Commission, April 3, 2020, No M.9546

Subject: Case M.9546 – GATEGROUP / LSG EUROPEAN BUSINESS

Commission decision pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/20041 and Article 57 of the Agreement on the European Economic Area2

Dear Sir or Madam,

(1)            On 14 February 2020, the European Commission received notification of a proposed concentration pursuant to Article 4 of the Merger Regulation by which Gategroup Holding AG (“Gategroup”) intends to acquire within the meaning of  Article  3(1)(b)  of the Merger Regulation sole control over parts of the European business of LSG Lufthansa Services Holding AG (“LSG”) by way of a purchase  of  shares  and  selected assets (the “Transaction”). The target of the Transaction, the European business of LSG, is referred to as “LSG  EU”.

(2)            Gategroup is referred to as the “Notifying Party”. Gategroup (and its controlling parents) and LSG EU are collectively referred to as the   “Parties”.

1.             THE PARTIES

1.1.          Gategroup

(3)            Gategroup is headquartered in Switzerland and provides airline catering, retail on- board, equipment services and hospitality products and services to its customers globally.

(4)            In the EEA, Gategroup is mainly active in aviation-related services.  Through  its brands Gate Gourmet and Servair, Gategroup provides in-flight catering  services, which accounted for […] % of its turnover in the EEA in 2018.3 Gategroup also provides inter alia (i) on-board services through its brands Gateretail and Dutyfly, (ii) packaged food solutions, (iii) equipment services  (including the  manufacturing)  to airlines and foodservice providers through its subsidiary deSter and (iv) lounge management services in Paris Charles de Gaulle, Frankfurt airport and London Heathrow. These activities respectively accounted for […]% of its EEA turnover in 2018.4

(5)            Gategroup is ultimately jointly controlled by Temasek Holdings Limited (Singapore) and RRJ Capital (Hong Kong).5 Temasek is an investment company that owns a majority shareholding in Singapore Airlines,  which  operates  passenger  flights to/from certain European airports, in particular in France, Germany, Italy and the Netherlands.6

1.2.          LSG EU

(6)            LSG is headquartered in Germany and is a wholly-owned subsidiary of Deutsche Lufthansa AG (“DLH”). DLH is the holding company of Lufthansa Group,  an  aviation group which notably operates Lufthansa, Austrian, Swiss, Eurowings and Brussels Airlines.

(7)            LSG EU comprises the European airline and train catering business  of  LSG,  the global  lounge  business  of  LSG, the European frozen food production of LSG (operated through the brand Evertaste), the equipment business of LSG (through the brand Spiriant) and airport retail services in Germany (through the retail store chain Ringeltaube).7 However, they do not include LSG’s airline catering business at UK airports,8 nor its retail on-board business (provided under the brand  Retail-in-  Motion).

(8)            In-flight catering services represents the largest part of  LSG  EU’s  revenues.9  In  2018, the Lufthansa Group was the main client of LSG EU, representing  approximately EUR […] of  revenues.10

2.              THE CONCENTRATION

(9)            On 7 December 2019, the Parties entered into a share and asset purchase agreement (the “SPA”), pursuant to which Gategroup agreed to acquire all of the shares of the entities composing LSG EU.

(10)         In addition, pursuant to the SPA,11 Gategroup and DLH will establish a joint venture with respect to the in-flight catering operations at Lufthansa Airline’s hub airports Frankfurt and  Munich. Gategroup and DLH will respectively hold […]% and […]%  of the share capital. According to the term sheet for the proposed shareholders’ agreement (the “Term Sheet”),12 Gategroup will have sole control over the joint- venture company (the “JVC”). More specifically, [description of the governance structure in relation to the adoption of strategic  decisions].

(11)         In light of the above, the Transaction consists in the acquisition of sole control by Gategroup over LSG EU within the meaning of Article 3(1)(b) of the Merger Regulation.

(12)         As an inherent part of the proposed Transaction, the Parties have agreed to enter into   a long-term framework agreement for catering services, through which DLH will appoint Gategroup as its catering supplier for Lufthansa Airline’s hubs Munich and Frankfurt and outlying airports in Germany (the Framework Agreement for Catering Services or “LHCC”)13  for a duration of […]  years.14

(13)         DLH Group and LSG EU have also entered into a long-term strategic partnership on [date] under which DLH Group will [details on supply sources] source inter alia [details on supply  sources].15

3.              EU DIMENSION

(14)         The undertakings concerned have a combined aggregate worldwide turnover of more than EUR 5 000 million16 in 2018 [Gategroup: […], LSG EU: […]]. The EU-wide turnover of each of the undertakings concerned is more than EUR 250 million [Gategroup: […], LSG EU: […]]. The Parties do not achieve more than two-thirds of their aggregate EU-wide turnover within the same Member State.17 The notified operation therefore has an EU dimension pursuant to Article 1(2) of the Merger Regulation.

4.             RELEVANT MARKETS

4.1.          In-flight catering services

4.1.1.      Product market definition

(15)         In-flight catering services comprise the provision and delivery of food and beverage solutions to airlines, which will be served to passengers on an aircraft  during the flight.

4.1.1.1.     Past decisional practice

(16)         In previous decisions, the Commission concluded that there exists a separate market for in-flight catering services,18 which comprise the provision of the entire range of meals for all travel classes (economy/business/first class) for all  types  of  flights  (short haul/long haul).19

(17)         The Commission also decided in its previous practice20 to leave open the question whether a distinction should be made between the provision of in-flight catering services by type of suppliers, namely between the so-called “traditional” and “non- traditional” suppliers.21

4.1.1.2.     The Notifying Party’s view

(18)         The Notifying Party agrees with the Commission’s decisional practice  that  the  product market includes all in-flight catering services for all types of flights (short-haul/long-haul) and that a    segmentation  between flight classes (i.e., economy/business/first class) is not  warranted.22

(19)         In addition, the Notifying Party considers that the market for in-flight  catering  services should not be segmented by type of  supplier.23

4.1.1.3.     Commission’s assessment

(20)         Although the majority of competitors and customers indicated that customers have different requirements for in-flight catering depending on the type of flight,24 the majority of customers indicated that they do not purchase  in-flight catering services  for short/medium haul flight separately from in-flight catering services for long haul flights.25 The majority of in-flight catering providers consider that in-flight caterers  can generally provide services on both short/medium haul and long haul flights.  In  that respect, a competitor explained, “in the production process there is no big difference between service short/mid haul and long haul. The only difference is the   hot kitchen which becomes necessary for a long haul  carrier  flying  with  first  class”.26

(21)         The Commission notes that airline requirements with respect to in-flight catering services may differ depending on the type of flight.  The  Commission  further  observes that the provision of in-flight catering services on long haul flights may require additional infrastructure investments in comparison to the supply of such services on short/medium haul flights. However, in view of the results of the market investigation and in line with its past decisional practice, the Commission considers that a segmentation of in-flight catering services by type  of flights  (short/medium  haul vs long haul) is not  warranted.

(22)         With respect to the possible segmentation of in-flight catering services by type of  travel class, the majority of customers having replied to the market investigation indicated that their requirements for in-flight catering differ depending on the travel class (economy/business/first class).27 However, all airlines having responded to the market investigation purchase catering services for the  different  travel  classes from one single supplier.28 In that respect, an airline explained, “All classes  have  a  different product proposition with regards to equipment, menu and spend. However,     a single supplier is able to  meet our requirements for all travel classes (providing it  has hot and cold kitchens)”.29 Some airlines indicated that sourcing from one single supplier is “the most efficient and cost saving” way, in particular because it allows to “avoid multiple visits to aircraft and potential departure delays”.30  The majority of competitors also indicated that while requirements differ between travel classes, this does not prevent customers from usually contracting with one single   supplier.31

(23)         In view of the results of the market investigation and in line with its past decisional practice, the Commission considers that a segmentation of in-flight catering services  by travel class (economy/business/first class) is not   warranted.

(24)         With regard to a possible segmentation of in-flight catering services by type of supplier, the market investigation yielded mixed results among competitors as well as customers.32 The market investigation indicates that the substitutability of traditional and non-traditional suppliers would depend on the requirements of airlines.33 A customer considers that “non-traditional caterers are able to provide many of the services offered by traditional caterers. However where the catering includes hot food, often logistics firms will partner with traditional caterers so that they can provide a seamless end-to-end service”.34 Some customers and competitors explained that non-traditional suppliers would not be a viable alternative for certain travel classes (business/first class) or for long haul flights, because “long haul business and first class are typically more complex and therefore that market is dominated by traditional catering service providers.”35 By contrast, the distinction between traditional and non-traditional suppliers would not be warranted when the airline service proposition consists in frozen meals and snacks.36

(25)         For the purpose of this decision,  it  is not necessary to  conclude whether the market for in-flight catering services should be segmented by type of supplier, because the competitive assessment would remain unchanged since no  non-traditional suppliers are currently active at the airports where the Parties’ activities overlap and where the Transaction creates vertical  links.37

(26)         In view of the above considerations and in line with its decisional practice, the Commission concludes that the market for the provision of in-flight catering services comprises the entire range of meals for all travel  classes  (economy/business/first class) and for all types of flights (short-haul/long-haul). Furthermore, in view of the above considerations and in line with its decisional practice,  the  Commission considers that, for the purpose of this decision, the  question  whether  in-flight  catering services should be segmented by type of supplier (“traditional” and “non- traditional” suppliers) can be left open, as this would not change the outcome of the competitive assessment.38

4.1.2.      Geographic market definition

4.1.2.1.     Past decisional practice

(27)         The Commission has considered in previous decisions that the geographic market for in-flight catering services is the relevant airport39 or at most an  area  comprising several airports located in close proximity to each  other.40

4.1.2.2.     The Notifying Party’s view

(28)         The Notifying Party considers that that the relevant geographic area to assess competition for in-flight catering services may be either the airport level or an area comprising several airports.41 In that regard, with respect Germany, the Notifying  Party considers a catchment area of up to 450 km around a given airport or a travel time of up to 10 hours (in a chilled truck) could be considered as the relevant geographic market for the provision of in-flight catering services.42 Therefore, the Notifying Party submits that the following geographic markets would  comprise  several airports: (i) Frankfurt, Dusseldorf and Cologne-Bonn airports; (ii) Hamburg and Hannover airports; (iii) Berlin Tegel, Berlin Schönefeld and Leipzig   airports.43

4.1.2.3.     Commission’s assessment

(29)         The majority of customers indicated that they generally source in-flight catering services on an airport-by-airport basis.44 The majority of customers and competitors consider it important that the supplier of in-flight catering services has production facilities in the catchment area of the relevant airport.45 An airline indicated that “the supplier’s proximity to the airport is extremely important to [name  of the customer]  for flexibility, food safety, operational complexity, and service”.46 Another customer explained, “Aircraft turnaround and loading time is limited. Caterer needs to have facilities and proximity [sic] to the airport apron area in order to be able to cater  aircraft within time limits”.47 Furthermore, the  majority  of  airlines have  negotiated the possibility to place last-minute orders up to 60 minutes before the flight departure.48 Consequently, the majority of airlines having expressed a view indicated that they would accept a transport time of up to one hour between the airport and the facility of the caterer.49

(30)         On the other hand, the majority of airlines that responded to the market investigation indicated that they do purchase in-flight catering services from  caterers  with  a  remote facility located outside of the airport catchment area or at a neighbouring airport. In addition, the majority of competitors supply or would supply in-flight catering from a remote facility.50 However, some customers  explained  that  they  prefer to have a supplier with a facility within the catchment area of the relevant  airport but they might be forced to accept remote catering because of the absence of alternative, for example, when the supplier closes its production facility.51 Some competitors consider  that catering from a remote facility is possible, but this  would  be a “Far from optimal set-up but possible with some constraints”  and “it gives you     a bit more stress where there are traffic jams or something is wrong”. 52

(31)         Considering that that the outcome of the competitive assessment would remain unchanged under any of the plausible geographic market definitions,53  the  Commission considers that it is not necessary to decide  whether  the  geographic  scope of in-flight catering services is a given airport or a geographic area encompassing  several  neighbouring airports.54

(32)         In view of the above considerations and in line with  its  previous  decisional  practice,55 the Commission considers that, for the purpose of this decision, the geographic market for the provision of in-flight catering services  is  either  the  airport’s catchment area or at most a geographic area encompassing several neighbouring airports, namely (i) Frankfurt,  Dusseldorf and Cologne-Bonn airports, (ii) Hamburg and Hannover airports, (iii) Berlin Tegel, Berlin Schönefeld  and  Leipzig airports, where the Notifying Party argues that the geographic market is broader than the airport’s catchment area. Therefore, the Commission will assess the effects of the Transaction on the narrowest plausible  geographic  market definition  (i.e. the airport’s immediate catchment area) and on the plausible broader geographic areas where the Notifying Party claims that the geographic market definition  is  broader than the airport’s catchment  area.

4.1.3.   Conclusion

(33)         In view of the above considerations and in line with its past decisional practice, the Commission concludes for the purpose of this decision that the relevant  product market for in-flight catering services comprises the entire range  of  meals  for  all travel classes (economy/business/first class) for all  types of  flights    (short-haul/long-haul) and that the question  whether the market for in-flight catering services should  be segmented by type of supplier can be left open. For the purpose of this decision,   the Commission leaves open the question whether the relevant geographic market is limited to the airport’s catchment area or encompasses several neighbouring airports with respect to the following geographic areas that may comprise several airports (i) Frankfurt, Dusseldorf and Cologne-Bonn airports, (ii) Hamburg and  Hannover airports, (iii) Berlin Tegel, Berlin Schönefeld and Leipzig airports, as this would not change the outcome of the competitive  assessment.

4.2.      In-flight equipment services

(34)         In-flight equipment services comprise the provision of custom-made concepts of a range of serving products used on aircraft (such as cutlery, cardboard containers, tray settings, tray dressings, bespoke beverage solutions, casseroles, tableware) and on- board comfort articles (such as sleepwear, amenities and  textiles).  In-flight  equipment providers have different business models, some focusing more on service aspects (design, consulting, management etc.) without having their own production facilities, while others design and manufacture the items   in-house.56

4.2.1.      Product market definition

4.2.1.1.     Past decisional practice

(35)         In some previous decisions, the Commission suggested that the provision of in-flight equipment services was ancillary to an overall market for in-flight catering services and has not distinguished further between these product markets.57 In the case EQT/Smurfit Munksjö, the Commission has nevertheless considered a  separate  market for the provision of custom-made concepts of serving products and comfort items for airline passengers consisting in the “provision of various  concepts  of  serving products and comfort items for airline passengers, such as  plastic  serving trays,  plastic  glasses, pillows, blankets, tablecloths,  porcelain cups”.58

4.2.1.2.     The Notifying Party’s view

(36)         The Notifying Party considers that there is no separate market for the provision of in-flight equipment services, but that it should  rather  be  considered  as  ancillary to the provision of in-flight catering services.59 The Notifying  Party  argues  that  in- flight equipment products are often “nominated” and supplied by airlines as part of   the in-flight catering service agreement.60 Moreover, the Notifying Party claims that in-flight catering equipment is always purchased with a direct link to the in-flight catering business.61 In addition, the Notifying Party reasons that  most  in-flight  caterers have in-flight equipment activities ancillary to their core   business.62

(37)         The Notifying Party further submits that should equipment services nonetheless be considered a separate market by the Commission, the relevant product market would encompass all equipment services for the travel/foodservice industries and not just     for the in-flight catering industry. According to the Notifying Party, all providers of in-flight equipment services (including the Parties) also supply equipment services to non-aviation customers, as there is little differentiation between equipment products  for airlines and non-aviation customers. Moreover, the Notifying Party submits that competitors generally supply the full range of equipment and from a customer’s perspective, there is no need to source from specialised   suppliers.63

4.2.1.3.     Commission’s assessment

(38)         First, the Commission notes that airlines generally purchase in-flight equipment services separately from in-flight catering services. In that  respect,  the  Notifying Party itself submits that in-flight equipment services are generally not tendered by airlines together with in-flight catering services “but generally tendered separately    and independent of in-flight catering services contracts”. The airlines  tend  to  purchase in-flight equipment services centrally64 and then make  the  in-flight equipment products available to the in-flight caterer that “will be in charge  of  handling the equipment” and bring it on-board.65 The Notifying Party’s submission  was confirmed by the majority of customers during the market investigation. The majority of airline customers purchase the in-flight  equipment  services themselves  and subsequently make the equipment products available to their in-flight caterer.66  The majority of airline-customers that purchase other services than in-flight catering (such as in-flight equipment services) do not typically purchase in-flight catering services and other services together from one single supplier. Often, even different components of equipment services are tendered individually.67 The majority of customers also indicated that they have no problem  with  purchasing  in-flight  catering services separately from other services such as in-flight equipment services, citing flexibility,  greater choice, better prices as well as quality of  products  offered  as the main reason for sourcing these other services separately from in-flight  catering.68

(39)         Second, contrary to the Notifying Party’s  claim,69  the majority of  in-flight caterers   do not provide in-flight equipment services as ancillary services to  their  core  business, or only to a very limited extent.70 None of the Parties’ in-flight catering services competitors are among their main competitors with regards to the provision   of in-flight equipment  services.71

(40)         In view of the above considerations, for the  purpose  of  this  decision,  the Commission considers that equipment services are not ancillary to in-flight catering services and constitute a relevant separate market. The question whether equipment services should be segmented by type of customers can be left open, as the  Transaction is unlikely to raise competition concerns with respect to the market for equipment services, even on a plausible narrower market for in-flight equipment services.

4.2.2.      Geographic market definition

4.2.2.1.     Past decisional practice

(41)         The Commission has not previously defined the exact geographic scope of in-flight equipment services. In the case EQT/Smurfit Munksjö, the Commission had  considered the market for custom-made concepts of serving products and comfort  items for airlines passengers to be either EEA or worldwide in scope, but ultimately  left the question open in this  case.72

4.2.2.2.     The Notifying Party’s view

(42)         The Notifying Party submits that the geographic market for equipment services and  the narrower market  for in-flight equipment  services would be worldwide  in scope,  as the main providers of equipment services and in-flight  equipment  services  are active globally and there are no barriers to cross-border supply of equipment,  as airlines tend to procure equipment centrally and comprehensively and even regional customisations73  can be provided by suppliers located in other   regions.74

4.2.2.3.     Commission’s assessment

(43)         The Commission considers the geographic scope for  a  market  for  in-flight equipment services to be either EEA- or worldwide for the following  reasons:  the main providers of in-flight equipment services are active globally and airlines tend to procure  equipment centrally and comprehensively.75

(44)         For the purpose of this Decision, the Commission considers that the  geographic  market definition can be left open as the Transaction would not raise serious doubts    as to its compatibility with the internal market under  any  plausible  geographic  market definition, including the narrowest plausible geographic market definition, which is EEA-wide.

4.2.3.   Conclusion

(45)         In light of the above and the results of the market investigation, the Commission    finds the market for the provision of equipment services to be separate  from  the market from in-flight catering services. The question whether in-flight equipment services constitute a separate market can  be left open, as the Transaction is unlikely   to  raise  serious  doubts  as  to  its  compatibility  with  the  internal  market  under any plausible market definition. For the purpose of this decision, the Commission will assess the effects of the Transaction on a plausible narrower product market for in- flight equipment services. The Commission will also  leave  open  the  question whether the geographic market is EEA-wide or worldwide and will assess the effects  of the Transaction under each of the two plausible geographic market   definitions.

4.3.      Lounge management services

(46)         Lounge services comprise the provision of a rest area in an airport, typically accompanied by additional food, beverage, rest and shower facilities. Lounges  may  be provided by airports, airlines and third-party service providers, and entry is  typically based on payment of a fee, purchase of a business or first class airline ticket or inclusion in a  travel  membership  programme.76  Consequently,  lounge management services are provided to an airport or to an airline or airline   alliance.

4.3.1.      Product market definition

(47)         While the Commission concluded in previous decisions that the provision of lounge services is part of an overall market for ground handling services, the Commission suggested in its two latest decisions that lounge services constitute a separate product market.77

(48)         The Notifying Party considers that lounge services are part of an overall market for ground handling services.78

(49)         A horizontally affected market arises only under the narrowest plausible market definition comprising a separate market for lounge services at a certain   airport.79

(50)         For the purpose of the Decision, the question of whether the relevant product market comprises only lounge management services  or  whether  lounge  management services are part of an overall market for ground handling services can be left open,    as the Transaction would not raise serious doubts as to its compatibility with the internal market under the narrowest plausible market   definition.

4.3.2.      Geographic market definition

(51)         The Commission has not previously considered the geographic scope of a separate market for lounge management  services.

(52)         For the overall market for ground handling services, the Commission considered that this market is local and does not extend beyond a single airport or possibly two or  more neighbouring airports.80 The Notifying Party agrees with the Commission’s geographic  market definition.81

(53)         For the purpose of this Decision, the Commission considers that the  geographic  market definition can be left open as the Transaction would not raise serious doubts    as to its compatibility with the internal market under the narrowest plausible geographic market definition (i.e. the catchment area of a single   airport).

4.3.3.      Conclusion

(54)         In view of the above considerations, the Commission leaves the question  open  whether there is a separate market for lounge management services  or  whether  lounge management services belong to the market for ground handling services, as   the Transaction is unlikely to raise serious doubts as to its compatibility with the internal market, under the narrowest plausible product and geographic market definition of lounge management  services.

4.4.      Ready-made food products

(55)         Ready-made food products to the commercial foodservice sector comprise  ready- made food products (such as fresh pre-packed  sandwiches,  snacks,  frozen  meals, etc.) that are supplied, among others, to airlines. In the in-flight catering sector, the supply of ready-made food products is sometimes referred to as the supply of “convenience products”.82

4.4.1.      Product market definition

(56)         In previous decisions, the Commission found a separate market for ready-made food products. It has further considered a possible sub-division  of  this  market  by customers into the retail sector (supermarkets, open markets and  speciality  stores)  and the commercial foodservice sector, the latter of which could  further  be  subdivided between commercial (restaurants, snack-bars, hotels, fast-food chains, leisure sector) and social (public institutions such as canteens, schools and hospitals) segments.83 The question whether within the retail sector  and  both the commercial  and social segments of the food service sector, the markets for ready-made foods can  be further subdivided into frozen foods, chilled foods and fresh  foods  was  left  open.84

(57)         The Notifying Party does not disagree with the Commission’s decisional   practice.85

(58)         In line with its past decisional practice, the Commission considers that, for  the  purpose of this decision, the relevant market is the supply of ready-made food  products to the commercial foodservice sector. The question whether the market for ready-made food products to the commercial foodservice sector should be further subdivided by type of products (frozen foods, chilled foods and fresh foods) can be   left open, as the Transaction would not  raise serious  doubts as to its compatibility  with the internal market under any such plausible market   definition.86

4.4.2.      Geographic market definition

(59)         In previous decisions, the Commission has left open whether the geographic market definition of ready-made food products was national or   EEA-wide.87

(60)         The Notifying Party considers that the geographic scope of the  market for  ready- made food products is likely  EEA-wide.88

(61)         Considering that the Transaction is unlikely to raise serious doubts as to its compatibility with the internal market under either geographic market definition, the Commission considers that the question whether the market for ready-made food products to the commercial foodservice sector is national or EEA-wide can be left  open for the purpose of this  decision.89

4.4.3.      Conclusion

(62)         In view of the above considerations and in line with its past decisional practice, the Commission concludes that, for the purpose of this decision, the relevant market will  be considered as the market for ready-made food products to the commercial foodservice sector. It can be left open whether the market should be  further  subdivided by type of products (frozen foods, chilled foods and fresh foods)  as well   as whether the geographical scope is national or EEA-wide,  as  the  Transaction  would not raise serious doubts as to its compatibility with the internal market under any plausible market  definition.

4.5.      Retail on-board services

(63)         Retail on-board services comprise the provision of shopping services during  the  flight, such as snacks and duty-free  goods.

4.5.1.      Product market definition

(64)         In previous decisions, the Commission left open the question whether the market for retail on-board services should be segmented by type of product, namely snacking products and duty-free  products.90

(65)         The Notifying Party agrees with the previous decisional practice of the Commission and considers that the exact product market definition can be left   open.91

(66)         In line with the Commission’s past decisional practice,  the  Commission considers that, for the purpose of this decision, the question whether the market for retail on-board services should be segmented by type of product (i.e. between snacking and duty-free products) can be left open, as the Transaction would not  raise  serious  doubts as to its compatibility with the internal market under any plausible market definition mentioned above.92

4.5.2.      Geographic market definition

(67)         In previous decisions, the Commission concluded that the market for retail on-board services was at least EEA-wide and left open whether  the  relevant  geographic  market was global.93

(68)         The Notifying Party agrees with the previous decisional practice of the Commission and considers that the geographic scope of retail on-board services is at least EEA- wide.94

(69)         Considering that the Transaction is unlikely to raise serious doubts as to its compatibility with the internal market under any of the plausible geographic market definitions above and in line with its past decisional practice, the Commission considers that the question whether the market for retail on-board services is EEA- wide or worldwide can be left open for the purpose of this   decision.95

4.5.3.      Conclusion

(70)         In view of the above considerations and in line with its past decisional practice, the Commission concludes that, for the purpose of this decision, it can be left  open whether retail on-board services should be segmented by type of product (snacking  and duty-free products) and whether the geographic market is EEA-wide or  worldwide, as the Transaction would not raise serious doubts as to its compatibility with the internal market under any plausible market   definition.

4.6.      Passenger air transport services

(71)         Gategroup is co-controlled by Temasek, which holds a majority shareholding in Singapore Airlines, active in passenger air transport   services.96

4.6.1.      Product market definition

(72)         In previous decisions, when assessing vertical relationships,97 the Commission considered that there is an overall market for passenger air transport services, but left open whether this market might be further sub-segmented into scheduled and charter flights or into “time-sensitive” and “non-time-sensitive   passengers.98

(73)         The Notifying Party agrees with the previous decisional practice of the Commission and considers that the for the purpose of assessing vertical relationships, there is no need to distinguish between time-sensitive and non-time-sensitive passengers or between charter and scheduled flights because an airline’s demand for in-flight catering or retail-on-board products is a function of total passenger numbers, irrespective of the time-sensitivity of those  passengers.99

(74)         In line  with its past decisional practice, Commission considers that,  for the  purpose  of this decision and the assessment of the vertical relationship between the Parties’ activities in in-flight catering and passenger air transport, the relevant market is an overall market for passenger air transport services. The question whether the market  for passenger air transport services should be segmented into charter and scheduled flights or “time-sensitive” and “non-time-sensitive” passengers can be left open, as   the Transaction would not raise serious doubts as to its  compatibility  with  the  internal market under any such plausible market   definitions.100

4.6.2.      Geographic market definition

(75)         In previous cases involving a vertical relationship between  in-flight  catering  and retail on-board services on the one hand and passenger air transport services on the other hand, the Commission found that airlines procure in-flight catering and retail on-board services on an airport-by-airport basis and not on a route-by-route basis. Therefore, it was considered necessary to look at the market share of the particular airline into the total demand for in-flight catering services at the relevant airport (i.e.  for every route to or from the relevant airport) instead of making a route-by-route assessment.101

(76)         The Notifying Party agrees with the Commission’s decisional practice and submits  that the relevant geographic market for the assessment of the vertical relationship between Singapore Airlines’ passenger air transport services and the provision of in- flight catering is an airport-by-airport approach (i.e. every route to or from a given airport).102

(77)         In line with its past decisional practice, the Commission considers that, for  the  purpose of this decision and the assessment of the vertical relationship between the Parties’ activities in in-flight catering and passenger air transport, the geographic market for the provision of passenger air transport services comprises every route to   or from a given airport. The Commission will therefore assess the vertical effects of  the Transaction on an airport-by-airport  approach.

4.6.3.      Conclusion

(78)         In view of the above considerations and in line with its past decisional practice, the Commission concludes that, for the purpose of this decision, the  relevant market  is  an overall market for passenger air transport services to or from a given airport. The question whether the product market should be further segmented into charter and scheduled flights or “time-sensitive” and “non-time-sensitive” passengers can be left open, as the Transaction would not raise  serious doubts as to its compatibility with   the internal market under any plausible market   definition.103

5.              COMPETITIVE ASSESSMENT

5.1.          Horizontal non-coordinated effects104

5.1.1.      Framework for the competitive assessment

(79)         Effective competition brings benefits to consumers, such as low prices, high quality products, a wide selection of goods and services, and innovation. Through its control  of mergers, the Commission prevents mergers that would be likely to deprive customers of those benefits by significantly increasing the market power of   firms.105

(80)         Under Article 2(2) and (3) of the Merger Regulation, the Commission must assess whether a proposed concentration  would  significantly  impede effective  competition in the internal market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position. The notion of "significant  impediment to effective competition" must be interpreted as extending, beyond the concept of dominance, to the anticompetitive effects of  a  concentration  resulting from the non-coordinated behaviours of undertakings which do not have a dominant position on the market  concerned.106

(81)         As regards its non-coordinated effects, a merger presenting horizontal overlaps may significantly impede effective competition in a market, even  if it  does  not  result in the creation or strengthening of a dominant position, by removing important competitive constraints and influencing parameters of   competition.107

(82)         The Horizontal Merger Guidelines list a number of factors which may influence whether or not significant non-coordinated effects are likely to result from a merger, such as the large market shares of the merging firms, the fact that merging firms are close  competitors,  the  limited  possibilities  for  customers  to  access  to  the services provided by the parties and their competitors and the fact that the merger would eliminate an important competitive  force.108

(83)         It is in light of the principles set out above that the Commission  must  analyse  whether and to what extent the Transaction may raise serious doubts as to its compatibility with the internal market due to its horizontal non-coordinated   effects.

5.1.2.      In-flight catering services

5.1.2.1.     Introduction

(84)         The Notifying Party submits that the competitive concerns that might arise due to the Transaction are being mitigated by (i) the bidding nature of the market, (ii) the presence of strong competitors on the markets, (iii) the ease of switching between in- flight catering suppliers and (iv) the evolution of airline catering   needs.

(A)              Market shares are a reliable indicator in in-flight catering bidding   market

(85)         The Parties submit that the in-flight catering services market is a bidding market, as nearly all in-flight catering products are awarded through competitive tenders, issued on a regular basis by airlines. The parties argue that, in line with previous Commission decisions, “in bidding markets, market shares are an imperfect proxy for establishing the effective market strength of parties”, due to quick shifts in large volumes of business.109 According to the Parties, the mere aggregation of market shares would overstate the strength of the combined entity.110

(86)         While the results of the market investigation show that most airlines launch tender processes for in-flight catering contracts, airlines also do negotiate contracts with suppliers bilaterally.111 More importantly, several airlines indicated that launching a tender is sometimes futile because there is only one (viable) caterer active at the particular airport.112 In that respect, the bidding data submitted by the Parties shows  that caterers not yet present at the airport generally do not bid on contracts covering that airport.113 It thus cannot be argued that competitors not yet active at a given  airport are potential bidders that would exert a competitive pressure on the Parties post-Transaction.

(87)         Therefore, in view of the above considerations, the Commission  considers  that  market shares are a reliable  indicator of the actual  market position of the Parties at  the relevant airports over the past  years.

(88)         With respect to German airports, the Parties have submitted their market share estimates for each airport or certain geographic areas which, in the Parties’ view, comprise several airports, in two versions: including and  excluding  captive  sales. Prior to the merger, all sales of LSG to the Lufthansa Group  were  internal,  i.e. captive  sales.  As  explained  in  paragraph  (12)  above,  Gategroup  will  enter  into a long-term supply contract with Lufthansa for the hub airports Frankfurt and Munich,  as well as outlying German airports. In the absence of this long-term agreement, the demand of the Lufthansa Group airlines could have been part of the  contestable market. Therefore, the Commission will take account of the formerly captive sales between LSG and the Lufthansa Group airlines in the calculation of the  merged entity’s share at German airports or broader geographic areas comprising several airports. However, the competitive assessment will remain unchanged, should  formerly captive sales be excluded from the calculation of  the  merged  entity’s  market share post-Transaction, notably since the merged entity shares without (formerly) captive sales would remain high at these airports or in these broader geographic areas and the merged entity would not face sufficient competition constraint post-Transaction. With respect to the Amsterdam airport,  where  the  Parties’ activities in in-flight catering services overlap, the Commission assessment will exclude the captive sales between KCS and the  KLM group  which are  not part  of the contestable market, as these sales between KCS and the KLM group were  captive sales pre-Transaction and will remain captive   post-Transaction.

(B)              Barriers to entry

(89)         According to the Parties, barriers to entry in the in-flight  catering  business  are  low.114

(90)         The market investigation has shown however that significant barriers to entry exist regarding the market for in-flight catering services. Replies were mixed amongst competitors regarding the question how difficult it is for  a  company  already  providing in-flight catering services at certain airports to enter an airport at which it does not operate,115 whereas the majority stated that it would be relatively or very difficult for a company not already active in in-flight catering services to start doing so.116

(91)         According to respondents, depending on which airport a company intends to start providing catering services at, a relatively high degree of assets or knowledge are necessary to start doing so. These include e.g. available spaces and/or facilities for a catering unit close to the airport, experience and knowledge in the catering industry, experienced staff, high-loaders & trucks, specific IT-infrastructure as well as kitchen equipment, some of which are scarce resources or require a relatively high upfront investment.117 In addition, entering a new airport will only be viable if a critical number of customers will award the new supplier a contract from day one of operation.118

(92)         Competitors further stated that depending on whether entering a hub- or non-hub airport, it would take between six months and two years to set up a business at a new airport and even longer if the company was not previously active in the provision of in-flight  catering  services.119    The  complexity  and  timeframe  of  entry is further exacerbated by the fact that many airlines have multi-airport-contracts with in-flight caterers, which for a new entrant might require simultaneous entry at several airports.120 The geographic footprint (i.e. prior presence  of  the  supplier  at  the relevant airport) as well as the (size  of the) existing network of the supplier were    both named as important criteria for airlines when selecting an in-flight catering services supplier.121 Prior presence at an airport is therefore a major advantage to a supplier of in-flight catering services and lack thereof constitutes a significant barrier to entry. Correspondingly, analysing the Parties’ recent tendering data, it can be observed that competitors generally do not bid at airports where they are not already active.122 The majority of customers that replied to the market investigation also did  not expect new entries in the coming five years into the market for the supply of in- flight catering services in the  EEA.123

(C)              Switching suppliers

(93)         According to the Parties, switching suppliers in the in-flight catering services market   is easy. The Parties state that airlines usually make no purchase commitment and can often terminate  the  contract with little  notice and at no significant cost. Moreover,  the Parties submit that barriers to entry are low and that airlines are able and willing    to introduce and sponsor new entrants for in-flight catering services to an airport. In addition, the Parties claim that airlines could further exercise  significant constraints  on in-flight caterers due to the possibility of switching back to in-house sourcing or switching to return-catering (meaning aircraft are catered and loaded at  a  given  airport with sufficient catering to last for several flight legs), the latter  of  which  would allow airlines to not use any caterer at a particular airport and supply their aircraft with catering from their central hub  instead.124

(94)         The parties provide recent examples of airlines  switching  their  in-flight  caterers, such as British Airways’ and Iberia’s switch to Do&Co for their hubs in London and Madrid, [customer]’s switch from LSG to Gategroup at Rome Fiumicino Airport and [customer] switching from Gategroup to LSG at Amsterdam Schiphol Airport.125 Indeed, the majority of customers responding to the Commission’s market investigation confirmed that they have switched their in-flight catering services supplier in the last five years. However, some airlines point towards the exit of their previous supplier, leaving them no choice but to switch despite higher   prices.126

(95)         Although in past decisions, the Commission indicated that switching suppliers in the in-flight catering market was relatively easy,127 the market investigation has revealed that this is no longer the case. In fact, the majority of customers responding to the Commission’s market investigation expressed the view that it was relatively or very difficult for an airline  to switch to  a  different supplier.  The  reasons for this    ranged from a lack of alternative suppliers and capacity constraints in some markets to the time and additional investments needed by the airline to switch   suppliers.128

(96)         Furthermore, the case of Do & Co in Heathrow and Madrid cannot  be  seen  as a normal switching, as it is a case of sponsoring entry at a hub airport  by  the  hub carrier, therefore guaranteeing a high volume. Similarly, the case of  [customer]’s switch from LSG to Gategroup at Rome Fiumicino Airport is special, as [customer] owns the kitchen and other infrastructure, which it  lets  to  the  caterer.  Therefore, these examples of switching work only in hub airports for the hub carrier, and cannot be cited as a general possibility at all  airports.

(97)         The majority of customers also stated that it was impossible or difficult for an airline  to switch to source in-flight catering services in-house, citing the lack of experience and infrastructure, high investment-costs as well as different business models as the main reasons129. The majority of customers responding to the  market  investigation have also not switched to in-house catering services in the past130. In fact, only one airline, Finnair, has done this for their entire in-flight catering needs in the EEA according to the  market-investigation.131

(98)         Similarly, while responses by customers as to whether it would be feasible for an airline to sponsor the entry of a supplier of in-flight catering services in the EEA at which it does not operate yet were mixed,132 the  majority  of airlines was not  aware  of any airline doing so in the past other than IAG and many airlines expressed the  view that they have never considered this as an option.133 The majority of customers also currently does not deem it feasible to switch to return-catering for long-haul flights.134

(D)              Competitors on the market

(99)         According to the Parties, they face strong competition regarding the provision of in- flight catering services from  several large  and internationally active  operators such  as Newrest, Do&Co and dnata. All of them provide a wide range of in-flight catering services. In addition, competitors do not only rely on their own infrastructure and presence at particular airports, but frequently enter into joint  venture  agreements (such as Newrest and Servair in Belgium). The Parties moreover argue that they face additional pressure from non-traditional  suppliers.135

(100)      The Commission considers companies such as Newrest, Do&Co and Dnata as viable competitors with regards to the provision in-flight catering services in the EEA. Considering that the geographic scope of in-flight catering services is local (i.e. the catchment area  of an airport  or an area comprising several  neighbouring airports),  the Commission will assess the competitive constraint exerted by competitors on the relevant geographic market, taking account of potential   entry.

(E)               Negotiation power of  customers

(101)      The market investigation has shown that contrary to the Parties’ assertion, depending on the airport in question, the negotiation power of customers vis-à-vis in-flight caterers is limited. In particular, if there is no alternative supplier present at a given airport, airlines would only have two options: threatening them that  they  would  switch to in-house catering, as explained in paragraph (97) above, or to return-  catering (see paragraph (93)). In particular, resorting  to  return-catering  in  a destination airport (or several) is not likely to be an option because, by switching to return-catering in those airports, the airline would  lose  the  efficiencies  and economies of scale linked to the purchase of in-flight catering services for the numerous flights departing from its hub/base airport. In addition, the majority of customers responding to the market investigation having expressed a view stated that the merged entity will have the ability and incentive to foreclose competitors  by inciting an airline to conclude multi-airport contracts post-Transaction by leveraging  its position at the overlap airports where the merged entity’s position will be strengthened.

(F)               Conclusion

(102)      The Commission will  assess the horizontal effects of the  Transaction in the market  for in-flight catering on the relevant geographic markets, taking account of  the  general characteristics of in-flight catering services in the EEA described in the sections above.

5.1.2.2.     Berlin Tegel

(103)      The Transaction leads to a horizontal overlap between the Parties’  activities  in in- flight catering at Berlin Tegel airport. The evolution of the market shares of  the  Parties and their competitor at Berlin Tegel airport during the period from 2016  to 2018 is set out in the table  below.

(104)      As shown in the table above, the proposed Transaction would lead to a combined market share of [80-90]% in the provision of in-flight catering services  at  Berlin  Tegel airport.

(105)      The Commission considers that post-Transaction, the merged entity would  face  limited competition at Berlin Tegel airport, because Do&Co will be the only  remaining competitor with a market share of [10-20]%. The respondents  to  the  market investigation gave mixed replies as to whether the merged entity would have the ability to restrict the expansion or the entry of competitors post-Transaction at Berlin Tegel airport.136

(106)      The majority of competitors having expressed a view consider that the Transaction  will have a negative impact on the  market for in-flight catering services at Berlin  Tegel airport.137 However, the views of customers as to  whether  the  Transaction would have a negative impact on in-flight catering services at Berlin Tegel are mixed.138 A customer indicated that the proposed transaction “would likely have a negative impact on cost and service quality levels, particularly at the  following  airports stations in the EEA: Berlin (TXL)”.139 Respondents that consider that the impact of the Transaction would not be negative did not further substantiate their  reply.

(107)      Furthermore, the majority of respondents to the market investigation indicated that  they are not aware of any recent or potential entry at Berlin Tegel airport.140 More specifically, a customer explained that “An incumbent (or purchaser) in limited size markets can impact competitors primarily due to volume (i.e. if there is not enough volume, competitors may be reluctant to enter the market)”.141 The Commission therefore notes the lack of entry projects that would defeat or deter  the  anticompetitive effects of the Transaction on the market  for  in-flight  catering  services at Berlin Tegel airport.

(108)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction raises serious doubts as to its compatibility with the internal market with respect to the horizontal effects in the market for in-flight  catering services at Berlin Tegel airport, since the Transaction would create a  dominant position for  Gategroup.

5.1.2.3.     Berlin  Tegel/Berlin Schönefeld/Leipzig

(109)      The Transaction also leads to a horizontal overlap between the Parties’ activities in in-flight catering on a geographic market encompassing Berlin Tegel/Berlin Schönefeld and Leipzig airports since Gategroup is active in Berlin Tegel, Berlin Schönefeld and Leipzig airport and LSG EU is active in Berlin Tegel. The evolution   of the market shares of the Parties in this geographic market during the period from 2016-2018 is set out in the table  below.

(110)      As shown in the table above, the Transaction would  lead to  a combined share  of  more than [90-100]% in a broader geographic market encompassing Berlin Tegel/Berlin Schönefeld and Leipzig airports. The merged entity would face limited competition from the only other in-flight caterer Do&Co with  a  [5-10]%  market share.

(111)      In view of the merged entity's high market share and of the considerations set out in Section 5.1.1.2 above, the Commission concludes that the Transaction raises serious doubts as to its compatibility with the internal market with respect to the horizontal effects in the market for in-flight catering services in a  geographic  area  encompassing Berlin Tegel/Berlin Schönefeld and Leipzig airports since it  would create a dominant position for Gategroup in a geographic area comprising Berlin Tegel/Berlin Schönefeld and Leipzig  airports.

5.1.2.4.     Cologne-Bonn

(112)      The Transaction leads to a horizontal overlap between the Parties’  activities  in in- flight catering at Cologne-Bonn airport. The evolution of the market shares of the Parties at Cologne-Bonn airport during the period from 2016 to 2018 is set out in the table below.

(113)      Gategroup and LSG EU were the only providers of in-flight catering services at Cologne-Bonn airport in the past years. The proposed Transaction  would therefore lead to a monopoly situation at Cologne-Bonn  airport.

(114)      The majority of respondents to the market investigation having expressed a view consider that the Transaction will have a negative impact on the market for in-flight catering services at Cologne-Bonn airport.142 An airline indicated “if GG becomes sole source, we anticipate increased costs in the future”.143 Another customer explained that “we have seen in airports today […] where Gate Group is the only supplier that the cost is substantially higher than on other airports as well as they deliver lower quality and higher degree of errors and we have higher percentage of flight delays due to catering than in other airports”.144

(115)      Furthermore, the majority of respondents to the market investigation indicated that  they are not aware of any recent or potential entry at Cologne-Bonn airport.145 The Commission therefore notes the lack of entry projects that would defeat or deter the anticompetitive effects of the Transaction on the market  for  in-flight  catering  services at Cologne-Bonn  airport.

(116)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction raises serious doubts as to its compatibility with the internal market with respect to the horizontal effects in the market for in-flight  catering services at Cologne-Bonn airport since it would create or strengthen a dominant position for  Gategroup.

5.1.2.5.     Dusseldorf

(117)      The Transaction leads to a horizontal overlap between the Parties’  activities  in in- flight catering at Dusseldorf airport. The evolution of the market shares of the Parties and their only competitor at Dusseldorf airport during the period from 2016 to 2018    is set out in the table below.

(118)      As shown in the table above, the proposed Transaction would lead to a combined market share of [80-90]% in the provision of in-flight catering services at Dusseldorf airport.

(119)      The Commission considers that post-Transaction, the merged entity would  face  limited competition at Dusseldorf airport, because  Do&Co  will  be  the  only remaining competitor with a market share of [10-20]%. The majority of respondents to the market investigation having expressed a view consider that the merged entity would  have  the  ability  to  restrict  the  expansion  or  the  entry  of  competitors post-Transaction at Dusseldorf  airport.146

(120)      In addition, the majority of respondents to the market investigation having expressed    a view consider that the Transaction will have a negative impact on the market for in-flight catering services at Dusseldorf airport.147 A customer indicated that the proposed transaction “would likely have a negative impact on  cost  and  service  quality  levels,  particularly   at  the  following  airports  stations  in  the  EEA:    […] Duesseldorf (DUS)”.148

(121)      Furthermore, the majority of respondents to the market investigation indicated that  they are not aware of any recent or potential entry at Dusseldorf airport.149 The Commission therefore notes the lack of entry projects that would defeat or deter the anticompetitive effects of the Transaction on the market  for  in-flight  catering  services at Dusseldorf airport.

(122)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction raises serious doubts as to its compatibility with the internal market with respect to the horizontal effects in the market for in-flight  catering services at Dusseldorf airport since the Transaction would create a dominant position for Gategroup.

5.1.2.6.     Frankfurt

(123)      The Transaction leads to a horizontal overlap between the Parties’  activities  in in- flight catering at Frankfurt airport. The evolution of the market shares of the Parties and their competitors at Frankfurt airport during the period from  2016 to 2018,  as  well as the estimates for 2020,150  are set out in the table  below.

(124)      As shown in the table above, the proposed Transaction would lead to a combined market share of [90-100]% in the provision of in-flight catering services at Frankfurt airport.

(125)      The Commission considers that post-Transaction, the merged entity would  face  limited competition at Frankfurt airport because Do&Co and GIC would respectively have a market share of [5-10]% and [0-5]%. The respondents to the market investigation gave mixed replies as to whether the merged entity would have the  ability to restrict the expansion or the entry of competitors   post-Transaction.151

(126)      However, the majority of respondents to the market investigation having expressed a view consider that the Transaction will have a negative impact on the market for in- flight catering services at Frankfurt airport.152 An airline indicated that “less competition results in higher catering costs and lower quality […]. From a passenger point of view, there is also a high risk of less innovation and variation in inflight catering concepts with less supplier competition in the market”.153 A competitor considers that the merged entity “will drive the prices too high because they have the major client base in FRA. Opportunities to bid for business will reduce as more customers will automatically transfer to the new entity”.154

(127)      Furthermore, the majority of respondents to the market investigation indicated that  they are not aware of any recent or potential entry in Frankfurt.155 The Commission therefore notes the lack of entry projects that would defeat or deter  the  anticompetitive effects of the Transaction on the market  for  in-flight  catering  services at Frankfurt airport.

(128)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction raises serious doubts as to its compatibility with the internal market with respect to the horizontal effects in the market for in-flight  catering services at Frankfurt airport, since it would create a dominant position for Gategroup.

5.1.2.7.     Frankfurt/Dusseldorf/Cologne-Bonn

(129)      The Transaction also leads to a horizontal overlap between the Parties’ activities in in-flight catering on a geographic market encompassing Frankfurt, Dusseldorf and Cologne-Bonn airports since both Gategroup and LSG EU are active in Frankfurt, Dusseldorf and Cologne-Bonn. The evolution of the market shares of the Parties in  this geographic market during the period from 2016-2018 is set out  in  the  table below.

(130)      As shown in the table above, the Transaction would  lead to  a combined share  of  more than [90-100]% in a broader geographic market encompassing Frankfurt, Dusseldorf and Cologne-Bonn airports. The merged entity would face limited competition from Do&Co and GIC, with a market share of respectively [5-10]% and [0-5]%.

(131)      In view of the merged entity high market share and of the considerations set out in Sections 5.1.1.4 to 5.1.1.6 above, the Commission concludes that the Transaction  raises serious doubts as to its compatibility with the internal market with respect to   the horizontal effects in the market for in-flight  catering  services  in  a  geographic area encompassing Frankfurt, Dusseldorf and Cologne-Bonn airports, since it would create a dominant position for  Gategroup.

5.1.2.8.     Hamburg

(132)      The Transaction leads to a horizontal overlap between the Parties’  activities  in in- flight catering at Hamburg airport. The evolution of the market shares of the Parties    at Hamburg airport during the period from 2016 to 2018 is set out in the table    below.

(133)      Gategroup and LSG EU were the only providers of in-flight catering services at Hamburg airport in the past years. The proposed Transaction would therefore lead to   a monopoly situation at Hamburg  airport.

(134)      The majority of respondents to the market investigation having expressed a view consider that the Transaction will have a negative impact on the market for in-flight catering services at Hamburg airport.156 An airline indicated “If a monopoly or dominant position, this would mean increased prices.”157

(135)      Furthermore, the majority of respondents to the market investigation indicated that  they are not aware of any recent or potential entry at Hamburg airport.158 The Commission therefore notes the lack of entry projects that would defeat or deter the anticompetitive effects of the Transaction on the market  for  in-flight  catering  services at Hamburg airport.

(136)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction raises serious doubts as to its compatibility with the internal market with respect to the horizontal effects in the market for in-flight  catering services at Hamburg airport, since it would create or strengthen a dominant position for Gategroup.

5.1.2.9.     Hannover

(137)      The Transaction leads to a horizontal overlap between the Parties’  activities  in in- flight catering at Hannover airport. The evolution of the market shares of the Parties   at Hannover airport during the period from 2016 to 2018 is  set  out  in  the  table below.

(138)      Gategroup and LSG EU were the only providers of in-flight catering services at Hamburg airport in the past years. The proposed Transaction would therefore lead to   a monopoly situation at Hannover  airport.

(139)      The majority of respondents to the market investigation having expressed a view consider that the Transaction will have a negative impact on the market for in-flight catering services at Hannover airport.159 An airline indicated “We are worried that monopoly  and oligopoly  will lose  cost competitiveness”160  while another explained “There is the possibility that the cost of service may increase slightly as Gate has tended to be more expensive than LSG when we have tendered our contracts.”161

(140)      Furthermore, the majority of respondents to the market investigation indicated that  they are not aware of any recent or potential entry at Hannover airport.162 The Commission therefore notes the lack of entry projects that would defeat or deter the anticompetitive effects of the Transaction on the market  for  in-flight  catering  services at Hannover airport.

(141)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction raises serious doubts as to its compatibility with the internal market with respect to the horizontal effects in the market for in-flight  catering services at Hannover airport, since it would create or strengthen a dominant position for Gategroup.

5.1.2.10.Hamburg/Hannover

(142)      The Transaction also leads to a horizontal overlap between the Parties’ activities in in-flight catering on a geographic market encompassing Hamburg and Hannover airports since both Gategroup  and LSG EU are active in Hamburg and Hannover.    The evolution of the market shares of the Parties in this geographic market during     the period from 2016-2018 is set out in the table  below.

(143)      As shown in the table above, the Transaction would lead to a monopoly in a broader geographic market encompassing Hamburg and Hannover   airports.

(144)      In view of the merged entity high market share and of the considerations set out in Sections 5.1.1.8 and 5.1.1.9 above, the Commission concludes that the Transaction raises serious doubts as to its compatibility with the internal market with respect to   the horizontal effects in the market for in-flight  catering  services  in  a  geographic area encompassing Hamburg and Hannover airports since it would create  or  strengthen a dominant position for  Gategroup.

5.1.2.11.Munich

(145)      The Transaction leads to a horizontal overlap between the Parties’  activities  in in- flight catering at Munich airport. The evolution of the market shares of the Parties and their competitors at Munich airport during the period from 2016 to 2018, as well  as the estimates for 2020,163  are set out in the table  below.

(146)      As shown in the table above, the proposed Transaction would lead to a combined market share of [90-100]% in the provision of in-flight catering services at Munich airport.

(147)      The Commission considers that post-Transaction, the merged entity would  face  limited competition at Munich airport because Do&Co and ACM would respectively have a market share of [5-10]% and [0-5]%. In fact, the  takeover  would  leave  airlines with only one accredited alternative, Do & Co,  and a  niche  player, ACM.  The respondents to the market investigation gave mixed replies as to whether the merged entity would have the ability to restrict the expansion or the entry of competitors post-Transaction at Munich  airport.164

(148)      However, the majority of respondents to the market investigation having expressed a view consider that the Transaction will have a negative impact on the market for in- flight catering services at Munich airport.165 An airline considers that “In case LSG   and Gate Gourmet are present at the same station, an impact on the competitive landscape is expected, particularly a potential increase in prices and potentially less choice. This also of course depends highly on the amount and position of remaining competitors. It is important to have  a choice in supplier in case  of quality  reduction  or operational issues”.166 A competitor considers that the proposed Transaction “will create  a  powerful Giant”.167

(149)      Furthermore, the majority of respondents to the market investigation indicated that  they are not aware of any recent or potential entry at Munich airport.168 The Commission therefore notes the lack of entry projects that would defeat or deter the anticompetitive effects of the Transaction on the market  for  in-flight  catering  services at Munich airport.

(150)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction raises serious doubts as to its compatibility with the internal market with respect to the horizontal effects in the market for in-flight  catering services at Munich airport, since it would create a dominant position for Gategroup.

5.1.2.12.Brussels

(151)      LSG EU is active in the provision of in-flight catering services at Brussels airport. Gategroup holds a […]% interest in Newrest Servair Belgium SPRL (the “Newrest- Servair JV”), a joint venture between Newrest Group Holdings S.A. and Servair Investissements Aéroportuaires (“Servair”) created in 2014. Servair is controlled by Gategroup.169

(152)      The Notifying Party submits that it does not have control over the Newrest-Servair JV.170 More specifically, [description of the governance structure in relation to the adoption of strategic  decisions].171

(153)      However, the Commission notes that [description of the governance structure in relation to the adoption of decisions]. […]172 […]173. The Commission therefore considers that Gategroup has at least the possibility to exercise decisive influence, if not actual decisive  influence, over the commercial strategy of  the Newrest-Servair  JV.

(154)      Therefore, in view of the above considerations and the evidence available to it, the Commission considers on balance that Gategroup has joint control over the Newrest- Servair JV within the meaning of Article 3(2) of the Merger   Regulation.

(155)      The Transaction therefore leads to a horizontal  overlap  between  the  Parties’  activities in in-flight catering services at Brussels airport. The  evolution  of  the  market shares of the Parties and their competitor at Brussels airport during the period from 2016 to 2018 is set out in the table  below.

(156)      The Transaction would therefore lead to a monopoly   situation.

(157)      The Commission considers that the entry of new competitors at Brussels airport is unlikely until at least October 2025 because the number  of  catering  transport  licences  at  Brussels  Airport  is  limited  to  two  by  Royal  Decree  of  6 November 2010.174 As a result, competitors cannot enter into the market for in-flight catering services at Brussels airport, unless they subcontract the last-mile services (i.e. the loading on board of aircraft) to either LSG EU or Newrest-Servair. The Commission therefore considers that there would not be sufficient competition at Brussels airport   to deter or defeat any anticompetitive effects of the   Transaction.

(158)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction raises serious doubts as to its compatibility with the internal market with respect to the horizontal effects in the market for in-flight  catering services at Brussels airport, since it would create or strengthen a dominant position for Gategroup.

5.1.2.13.  Paris Charles de Gaulle

(159)      Gategroup provides in-flight catering services at Paris Charles de Gaulle airport, through its subsidiary Servair, which used to be Air France’s in-house in-flight  catering supplier.175 LSG EU currently serves only one airline,  [customer],  since 2018, for a relatively small volume. However, LSG EU  bid  unsuccessfully  for  several tenders at Paris Charles de Gaulle airport since 2018.176 For  that  reason, several airlines considered in their replies to the market investigation LSG EU as an alternative supplier.

(160)      The Transaction therefore leads to a horizontal  overlap  between  the  Parties’  activities in in-flight catering at Paris Charles de Gaulle   airport.

(161)      The evolution of the market shares of the Parties and their  competitor  at  Paris  Charles de Gaulle airport during the period from 2016 to 2018 is set out in the table below, as well as the Parties’ estimates for  2020.

(162)      As shown in the table above, the proposed Transaction would lead to a combined market share of [90-100]% in the provision of in-flight catering services at Paris Charles de Gaulle airport. The takeover of LSG would remove at least a potential alternative source for airlines, given that LSG has in the recent past participated in tenders. The second player pre-Transaction, Newrest, is a relatively small   supplier.

(163)      The Commission considers that post-Transaction, the merged entity would  face  limited competition at Paris Charles de Gaulle airport, because Newrest will be the only remaining competitor with a market share of  less  than  [5-10]%.  The respondents to the market investigation gave mixed replies as to whether the merged entity would have the ability to restrict the expansion or the entry of competitors post-Transaction at Paris Charles de Gaulle airport.177 In that respect, a customer explained “Paris – less competition and the new  merged company will become  a  large player. Still competition from Newrest but will become a duopoly”.178 Respondents who consider that the merged entity would not have the  ability  to  restrict competition did not further substantiate their  views.

(164)      The market investigation also yielded mixed results as to whether the Transaction would have a negative impact on the market for in-flight catering services at Paris Charles de Gaulle.179 No respondent considers that the Transaction would have a positive impact on price or quality of service.180 By contrast, some customers and competitors consider that the  Transaction would likely result  in higher prices and in   a decrease in quality of service.181 A customer indicated “when  competition  at  specific locations is limited […]  prices tend to be  higher and the caterer leverages   this position. Quality can also suffer because of limited competition. Caterers’ incentives to invest in assets such as new trucks, facilities, technology, people, and process improvements will generally be directed to locations where there is healthy competition and where the caterer has to maintain certain quality levels to win business.”182

(165)      Furthermore, the majority of respondents to the market investigation indicated that  they are not aware of any recent or potential entry at Paris Charles de  Gaulle  airport.183 The Commission therefore notes the lack of entry  projects  that  would defeat or deter the anticompetitive effects of the Transaction on the market for in-  flight catering services at Paris Charles de Gaulle  airport.

(166)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction raises serious doubts as to its compatibility with the internal market with respect to the horizontal effects in the market for in-flight  catering services at Paris Charles de Gaulle airport, since it  would  create  or strengthen a dominant position for  Gategroup.

5.1.2.14.  Milan Malpensa

(167)      The Transaction leads to a horizontal overlap between the Parties’  activities  in in- flight catering at Milan Malpensa airport. The evolution of the market shares of the Parties and their competitors at Milan Malpensa airport during the period from 2016   to 2018 is set out in the table  below.

(168)      As shown in the table above, the proposed Transaction would lead to a combined market share of [40-50]% in the provision of in-flight catering services at Milan Malpensa airport.

(169)      While the majority of competitors having expressed a view consider that the merged entity will not have the ability to restrict the expansion or the entry of competitors at Milan Malpensa airport, the customers gave mixed replies as to whether the Transaction would result in a lessening of competition.184 In addition, the market investigation yielded mixed results as to the impact of the Transaction on the market for in-flight catering at Milan Malpensa airport.185 A customer indicated that in Milan Malpensa “DNATA could stay and expand with other airlines”,186 while another explained “The merger will reduce competition in the market, reducing customer choice.”187

(170)      The Commission considers that post-Transaction, the merged entity will continue facing significant competition from established in-flight caterer Dnata, with a [40- 50]% market share. Do&Co will also be an alternative supplier with a  [10-20]% market share.

(171)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction does not raise serious doubts as to its  compatibility  with the internal market with respect to the horizontal effects in the market  for in- flight catering services at Milan Malpensa  airport.

5.1.2.15.  Rome Fiumicino

(172)      The Transaction leads to a horizontal overlap between the Parties’  activities  in in- flight catering at Rome Fiumicino airport. The evolution of the market shares of the Parties and their competitor at Rome Fiumicino airport during the period from  2016   to 2018 is set out in the table below. The Parties have also provided their  best estimates of their 2020 market shares, taking account of the  revenues generated  by  the [customer] contract that Gategroup won in [year]. Prior to that, LSG EU was supplying in-flight catering services to [customer] at Rome   Fiumicino.188

(173)      As shown in the table above, the proposed Transaction would lead to a combined market share of [80-90]% in the provision of in-flight catering services at Rome Fiumicino airport, and a reduction of suppliers from 3 to only   2.

(174)      The Commission considers that post-Transaction, the merged entity would  face  limited  competition  at  Rome  Fiumicino  airport,  because  Dnata  will  be  the only remaining competitor with a market share of [10-20]%. The respondents  to  the  market investigation gave mixed replies as to whether the merged entity would have the ability to restrict the expansion or the entry of competitors post-Transaction at Rome  Fiumicino airport.190

(175)      However, the majority of respondents to the market investigation having expressed a view consider that the Transaction will have a negative impact on the market for in- flight catering services at Rome Fiumicino  airport.191

(176)      Furthermore, the majority of respondents to the market investigation indicated that  they are not aware of any recent or potential entry at Rome Fiumicino airport.192 The Commission therefore notes the lack of entry projects that would defeat or deter the anticompetitive effects of the Transaction on the market  for  in-flight  catering  services at Rome Fiumicino  airport.

(177)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction raises serious doubts as to its compatibility with the internal market with respect to the horizontal effects in the market for in-flight  catering services at Rome Fiumicino airport, since it would create  a  dominant  position for Gategroup.

5.1.2.16.  Amsterdam Schiphol

(178)      The Transaction leads to a horizontal overlap between the Parties’  activities  in in- flight catering at Amsterdam Schiphol airport. The overlap results from one contract with United, which LSG serves out of its Brussels hub.193 The  evolution  of  the market shares of the Parties and their competitors at Amsterdam Schiphol airport during the period from 2016 to 2018 are set out in the tables below. As explained in paragraph (88) above, the market shares presented below exclude captive sales  between KCS and the AF-KLM  group.

(179)      As shown in the table above, the proposed Transaction would lead to a combined market share of [80-90]% in the provision of  in-flight  catering  services  at Amsterdam Schiphol airport. The market shares presented above exclude  captive sales. This leads to an underestimation of the actual position of KCS, which is by far the largest player in the market is by far KCS, which also provides in-flight catering services to other airlines than KLM. The demand of the AF-KLM group represents more than 60% of the total demand for in-flight catering services at Amsterdam Schiphol airport.194 Due to its size and capacities, KCS will be able to  exert  significant pressure on the merged entity post-Transaction. Thus, post-Transaction, there would remain two credible alternative suppliers for airlines  to  choose  from, each of them larger than the target, namely KCS and   Newrest.

(180)      This analysis is also confirmed by the replies to the market investigation. While competitors gave mixed replies as to whether the Transaction would result in a lessening of competition, the majority of customers having expressed a view in the market investigation stated that the merged entity would not have the  ability  to  restrict the expansion or the entry of competitors post-Transaction,.195 An airline present in Amsterdam Schiphol indicated that "no dominant position would  be  created at those airports”196 and that the “effect of the Transaction on Amsterdam Schiphol Airport is considered to be  limited”.197

(181)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction does not raise serious doubts as to its  compatibility  with the internal market with respect to the horizontal effects in the market for in- flight catering services at Amsterdam Schiphol  airport.

5.1.2.17.Conclusion

(182)      The Transaction does not raise serious doubts as to its compatibility with the internal market with respect to the horizontal effects in the markets for in-flight catering services at Milan Malpensa and Amsterdam Schiphol   airports.

(183)      The Transaction raises serious doubts as to its compatibility with the internal market with respect to the horizontal effects due to the creation or strengthening of  a  dominant position in the markets for in-flight catering services at Frankfurt, Munich, Cologne-Bonn, Dusseldorf, Hamburg, Hannover, Berlin  Tegel,  Brussels,  Paris Charles de Gaulle and Rome Fiumicino airports and in the broader geographic areas encompassing (i) Frankfurt, Dusseldorf and Cologne-Bonn  airports,  (ii)  Hamburg and Hannover airports, and (iii) Berlin Tegel, Berlin  Schönefeld  and  Leipzig  airports.

5.1.3.      In-flight equipment services

(184)      As explained in Section 4.2 above, the Commission will assess the effects of the Transaction on a plausible narrower market for in-flight equipment   services.

(185)      The Transaction would give rise to horizontally affected markets for the provision of in-flight equipment services in the EEA or  worldwide.198

(186)      The following table shows the Parties’ market shares on the market for in-flight equipment services in the EEA and worldwide in 2018. The overall market  volume    is based a) on the Parties’ estimates of the total value based on seats per airline and estimated airline spending in EUR per seat and b) on IATA air passenger data for the Parties’ top customers and subsequent extrapolation  of  these  numbers  to  calculate the overall market. This table includes the  pre-Transaction captive  sale of LSG  EU  to companies within the Lufthansa Group to fully capture the market position of the Parties post-Transaction.199

(187)      Post-Transaction, customers in the EEA and worldwide will continue to have the ability to switch to other existing suppliers. While even the largest competitors of the Parties have individual market shares considerably smaller than those of the Parties, post-Transaction, a sufficient number of competitors offering in-flight equipment services will remain on the market (such as Formia or Buzz with market shares of approximately 4.6% and 4.1% worldwide).200 Some, particularly smaller airlines,  prefer to purchase the “full range” of services (comfort items, tableware and trolleys) from a single vendor and thus only  consider  these  vendors  as potential suppliers. This will not however allow the Parties to obtain a dominant position in the market post-Transaction, as at least several competitors also offer in-flight  equipment  services related to in-flight comfort items and serving concepts/, such as Global C, Galileo Watermark and Buzz.201 The Parties will therefore continue to face strong competition from players which are already active in the   market.

(188)      In addition, post-Transaction, new entrants would continue to be able to enter the market for in-flight equipment services with relatively little capital   expenditure.202

(189)      The relative size and capacity of the Parties to supply the whole range of in-flight equipment services compared to their closest competitors may provide them with a competitive  advantage  when  entering  a  tender  for  some  contracts.  However, the “critical” size and capacity necessary to bid for in-flight equipment service contracts   is relatively small and will be fulfilled by numerous competitors   post-Transaction.203

(190)      Finally, while the market investigation yielded mixed  results  among  competitors  with regards to the impact of the transaction on “other services”204 than in-flight catering services, a majority of customers responding to the Commission’s market investigation having expressed a view did not anticipate a substantial impact on the market for in-flight equipment services (with several customers indicating that a sufficient number of alternative suppliers will remain   post-Transaction).205

(191)      Taking the above considerations into account, the Commission considers that the Parties will face sufficient competition in the market for in-flight equipment services  in the EEA and worldwide post-Transaction and that the competitive constraints on  the Parties would be  sufficient.

Conclusion

(192)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction does not raise serious doubts as to its  compatibility  with the internal market with respect to the horizontal effects in the markets for in- flight equipment services in the EEA or  worldwide.

5.1.4.      Lounge management services

(193)      A horizontally affected market arises only under the narrowest plausible market definition comprising the provision of lounge management services at Frankfurt  airport only.206

(194)      The following table shows the Parties’ market shares on the market for lounge management services at Frankfurt airport, based on the Parties’ estimates of the total value based on average revenue per potential lounge user. This table includes the pre-Transaction captive sale of LSG EU to companies within the Lufthansa Group to fully capture the market position of the Parties   post-Transaction.

(195)      The increment brought about by the Transaction is moderate and comes from one lounge operated by Gategroup. Do&Co is also active on the market for lounge management services. In particular, Do&Co operates the Lufthansa First Class Lounges at Frankfurt airport;208 the Emirates Lounge at Frankfurt airport;209 and was awarded the contract to operate the Cathay Pacific  Lounge  at  Frankfurt airport.210  The Parties estimate Do&Co’s market share based on the number of  lounges  at  around 16% in 2016, 2017 and 2018.211 The Commission therefore considers that the Parties will be sufficiently constrained post-Transaction by  other competitors active  on the market for lounge management services at Frankfurt  airport,  especially  Do&Co or Köfler &  Kompanie.

(196)      Finally, while the views of competitors and customers responding to the  Commission’s market investigation were mixed on the potential impact of the Transaction on the market for the supply  of  lounge  management  services  at Frankfurt airport,212 the majority of competitors and customers considered that there would be sufficient competition in the market for the supply of lounge management services at Frankfurt airport  post-Transaction.213

(197)      Taking the above considerations into account, the Commission considers that the Parties will face sufficient competition in the market  for  lounge  management  services at Frankfurt airport post-Transaction and that the competitive constraints on the Parties would be  sufficient.

Conclusion

(198)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction does not raise serious doubts as to its  compatibility  with the internal market with respect to the horizontal effects in the market for the supply of lounge management services at Frankfurt  airport.

5.2.          Vertical effects

5.2.1.      Framework for the competitive  assessment

(199)      Vertical mergers involve companies operating at different levels of the supply chain. The Commission Guidelines on the assessment of non-horizontal mergers,214 acknowledge that vertical mergers may have pro-competitive effects, for example through the  internalisation of double  mark-ups.215  However,  there are  circumstances in which vertical mergers may significantly impede  effective  competition,  for example  through anticompetitive foreclosure.

(200)      The Non-Horizontal Merger Guidelines distinguish two forms  of  foreclosure.  The first is where the merger is likely to raise the costs of  downstream  rivals  by  restricting their access to an important input (input foreclosure). The second is where the merger is likely to foreclose upstream rivals by restricting their access to a sufficient customer  base (customer foreclosure).216

(201)      In order for input foreclosure to be a concern, three conditions need to be met post- Transaction: (i) the merged entity has the ability to foreclose access to important inputs;217  (ii) the merged entity has the incentive to foreclose access    to inputs;218  and (iii) the foreclosure strategy is likely to have significant detrimental effects on competition on the downstream market.219 In practice, these factors are  often  examined together since they are closely  intertwined.

(202)      For customer foreclosure to be a concern, three conditions need to be met post- Transaction: (i) the merged entity has the ability to foreclose access to an important customer base;220 (ii) the merged entity has the incentive to do so;221 and (iii) the foreclosure strategy is likely to have significant detrimental effects on competition     on the upstream market.222

5.2.2.      Vertical relationship between in-flight catering and passenger air transport services

(203)      While the vertical link between LSG EU and the Lufthansa group is pre-existing, the Transaction creates a vertical relationships between LSG EU’s activities in in-flight catering (upstream market) and Singapore Airlines’ activities in passenger  air  transport  (downstream market).223, 224

5.2.2.1.     Overview of the vertically affected  markets

(204)      The proposed Transaction would give rise to vertically affected markets for in-flight catering services at the following airports in the  EEA.

(205)      The Commission will assess whether the Transaction will result in anti-competitive foreclosure strategies in the vertically affected markets for in-flight catering and passenger air transport services at Dusseldorf, Frankfurt,  Berlin  Tegel,  Munich,  Rome Fiumicino and Milan Malpensa  airports.

5.2.2.2.     Input foreclosure

(206)      While LSG EU’s (and the merged entity’s) share in the  upstream  markets  for in- flight catering services is high at the vertically affected airports, Singapore Airlines’ share in the downstream markets for passenger air transport is very   low.

(207)      The Commission considers that the merged entity will not have the ability  or  incentive to foreclose the access airlines to in-flight catering  services  post- Transaction for the following  reasons.

(208)      First, Singapore Airlines’ demand of in-flight catering services is very low at any relevant EEA airport.227 Therefore, any denial  of  service  would  sacrifice  Gategroup’s own profits without reducing other airlines’ ability to obtain services  from competing caterers. Therefore, such an input foreclosure strategy would likely result in losses for Gategroup. The merged entity thus does not have any incentive foreclose the access of Singapore Airlines’ competitors to in-flight catering services.  In addition, Temasek only owns approximately 56% of Singapore Airlines  and 50%   of Gategroup. RRJ Capital owns the remaining 50% of Gategroup and is not active in passenger air transports  in  the EEA.228  As acknowledged by the Commission in  the Non-Horizontal Merger Guidelines, “in cases where two companies have joint control over a firm active in the upstream market, and only one of them is active downstream, the company without downstream activities may have little interest in foregoing input sales”.229 In the present case, RRJ Capital is likely to have limited interest to support an input foreclosure  strategy.

(209)      Second, at airports where the Transaction gives rise to vertically affected markets, airlines will continue having access, to a sufficient extent, to credible alternative in- flight catering suppliers. More specifically, airlines could purchase in-flight catering services from Do&Co in Dusseldorf, Frankfurt, Berlin Tegel, Munich and Milan Malpensa and from Dnata in Rome Fiumicino and Milan   Malpensa.

(210)      Finally, customers of in-flight catering services having expressed a  view indicated  that the merged entity would not have the ability or incentive to supply in-flight catering services solely to Singapore Airlines   post-Transaction.230

(211)      In view of the above considerations and all evidence available to it, the Commission considers it unlikely that the merged entity would engage in input foreclosure post- Transaction.

5.2.2.3.     Customer foreclosure

(212)      The Commission considers that the merged entity will not have the ability  or  incentive to foreclose LSG EU’s competitors in in-flight   catering.

(213)      Singapore Airlines cannot be considered as an “important customer” within the meaning of the Non-Horizontal Merger Guidelines.231  Singapore  Airlines’ share in  the downstream market for passenger air transport services at the vertically affected EEA airports is very low, ranging between [0-5]%. Therefore, its demand of in-flight catering services is also very low. Even if Singapore Airlines were to source in-flight catering services exclusively from the merged entity, the majority  of  customer  demand for in-flight catering services at any relevant airport would remain available   to other suppliers of in-flight catering services. Therefore, the merged entity is  unlikely to have the ability and incentive to foreclose suppliers of in-flight catering services.

(214)      While, in theory, Singapore Airlines could decide post-Transaction to solely source in-flight catering services from the merged entity, the market investigation did not provide plausible indications that post-Transaction,  the  merged  entity  would  have the incentive to engage in customer foreclosure.232 As explained in Sections 5.1.2.6  and 5.1.2.11 above, Singapore Airlines recently decided to switch suppliers at Frankfurt and Munich airports. Indeed, Singapore Airlines switched from Gategroup  to Do&Co.

(215)      In view of the above considerations and all evidence available to it, the Commission considers it unlikely that the merged entity would engage in an anti-competitive customer foreclosure strategy in in-flight catering services   post-Transaction.

5.2.2.4.     Conclusion

(216)      In view of the above considerations and all evidence available to it, the Commission considers that the Transaction does not raise serious doubts as to its compatibility    with the internal market with respect to the vertical relationship between LSG EU’s activities in in-flight catering services and Singapore Airlines’ activities in passenger air transport services at EEA airports, under any plausible market   definition.

5.3.          Conglomerate effects

5.3.1.      Framework for the competitive assessment

(217)      Conglomerate mergers are mergers between firms that are in a relationship which is neither purely horizontal (as competitors in the  same  relevant market) nor  vertical  (as supplier and customer). In practice, the focus is on mergers between companies  that are active in closely related markets (for example mergers involving suppliers of complementary products or of products which belong to a range of products that is generally purchased by the same set of customers for the same end   use).233

(218)      The proposed Transaction exhibits such a feature as most airlines purchase complementary products from the Parties for the provision of passenger air transport services. For example, [customer] and [customer]  purchase  ready-made  food products and in-flight catering services from Gategroup in Germany (among other countries).234

(219)      In the Non-Horizontal Merger Guidelines, it is acknowledged that conglomerate mergers in the majority of circumstances will not lead  to  any  competition problems.235 However, in certain specific cases, there may be harm  to competition.  The main concern in the context of conglomerate effects is that of foreclosure.236  While the combination of products in related markets through tying and bundling are common practices that may provide customers with better products of offerings in cost-effective ways, these practices may lead to a reduction in actual or potential competitors’ ability or incentive to compete. This may reduce  the  competitive pressure on the merged entity, allowing it to increase   prices.237

(220)      The Non-Horizontal Merger Guidelines provides for a framework of assessment of such a foreclosure strategy: “In assessing the likelihood of such a scenario, the Commission examines, first, whether the merged firm would have the ability to foreclose its  rivals, second,  whether it would have the  economic incentive to  do so and, third, whether a foreclosure strategy would have a significant detrimental effect on competition, thus causing harm to consumers”.238

(221)      In Sections 5.3.2 to 5.3.6, the Commission will assess the likelihood of a foreclosure strategy with respect to (i) in-flight catering services and  in-flight  equipment  services, (ii) in-flight catering services and ready-made food products to the commercial foodservice sector and (iii) in-flight catering services and retail on-board services, (iv) retail on-board services and in-flight equipment services and (v) retail on-board services and ready-made food products to the  commercial  foodservice  sector under any of the plausible market  definitions.239

(222)      In its assessment of the conglomerate effects related to in-flight catering services, the Commission will take account of the fact that the competition concerns raised on the markets for in-flight catering services at Frankfurt, Munich, Cologne-Bonn,  Dusseldorf, Hamburg, Hannover, Berlin Tegel, Brussels,  Paris  Charles  de  Gaulle and Rome Fiumicino airports and in the broader geographic areas encompassing (i) Frankfurt, Dusseldorf and Cologne-Bonn airports; (ii) Hamburg and Hannover  airports; and (iii) Berlin Tegel,  Berlin Schönefeld and Leipzig airports are  removed  by the proposed Commitments analysed in Section 6   below.

5.3.2.      In-flight catering services and equipment services

(223)      As in-flight equipment services and in-flight catering services have the  same  customer base (i.e. airlines) and the same end-use (i.e. the provision of passenger air transport services), these markets can be considered as neighbouring markets. The Transaction would thus create a link between the neighbouring markets for in-flight catering services at the airports where LSG EU is active and the market for in-flight equipment services in the EEA and  worldwide.

(224)      The Transaction is unlikely to raise competition concerns with respect to the hypothetical conglomerate effects related to in-flight  catering  and  in-flight  equipment services for the following reasons.

Ability to foreclose

(225)      The merged entity is unlikely to gain the ability, post-Transaction, to engage in a strategy of tying or bundling its in-flight catering and in-flight equipment services in the EEA and worldwide causing significant foreclosure of competitors.  Despite  having the same customer base, the airline’s practice of issuing separate tenders for both services limits the Parties’ ability to tie or bundle together both   services.

(226)      The market investigation provided mixed results with regards  to  potential  for bundling or tying in-flight catering and equipment services. Some competitors and customers indicated that bundling or tie-ins might happen post-Transaction.240 At the same  time,  the  market  investigation  did  not  suggest  that  these tying/bundling strategies would foreclose competitors, with respondents citing that a sufficient  amount of suppliers would be left  post-Transaction.241

(227)      In addition, cases of pure bundling242 are very unlikely to be possible if products are  not bought simultaneously or by the same customers.243 As the Parties’ have  submitted, in-flight equipment services are generally not  tendered  by  airlines  together with in-flight catering services244 and provided to the caterer  by  the  airline.245 This is confirmed by the market investigation. The majority of airline customers responding to the market investigation nominate the equipment services provider and purchase the services themselves and subsequently make the equipment services available to their in-flight caterer.246  Correspondingly,  the  majority  of  airline customers that purchase “neighbouring” services (such as in-flight equipment services) does not typically purchase in-flight catering services and other services together from one single  supplier.247

(228)      The combined market share of both Parties in the market for in-flight equipment services in 2018 amounts to [30-40]% in the EEA and [20-30]% worldwide.248 The lack of a dominant position in the market for in-flight equipment  services  (see:  section 5.1.2.) and the commitments proposed by the Notifying Party concerning the affected in-flight catering markets (reducing the risk for a dominant position of the merged entity in the in-flight catering market) further decrease the risk  of conglomerate effects between the in-flight equipment services and the in-flight  catering services market caused by the  Transaction.

(229)      Besides, the merged entity would not have the power to impose its  in-flight  equipment services on airlines, as the services provided are not “must have”. This limits the ability of the merged  entity  to engage  into mixed bundling  practices.249  The Commission is thus convinced that customers will be able to easily find alternatives among the numerous in-flight equipment service providers because products, in particular amenities kits, are  standardised.250

(230)      Therefore, should the Parties attempt to tie or bundle in in-flight equipment services with offers for in-flight catering services, this would likely not be accepted  by  airlines.

Incentive to foreclose

(231)      The merged entity is unlikely to have the incentive to enter into bundling/tying strategies. Generally, it is unlikely that the merged entity would be willing to forego sales on one highly profitable market in order to gain market  shares  on  another market where turnover is relatively small and profits are modest.251 The combined overall turnover achieved by the Parties with in-flight equipment services in 2018 in the EEA amounted to EUR […],252 compared to EUR […]253 for in-flight catering services. Given the significantly larger size of the in-flight catering services market,  the Parties are not likely to risk a loss in revenue in their “core” business for an increased share in their in-flight equipment services   business.254

(232)      Moreover, the majority of airline customers responding to the market investigation having expressed a view believes that the  merged entity would not have the ability  and incentive to prevent customers from procuring in-flight catering services and/or equipment services in the EEA by entering into tying/bundling strategies, while the market investigation yielded mixed results amongst competitors regarding this  issue.255 While some respondents pointed towards the  increased  market  shares  in both markets as allowing for foreclosure strategies, the majority of  respondents did  not express this concern. Respondents stated that sufficient competition will remain post-Transaction, that it would be unlikely that these separate markets would be combined together and that airlines have sufficient bargaining power to counteract   any such strategy.256

Overall impact on competition

(233)      The effect on competition further needs to be assessed in light  of  countervailing factors such as presence of countervailing buyer power257 or the likelihood that entry would maintain effective competition in the upstream or downstream market.258 In addition, if there remain effective single-product players in  either  market,  competition is unlikely to  deteriorate following a conglomerate  merger.259  In  view  on the above statements by customers in the market-investigation with regards to sufficient remaining alternative suppliers for in-flight equipment products and the influence of airlines, the Commission considers that the  Transaction is unlikely to  have an overall negative impact on competition in the markets for in-flight catering services  and  the  market  for  in-flight  equipment  services  because  of conglomerate effects, as any bundling or tying strategy is unlikely to reduce the ability  and  incentive to compete of suppliers active in each market in the   EEA.

Conclusion

(234)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction does not raise serious doubts as to its  compatibility  with the internal market with respect to conglomerate effects in the market for in-  flight catering and equipment services in the EEA and worldwide, under any of the plausible  product market definitions.260

5.3.3.      In-flight catering services and ready-made food products to the commercial foodservice sector

(235)      In-flight catering services and ready-made food products to the commercial foodservice sector may be considered as neighbouring markets since they share the same customer base for the same end-use (i.e. the provision  of  passenger  air  transport services by airlines). The Transaction would thus create a link between the neighbouring markets for in-flight catering services in the airports where LSG EU is active and the supply of ready-made food products to the commercial foodservice sector in the EEA where both Parties are active. At the EEA level as well as in the Member States where the Parties’ activities overlap (Italy,  Germany,  United Kingdom), the combined market shares of both parties in the market for ready-made food products for the commercial foodservice sector, as well as a  plausible  subdivision into markets for frozen food, chilled food and fresh foods is less than 20% in 2018.261

(236)      The Transaction is unlikely to raise competition concerns with respect to the hypothetical conglomerate effects related to in-flight catering services and the supply of ready-made food products to the commercial foodservice sector for the following reasons.

Ability to foreclose

(237)      The merged entity is unlikely to gain the ability, post-Transaction, to engage in a strategy of tying or bundling its in-flight catering services and ready-made food products to the commercial foodservice sector in the EEA causing significant foreclosure of competitors. The combined market shares of both Parties would be below 20% in the market for ready-made food products to the  commercial  foodservice sector in the EEA as well as all potential  national  markets.262 Furthermore, according to the market investigation, the majority of customers nominates  the  ready-made  food  provider  themselves,   with  only  one     respondent leaving the choice of ready-made food providers to the in-flight caterer.263 Moreover, the majority of customers does not purchase in-flight catering services and other services (including ready-made food products) together from one single  supplier264 and also has no  problem  with having multiple suppliers.265  In addition, the majority  of those customers expressing a view did not expect the merged entity to have the ability and incentive to prevent their company from procuring in-flight catering services and/or ready-made food products in the  EEA  by  entering  into  tying/bundling strategies,266 while the responses of those  competitors  having expressed a view regarding this issue were mixed.267. Therefore, attempts by  the Parties to tie or bundle in ready-made food products would likely not be accepted by airlines.

Incentive to foreclose

(238)      The merged entity is unlikely to have the incentive to enter into bundling/tying strategies. The overall turnover achieved with ready-made food products in 2018 in  the EEA amounted to EUR […] for Gategroup268 and EUR […] for LSG EU.269 The combined turnover of the Parties in this market are thus considerably smaller than  those in the market for in-flight catering services, where Gategroup and LSG EU achieved a combined turnover of EUR […]270 in the EEA. Therefore, any tying or bundling strategy is unlikely to be profitable. The merged entity has no reason to risk losing profits in in-flight catering services by trying to link them with  ready-made  food products for such a small  return.

Overall impact on competition

(239)      The Commission considers that the Transaction is unlikely to have  an  overall  negative impact on competition in the markets for in-flight catering services and the market for ready-made food products to  the  commercial  foodservice  sector  under any plausible market definition because of conglomerate effects, as any bundling or tying strategy is unlikely to reduce the ability and incentive to compete of suppliers active in each market in the EEA. In addition, for a large range of ready-made food products, the Parties would continue to be in competition with large branded-food manufacturers, which are likely to be seen as alternative options by   airlines.271

Conclusion

(240)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction does not raise serious doubts as to its  compatibility  with the internal market with respect to the conglomerate effects in the    market for in-flight catering and ready-made food products to the commercial foodservice sector in the EEA, under any of the plausible narrower product market   definitions.272

5.3.4.      In-flight catering services and retail on-board services

(241)      While Gategroup provides retail on-board services, the retail on-board business of  LSG is not part of the scope of the Proposed Transaction as explained in Section 2 above. Retail on-board services may be considered as a neighbouring market of in- flight catering services.273 The Transaction would create a link between the neighbouring markets for in-flight catering services at the airports where LSG EU is active and the provision of retail-on-board services in the EEA where Gategroup is active.

(242)      Gategroup’s market share in the provision of retail on-board services in the EEA is [60-70]% (and [70-80]% on a potential market for snacking only and [40-50]% on a potential market for duty-free products only in the EEA) in 2018.274 Gategroup’s market share in the provision of retail on-board services worldwide is [50-60]% (and [30-40]% on a potential market for snacking only and [70-80]%  on  a  potential  market for duty-free products only in the  EEA).275

(243)      The Transaction is unlikely to raise competition concerns with respect to the hypothetical conglomerate effects related to in-flight catering services and retail on- board services for the following  reasons.

Ability to foreclose

(244)      The merged entity would have high market shares post-Transaction at some EEA airports in the provision of in-flight catering services and Gategroup’s share of [60- 70]% in retail on-board services in the EEA and [50-60]% worldwide. However, the merged entity is unlikely to gain the ability, post-Transaction, to engage in a strategy  of tying or bundling its in-flight services and retail on-board services in the EEA and worldwide causing significant foreclosure of competitors. In  case  an  airline purchases both in-flight catering services and retail on-board services, it will usually nominate the supplier of retail on-board services and ask the in-flight caterer to load    it onto the aircraft. Consequently, the supplier of in-flight  catering cannot  impose itself as the supplier of retail on-board services on its customer.276 Therefore, should  the merged entity insist on tying or bundling in-flight catering and retail on-board services, the merged entity’s offer would in most case be rejected from the tender process.

Incentive to foreclose

(245)      The merged entity is unlikely to have the incentive to enter into bundling/tying strategies. Retail on-board sales in the EEA represent a lower volume than in-flight catering sales (approximately EUR 755 million vs EUR 3 900 million in 2018).277 Similarly, at a worldwide level, retail on-board sales represent a lower volume than in-flight catering sales (approximately EUR 2 224 million vs EUR 12 600 million) in 2018.278 The Parties’ combined turnover in  in-flight catering in 2018 amounted to  EUR […] in the EEA and EUR […] worldwide, while Gategroup’s turnover in retail on-board was EUR […] in the EEA and EUR […] worldwide. Therefore, the merged entity is unlikely to forego profits in the market for in-flight catering services by entering into an anticompetitive tying/bundling strategy. Furthermore, based on Gategroup’s estimates, in-flight catering is generally more profitable than retail on- board services.279 Therefore, any tying or bundling strategy is unlikely  to  be  profitable. The merged entity has no reason to  risk  losing in-flight  catering services by trying to link them with retail on-board services for such a small   return.

Overall impact on competition

(246)      The Commission considers that the Transaction is unlikely to have  an  overall  negative impact on competition in the markets for  in-flight  catering  services  and retail on-board services because of conglomerate effects, as any bundling or tying strategy is unlikely to reduce the ability and incentive to compete of suppliers active   in each market in the EEA and worldwide. Customers will continue to have access to providers of both in-flight catering services and retail on-board services on a standalone basis. Even if the customer did accept the tied or bundled products, the merged entity would still face competition of competitors with the same capacity to provide bundles such as Dnata and  Newrest.

Conclusion

(247)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction does not raise serious doubts as to its  compatibility  with the internal market with respect to the conglomerate effects in the market for in- flight catering and retail on-board services in the EEA and worldwide, under any of  the plausible product market  definition.280

5.3.5.      Retail on-board services and in-flight equipment services

(248)      Retail on-board services and in-flight equipment services may be considered as neighbouring markets since they share the same customer base for the same end-use (i.e. the provision of passenger air transport services by airlines). The Transaction would create a link between the neighbouring markets for  in-flight  equipment  services where LSG EU and Gategroup are active in the EEA and worldwide and the provision of retail on-board services in the EEA and worldwide where Gategroup is active.

(249)      The Transaction is unlikely to raise competition concerns with respect to the hypothetical conglomerate effects related to retail on-board services and in-flight equipment services for the following  reasons.

Ability to foreclose

(250)      The merged entity is unlikely to gain the ability,  post-Transaction, to engage in a  tying or bundling strategy in  the  EEA  or worldwide causing  significant foreclosure of competitors. While the merged entity’s share in retail on-board services would be high in the EEA ([60-70]%) and worldwide ([50-60]%), the Parties’ combined share   in the provision of in-flight equipment services is [30-40]% in  the  EEA and  [20- 30]% worldwide.281

(251)      Although in-flight equipment services and retail on-board services share the same customer base (i.e. airlines), these customers usually do not purchase retail on-board services and equipment services together. In that respect,  the  procurement  of  in- flight equipment services and retail on-board services are generally handled by different departments within airlines by issuing tenders with very precise specifications, which do not leave room for bundling/tying strategies.282 Therefore, should the merged entity insist on tying or bundling retail on-board services and equipment services, the merged entity’s offer would in most cases be rejected from   the tender process.

(252)      Besides, the merged entity would not have the power to impose its  in-flight  equipment services on airlines, as the services provided are not “must have”. Customers can and will continue to be able to easily find alternatives among the numerous in-flight equipment service providers because products, in particular amenities kits, are  standardised.283

Incentive to foreclose

(253)      The merged entity is unlikely to have the incentive to enter into bundling/tying strategies. The combined turnover achieved with in-flight  equipment  services  in  2018 in the EEA by the Parties is lower than the turnover achieved by Gategroup in retail on-board services. Gategroup and LSG EU achieved a combined turnover of EUR […] in the EEA in 2018 through in-flight equipment services,284  while  Gategroup alone generated revenue of EUR […] through retail on-board services.285 Therefore, the merged entity is unlikely to forego profits in the market for retail on- board services by entering into an anticompetitive tying/bundling strategy.  In  addition, equipment contracts are usually not long-term and rarely contain fixed volume commitments of airline customers.286  The merged entity has thus no reason to risk losing some of its retail on-board business by trying to link retail on-board services with in-flight equipment  services.

Overall impact on competition

(254)      The Commission considers that the Transaction is unlikely to have a negative overall impact on competition in the markets for retail on-board services and in-flight equipment services because of conglomerate effects, as any bundling  or  tying  strategy is unlikely to reduce the ability and incentive to compete of suppliers active   in each market in the EEA and worldwide. Customers will continue to have access to providers of both retail on-board services and in-flight equipment services on a standalone basis. In that respect, there are more than 50 competitors in the market for in-flight equipment services, including Formia, Kaelis and Global   C.287

Conclusion

(255)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction does not raise serious doubts as to its  compatibility  with the internal market with respect to the conglomerate effects in the market for  retail on-board services and in-flight equipment services in the EEA  and  worldwide.288

5.3.6.      Retail on-board services and ready-made food products

(256)      Retail on-board services and ready-made food products may be considered as neighbouring markets since they share the same customer base for the same end-use (i.e. the provision of passenger air transport services by airlines). The Transaction would create a link between the neighbouring markets for ready-made food products   to the commercial foodservice sector where LSG EU and Gategroup are active in the EEA and the provision of retail-on-board services in the EEA where Gategroup is active.

(257)      Gategroup’s market share in the provision of retail on-board services in the EEA is [60-70]% (and [70-80]% on a potential market for snacking only and [40-50]% on a potential market for duty-free  products only in the EEA) in 2018.289  At the EEA  level, as well as in the Member States where the Parties’ activities overlap, the combined market share of both parties in the market for ready-made food products to the commercial foodservice sector is below 20 % in   2018.290

(258)      The Transaction is unlikely to raise competition concerns with respect to the hypothetical conglomerate effects related to retail on-board services and ready-made food products to the commercial foodservice sector for the following   reasons.

Ability to foreclose

(259)      Despite Gategroup’s high share of [60-70]% in retail on-board services in the EEA,  the merged entity is unlikely to gain the ability, post-Transaction, to engage in a strategy of tying or bundling its retail on-board services with ready-made food  products to the commercial foodservice sector in the EEA causing significant foreclosure of competitors. As explained above, the combined market shares of the Parties post-Transaction in ready-made food products to the commercial foodservice sector would be below 20% under any geographic market definition. When an airline purchases both retail on-board services and ready-made food products, the airline usually nominates the supplier of ready-made products, which is then included in the retail on-board offering of the airline.291 Consequently, the supplier  of  retail  on- board services cannot impose itself as the supplier of ready-made food products on    its customer.292 Therefore, should the merged entity insist on tying or bundling retail on-board services and ready-made food products, the merged entity’s offer would in most case be rejected from the tender  process.

Incentive to foreclose

(260)      The merged entity is unlikely to have the incentive to enter into bundling/tying strategies. The combined turnover achieved with ready-made food products to the commercial foodservice sector in 2018 in the EEA by the Parties is lower than the turnover achieved by Gategroup in retail on-board services. Gategroup and LSG EU achieved a combined turnover of EUR […] in the EEA in 2018 in ready-made food products to the commercial foodservice sector,293 while Gategroup alone generated revenue of EUR […] through retail on-board services in the EEA in 2018.294  Therefore, the merged entity is unlikely to forego profits in the market for retail on- board services by entering into an anticompetitive  tying/bundling strategy. Besides,  the Parties are in competition with branding-food product manufacturers, which are likely to be seen by airlines as viable alternative options.295 The merged entity has no reason to risk losing some of its retail on-board business by trying to link retail on- board services with ready-made food  products.

Overall impact on competition

(261)      The Commission considers that the Transaction is unlikely to have a negative overall impact on competition in the markets for retail on-board services and  ready-made  food products to the commercial foodservice sector because of conglomerate effects,  as any bundling or tying strategy is unlikely to reduce the ability and incentive to compete of suppliers active in each market in the EEA. Customers will continue to  have access to providers of both retail on-board services and ready-made food  products to the commercial foodservice sector on a standalone basis. Even if the customer did accept the tied or bundled products, the merged entity would still face competition of competitors with the same capacity to provide bundles such as   Dnata.

Conclusion

(262)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction does not raise serious doubts as to its  compatibility  with the internal market with respect to the conglomerate effects in the market for  retail on-board services and ready-made food products  to  the  commercial  foodservice sector in the  EEA.296

5.4.          Conclusion of the competitive  assessment

(263)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction raises serious doubts as to its compatibility with the internal market with respect to the horizontal effects due to the creation or strengthening of a dominant position in the markets for in-flight catering services at Frankfurt, Munich, Cologne/Bonn, Dusseldorf, Hamburg, Hannover, Berlin Tegel, Brussels, Paris Charles de Gaulle and Rome Fiumicino airports and in the broader geographic areas encompassing (i)  Frankfurt,  Dusseldorf  and  Cologne-Bonn  airports, (ii) Hamburg and Hannover airports, and (iii)  Berlin  Tegel,  Berlin Schönefeld and Leipzig  airports.

(264)      In view of the above considerations and all evidence available to it, the Commission concludes that the Transaction does not raise serious doubts as to its  compatibility  with the internal market with respect to (i) the horizontal effects in the markets for in-flight catering services at Milan Malpensa and Amsterdam Schiphol airports, (ii)  the horizontal effects in the markets for equipment services  worldwide  or  in  the EEA, (iii) the  horizontal effects in the  markets for lounge  management services in  the EEA and at Frankfurt airport, (iv) the vertical effects in the markets for in-flight catering services and passenger air transport at certain airports, (v) the conglomerate effects related to in-flight catering services and equipment services in the EEA and worldwide, (vi) the conglomerates effects related to in-flight catering services and ready-made food products to the commercial foodservice sector in the EEA, (vii) the conglomerate effects related to in-flight catering services  and  retail  on-board  services in the EEA and worldwide, (viii) the conglomerate effects related to retail on-board services and in-flight equipment  services in the EEA and worldwide, (ix)  the conglomerate effects related to retail on-board services and ready-made food products to the commercial foodservice sector in the  EEA.

6.              PROPOSED COMMITMENTS

(265)      In order to render the concentration compatible with the  internal  market,  the Notifying Party has modified the notified concentration by submitting a set of commitments under Article 6(2) of the Merger Regulation on 13 March 2020. The Notifying Party made some technical modifications on the text and schedules of the commitments on 16 March 2020 (“Initial Commitments”). The Commission market tested the Initial Commitments on 16 March 2020 in order to assess whether they are sufficient and suitable to remedy the serious doubts   identified.

(266)      The Commission informed the Notifying Party of the results of the market test on 24 March 2020. Following the Commission’s feedback on the market test and the assessment of the Initial  Commitments,  the Notifying  Party submitted a revised set  of commitments on 1 April 2020 and, following feedback from the Commission, amended on 2 April 2020 and further amended on 3 April 2020 (the “Final Commitments”).

(267)      These Final Commitments are annexed to this Decision and form an integral part thereof.

6.1.          Framework for the assessment of Commitments

(268)      Where a concentration raises serious doubts as regards its compatibility with the internal market, in particular as a result of the creation or  strengthening  of  a  dominant position, the Parties may undertake to modify the concentration so as to remove the grounds for the serious doubts identified by the   Commission.

(269)      As set out in the Commission's Remedies Notice,297 the commitments have  to  eliminate the competition concerns entirely, and have to be comprehensive and effective from all points of view.298 It is for the parties to the concentration to put forward commitments.299

(270)      In assessing whether commitments will maintain effective competition, the Commission considers all relevant factors, including the type, scale and scope of the proposed commitments, with  reference to the structure and particular characteristics  of the market in which the Transaction is likely to significantly impede effective competition, including the position of the Parties and other participants on the market.300

(271)      In order for the commitments to comply with those principles, they must be capable    of being implemented effectively within a short period of time.301  The  requisite  degree of certainty concerning the implementation of  the  proposed  commitments  may in particular be affected by risks in relation to the transfer of a business to be divested, including the risks of finding a suitable purchaser.302 In the latter case, an up-front buyer will allow the Commission to conclude with the requisite degree of certainty that the commitments will be implemented.303 The remedies in Phase I need  to be so clear-cut that it is not necessary to enter into an in-depth investigation as to whether they are sufficient to rule out 'serious doubts' within the meaning of Article 6(1)(c) of the Merger  Regulation.304

(272)      Concerning the form of acceptable commitments, the Merger Regulation gives discretion  to   the  Commission  as  long  as the commitments  meet  the requisite standard.  Structural commitments will meet the conditions set out above only in  so  far as the Commission is able to conclude with the requisite  degree  of certainty, at   the time of its Decision, that it will be possible to implement them and that it will be likely that the new commercial structures resulting from them will be sufficiently workable and lasting to ensure that effective competition will be maintained.305 Divestiture commitments are normally the best way to  eliminate  competition  concerns resulting from horizontal  overlaps.

(273)      It is against this background that the Commission assessed the viability, the workability, the effectiveness and the ability of the  proposed  commitments  to  entirely eliminate the competition concerns  identified.

6.2.          Initial Commitments

(274)      The Initial Commitments relating to the horizontal overlap at various airports consist  of a set of five divestment packages: (1) Gategroup’s German low cost carrier  business (“German LLC Network Divestment Business”); (2) Gategroup’s network carrier business at Frankfurt International Airport (‘FRA’) and Munich International Airport (‘MUC’) (“FRA/MUC Divestment Business”); (3) Gategroup’s shareholding  in the joint venture Newrest Servair Belgium SPRL  (“Belgian  Divestment  Business”); (4) certain of LSG EU’s in-flight catering business at Rome Fiumicino Airport (“Rome FCO Divestment Business”) and (5) LSG EU’s in-flight catering business at Paris Charles de Gaulle Airport (‘CDG’) (“Paris CDG Divestment Business”).

6.2.1.      Description of the Initial Commitments

6.2.1.1.     German LLC Network Divestment  Business

(275)      The German LLC Network Divestment Business comprises Gategroup’s in-flight catering network operations in Germany (excluding the FRA/MUC Divestment Business), including certain customer contracts with low-cost charter airlines for the provision of services at relevant airports, as well as certain related  assets.  The  German LLC Network Divestment Business consists of two main multi-airport customer contracts ([customers]) and several smaller contracts   ([customers]).

(a)            [Details on agreements and  revenue]

(b)           [Details on agreements and  revenue]

(c)            [Details on agreements and  revenue]

(d)           [Details on agreements and  revenue]

(e)            [Details on agreements and  revenue]

(f)            [Details on agreements and  revenue]

(276)      The German LCC Network Divestment Business further includes the following elements:

(a)            Tangible assets: All tangible assets and equipment of  the  Divestment  Business, including high loaders, unit equipment and customer-dedicated movable assets.

(b)           Intangible assets: The license to continue using the brand “Gate Gourmet” for  a transitional period.

(c)            Contracts: Leases agreements for facilities currently leased by Gategroup in [airport locations].

(d)           Personnel: All current employees of Gategroup in the affected locations,  subject to consent of employees pursuant to applicable labour   laws.

6.2.1.2.     FRA/MUC  Divestment Business

(277)      The FRA/MUC Divestment Business comprises Gategroup’s customer contracts at Frankfurt International Airport (‘FRA’) and Munich International Airport (‘MUC’), including, where applicable and at the option of the Purchaser, corresponding customer-dedicated  (movable) assets.

(278)      The customer contracts in the FRA/MUC Divestment Business are focused on the provision of in-flight catering services to (legacy) airlines at or from FRA and MUC. Overall, the FRA/MUC Divestment Business comprises 16 contracts with 10 airlines ([customers]) for in-flight catering services representing a revenue of EUR […] per year ([revenue per  customer]).

(279)      The FRA/MUC Divestment Business further includes the following   elements:

(a)            Tangible assets: All tangible assets and equipment of  the  Divestment  Business, including high loaders, unit equipment and customer-dedicated movable assets.

(b)           Intangible assets: The license to continue using the brand “Gate Gourmet” for  a transitional period.

(c)            Contracts: At the option of the purchaser, the lease agreement for a facility currently leased by Gategroup near [airport  location].

(d)           Personnel: Transferred alongside the needs of  the  Purchaser and subject  to  the consent of employees pursuant to applicable labour   laws.

6.2.1.3.     Belgian  Divestment Business

(280)      The Belgian Divestment Business comprises Gategroup’s […]% shareholding in the joint venture Newrest Servair Belgium SPRL. The joint venture is operating an in- flight catering business in Belgium and is one of the two holders of a license to  operate at Brussels Airport  (‘BRU’).

6.2.1.4.     Rome  FCO Divestment Business

(281)      The Rome FCO Divestment Business comprises certain of LSG EU’s customer contracts at Rome Fiumicino Airport (‘FCO’). Overall,  the  FCO  Divestment  Business comprises 7 contracts with 7 airlines ([customers]) for in-flight catering services representing a revenue of EUR […] per year ([revenue per   customer]).

(282)      The Rome FCO Divestment Business further includes the following   elements:

(a)            Tangible assets: At the option of the purchaser, certain customer-dedicated assets.

(b)           Intangible assets: [description of intangible  assets].

6.2.1.5.     Paris CDG Divestment  Business

(283)      The Paris CDG Divestment Business comprises LSG EU’s  in-flight  catering  customer contract with [customer] at Paris Charles de Gaulle Airport (‘CDG’), representing a revenue of EUR […] per  year.

(284)      The Paris CDG Divestment Business further includes the following   elements:

(a)            Tangible assets: At the option of the purchaser, certain customer-dedicated assets.

(b)           Intangible assets: [description of intangible  assets].

6.2.2.   Commission’s assessment of the Initial Commitments

(285)      The Commission launched a market test of the Initial Commitments on 16 March  2020, which was addressed to competitors and  customers.

Elimination of the serious doubts as to the compatibility of the Transaction with the internal market

(286)      The Commission considers that the Initial Commitments remove the serious doubts identified in the market for in-flight catering services at Brussels airport.  However,  the Initial Commitments do not fully address the serious doubts  as  to  the compatibility of the Transaction with the internal market in relation to the horizontal effects on the markets for in-flight catering services at Frankfurt, Munich, Cologne/Bonn, Dusseldorf, Hamburg, Hannover, Berlin Tegel, Paris Charles de  Gaulle and Rome Fiumicino airports and in the broader geographic areas encompassing (i) Frankfurt, Dusseldorf and Cologne-Bonn  airports,  (ii)  Hamburg and Hannover airports, and (iii) Berlin Tegel, Berlin  Schönefeld  and  Leipzig  airports.

(287)      In particular, while the Initial Commitments fully remove the overlap in Frankfurt, Munich, Cologne-Bonn, Dusseldorf, Hamburg, Hannover,  Berlin  Tegel,  Brussels  and Paris Charles de Gaulle airports, this is not the case in Rome Fiumicino airport.    In fact, for Rome Fiumicino,  the Initial Commitments are  well below the market  share increment brought about by the Transaction, based on projected 2020 figures, and no infrastructure, assets and personnel required by any newcomer to this airport    is included. While the proposed FCO Divestment Business is equivalent to  the  volume  achieved  by  Dnata  (the  Parties’  competitor  at  Rome  Fiumicino),  in the absence of assets and personnel that would facilitate the entry of a competitor in    FCO, the Commission considers it unlikely that the Initial Commitments would fully remove the competition concern created by the  elimination  of  a  significant competitor in Rome Fiumicino in a clear-cut  manner.

(288)      The market test confirmed the Commission’s assessment. Indeed, the feedback of the market test was inconclusive as to the elimination of competition concerns by the  Initial Commitments.306 More specifically, while the  majority  of  competitors indicated that the proposed commitments would remove the identified competition concerns related to the horizontal overlaps in the supply of in-flight catering services  at Frankfurt, Munich,  Cologne-Bonn,  Dusseldorf,  Hamburg,  Hannover,  Berlin Tegel, Brussels, Paris Charles de Gaulle and Rome Fiumicino airports and in the broader geographic areas encompassing (i) Frankfurt, Dusseldorf and Cologne-Bonn airports, (ii) Hamburg and Hannover airports, and (iii)  Berlin  Tegel,  Berlin Schönefeld and Leipzig airports, customers gave mixed replies. In that regard, an airline indicated that “the proposed remedies will remove any potential competition concerns raised by this Transaction at the airports in which  we  operate”  while  another one considers that “[e]ven if Gategroup (GG) were to spin off certain less profitable businesses like GG FRA, MUC, LSG TXL, CDG, and FCO, it would not necessarily mitigate the competitive harm. Absent more information about the  potential purchaser or purchasers, it is not clear whether the alternatives would be viable.”307

(289)      In view of the above considerations and the result of  the  market  test,  the  Commission concludes that the Initial Commitments are insufficient to fully remove the serious doubts as to the compatibility of the Transaction with the internal market and the EEA Agreement.

Purchaser criteria

(290)      The Commission considers that the purchaser criteria set out in the Initial Commitments are generally suitable to identify an appropriate purchaser of the different Divestment  Businesses.

(291)      This assessment was confirmed by the market test. The majority of market test respondents consider that the purchaser criteria are appropriate to identify a suitable purchaser of the various  Divestment  Businesses.308  Nevertheless,  several  respondents indicated that experience in catering long-haul flights would be an advantage.309

(292)      In view of the above considerations and the results of the market  test,  the  Commission considers that the Purchaser criteria could generally be suitable  to  identify an appropriate purchaser of the different Divestment   Businesses.

Viability and competitiveness of the Initial Commitments

(293)      On the one hand, the Commission considers that the Belgian Divestment Business is viable. In addition, the CDG Divestment Business is viable, in particular for an existing player since the small volume of the overlap business is unlikely to be attractive for a new entrant.

(294)      On the other hand, the Commission considers that the  Initial Commitments show  some shortcomings, which could negatively impact the viability and the competitiveness of the other Divestment  Businesses.

(295)      More specifically, the Commission notes that the German LCC Network Divestment Business and the FCO Divestment Business do not constitute stand-alone   businesses.

(296)      Generally, the Commission considers that the lack of inclusion of assets and key personnel in the German LCC Network Divestment Business, the FRA/MUC Divestment Business and the FCO Divestment Business could entail risks for  the timely access to the markets of the  purchaser(s).

(297)      The German LCC Network Divestment Business  might  also be too dependent on  […] ([customers]) whose future is uncertain at this stage. Therefore, and in line with the replies of some respondents (see paragraph (300) below) the Commission  considers that it would be beneficial to give a preference to a single purchaser of the two German divestment businesses, namely the German LCC Network Divestment Business and the FRA/MUC Divestment  Business.

(298)      The FCO Divestment Business may not be viable for a new entrant given the lack of certain assets and personnel (e.g. facility with kitchen, trucks, and key   personnel).

(299)      While all  the respondents to the market test having expressed a view consider that    the Belgian Divestment Business is viable,310 the results of  the  market  test  concerning the viability and competitiveness of the other Divestment Businesses are inconclusive.

(300)      Some respondents indicated that the sale of the German LCC Network Divestment Business and the FRA/MUC Divestment Business to one  single  purchaser  would make the German Divestment Businesses more viable.311 For example, a customer stated, “Only one purchaser for both businesses will reach a sufficient size to remain    a viable alternative in Germany as airlines (at  least)”.312  Correspondingly,  respondents stated that the viability of both the LCC Network Divestment Business and the FRA/MUC Divestment Business would be diminished if sold separately due   to synergies and scale effects lost313 and that “At least a minimum of competitiveness could be achieved”, if both businesses were sold to the same purchaser.314  Moreover,  a customer expressed the  view that all tangible assets should  be  transferred to make the German LCC Network Divestment Business viable315 and that any  purchaser should have the option to also take over all or at least key employees of these businesses.316 Furthermore, competitors also pointed to the need to transfer the premises in Berlin and Hamburg317 as well as to the difficulties in finding suitable facilities in Frankfurt or  Munich.318

(301)      Market participants also gave mixed replies as to the viability  of  the  CDG  Divestment Business319  and the FCO Divestment  Business.320

(302)      With respect to the FCO Divestment Business, a competitor stated, “yes the contracts are a viable business”321 while a customer indicated, “The size of the business is quite small. Would require integration with alternative catering company that is already present at FCO”.322 One customer stated that any “External company without prior operation at FCo [sic] would need catering facilities, trucks, licences etc to operate and transfer the agreements”323 while another stated that the transfer of a kitchen would “almost certainly be necessary to replicate the level of service that LSG and Gategroup can currently provide to airline customers”.324 Moreover, several competitors pointed to the need or additional benefit of transferring a catering unit, one competitor calling these units “vital” to the viability of the divestment.325 In addition, multiple customers stated that a transfer of personnel would be needed as well, in particular key personnel such as culinary chefs or those in charge of planning.326

(303)      With respect to the CDG Divestment Business, while competitors do not further substantiate their replies, a customer indicated, “The divestiture does not seem sufficient to provide a competitive alternative”.327 Another customer stated that the CDG Divestment Business “Would require integration to established other catering operation at CDG”.328 Several customers have expressed the view that the contract divested would be too small to allow for a new entrant to establish a catering business at CDG.329 In addition, because no catering unit is offered in the divestment, a customer stated that “purchaser should also already have a unit at CDG”.330

(304)      In view of the above considerations and the results of the market  test,  the  Commission considered that improvements were required in order to make the  German LCC Network Divestment Business, the FRA/MUC Divestment  Business,  the CDG Divestment Business and the Rome FCO Divestment Business viable and competitive.

Interest of competitors in the Divestment  Businesses

(305)      The Commission notes that the market test allowed to identify some interest from competitors in four of the Divestment Businesses, namely the German LCC Network Divestment Business, the FRA/MUC Divestment Business, the Belgian Divestment Business and the Rome FCO Divestment Business. However, no interest was shown for the Paris CDG Divestment  Business.

Conclusion and identified areas for improvement

(306)      In view of the above, the Commissions considered that  the  Initial  Commitments could in principle be suitable to address the competition concerns identified by the Commission in relation to the horizontal effects in the markets for in-flight catering services at Frankfurt, Munich, Cologne/Bonn, Dusseldorf, Hamburg,  Hannover,  Berlin Tegel, Brussels, Paris Charles de Gaulle and Rome Fiumicino airports and in  the broader geographic areas encompassing (i) Frankfurt, Dusseldorf and Cologne- Bonn airports, (ii) Hamburg and Hannover airports, and (iii) Berlin Tegel, Berlin Schönefeld and Leipzig airports, provided however that they would  be  improved along the lines suggested below, since the Commission considered that the Initial Commitments showed certain shortcomings, which could negatively impact the viability and competitiveness of the Divestment  Businesses.

(307)      With respect to the different Divestment Businesses, areas for improvement were identified as follows:

–                For the German LCC Network Divestment Business, the FRA/MUC Divestment Business and the FCO Divestment Business: inclusion of  an option to transfer assets and personnel (including the personnel in charge of the planning and dispatching, and, as far as  they  are  currently part of the respective Divestment Businesses, in charge of account management and culinary development) upon the  request of the purchaser.

–                For the German Divestment Businesses: inclusion of a clause giving a preference to purchasers of the entire German Divestment Businesses (i.e. the German LCC Network Divestment Business and the  FRA/MUC  Divestment Business).

–                For the Proposed Commitments as a whole: inclusion of an upfront buyer requirement to limit the significant risks that the commitments would not be effectively implemented,331  in particular  […].

(308)      The Commission informed the Notifying Party of the results of the market test on 24 March  2020.  Following  the  Commission’s  feedback  on  the  market  test  and the assessment of the Initial  Commitments,  the Notifying  Party submitted a revised set  of commitments on 1 April 2020, which were amended on 2 April 2020, and further amended on 3 April 2020 (the “Final  Commitments”).

6.3.          Final Commitments

6.3.1.      Description of the Final  Commitments

(309)      The Final Commitments essentially follow the structure of the Initial Commitments. The Notifying Party made improvements to address the shortcomings  identified  during the market test. Specifically, the Final Commitments submitted by the  Notifying Party provide for the following additional improvements compared to the Initial Commitments.

(310)      Regarding the FRA/MUC Divestment  Business:

(a)            Certain related assets necessary to the customer contracts in FRA and MUC     at the option of the Purchaser are  included.332

(b)           The transfer of the employees at the option of the Purchaser is   provided.333

(c)            The necessary tangible assets at MUC at the  option  of  the  Purchaser would be included. By way of example, the Parties state that this could include the necessary infrastructure for the operation of the Divestment   Business.334

(d)           An offer by Gategroup to support the Purchaser to obtain the necessary infrastructure at MUC is  included.335

(311)      Regarding the Rome FCO Divestment  Business:

(a)            Where applicable, certain related necessary assets at the option of  the Purchaser would be  included.336

(b)           The necessary employees at the option of the Purchaser would be   included.337

(c)            An offer by Gategroup to reasonably support the Purchaser to enable the Purchaser to establish and effectively run the business is   included.338

(312)      The Final Commitments further include a clause giving a preference to Purchasers of the entire German Divestment Businesses (i.e. the  German  LCC  Network  Divestment Business and the FRA/MUC Divestment Business).  339

(313)      The Final Commitments also include an upfront buyer requirement, meaning that the Transaction shall not be implemented before Gategroup  or the  Divestiture  Trustee  has entered into a final binding sale and purchase agreement for the sale of the Divestment Businesses and the Commission has approved the Purchaser(s) and the terms of sale.340

(314)      The full description of the assets and obligations of the Final Commitments is  contained in the Schedules and Annexes  thereof.

6.3.2.      Assessment of the Final Commitments

(315)      The Commission considers that the Final Commitments effectively address  the  specific shortcomings of the Initial  Commitments.

(316)      In particular, the inclusion of an upfront buyer requirement limits the risks that the Final Commitments would not be effectively  implemented,341  in  particular  in  relation to […].

(317)      With respect to the  Commission’s concerns about  the  viability and competitiveness  of the German divestment businesses (i.e. the  FRA/MUC Divestment  Business and the German LCC Network Divestment Business), the Commission notes that the Notifying Party included a clause that gives a  preference to a single  purchaser  of  both German divestment businesses. The Notifying Party also included in the FRA/MUC Divestment Business the option to transfer assets and personnel upon the purchaser’s request in order to enhance the viability of the divestment   business.

(318)      The Commission notes that the Notifying Party did not include the option to transfer facilities at Cologne, Hamburg,  Berlin Tegel and Berlin Leipzig, while the necessity  to transfer of a facility in Hamburg and Berlin Tegel was mentioned by a competitor responding to the market test. Nevertheless, the Commission notes that these airports could potentially be served remotely from Hannover airport,  where  the  Notifying Party offers to transfer a lease for a facility, or Berlin Schönefeld airport. The Commission therefore considers that the improvements included in the Final Commitments address the Commission’s concerns as to the viability and competitiveness of the German LCC Network Divestment Business and  the FRA/MUC  Divestment Business.

(319)      With respect to the FCO Divestment Business, additional assets  and  personnel  needed for the operation of the business are included at the option of the purchaser.  The Commission’s concerns about the ability of the purchaser to have adequate resources to operate the FCO Divestment Business in a timely and viable manner are therefore addressed by the Final Commitments. The purchaser could  be  a  new  entrant with a size that is equivalent to the merged entity’s competitor Dnata. Therefore, the FCO Divestment Business would remove the competition concerns related to the elimination of an important competitive constraint because of the Transaction.

(320)      With regard to CDG Divestment Business, the inclusion of an upfront buyer clause mitigates the risks related to  […].

(321)      The Belgian Divestment Business would fully remove the overlap that would have  been brought about by the  Transaction. Therefore, the  Belgian  Divestment Business is sufficient to fully eliminate the serious doubts as to the compatibility of the Transaction with the internal market  related to the  horizontal  effects  on the market for in-flight catering services at Brussels  airport.

(322)      More generally, the inclusion of an upfront buyer requirement mitigates the risks related to […].

(323)      Therefore, in view of the above considerations, the Commission considers that the Final Commitments address the Commission’s concerns about the effectiveness, viability and competitiveness of the Divestment  Businesses.

6.4.  Conclusion on the Final Commitments

(324)      For the reasons outlined above, the Final Commitments  offered  by  the  Notifying Party are sufficient to fully eliminate the serious doubts as to the compatibility of the Transaction with the internal market related to the  horizontal effects in the markets  for in-flight catering services at Frankfurt, Munich, Cologne/Bonn, Dusseldorf, Hamburg, Hannover, Berlin Tegel, Brussels, Paris Charles de Gaulle and Rome Fiumicino airports and in the broader geographic areas encompassing (i) Frankfurt, Dusseldorf  and  Cologne-Bonn  airports, (ii)  Hamburg an  Hannover airports, and (iii) Berlin Tegel, Berlin Schönefeld and Leipzig  airports.

7. CONDITIONS AND OBLIGATIONS

(325)      Under the first sentence of the second subparagraph of Article 6(2) of the Merger Regulation, the Commission may attach to its decision conditions and obligations intended to ensure that the undertakings concerned comply with  the  commitments they have entered vis-à-vis the Commission with a view to rendering  the  concentration compatible with the internal  market.

(326)      The fulfilment of the measures that give rise to the structural change of the market is    a condition, whereas the implementing steps that are necessary to achieve this result are generally obligations on the parties. Where a condition is not fulfilled, the Commission’s decision declaring the concentration compatible with the internal  market is no longer applicable. Where the undertakings concerned commit  a  breach  of an obligation, the Commission may revoke the clearance decision in accordance with Article 6(3) of the Merger Regulation. The undertakings concerned may also be subject to fines and periodic penalty payments under Article 14(2) and 15(1) of the Merger Regulation.

(327)      In accordance with the basic distinction  between  conditions  and  obligations described in the preceding paragraph, the commitments in section B of the Final Commitments as well as in Schedules A to D and their annexes constitute conditions attached to this decision, as only through full compliance therewith can the structural changes in the relevant markets be achieved. The other commitments in the Final Commitments  constitute  obligations,  as they concern  the  implementing steps which are necessary to achieve the modifications sought in a manner compatible with the internal market and the functioning of the EEA  Agreement.

8. CONCLUSION

(328)      For the above reasons, the Commission has decided not to oppose the notified operation as modified by the commitments and to declare it compatible with the internal market and with the functioning of the EEA Agreement, subject to full compliance with the conditions in section B of the Final Commitments as well as in Schedules A to D and their annexes annexed to the present decision and with the obligations contained in the other sections of the said commitments. This decision is adopted in application of Article 6(1)(b) in conjunction with Article 6(2) of  the Merger Regulation and Article 57 of the EEA  Agreement.

Case M.9546 – GATEGROUP/LSG EUROPEAN BUSINESS

COMMITMENTS TO  THE EUROPEAN COMMISSION

Pursuant to Article 6(2) of Council Regulation (EC) No 139/2004 (the “Merger Regulation”), gategroup Holding AG (the “Notifying Party”) hereby enter into the following Commitments (the “Commitments”) vis-à-vis the European Commission (the “Commission”) with a view to rendering the acquisition of the European business of LSG Lufthansa Services Holding AG (the “Concentration”) compatible with the internal market and the functioning of the EEA Agreement.

This text shall be interpreted in light of the Commission’s decision pursuant to Article 6(1)(b) of the of the Merger Regulation to declare the Concentration compatible with the internal market and the functioning of the EEA Agreement (the “Decision”), in the general framework of European Union law, in particular in light of the Merger Regulation, and by reference to the Commission Notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004 (the “Remedies Notice”).

Section A.  Definitions

1.     For the purpose of the Commitments, the following terms shall have the following meaning:

Affiliated Undertakings: undertakings controlled by the Parties and/or by the ultimate parents of the Parties, whereby the notion of control shall be interpreted pursuant to Article 3 of the Merger Regulation and in light of the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (the "Consolidated Jurisdictional Notice").

Assets: the assets that contribute to the current operation or are necessary to ensure the viability and competitiveness of the Divestment Businesses.

Belgian Divestment Business: as defined in paragraph 6(c).

CDG Divestment Business: as defined in paragraph 6(e).

Closing: the transfer of the legal title to the Divestment Businesses to the Purchaser(s). For the avoidance of doubt, Closing of the Belgian Divestment Business, the FCO Divestment Business, the FRA/MUC Divestment Business and the German LCC Network Divestment Business could occur on different dates.

Closing Period: the period of […] following the approval of the Purchaser and the terms of sale by the Commission. Should this period expire prior to the end of the First Divestiture Period, the closing Period will be extended to no longer than […] after the end of the First Divestiture Period.

Confidential Information: any business secrets, know-how, commercial information,  or  any other information of a proprietary nature that is not in the public domain.

Conflict of Interest: any conflict of interest that impairs the Trustee's objectivity and independence in discharging its duties under the Commitments.

Divestment Businesses: the Belgian Divestment Business, the CDG Divestment Business, the FCO Divestment Business and the German Divestment Businesses.

Divestiture Trustee: one or more natural or legal person(s) who is/are approved by the Commission and appointed by gategroup and who has/have received from gategroup the exclusive Trustee Mandate to sell the Divestment Businesses to a Purchaser at no minimum price.

Effective Date: the date of adoption of the Decision.

First Divestiture Period: the period of […] from the Effective Date.

FCO Divestment Business: as defined in paragraph 6(d).

FRA/MUC Divestment Business: as defined in paragraph 6(b).

gategroup: gategroup Holding AG, incorporated under the laws of Switzerland, with its registered office at Sägereistrasse 20, 8152 Glattbrugg, Switzerland and registered with the Commercial Register of the Canton of Zurich under number CH-114.132.915.

German Divestment Businesses: the FRA/MUC Divestment Business and the German LCC Network Divestment Business.

German LCC Network Divestment Business: as defined in paragraph 6(a).

Hold Separate Manager: the person appointed by gategroup for the Divestment Businesses to manage the day to day business under the supervision of the Monitoring Trustee.

LCC: means low-cost and charter carriers.

Monitoring Trustee: one or more natural or legal person(s) who is/are approved by the Commission and appointed by gategroup and who has/have the duty to monitor gategroup’s compliance with the conditions and obligations attached to the Decision.

Parties: the Notifying Party and the undertaking that is the target of the concentration.

Personnel: the personnel of the German and FCO Divestment Businesses as set out in the Schedules, including the personnel in charge of the planning and dispatching, and, as far as they are currently part of the respective divestment business, in charge of account management and culinary development. (if any, as the case may be).

Purchaser(s): the entity(ies) approved by the Commission as acquirer(s) of the Divestment Businesses in accordance with the criteria set out in Section D.

Purchaser Criteria: the criteria laid down in paragraph 20 of these Commitments that the Purchaser(s) must fulfil in order to be approved by the Commission.

Schedules: the schedules to these Commitments describing more in detail the German Divestment Businesses, the CDG Divestment Business and the FCO Divestment Business.

Transitional Support Arrangements: the necessary transitional support services to be agreed between the Notifying Party and the Purchaser(s) and to be supplied to the Purchaser(s) as more fully described in the Schedules.

Transitional Support Period: a period to be agreed between the Notifying Party and the Purchaser(s), beginning on Closing and not to exceed (without the Commission’s prior approval) […] during which gategroup shall supply to the Purchaser(s) the Transitional Support Arrangements.

Trustee(s): the Monitoring Trustee and/or the Divestiture Trustee as the case may be.

Trustee Divestiture Period: the period of […] from the end of the First Divestiture Period.

Section B. The commitment to divest and the Divestment Businesses

Commitment to divest

2.     In order to maintain effective competition, gategroup commits to divest, or procure the divestiture of the Divestment Businesses by the end of the Trustee Divestiture Period as a running business to a purchaser and on terms of sale approved by the Commission in accordance with the procedure described in paragraph 21 of these Commitments. To carry out the divestiture, gategroup commits to find a purchaser and to enter into a final binding sale and purchase agreement for the sale of the Divestment Businesses within the First Divestiture Period. If gategroup has not entered into such an agreement at the end of the First Divestiture Period, gategroup shall grant the Divestiture Trustee an exclusive mandate to sell the Divestment Businesses in accordance with the procedure described in paragraph 33 in the Trustee Divestiture Period.

3.     The Concentration shall not be implemented before gategroup or the Divestiture Trustee has entered into a final binding sale and purchase agreement for the sale of the Divestment Businesses and the Commission has approved the purchaser(s) and the terms of sale in accordance with paragraph 21.

4.     gategroup shall be deemed to have complied with this commitment if:

(a) by the end of the Trustee Divestiture Period, gategroup or the Divestiture Trustee has entered into a final binding sale and purchase agreement and the Commission approves the proposed purchaser and the terms of sale as being consistent with the Commitments in accordance with the procedure described in paragraph 21; and

(b) the Closing of the sale of the Divestment Businesses to the Purchaser takes place within the Closing Period.

5.     In order to maintain the structural effect of the Commitments, the Notifying Party shall, for a period of 10 years after Closing, not acquire, whether directly or indirectly, the possibility of exercising influence (as defined in paragraph 43 of the Remedies Notice, footnote 3) over the whole or part of the Divestment Businesses, unless, following the submission of a reasoned request from the Notifying Party showing good cause and accompanied by a report from the Monitoring Trustee (as provided in paragraph 47 of these Commitments), the Commission finds that the structure of the market has changed to such an extent that the absence of influence over the Divestment Businesses is no longer necessary to render the proposed concentration compatible with the internal market.

Structure and definition of the Divestment Businesses

6.     The Divestment Businesses consist of:

Germany

(a)         gategroup’s in-flight catering network operations in Germany, including certain customer contracts with low-cost and charter airlines for the provision of services at relevant airports, as well as certain related assets and employees, (the “German LCC Network Divestment Business” as described in more details in Schedule A);

(b)         gategroup’s customer contracts at Frankfurt International Airport (“FRA”) and Munich International  Airport  (“MUC”),  including,  where applicable and  at  the option  of the Purchaser, certain related assets (that, by way of example, could also include the necessary infrastructure for the operation of the divested business) and employees (the “FRA/MUC Divestment Business” as described in more details in Schedule B);

Belgium

(c)         gategroup’s […]% shareholding in Newrest Servair Belgium SPRL operating an in-flight catering business in Belgium (the “Belgian Divestment Business”);

Italy

(d)         certain LSG EU’s customer contracts at Rome Fiumicino Airport (“FCO”) including, where applicable and at the option of the Purchaser, certain related assets and employees (the “FCO Divestment Business” as described in more details in Schedule C);

France

(e)         LSG EU’s in-flight catering customer account at Paris Charles de Gaulle (“CDG”) (the “CDG Divestment Business”, as described in more details in Schedule D).

7.     The Divestment Businesses may be divested to more than one Purchaser. Regarding the German Divestment Businesses, preference is given to one purchaser instead of two purchasers.

8.     The divestiture of the Divestment Businesses will proceed by way of one or more asset divestiture transactions, including transfer, sale, assignment as the case may be and in so far as legally permissible. The Divestment Businesses include all assets and staff that contribute to the current operation or are necessary to ensure the viability and competitiveness of the Divestment Businesses, in particular:

(a)        all leases of the units transferred to the German Divestment Businesses;

(b)       all tangible and intangible assets attached to the Divestment Businesses (tangible assets consisting of (i) equipment included in the respective units transferred to the Divestment Businesses or (ii) customer-dedicated moveable assets);

(c)       the transfer of all customer contracts of the CDG Divestment Business, German Divestment Businesses and the FCO Divestment Business; and

(d)       if any, the Personnel, subject to applicable employment laws.

9.     In addition and at the option of the Purchaser, the Divestment Businesses includes the benefit, for a transitional period of up to […] after Closing and at variable cost, of all current arrangements under which gategroup, LSG EU or their Affiliated Undertakings supply products or services to the Divestment Businesses, as detailed in the Schedules, unless otherwise agreed with the Purchaser. Strict firewall procedures will be adopted so as to ensure that any competitively sensitive information related to, or arising from such supply arrangements (for example, product roadmaps) will not be shared with, or passed on to, anyone outside the relevant operations.

Section C. Related commitments

Preservation of viability, marketability and competitiveness

10.   From the Effective Date until Closing, the Notifying Party shall preserve or procure the preservation of the economic viability, marketability and competitiveness of the Divestment Businesses, in accordance with good business practice, and shall minimise as far as possible any risk of loss of competitive potential of the Divestment Businesses. In particular gategroup undertakes:

(a) not to carry out any action that might have a significant adverse impact on the value, management or competitiveness of the Divestment Businesses or that might alter the nature and scope of activity, or the industrial or commercial strategy or the investment policy of the Divestment Businesses;

(b) to make available, or procure to make available, sufficient resources for the development of the Divestment Businesses, on the basis and continuation of the existing business plans;

(c) to take all reasonable steps, or procure that all reasonable steps are being taken, including appropriate incentive schemes (based on industry practice), to encourage all relevant Personnel to remain with the Divestment Businesses, and not to solicit or move any Personnel to gategroup’s remaining business, unless such Personnel has objected to its transfer to the Purchaser pursuant to applicable employment laws. Where, nevertheless, individual members of the relevant Personnel exceptionally leave the Divestment Businesses, gategroup shall provide a reasoned proposal to replace the person or persons concerned to the Commission and the Monitoring Trustee. gategroup must be able to demonstrate to the Commission that the replacement is well suited to carry out the functions exercised by those individual members of the relevant Personnel. The replacement shall take place under the supervision of the Monitoring Trustee, who shall report to the Commission.

Hold-separate  obligations

11.   gategroup commit(s), from the Effective Date until Closing, to procure that the Divestment Businesses are kept separate from the business(es) it will be retaining and to ensure that unless explicitly permitted  under these  Commitments:  (i)  management  and  staff  of  the business(es) retained by gategroup have no involvement in the Divestment Businesses; (ii) the Personnel of the Divestment Businesses have no involvement in any business retained by gategroup and do not report to any individual outside the Divestment Businesses.

12.   Until Closing, gategroup shall assist the Monitoring Trustee in ensuring that the Divestment Businesses are managed as a distinct and saleable entity separate from the business which gategroup is retaining. Immediately after the adoption of the Decision, gategroup shall appoint a Hold Separate Manager. The Hold Separate Manager, which shall be part of the Personnel, shall manage the Divestment Businesses independently and in the best interest of the business with a view to ensuring its continued economic viability, marketability and competitiveness and its independence from the business retained by gategroup. The Hold Separate Manager shall closely cooperate with and report to the Monitoring Trustee and, if applicable, the Divestiture Trustee. Any replacement of the Hold Separate Manager shall be subject to the procedure laid down in paragraph 10(c) of these Commitments. The Commission may, after having heard gategroup, require gategroup to replace the Hold Separate Manager.

13.   To ensure that the Belgian Divestment Business is held and managed as a separate entity the Monitoring Trustee shall exercise gategroup’s rights as shareholder in the legal entity or entities that constitute the Belgian Divestment Business (except for its rights in respect of dividends that are due before Closing), with the aim of acting in the best interest of the business, which shall be determined on a stand-alone basis, as an independent financial investor, and with a view to fulfilling gategroup’s obligations under the Commitments. Furthermore, the Monitoring Trustee shall have the power to replace members of the supervisory board or non-executive directors of the board of directors, who have been appointed on behalf of gategroup. Upon request of the Monitoring Trustee, gategroup shall resign as a member of the boards or shall cause such members of the boards to resign.

Ring-fencing

14.   gategroup shall implement, or procure to implement, all necessary measures to ensure that it does not, after the Effective Date, obtain any Confidential Information relating to the Divestment Businesses and that any such Confidential Information obtained by gategroup before the Effective Date will be eliminated and not be used by gategroup. This includes measures vis-à-vis gategroup’s appointees on the supervisory board and/or board of directors of the Divestment Businesses. In particular, the participation of the Divestment Businesses in any central information technology network shall be severed to the extent possible, without compromising the viability of the Divestment Businesses. gategroup may obtain or keep information relating to the Divestment Businesses which is reasonably necessary for the divestiture of the Divestment Businesses or the disclosure of which to gategroup is required by law.

Non-solicitation  clause

15.   The Parties undertake, subject to customary limitations, not to solicit, and to procure that Affiliated Undertakings do not solicit, the Personnel transferred with the Divestment Businesses for a period of […] after Closing.

16.   The Parties undertake not to solicit, and to procure that Affiliated Undertakings do not solicit, customers of the Divestment Businesses for the respective durations of the current customer contracts (possibly extended) with the  Divestment  Businesses.  For  the  avoidance of doubt, this non-solicitation clause restricts the Parties from  engaging with  such customers for the sale of in-flight catering services, and the Parties are obligated to refuse to supply the customers in case the customers contact the Parties   directly.

Due diligence

17.   In order to enable potential purchasers to carry out a reasonable due diligence of the Divestment Businesses, gategroup shall, subject to customary confidentiality assurances and dependent on the stage of the divestiture process:

(a) provide to potential purchasers sufficient information as regards the Divestment Businesses;

(b) provide to potential purchasers sufficient information relating to the Personnel and allow them reasonable access to the Personnel.

Reporting

18.   gategroup shall submit written reports in English on potential purchasers of the Divestment Businesses and developments in the negotiations with such potential purchasers to the Commission and the Monitoring Trustee no later than 10 days after the end of every month following the Effective Date (or otherwise at the Commission’s request). gategroup shall submit a list of all potential purchasers having expressed interest in acquiring the Divestment Businesses to the Commission at each and every stage of the divestiture process, as well as a copy of all the offers made by potential purchasers within five days of their receipt.

19.   gategroup shall inform the Commission and the Monitoring Trustee on the preparation of the data room documentation and the due diligence procedure and shall submit a copy of any information memorandum to the Commission and the Monitoring Trustee before sending the memorandum out to potential purchasers.

Section D. The Purchaser

20.   In order to be approved by the Commission, the Purchaser must fulfil the following criteria:

(a)   The Purchaser shall be independent of and unconnected to the Notifying Party/Notifying Parties and its/their Affiliated Undertakings (this being assessed having regard to the situation following the divestiture).

(b)   The Purchaser shall have the financial resources, proven expertise and incentive to maintain and develop the Divestment Businesses as a viable and active competitive force in competition with the Parties and other competitors;

(c)   The acquisition of the Divestment Businesses by the Purchaser must neither be likely to create, in light of the information available to the Commission, prima facie competition concerns nor give rise to a risk that the implementation of the Commitments will be delayed. In particular, the Purchaser must reasonably be expected to obtain all necessary approvals from the relevant regulatory authorities for the acquisition of the Divestment Businesses.

21.   The final binding sale and purchase agreement (as well as ancillary agreements) relating to the divestment of the Divestment Businesses shall be conditional on the Commission’s approval. When gategroup has reached a final agreement with a purchaser, it shall submit a fully documented and reasoned proposal, including a copy of the final agreement(s), within one week to the Commission and the Monitoring Trustee. gategroup must be able to demonstrate to the Commission that the purchaser fulfils the Purchaser Criteria and that the Divestment Businesses are being sold in a manner consistent with the Commission's Decision and the Commitments. For the approval, the Commission shall verify that the purchaser fulfils the Purchaser Criteria and that the Divestment Businesses are being sold in a manner consistent with the Commitments including their objective to bring about a lasting structural change in the market. The Commission may approve the sale of the Divestment Businesses without one or more Assets or parts of the Personnel, or by substituting one or more Assets or parts of the Personnel with one or more different assets or different personnel, if this does not affect the viability and competitiveness of the Divestment Businesses after the sale, taking account of the proposed purchaser.

Section E. Trustee

I. Appointment procedure

22.   gategroup shall appoint a Monitoring Trustee to carry out the functions specified in these Commitments for a Monitoring Trustee. The Notifying Party/Notifying Parties commit(s) not to close the Concentration before the appointment of a Monitoring Trustee.

23.   If gategroup has not entered into a binding sale and purchase agreement regarding the Divestment Businesses one month before the end of the First Divestiture Period or if the Commission has rejected a purchaser proposed by gategroup at that time or thereafter, gategroup shall appoint a Divestiture Trustee. The appointment of the Divestiture Trustee shall take effect upon the commencement of the Trustee Divestiture Period.

24.   The Trustee shall:

(i)   at the time of appointment, be independent of the Notifying Party/Notifying Parties and its/their Affiliated Undertakings;

(ii)   possess the necessary qualifications to carry out its mandate, for example have sufficient relevant experience as an investment banker or consultant or auditor; and

(iii)  neither have nor become exposed to a Conflict of Interest.

25.   The Trustee shall be remunerated by the Notifying Parties in a way that does not impede the independent and effective fulfilment of its mandate. In particular, where the remuneration package of a Divestiture Trustee includes a success premium linked to the final sale value of the Divestment Businesses, such success premium may only be earned if the divestiture takes place within the Trustee Divestiture Period.

Proposal by gategroup

26.   No later than two weeks after the Effective Date, gategroup shall submit the name or names of one or more natural or legal persons whom gategroup proposes to appoint as the Monitoring Trustee to the Commission for approval. No later than one month before the end of the First Divestiture Period or on request by the Commission, gategroup shall submit a list of one or more persons whom gategroup proposes to appoint as Divestiture Trustee to the Commission for approval. The proposal shall contain sufficient information for the Commission to verify that the person or persons proposed as Trustee fulfil the requirements set out in paragraph 24 and shall include:

(a) the full terms of the proposed mandate, which shall include all provisions necessary to enable the Trustee to fulfil its duties under these Commitments;

(b) the outline of a work plan which describes how the Trustee intends to carry out its assigned tasks;

(c) an indication whether the proposed Trustee is to act as both Monitoring Trustee and Divestiture Trustee or whether different trustees are proposed for the two functions.

Approval or rejection by the Commission

27.   The Commission shall have the discretion to approve or reject the proposed Trustee(s) and to approve the proposed mandate subject to any modifications it deems necessary for the Trustee to fulfil its obligations. If only one name is approved, gategroup shall appoint or cause to be appointed the person or persons concerned as Trustee, in accordance with the mandate approved by the Commission. If more than one name is approved, gategroup shall be free to choose the Trustee to be appointed from among the names approved. The Trustee shall be appointed within one week of the Commission’s approval, in accordance with the mandate approved by the Commission.

New proposal by the gategroup

28.   If all the proposed Trustees are rejected, gategroup shall submit the names of at least two more natural or legal persons within one week of being informed of the rejection, in accordance with paragraphs 22 and 27 of these Commitments.

Trustee nominated by the  Commission

29.   If all further proposed Trustees are rejected by the Commission, the Commission shall nominate a Trustee, whom gategroup shall appoint, or cause to be appointed, in accordance with a trustee mandate approved by the Commission.

II. Functions of the Trustee

30.   The Trustee shall assume its specified duties and obligations in order to ensure compliance with the Commitments. The Commission may, on its own initiative or at the request of the Trustee or gategroup, give any orders or instructions to the Trustee in order to ensure compliance with the conditions and obligations attached to the Decision.

Duties and obligations of the Monitoring Trustee

31.   The Monitoring Trustee shall:

(i)              propose in its first report to the Commission a detailed work plan describing how it intends to monitor compliance with the obligations and conditions attached to the Decision.

(ii)            oversee, in close co-operation with the Hold Separate Manager, the on-going management of the Divestment Businesses with a view to ensuring its continued economic viability, marketability and competitiveness and monitor compliance by gategroup with the conditions and obligations attached to the Decision. To that end the Monitoring Trustee shall:

(a)     monitor the preservation of the economic viability, marketability and competitiveness of the Divestment Businesses, and the keeping separate of the Divestment Businesses from the business retained by the Parties, in accordance with paragraphs 11 and 12 of these Commitments;

(b)     supervise the management of the Divestment Businesses as saleable businesses, in accordance with paragraph 12 of these Commitments;

(c)     with respect to Confidential Information:

•           determine all necessary measures to ensure that gategroup does not after the Effective Date obtain more Confidential Information relating to the Divestment  Businesses,

•           in particular strive for the severing of the Divestment Businesses’ participation in a central information technology network to the extent possible, without compromising the viability of the Divestment Businesses,

•           make sure that any Confidential Information relating to the Divestment Businesses obtained by gategroup before the Effective Date is eliminated and will not be used by gategroup and

•           decide whether such information may be disclosed to or kept by gategroup as the disclosure is reasonably necessary to allow gategroup to carry out the divestiture or as the disclosure is required by law;

(d)     monitor the splitting of assets and the allocation of Personnel between the Divestment Businesses and gategroup or Affiliated Undertakings;

(iii)           propose to gategroup such measures as the Monitoring Trustee considers necessary to ensure gategroup’s compliance with the conditions and obligations attached to the Decision, in particular the maintenance of the full economic viability, marketability or competitiveness of the Divestment Businesses, the holding separate of the Divestment Businesses and the non-disclosure of competitively sensitive information;

(iv)           review and assess potential purchasers as well as the progress of the divestiture process and verify that, dependent on the stage of the divestiture process:

(a)     potential purchasers receive sufficient and correct information relating to the Divestment Businesses and the Personnel in particular by reviewing, if available, the data room documentation, the information memorandum and the due diligence process, and

(b)     potential purchasers are granted reasonable access to the Personnel;

(v)            act as a contact point for any requests by third parties, in particular potential purchasers, in relation to the Commitments;

(vi)           provide to the Commission, sending gategroup a non-confidential copy at the same time, a written report within 15 days after the end of every month that shall cover the operation and management of the Divestment Businesses as well as the splitting of assets and the allocation of Personnel so that the Commission can assess whether the business is held in a manner consistent with the Commitments and the progress of the divestiture process as well as potential purchasers;

(vii)         promptly report in writing to the Commission, sending gategroup a non-confidential copy at the same time, if it concludes on reasonable grounds that gategroup is failing to comply with these Commitments;

(viii)        within one week after receipt of the documented proposal referred to in paragraph 21 of these Commitments, submit to the Commission, sending gategroup a non-confidential copy at the same time, a reasoned opinion as to the suitability and independence of the proposed purchaser and the viability of the Divestment Businesses after the Sale and as to whether the Divestment Businesses are sold in a manner consistent with the conditions and obligations attached to the Decision, in particular, if relevant, whether the Sale of the Divestment Businesses without one or more Assets or not all of the Personnel affects the viability of the Divestment Businesses after the sale, taking account of the proposed purchaser;

(ix)           assume the other functions assigned to the Monitoring Trustee under the conditions and obligations attached to the Decision.

32.   If the Monitoring and Divestiture Trustee are not the same [legal or natural] persons, the Monitoring Trustee and the Divestiture Trustee shall cooperate closely with each other during and for the purpose of the preparation of the Trustee Divestiture Period in order to facilitate each other's tasks.

Duties and obligations of the Divestiture Trustee

33.   Within the Trustee Divestiture Period, the Divestiture Trustee shall sell at no minimum price the Divestment Businesses to a purchaser, provided that the Commission has approved both the purchaser and the final binding sale and purchase agreement (and ancillary agreements) as in line with the Commission's Decision and the Commitments in accordance with paragraphs 20 and 21 of these Commitments. The Divestiture Trustee shall include in the sale and purchase agreement (as well as in any ancillary agreements) such terms and conditions as it considers appropriate for an expedient sale in the Trustee Divestiture Period. In particular, the Divestiture Trustee may include in the sale and purchase agreement such customary representations and warranties and indemnities as are reasonably required to effect the sale. The Divestiture Trustee shall protect the legitimate financial interests of gategroup, subject to the Notifying Party/Notifying Parties’ unconditional obligation to divest at no minimum price in the Trustee Divestiture Period.

34.   In the Trustee Divestiture Period (or otherwise at the Commission’s request), the Divestiture Trustee shall provide the Commission with a comprehensive monthly report written in English on the progress of the divestiture process. Such reports shall be submitted within 15 days after the end of every month with a simultaneous copy to the Monitoring Trustee and a non-confidential copy to the Notifying Party/Notifying Parties.

III. Duties and obligations of the Parties

35.   gategroup shall provide and shall cause its advisors to provide the Trustee with all such co- operation, assistance and information as the Trustee may reasonably require to perform its tasks. The Trustee shall have full and complete access to any of gategroup’s or the Divestment Businesses’ books, records, documents, management or other personnel, facilities, sites and technical information necessary for fulfilling its duties under the Commitments and of gategroup and the Divestment Businesses shall provide the Trustee upon request with copies of any document. gategroup and the Divestment Businesses shall make available to the Trustee one or more offices on their premises and shall be available for meetings in order to provide the Trustee with all information necessary for the performance of its tasks.

36.   gategroup shall provide the Monitoring Trustee with all managerial and administrative support that it may reasonably request on behalf of the management of the Divestment Businesses. This shall include all administrative support functions relating to the Divestment Businesses which are currently carried out at headquarters level. gategroup shall provide and shall cause its advisors to provide the Monitoring Trustee, on request, with the information submitted to potential purchasers, in particular give the Monitoring Trustee access to the data room documentation and all other information granted to potential purchasers in the due diligence procedure. gategroup shall inform the Monitoring Trustee on possible purchasers, submit lists of potential purchasers at each stage of the selection process, including the offers made by potential purchasers at those stages, and keep the Monitoring Trustee informed of all developments in the divestiture process.

37.   gategroup shall grant or procure Affiliated Undertakings to grant comprehensive powers of attorney, duly executed, to the Divestiture Trustee to effect the sale (including ancillary agreements), the Closing and all actions and declarations which the Divestiture Trustee considers necessary or appropriate to achieve the sale and the Closing, including the appointment of advisors to assist with the sale process. Upon request of the Divestiture Trustee, gategroup shall cause the documents required for effecting the sale and the Closing to be duly executed.

38.   gategroup shall indemnify the Trustee and its employees and agents (each an “Indemnified Party”) and hold each Indemnified Party harmless against, and hereby agrees that an Indemnified Party shall have no liability to gategroup for, any liabilities arising out of the performance of the Trustee’s duties under the Commitments, except to the extent that such liabilities result from the wilful default, recklessness, gross negligence or bad faith of the Trustee, its employees, agents or advisors.

39.   At the expense of gategroup, the Trustee may appoint advisors (in particular for corporate finance or legal advice), subject to gategroup’s approval (this approval not to be unreasonably withheld or delayed) if the Trustee considers the appointment of such advisors necessary or appropriate for the performance of its duties and obligations under the Mandate, provided that any fees and other expenses incurred by the Trustee are reasonable. Should gategroup refuse to approve the advisors proposed by the Trustee the Commission may approve the appointment of such advisors instead, after having heard gategroup. Only the Trustee shall be entitled to issue instructions to the advisors. Paragraph 38 of these Commitments shall apply mutatis mutandis. In the Trustee Divestiture Period, the Divestiture Trustee may use advisors who served gategroup during the Divestiture Period if the Divestiture Trustee considers this in the best interest of an expedient sale.

40.   gategroup agrees that the Commission may share Confidential Information proprietary to gategroup with the Trustee. The Trustee shall not disclose such information and the principles contained in Article 17 (1) and (2) of the Merger Regulation apply mutatis mutandis.

41.   The Notifying Party/Notifying Parties agree that the contact details of the Monitoring Trustee are published on the website of the Commission's Directorate-General for Competition and they shall inform interested third parties, in particular any potential purchasers, of the identity and the tasks of the Monitoring Trustee.

42.   For a period of 10 years from the Effective Date the Commission may request all information from the Parties that is reasonably necessary to monitor the effective implementation of these Commitments.

IV. Replacement, discharge and reappointment of the Trustee

43.   If the Trustee ceases to perform its functions under the Commitments or for any other good cause, including the exposure of the Trustee to a Conflict of Interest:

(a)    the Commission may, after hearing the Trustee and gategroup, require gategroup to replace the Trustee; or

(b)   gategroup may, with the prior approval of the Commission, replace the Trustee.

44.   If the Trustee is removed according to paragraph 43 of these Commitments, the Trustee may be required to continue in its function until a new Trustee is in place to whom the Trustee has effected a full hand over of all relevant information. The new Trustee shall be appointed in accordance with the procedure referred to in paragraphs 22-29 of these Commitments.

45.   Unless removed according to paragraph 43 of these Commitments, the Trustee shall cease to act as Trustee only after the Commission has discharged it from its duties after all the Commitments with which the Trustee has been entrusted have been implemented. However, the Commission may at any time require the reappointment of the Monitoring Trustee if it subsequently appears that the relevant remedies might not have been fully and properly implemented.

Section F.The review clause

46.   The Commission may extend the time periods foreseen in the Commitments in response to a request from gategroup or, in appropriate cases, on its own initiative. Where gategroup requests an extension of a time period, it shall submit a reasoned request to the Commission no later than one month before the expiry of that period, showing good cause. This request shall be accompanied by a report from the Monitoring Trustee, who shall, at the same time send a non-confidential copy of the report to the Notifying Party. Only in exceptional circumstances shall gategroup be entitled to request an extension within the last month of any period.

47.   The Commission may further, in response to a reasoned request from the Notifying Parties showing good cause waive, modify or substitute, in exceptional circumstances, one or more of the undertakings in these Commitments. This request shall be accompanied by a report from the Monitoring Trustee, who shall, at the same time send a non-confidential copy of the report to the Notifying Party. The request shall not have the effect of suspending the application of the undertaking and, in particular, of suspending the expiry of any time period in which the undertaking has to be complied with.

Section G. Entry into force

48.   The Commitments shall take effect upon the date of adoption of the Decision.

……………………………………

[…] duly authorised for and on behalf of gategroup Holding AG

SCHEDULE A

GERMAN LCC NETWORK DIVESTMENT BUSINESS

1.              The Divestment Business as operated to date has the following legal and functional structure:

(1)            The German LCC Network Divestment Business (hereafter in this Schedule A, the “Divestment Business”) consists of  gategroup’s  in-flight  catering network operations in Germany, including certain  customer contracts  with low-cost  and  charter  airlines for the provision of services at relevant airports, as well as certain related assets and employees.

(2)            The main activity of the Divestment Business is the provision of in-flight catering and related services to [customer] and [customer] at German airports where they have departing flights.

(3)            The constituent parts of the Divestment Business are currently mainly held, directly or indirectly, by Gate Gourmet Deutschland GmbH and comprise all essential  assets  which are necessary to ensure its viability and competitiveness, as set forth below. The Divestment Business will be carved out by way of pre-closing reorganisation or transferred to the Purchaser by way of an asset  deal.

Functional organisation

(4)            Day-to-day operations of the Divestment Business  are  currently  conducted  by dedicated employees at the various locations that have  their  own leadership  teams.  This represents a total of […] FTEs, staffed as  follows:

•           [breakdown by airport  location]
•           [breakdown by airport  location]
•           [breakdown by airport  location]
•           [breakdown by airport  location]

(5)            The staffing for each unit depends on the type of activities that are conducted, namely food production, warehousing,  etc.

(6)            The transfer of all these employees will be offered by gategroup, subject to the consent of the employees concerned pursuant to applicable labour laws. If the respective employee does not consent, gategroup considers that the Purchaser can easily recruit adequate personnel for each  function.

(7)            Certain functions (and in particular administrative functions such as HR, Finance/Accounting, etc.) are performed by employees of the regional or country head offices of gategroup having responsibilities and competences for other businesses. gategroup   does   not  consider   these   employees   to  be   needed   for  the Divestment Business to be successful and is of the view that the relevant functions could be taken over by the Purchaser’s own  organisation.

(8)            Supply is also organised at regional or national level: gategroup  purchases  raw  materials essential to the operation of its business principally through regional and national food distributors in each of the geographical regions it operates. Because of    the relatively short storage life of food inventories, especially perishables, customers’ requirements for freshness, a minimum amount of inventory is  maintained  at  any  given time.

(9)            Generally, gategroup is not substantially dependent on one supplier and could obtain comparably priced alternative products or services from other suppliers  should  a  supply contract be terminated or not be renewed. This is reinforced by the fact that an important part of the total raw materials and other  supply  purchases  (approx.  […]% for Germany in 2018) corresponds to customer-nominated   products.

(10)          Organisational charts depicting the current functional structure of the Divestment Business are attached as gategroup Confidential Annex 1.

Customer descriptions

(11)         The Divestment Business’ operations are focused on the provision of in-flight catering and related services (mainly) to low-cost and charter airlines in   Germany.

(12)         The main customer contracts of the Divestment Business are network contracts with [customer] and [customer] relating to in-flight catering services at German  airports where the two airlines  operate.

(13)         The most important provisions of these two contracts are as   follows:

a)     [customer]:

•           Scope: The contract concerns the provision of services for [customer] flights at the following airports:  […].
•           Revenue: […]
•           Term: The contract started on […] expires on […].
•           Change of control: The contract is [contract details].

b)     [customer]:

•            Scope: The contract concerns the provision of  services  for  flights at the following airports:  […].
•            Revenue:[…]
•           Term: The contract started on […] and expires on […].
•           Change of control: The contract is [contract details].

(14)         A  complete  list of  all customer contracts  of  the Divestment Business, is included    in

gategroup Confidential Annex 2.

2.              In accordance with paragraph 6 of these Commitments, the Divestment Business includes, but is not limited to:

(a)            the following main tangible assets:

(15)         All tangible assets and equipment of the Divestment Business, including high loaders, unit equipment, customer-dedicated moveable assets  etc.

(16)         An overview of all assets that will be transferred with the Divestment Business per location is contained in gategroup Confidential Annex 3.

(17)         A list of high-loaders is submitted as gategroup Confidential Annex 4.

(b)            the following main intangible assets:

•           the licence to continue using the brand “Gate Gourmet” for such time as required to complete the transition to the Purchaser’s brand   ([…]);

(c)          the following main licences, permits and authorisations:

•           Not applicable;

(d)            the following main contracts, agreements, leases, commitments and understandings:

•           (Sub-)Lease contracts:

(18)         The Divestment Business leases facilities  comprising:

-    […].

-    […].

-    […].

-    […].

-    […].

•           Supply contracts with third parties

(19)         Not applicable.

(e)            all customer, credit and other records;

(20)         A list of the customer contracts of the Divestment Business is included in gategroup Confidential Annex 2.

(f)           the following Personnel:

(21)         All current employees of the German Network Divestment Business are set out in gategroup Confidential Annex 5. This, however, will be determined alongside the needs of the Purchaser and is subject to the consent of employees under applicable labour laws.

(g)            the arrangements for the supply with the following products and services by gategroup or Affiliated Undertakings:

(22)         Transition services arrangements will be offered [pricing formula] at the option of the Purchaser, to use for a transitional period of up to […] after Closing in  order  to facilitate a smooth transfer of the Divestment  Business.

(23)         At the option of the Purchaser, this will include an arrangement for the provision  of  food items at fair market value as required to serve airlines in accordance with the transferred  customer contracts.

3.              The Divestment Business shall not include:

(a)            The Divestment Business does not include the following customer contracts:

•           Contracts for the provision of in-flight catering services that are transferred as part of the FRA/MUC Divestment   Business;
•           Contract for the provision of in-flight catering services to [customer] at HAM;
•           Contract for the provision of in-flight catering to seasonal flights of [customer] and [customer] in  Berlin.

(b)            The Divestment Business does not own any real estate.

(c)            The Divestment Business does not include leases for facilities at CGN, HAM, TXL and LEJ (these can be served for instance remotely).

(d)            The Divestment Business does not include any agreement with suppliers.

(e)            The Divestment Business does not include the following employees:

(24)         Any employee at locations where no unit is  transferred.

(25)         Other employees to be excluded once the Purchaser determines what  employees  will  be needed with the Divestment  Business.

4.              If there is any asset or personnel which is not covered by paragraphs 2 or 3 of this Schedule but which is both used (exclusively or not) in the Divestment Business and necessary for the continued viability and competitiveness of the Divestment Business, that asset or adequate substitute will be offered to potential purchasers.

ANNEXES

•           gategroup Confidential Annex 1: Organizational charts […]
•           gategroup Confidential Annex 2: List of customer contracts […]
•           gategroup Confidential Annex 3: Overview of assets per location […]
•           gategroup Confidential Annex 4: List of high loaders […]
•           gategroup Confidential Annex 5: List of employees (anonymised) […]

SCHEDULE B

FRA-MUC DIVESMENT BUSINESS

1.              The Divestment Business as operated to date has the following legal and functional structure:

(1)            The FRA/MUC Divestment Business (hereafter in this Schedule B the “Divestment Business”) consists of gategroup’s customer contracts at  Frankfurt  International  Airport (“FRA”) and Munich International Airport (“MUC”) including,  where applicable and at the option of the Purchaser, certain related assets (that, by way of example, could also include the necessary infrastructure for the operation of  the  divested business) and  employees.

(2)            The constituent parts of the Divestment Business are currently mainly held, directly or indirectly, by Gate Gourmet GmbH Deutschland, Admiral-Rosendahl-Straße 2, 63263 Neu-Isenburg, Deutschland, and comprise all the elements which are necessary  to  ensure its viability and competitiveness, as set forth  below.

Functional organisation

(3)            Day-to-day operations of the Divestment Business  are  currently  conducted  by dedicated employees at FRA and  MUC

(4)            The transfer of the employees will be offered by gategroup, subject to the  consent  of the employees concerned pursuant to applicable labour laws. If the  respective  employees do not consent, gategroup considers that the Purchaser can easily recruit adequate personnel for each  function.

(5)            Certain functions (and in particular administrative functions such as HR, Finance/Accounting, etc.) are performed by employees of the regional or country head offices of gategroup having responsibilities and competences for other businesses. gategroup does not consider these employees to  be  needed  for  the  Divestment Business to be successful and is of the view that the relevant functions could be taken over by the Purchaser’s own  organisation.

(6)            Supply is also organised at regional or national level: gategroup  purchases  raw  materials essential to the operation of its business principally through regional and national food distributors in each of the geographical regions in which it operates. Because of the relatively short storage life of food inventories, especially perishables, customers’ requirements for freshness, a minimum amount of inventory is  maintained  at any given time.

(7)            Generally, gategroup is not substantially dependent on one supplier and could obtain comparably priced alternative products or services from other suppliers  should  a  supply contract be terminated or not be renewed. This is reinforced by the fact that an important part in of the total raw materials and other supply purchases (approx. […]% for Germany in 2018) corresponds to customer-nominated   products.

Customers description

(8)            The Divestment Business’ operations are focused on the provision of in-flight catering services to (legacy) airlines at or from FRA and  MUC.

(9)            A  complete  list of  all customer contracts  of  the Divestment Business, is included in gategroup Confidential Annex 1.

2.              In accordance with paragraph 6 of these Commitments, the Divestment Business includes, but is not limited to:

(a)            the following main tangible assets:

(10)         All tangible assets and equipment of the Divestment Business, including, but  not  limited to high loaders, unit equipment,  etc.

(11)         An overview of all assets that will be transferred with the Divestment Business at FRA is contained in gategroup Confidential Annex 2.

(12)         A list of high-loaders at FRA is included as gategroup Confidential Annex 3.

(13)         At the option of the Purchaser, the necessary tangible assets at MUC. By way  of example, this could include the necessary infrastructure for the operation of the Divestment Business. In the event of a single Purchaser, the necessary infrastructure is already included in the German LCC Network Divestment Business package (i.e. sub- lease for a facility at MUC which could also be used for the additional contracts of FRA/MUC Divestment Business). Should there be multiple Purchasers, gategroup  would support the Purchaser of the FRA/MUC Divestment Business to get  the  necessary infrastructure at  MUC.

(b)            the following main intangible assets:

•           the licence to continue using the brand “Gate Gourmet” for such time as required to complete the transition to the Purchaser’s brand (but  for  no longer than […]);

(c)            the following main licences, permits and authorisations:

•           Not applicable;

(d)            the following main contracts, agreements, leases, commitments and understandings:

•           At the option of the Purchaser: the lease contract for the […]
•              Supply contracts with various third parties:

(14)         Not applicable.

(e)            all customer, credit and other records;

(15)         A list of the customer contracts of the Divestment Business is included in gategroup Confidential Annex 1.

(f)             the following Personnel:

(16)         This will be determined alongside the needs of the Purchaser and be subject to the consent of employees under applicable labour  laws.

(g)            the arrangements for the supply with the following products and services by gategroup or Affiliated Undertakings:

(17)         The following supply arrangements will be offered, at the option of the   Purchaser:

•           certain transitional services by gategroup, including IT systems  and processes, application engineering, etc., in order to facilitate a smooth transfer of the Divestment  Business;
•          a transitional supply  agreement.

3.              The Divestment Business shall not include:

(a)            The Divestment Business does not include the following customer contracts:

•           Contracts that are transferred as part of the German LCC Network Divestment Business;

(b)            The Divestment Business does not own any real estate.

(c)            The Divestment Business does not include a lease for facility at MUC.

(d)            The Divestment Business does not include any agreement with suppliers.

(e)            The Divestment Business does not include the following employees:

(18)         Employees to be excluded once the  Purchaser has  determined which employees will   be needed with the Divestment  Business.

4.              If there is any asset or personnel which is not covered by paragraphs 2 or 3 of this Schedule but which is both used (exclusively or not) in the Divestment Business and necessary for the continued viability and competitiveness of the Divestment Business, that asset or adequate substitute will be offered to potential purchasers.

ANNEXES

•          gategroup Confidential Annex 1: List of customer contracts

[…]

•           gategroup Confidential Annex 2: Overview of FRA assets

[…]

•          gategroup Confidential Annex 3: List of FRA high loaders

[…]

SCHEDULE C

FCO DIVESMENT BUSINESS

1.              The Divestment Business as operated to date has the following legal and functional structure:

(1)            The FCO Divestment Business (hereafter in this Schedule C the “Divestment Business”) consists of certain LSG EU’s customer contracts at Rome Fiumicino Airport (“FCO”) including, where applicable and at the option of the Purchaser, certain related assets and employees.

Functional organisation

(2)            The Divestment Business is currently fully integrated within LSG   EU.

(3)            gategroup considers that all that the relevant functions that are currently involved in    the operations of the Divestment Business could be taken over by the Purchaser’s own organisation or, alternatively, that the Purchaser would not face any difficulties in recruiting  adequate personnel.

Customers description

(4)            The Divestment Business’ operations are focused on the provision of in-flight catering services to (legacy) airlines at  FCO.

(5)            The customer contracts that are currently part of the package represent a budgeted revenue of EUR […] and are listed in Confidential Annex    1.

2.              In accordance with paragraph 6 of these Commitments, the Divestment Business includes, but is not limited to:

the following main tangible assets:

(6)            At the option of the Purchaser, all necessary assets (in particular customer-dedicated assets) to be determined with the  Purchaser.

(a)             the following main intangible assets:

(7)            The Divestment Business will include the  necessary intangible assets,  if any,  subject  to their availabilities.

(b)            the following main licences, permits and authorisations:

(8)            Not applicable.

(c)            the following main contracts, agreements, leases, commitments and understandings:

(9)            Not applicable.

(d)            all customer, credit and other records;

(10)         The Divestment Business will include the customer contracts described at para.   8.

(e)            the following Personnel:

(11)         At the option of the Purchaser, the necessary personnel to be determined with the Purchaser.

(f)             the arrangements for the supply with the following products and services by gategroup or Affiliated Undertakings:

(12)        The following supply arrangements will be offered, at the option of the   Purchaser:

•        certain transitional services, including IT systems  and  processes,  application engineering, etc., in order to facilitate a smooth transfer of the Divestment Business;
•           a transitional supply  agreement.

3.              The Divestment Business shall not include:

(a)            The Divestment Business does not include the following customer agreements:

(13)         Locations that are covered by the transferred customer contracts but will continue to     be served by the merged entity (for instance, [customer-contract]) will be carved   out.

(b)            The Divestment Business does not include any real estate nor lease to facilities at FCO.

(14)         At the option of the Purchaser, if needed, gategroup will reasonably support that the Purchaser will be enabled to establish and effectively run the   business.

(c)            The Divestment Business does not include any agreement with suppliers.

(d)            The Divestment Business does not include the following employees:

(15)         Employees to be excluded once the Purchaser has  determined  which employees  will  be needed with the Divestment  Business.

4.              If there is any asset or personnel which is not covered by paragraphs 2 or 3 of this Schedule but which is both used (exclusively or not) in the Divestment Business and necessary for the continued viability and competitiveness of the Divestment Business, that asset or adequate substitute will be offered to potential purchasers.

ANNEXES

•        Confidential Annex 1: List of customer contracts […]

SCHEDULE  D

CDG DIVESMENT BUSINESS

1.              The Divestment Business as operated to date has the following legal and functional structure:

(1)            The CDG Divestment Business (hereafter in this Schedule D the “Divestment  Business”) consists of LSG  EU’s in-flight catering customer account at Paris Charles   de Gaulle Airport (“CDG”)  including,  where  applicable,  customer-dedicated moveable assets.

Functional organisation

(2)            The Divestment Business is currently fully integrated within LSG   EU.

(3)            gategroup consider that all that the relevant functions that are currently involved in the operations of the Divestment Business could be taken over by the Purchaser’s own organisation or, alternatively, that the Purchaser would not face any difficulties in recruiting  adequate personnel.

Customers description

(4)            The Divestment Business’ operations are focused on the provision of in-flight catering services to [customer] at CDG, currently served by LSG EU. The business with [customer] is mainly seasonal and represents a revenue of approx. EUR   […].342

2.              In accordance with paragraph 6 of these Commitments, the Divestment Business includes, but is not limited to:

(a)            the following main tangible assets:

(5)            At the option of the Purchaser, customer-dedicated assets to be determined with the Purchaser.

(b)            the following main intangible assets:

(6)            The Divestment Business will include the  necessary intangible assets,  if any,  subject  to their availabilities.

(c)            the following main licences, permits and authorisations:

(7)            Not applicable.

(d)            the following main contracts, agreements, leases, commitments and understandings:

(8)            Not applicable.

(e)            all customer, credit and other records;

(9)            The Divestment Business will include the relevant available information  on  the  services provided to the customer as described above at para.   4.

(f)             the following Personnel:

(10)         Not applicable.

(g)            the arrangements for the supply with the following products and services by gategroup or Affiliated Undertakings:

(11)        The following supply arrangements will be offered, at the option of the   Purchaser:

•       certain transitional services, including IT systems  and  processes,  application engineering, etc., in order to facilitate a smooth transfer of the Divestment Business;
•           a transitional supply  agreement.

3.              The Divestment Business shall not include:

(a)            The Divestment Business does not include any real estate.

(b)            The Divestment Business does not include any agreement with suppliers.

(c)            The Divestment Business does not include any employees.

4.              If there is any asset or personnel which is not covered by paragraphs 2 or 3 of this Schedule but which is both used (exclusively or not) in the Divestment Business and necessary for the continued viability and competitiveness of the Divestment Business, that asset or adequate substitute will be offered to potential purchasers.

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 L 1, 3.1.1994, p. 3 (the 'EEA Agreement').

3        Form CO as updated on 9 March 2020, paragraph 28.

4        Form CO as updated on 9 March 2020, paragraphs 28, 38, 36, 45 and 49.

5        The acquisition of joint control by Temasek and RRJ Capital was approved by the Commission in a decision of 29 August 2019 in case M.9418 – Temasek/RRJ Master Fund III/Gategroup [to be published].

6        Form CO as updated on 9 March 2020, paragraph 53.

7        Form CO as updated on 9 March 2020, paragraphs 1 and 54 et seq. Ringeltaube offers a wide range of products to airlines, airport staff and other members of the travel industry and generated […] turnover in 2018.

8        LSG was active in the UK through Alpha LSG Limited, a joint venture with Alpha Flight Group Limited,

a subsidiary of Dnata. The Commission approved the acquisition of sole control by Dnata over Alpha LSG Limited in its decision of 6 March 2020 in case M.9700 – Dnata/Alpha LSG.

9        Form CO as updated on 9 March 2020, paragraph 57.

10     Form CO as updated on 9 March 2020, paragraph 56.

11     Form CO, Annex 1.1 – Share & Asset Purchase Agreement, clause 31.A.

12     Form CO, Annex 1.3 – JVC Term Sheet.

13     Form CO, Annex 1.2 – Framework Agreement for Catering Services.

14     Form CO, Annex 1.2 – Framework Agreement for Catering Services, Clause 31.1.

15     Form CO as updated on 9 March 2020, footnote 178 and reply of the Parties to the Commission’s request for information 15 dated 22 March 2020, Annex A.

16     Turnover calculated in accordance with Article 5(1) of the Merger Regulation and the Commission Consolidated Jurisdictional Notice (OJ C95, 16.4.2008, p. 1).

17     While LSG EU achieved more than two thirds of its EU-wide turnover in Germany, Gategroup does not achieve more than two thirds of its EU-wide turnover in any single member state.

18     See Cases M.9418 – Temasek/RRJ Master Fund III/Gategroup, paragraph 23 [to be published], M.8137 – HNA Group/Servair, paragraphs 35, 42; M.6179 - Alpha Flight / LSG Sky Chefs / JV, paragraph 12.

19     See M.9418 – Temasek/RRJ Master Fund III/Gategroup, paragraph 23 [to be published], Case M.8137  – HNA Group/Servair, paragraph 42.

20     See Cases M.9418 – Temasek/RRJ Master Fund III/Gategroup, paragraph 23 [to be published], M.8137 – HNA Group/Servair, paragraphs 36, 42; M.6179 - Alpha Flight / LSG Sky Chefs / JV, paragraph 12.

21     "Traditional" airline catering companies normally provide the entire range of required meals to meet the different needs of airline companies, that is, economy/business/first class, hot/cold meals/snacks and standard/special meals, both for long and short-haul flights. On the other hand, "non-traditional" caterers, (for example, logistic companies acting in joint ventures with branded or non-branded food suppliers) while formally acting as suppliers to the "traditional" caterers who bring the food to the aircraft, negotiate directly with the airlines on quality and price.

22     Form CO as updated on 9 March 2020, paragraph 116.

23     Form CO as updated on 9 March 2020, paragraph 120.

24     Replies to Q1 – Questionnaire to Competitors, question 11; Q2 – Questionnaire to Customers, question 13.

25     Replies to Q2 – Questionnaire to Customers, question 14.

26     Reply of a competitor to Q1 – Questionnaire to Competitors, question 13.1.

27     Replies to Q2 – Questionnaire to Customers, question 16.

28     Replies to Q2 – Questionnaire to Customers, question 17.

29     Reply of a customer to Q2 – Questionnaire to Customers, question 16.1.

30     Replies of two customers to Q2 – Questionnaire to Customers, question 17.1.

31     Replies to Q1 – Questionnaire to Competitors, questions 14 and 15.

32     Replies to Q1 – Questionnaire to Competitors, question 6; Replies to Q2 - Questionnaire to Customers, question 7.

33     Replies to Q1 – Questionnaire to Competitors, question 6.1; Replies to Q2 - Questionnaire to Customers, question 7.1.

34     Reply of a customer to Q2 – Questionnaire to Customers, question 7.1.

35     Reply of a customer to Q2 – Questionnaire to Customers, question 7.1.

36     Replies to Q1 – Questionnaire to Competitors, question 6.1.

37     Replies of the Parties to Question to the Parties 3 dated 4 February 2020, question 25.

38     See Sections 5.1.1, 5.2 and 5.3 below.

39     See e.g. Cases M.9418 – Temasek/RRJ Master Fund III/Gategroup, paragraph 26 [to be published], M.8137 – HNA Group/Servair, paragraph 50.

40     In a previous decision, the Commission left open the question whether the relevant geographic market was limited to Paris Charles de Gaulle airport or would comprise Paris Charles de Gaulle, Paris Orly and Paris Le Bourget airports (Case M.4170 – Lufthansa Service Holding/Gate Gourmet Switzerland, paragraph 22).

41     Form CO as updated on 9 March 2020, paragraph 124.

42     Form CO as updated on 9 March 2020, paragraph 126 and reply of the Parties to the Commission’s request for information 3 dated 25 February 2020, question 6.

43     Form CO as updated on 9 March 2020, paragraph 127.

44     Replies to Q2 – Questionnaire to Customers, question 18.

45     Replies to Q1 – Questionnaire to Competitors, question 17; Q2 – Questionnaire to Customers, question 19.

46     Reply of a customer to Q2 – Questionnaire to Customers, question 19.1.

47     Reply of a customer to Q2 – Questionnaire to Customers, question 19.1.

48     Replies to Q2 – Questionnaire to Customers, question 23.

49     Replies to Q2 – Questionnaire to Customers, question 22.

50     Replies to Q1 – Questionnaire to Competitors, question 18.

51     Replies to Q2 – Questionnaire to Customers, questions 20 and 21.

52     Replies of two competitors to Q1 – Questionnaire to Competitors, question 17.1.

53     Namely for geographic markets defined as the immediate catchment area of an airport or as broader geographic areas comprising several neighbouring airports, namely (i) Frankfurt, Dusseldorf, Cologne- Bonn; (ii) Hamburg, Hannover; (iii) Berlin Tegel, Berlin Schönefeld and Leipzig airports. The Notifying Party does not submit that other geographic markets are broader than the immediate catchment area of the relevant airport.

54     As explained in Section 5.1.1 below, the Transaction raises serious doubts as to its compatibility with the internal market with respect to the horizontal effects in the market for in-flight catering services under any plausible geographic market definition, namely on an airport-by-airport basis or on areas comprising (i)

Frankfurt, Dusseldorf, Cologne/Bonn airports, (ii) Hamburg and Hannover airports and (iii) Berlin Tegel, Berlin Schönefeld and Leipzig airports.

55     E.g. Cases M.9418 – Temasek/RRJ Master Fund III/Gategroup, paragraph 26 [to be published], M.8137 – HNA Group/Servair, paragraph 50.

56     Form CO as updated on 9 March 2020, paragraph 137.

57     See Cases: M.8137 – HNA Group/Servair, footnote 12; M.4170 – LSG Lufthansa Service Holding/Gate Gourmet Switzerland, paragraph 12; M.2190 LSG/OFSI, paragraph 10.

58     See Case M.3699 – EQT/Smurfit Munksjö, paragraph 21.

59     Form CO as updated on 9 March 2020, paragraph 140.

60     Form CO as updated on 9 March 2020, paragraph 141.

61     Form CO as updated on 9 March 2020, paragraph 146.

62     Form CO as updated on 9 March 2020, paragraph 147.

63     Form CO as updated on 9 March 2020, paragraph 149.

64     Form CO as updated on 9 March 2020, paragraphs 143-144.

65     Form CO as updated on 9 March 2020, paragraph 144.

66     Replies to Q2 - Questionnaire to Customers, question 67; Reply of a competitor to the Commission’s request for information dated 5 March 2020, question 3.

67     Replies to Q2 - Questionnaire to Customers, question 69.

68     Replies to Q2 - Questionnaire to Customers, question 70.

69     Form CO as updated on 9 March 2020, paragraph 148.

70     Replies to Q1 - Questionnaire to Competitors, question 65; Reply of the Parties to the Commission’s request for information 6 dated 5 March 2020, question 1.

71     Reply of the Parties to the Commission’s request for information 6 dated 5 March 2020, question 1.

72     Case M.3699 – EQT/Smurfit Munksjö, paragraph 24-25, 28.

73     For instance customised Asian set-up can be provided by suppliers located in Europe (Form CO as updated on 9 March 2020, paragraph 156).

74     Form CO as updated on 9 March 2020, paragraph 156.

75     Form CO as updated on 9 March 2020, paragraph 156.

76     Form CO as updated on 9 March 2020, paragraph 168.

77     See e.g. Cases M.8104 HNA Group/Gategroup, footnote 41; M.7021 Swissport/Servisair, footnote 3; M.5830 – Olympic /Aegean Airlines, paragraph 310.

78     Form CO as updated on 9 March 2020, paragraph 170.

79     Form CO as updated on 9 March 2020, paragraph 188 et seq.

80     See e.g. Case M.7021 Swissport/Servisair, paragraph 44.

81     Form CO as updated on 9 March 2020, paragraph 173.

82     Form CO as updated on 9 March 2020, paragraph 157.

83     See e.g. Cases M.4896 – CVC Capital Partners/Katope International, paragraph 14, M.3658 – Orkla/Chips, paragraph 9.

84     See e.g. Case M.4896 – CVC Capital Partners/Katope International, paragraph 15.

85     Form CO as updated on 9 March 2020, paragraph 159 et seq.

86     The Parties’ combined share in the supply of ready-made food products to the commercial foodservice sector and its potential segmentations would be below 20% on any plausible geographic market (Form CO

as updated on 9 March 2020, paragraph 193, Reply of the Parties to request for information 18 to the Parties dated 30 March 2020, question 1). The potential conglomerate effects related to the Parties’ activities in ready-made food products are analysed in Sections 5.3.3 and 5.3.6 below.

87     See e.g. Case M.4896 – CVC Capital Partners/Katope International, paragraph 19.

88     Form CO as updated on 9 March 2020, paragraph 167.

89     The Parties’ combined share in the supply of ready-made food products to the commercial foodservice sector and its potential segmentations would be below 20% on any plausible geographic market (Form CO as updated on 9 March 2020, paragraph 193). The potential conglomerate effects related to the Parties’ activities in ready-made food products are analysed in Sections 5.3.3 and 5.3.6 below.

90     See e.g. Cases M.9418 – Temasek/RRJ Master Fund III/Gategroup, paragraph 30 [to be published]; M.8137 – HNA Group/Servair, paragraph 27.

91     Form CO as updated on 9 March 2020, paragraph 132.

92     The Parties do not overlap in the supply of retail on-board services (as explained in Section 2 above, the retail on-board business of LSG is not part of the Transaction). However, the Transaction leads to conglomerate effects that are assessed in Sections 5.3.4 to 5.3.6 below.

93     See e.g. Cases M.9418 – Temasek/RRJ Master Fund III/Gategroup, paragraph 33 [to be published]; M.8137 – HNA Group/Servair, paragraph 33.

94     Form CO as updated on 9 March 2020, paragraph 134.

95     The Parties do not overlap in the supply of retail on-board services (as explained in Section 2 above, the retail on-board business of LSG is not part of the Transaction). However, the Transaction leads to conglomerate effects that are assessed in Sections 5.3.4 to 5.3.6 below.

96     Form CO as updated on 9 March 2020, paragraph 53.

97     More specifically, the Commission considered that the specificities of in-flight catering, and in particular the fact that airlines do not procure in-flight catering on a route-by-route basis, do not warrant a definition of the market for passenger air transport on a route-by-route basis for the purpose of assessing vertical links between in-flight catering services and passenger air transport. See e.g. case M.8137 – HNA/Servair, paragraph 61.

98     See e.g. Cases M.8104 – HNA Group/Gategroup, paragraph 35; M.8137 – HNA Group/Servair, paragraph 58; M.9418 – Temasek/RRJ Masterfund III/Gategroup, paragraph 34 [to be published].

99     Form CO as updated on 9 March 2020, paragraph 178 et seq.

100   The vertical relationships between the activities of Singapore Airlines in passenger air transport and the activities of LSG EU in in-flight catering are assessed in Section 5.2. below.

101   See Cases M.9418 – Temasek/RRJ Mastefund III/Gategroup, paragraph 39 [to be published]; M.8137 – HNA Group/Servair, paragraph 61; M.8104 – HNA Group/Gategroup, paragraph 37.

102   Form CO as updated on 9 March 2020, paragraphs 183 and 184.

103   The relevant geographic markets are the airports where LSG EU is active in the upstream market for in- flight catering services and where Singapore Airlines provides passenger air transport (downstream market). Therefore, the relevant geographic markets are: Dusseldorf, Frankfurt, Berlin Tegel, Munich, Rome Fiumicino and Milan Malpensa airports.

104   An analysis of coordinated effects is unnecessary, as it would not change the outcome of the competitive assessment for the markets in relation to which the Decision has raised serious doubts based on non- coordinated effects. In the other horizontally affected markets, the Commission has not found plausible indications of coordinated effects.

105   Commission Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (the “Horizontal Merger Guidelines”, OJ C 31, 5.2.2004), p.5, paragraph 8.

106   Recital 25 of the Merger Regulation.

107   Horizontal Merger Guidelines, paragraph 8.

108   Horizontal Merger Guidelines, paragraphs 26 et seq.

109   Based on Commission decision in Case M.8137 – HNA Group/Servair, paragraph 84. For completeness’ sake: This analysis related to the retail on-board services market, not the in-flight catering services market.

110   Form CO as updated on 9 March 2020, paragraph 203.

111   Replies to Q2 – Questionnaire to Customers, question 30.

112   Replies to Q2 – Questionnaire to Customers, questions 30, 39-40 and 43.2.1.

113   Tender data submitted by Gategroup in an email sent by [name] on 19 September 2019, 2.20 pm.

114   Form CO as updated on 9 March 2020, paragraph 211.

115   Replies to Q1 – Questionnaire to Competitors, question 40.

116   Replies to Q1 – Questionnaire to Competitors, question 39.

117   Replies to Q1 – Questionnaire to Competitors, question 37; Replies to Q2 – Questionnaire to Customers, questions 45 and 47.

118   Replies to Q2 – Questionnaire to Customers, questions 45 and 47.

119   Replies to Q1 – Questionnaire to Competitors, questions 41 and 42.

120   Replies to Q2 – Questionnaire to Customers, question 27.

121   Replies to Q2 – Questionnaire to Customers, question 32.

122   Tender data submitted by Gategroup in an email sent by [name] on 19 September 2019, 2.20 pm

123   Replies to Q2 – Questionnaire to Customers, question 44.

124   Form CO as updated on 9 March 2020, paragraphs 210-214.

125   Form CO as updated on 9 March 2020, paragraph 211.

126   Reply of a Customer Q2 – Questionnaire to Customers, question 40.

127   See Case M.4170 – LSG Lufthansa Service Holding/Gate Gourmet Switzerland, paragraphs 32-33.

128   Replies to Q2 – Questionnaire to Customers, questions 39-39.1.

129   Replies to Q2 – Questionnaire to Customers, question 41.

130   Replies to Q2 – Questionnaire to Customers, question 42.

131   Replies to Q2 – Questionnaire to Customers, question 42.

132   Replies to Q2 – Questionnaire to Customers, question 45.

133   Replies to Q2 – Questionnaire to Customers, questions 45-46.

134   Replies to Q2 – Questionnaire to Customers, question 36.

135   Form CO as updated on 9 March 2020, paragraphs 206-209.

136   Replies to Q1 – Questionnaire to Competitors, question 47; Q2 – Questionnaire to Customers, question 49.

137   Replies to Q1 – Questionnaire to Competitors, question 52.

138   Replies to Q2 – Questionnaire to Customers, question 54.

139   Reply of a customer to Q2 – Questionnaire to Customers, question 53.1.

140   Replies to Q1 – Questionnaire to Competitors, question 43 ; Q2 – Questionnaire to Customers, question 44.

141   Reply of a customer to Q2 – Questionnaire to Customers, question 49.1.

142   Replies to Q1 – Questionnaire to Competitors, question 52; Q2 – Questionnaire to Customers, question 54.

143   Reply of a customer to Q2 – Questionnaire to Customers, question 54.1.

144   Reply of a customer to Q2 – Questionnaire to Customers, question 53.1.

145   Replies to Q1 – Questionnaire to Competitors, question 43; Q2 – Questionnaire to Customers, question 44.

146   Replies to Q1 – Questionnaire to Competitors, question 47; Q2 – Questionnaire to Customers, question 49.

147   Replies to Q1 – Questionnaire to Competitors, question 52; Q2 – Questionnaire to Customers, question 54.

148   Reply of a customer to Q2 – Questionnaire to Customers, question 53.1.

149   Replies to Q1 – Questionnaire to Competitors, question 43 ; Q2 – Questionnaire to Customers, question 44.

150   The estimated revenues for 2020 reflect [confidential element about Gategroup’s business].

151   Replies to Q1 – Questionnaire to Competitors, question 47; Q2 – Questionnaire to Customers, question 49.

152   Replies to Q1 – Questionnaire to Competitors, question 52; Q2 – Questionnaire to Customers, question 54.

153   Reply of a customer to Q2 – Questionnaire to Customers, question 76.

154   Reply of a competitor to Q1 – Questionnaire to Competitors, question 75.

155   Replies to Q1 – Questionnaire to Competitors, question 43; Q2 – Questionnaire to Customers, question 44.

156   Replies to Q1 – Questionnaire to Competitors, question 52; Q2 – Questionnaire to Customers, question 54.

157   Reply of a customer to Q2 – Questionnaire to Customers, question 53.1.

158   Replies to Q1 – Questionnaire to Competitors, question 43 ; Q2 – Questionnaire to Customers, question 44.

159   Replies to Q1 – Questionnaire to Competitors, question 52; Q2 – Questionnaire to Customers, question 54.

160   Reply of a customer to Q2 – Questionnaire to Customers, question 53.1.

161   Reply of a customer to Q2 – Questionnaire to Customers, question 53.1.

162   Replies to Q1 – Questionnaire to Competitors, question 43; Q2 – Questionnaire to Customers, question 44.

163   The estimated revenues for 2020 reflect [confidential element about Gategroup’s business].

164   Replies to Q1 – Questionnaire to Competitors, question 47; Q2 – Questionnaire to Customers, question 49.

165   Replies to Q1 – Questionnaire to Competitors, question 52; Q2 – Questionnaire to Customers, question 54.

166   Reply of a customer to Q2 – Questionnaire to Customers, question 54.1.

167   Reply of a competitor to Q1 – Questionnaire to Competitors, question 75.

168   Replies to Q1 – Questionnaire to Competitors, question 43; Q2 – Questionnaire to Customers, question 44.

169   The Commission approved unconditionally the acquisition of Servair by Gategroup in the decision of 8 December 2016 in Case M.8137 – HNA Group/Servair.

170   Form CO as updated on 9 March 2020, paragraph 292.

171   Replies of the Parties to the Commission’s request for information 3 dated 25 February 2020, Annex A  - Pacte d’Associés, Article 4.1.1 and Management Services Contract, Article 2.

172   Replies of the Parties to the Commission’s request for information 5 dated 28 February 2020, Annex A.

173   Replies of the Parties to the Commission’s request for information 3 dated 25 February 2020, Annex A  - Pacte d’Associés, Article 3.2.3.

174   Form CO as updated on 9 March 2020, paragraphs 295 and 457.

175   The Commission approved unconditionally the acquisition of Servair by Gategroup in the decision of 8 December 2016 in Case M.8137 – HNA Group/Servair.

176   Form CO as updated on 9 March 2020, paragraphs 316 et seq. and replies of the Parties to the Commission’s request for information 7 dated 11 March 2020, question 4. The Parties claim that in all of these unsuccessful tenders, LSG pulled out on its own motion at an early stage, as they had realized not to be in a position to actually serve these contracts.

177   Replies to Q1 – Questionnaire to Competitors, question 47; Q2 – Questionnaire to Customers, question 49.

178   Reply of a customer to Q2 – Questionnaire to Customers, question 54.1.

179   Replies to Q1 – Questionnaire to Competitors, question 52; Q2 – Questionnaire to Customers, question 54.

180   Replies to Q1 – Questionnaire to Competitors, question 52; Q2 – Questionnaire to Customers, question 54.

181   Replies to Q1 – Questionnaire to Competitors, question 52; Q2 – Questionnaire to Customers, question 54.

182   Reply of a customer to Q2 – Questionnaire to Customers, question 55.

183   Replies to Q1 – Questionnaire to Competitors, question 43; Q2 – Questionnaire to Customers, question 44.

184   Replies to Q1 – Questionnaire to Competitors, question 47; Q2 – Questionnaire to Customers, question 49.

185   Replies to Q1 – Questionnaire to Competitors, question 52; Q2 – Questionnaire to Customers, question 54.

186   Reply of a customer to Q2 – Questionnaire to Customers, question 49.1.

187   Reply of a customer to Q2 – Questionnaire to Customers, question 54.1.

188   Form CO as updated on 9 March 2020, paragraph 307.

189   Only [specifics about internal accounting of Gategroup] are included in Gategroup’s 2018 revenues (Form CO as updated on 9 March 2020, footnote 171)

190   Replies to Q1 – Questionnaire to Competitors, question 47; Q2 – Questionnaire to Customers, question 49.

191   Replies to Q1 – Questionnaire to Competitors, question 52; Q2 – Questionnaire to Customers, question 54.

192   Replies to Q1 – Questionnaire to Competitors, question 43; Q2 – Questionnaire to Customers, question 44.

193   The contract (worth [value of the contract] in 2018) is part of a multi-airport Master Catering Services Agreement in place between LSG and [contract details] (See: Form CO as updated on 9 March 2020, paragraph 289; Replies of the Parties to the Commission’s questions to the parties 3 dated 4 February 2020, addition to response to question 10).

194   KCS achieved a turnover of […] in 2018 with the AF-KLM group and third-party customers.

195   Replies to Q1 – Questionnaire to Competitors, question 47; Q2 – Questionnaire to Customers, question 49.

196   Reply of a customer to Q2 – Questionnaire to Customers, question 49.

197   Reply of a customer to Q2 – Questionnaire to Customers, question 54.

198   Form CO as updated on 9 March, paragraph 320 et seq.

199   Replies of the Parties to the Commission’s request for information 8 dated 11 March 2020, question 1.

200   Form CO as updated on 9 March 2020, paragraph 323 and Replies of the Parties to the Commission’s request for information 6 dated 5 March 2020, question 1. The Notifying Party was not in a position to provide estimates of competitor market shares at the EEA-level.

201   Replies of the Parties to the Commission’s request for information 8 dated 11 March 2020, question 3.

202   Replies of the Parties to the Commission’s request for information 8 dated 11 March 2020, question 5.

203   Replies of the Parties to the Commission’s request for information 8 dated 11 March 2020, question 4.

204   Such as in-flight equipment services, provision of ready-made food products and in-flight retail services.

205   Replies to Q2 - Questionnaire to Customers, question 75.

206   Form CO as updated on 9 March 2020, paragraph. 188 et seq.

207   Other competitors include Do&Co and Köfler & Kompanie.

208   See Do&Co “Airline Lounges – Lufthansa Frankfurt” http://www.doco.com/en/airline/airline- lounges/lufthansa-frankfurt, accessed 25 March 2020.

209   See Do&Co “Airline Lounges – Emirates Lounges” http://www.doco.com/en/airline/airline- lounges/emirates accessed 25 March 2020.

210   See Do&CO “Portal – Jahres- und Quartalsberichte” http://www.doco.com/Portals/8/berichte/jahres-und- quartalsberichte/de/PA Q3 2019-2020.pdf, page 6, accessed 25 March 2020.

211   Form CO as updated on 9 March 2020, paragraph 331 et seq.

212   Replies to Q1 – Questionnaire to Competitors, question 62; Q2 – Questionnaire to Customers, question 64.

213   Replies to Q1 – Questionnaire to Competitors, question 60; Q2 – Questionnaire to Customers, question 62.

214   Commission Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of concentrations between undertakings, (OJ C 265, 18.10.2008), p.6 (the “Non-Horizontal Merger Guidelines”).

215   Non-Horizontal Merger Guidelines, paragraphs 13 and 14.

216   Non-Horizontal Merger Guidelines, paragraph 30.

217   Non-Horizontal Merger Guidelines, paragraphs 33-39.

218   Non-Horizontal Merger Guidelines, paragraphs 40-46.

219   Non-Horizontal Merger Guidelines, paragraphs 47-57.

220   Non-Horizontal Merger Guidelines, paragraphs 60-67.

221   Non-Horizontal Merger Guidelines, paragraphs 68-71.

222   Non-Horizontal Merger Guidelines, paragraphs 72-77.

223   The Transaction creates vertical relationships between LSG EU’s activities in in-flight catering and Singapore Airlines’ activities in passenger air transport at the following EEA airports: Paris Charles de Gaulle, Berlin Tegel, Düsseldorf, Frankfurt, Munich, Milan Malpensa, Rome Fiumicino, Amsterdam Schiphol (Form CO as updated on 9 March 2020, Table 6.2). For the sake of completeness, the Notifying Party indicated that Singapore Airlines will commence passenger air transport services at Brussels airport as of 22 October 2020 (Form CO as updated on 9 March 2020, footnote 64).

224   LSG will have a […]% shareholding in the JVC related to in-flight catering at Frankfurt and Munich, and [description of governance structure]. With respect to the vertical competitive relationship between the JVC and the Lufthansa Group, the Commission has not found indications of any merger-specific effects arising from the Transaction. The competitive assessment will remain the same regardless of such pre- existing relationships.

225   Singapore Airlines’ shares in the narrower markets for passenger air transport (i.e. scheduled passenger air transport services for time-sensitive passengers and scheduled passenger air transport services for non- time-sensitive passengers) would be below [5-10]%. The competitive assessment of the vertical links would therefore remain unchanged under narrower market definitions (Replies of the Parties to the Commission’s request for information to the Parties 16 dated 25 March 2020, question 3).

226   For the purpose of determining the vertically affected markets, LSG EU’s shares exclude captive sales to the Lufthansa Group. Should captive sales be included, LSG EU’s market shares would be higher but the competitive assessment would remain unchanged. LSG EU’s shares in a plausible narrower market for in-

flight catering services provided by traditional suppliers would not change, given that no non-traditional supplier is active at the relevant airports.

227   As explained above, Singapore Airlines’ market shares in passenger air transport is very low in the relevant EEA airports. Therefore, its demand of in-flight catering services is also very low.

228   Form CO as updated on 9 March 2020, paragraph 343.

229   Non-Horizontal Merger Guidelines, paragraph 45.

230   Replies to Q2 – Questionnaire to Customers, questions 50 and 51.

231   Non-Horizontal Merger Guidelines, paragraphs 58 and 61.

232   Although respondents have indicated that Singapore Airlines would have the ability to switch to the merged entity, in the context set out in this section this fact is insufficient for a finding of customer foreclosure.

233   Non-Horizontal Merger Guidelines, paragraph 5.

234   Reply of the Parties to Questions to the Parties 4 dated 6 February 2020, question 4 and to Questions to the Parties 3 dated 4 February 2020, question 10.

235   Non-Horizontal Merger Guidelines, paragraph 92.

236   Non-Horizontal Merger Guidelines, paragraph 93.

237   Non-Horizontal Merger Guidelines, paragraph 93.

238   Non-Horizontal Merger Guidelines, paragraph 94.

239   The competitive assessment of conglomerate effects under the narrower plausible product and geographic market definitions would remain unchanged. See replies of the Parties to the Commission’s request for information 19 dated 2 April 2020, question 6.

240   Replies to Q1 - Questionnaire to Competitors, questions 72.1 and 74; Q2 - Questionnaire to Customers, questions 74 and 75.

241   Replies to Q1 - Questionnaire to Competitors, question 74; Q2 - Questionnaire to Customers, questions 74 and 75.

242   In case of pure bundling (as opposed to mixed bundling), both products are sold jointly in fixed proportions (See: Non-Horizontal Merger Guidelines, paragraph 96).

243   Non-Horizontal Merger Guidelines, paragraph 98.

244   Form CO as updated on 9 March 2020, paragraph 141.

245   Form CO as updated on 9 March 2020, paragraph 141.

246   Replies to Q2 - Questionnaire to Customers, question 67; Reply of a competitor to the Commission’s request for information dated 5 March 2020, question 3.

247   Replies to Q2 - Questionnaire to Customers, question 69.

248   Form CO as updated on 9 March 2020, paragraphs 323-324.

249   In case of mixed bundling, both products are available separately but the sum of the stand-alone prices is higher than the bundled price (See: Non-Horizontal Merger Guidelines, paragraph 96).

250   Form CO as updated on 9 March 2020, paragraph 420.

251   Non-Horizontal Merger Guidelines, paragraph 107.

252   Form CO as updated on 9 March 2020, paragraph 45 and 66. The combined worldwide turnover for equipment services in 2018 amounted to EUR […].

253   Reply of the Parties to request for information 18 to the Parties 4 dated 30 March 2020, question 2.

254   see also: Form CO as updated on 9 March 2020, paragraph 362.

255   Replies to Q2 - Questionnaire to Customers, question 73, Q1 - Questionnaire to Competitors, question 72.

256   Replies to Q2 - Questionnaire to Customers, question 73.1 and 74, Q1 - Questionnaire to Competitors, question 72.1.

257   To  be  understood  as  the  bargaining  strength  that  the  buyer  has  vis-à-vis  the  seller  in  commercial

negotiations due to its size, its commercial significance to the seller and its ability to switch to alternative suppliers. In the assessment of buyer-power, it is not just sufficient that buyer power exists prior to the merger, it must also exist and remain effective following the merger (See: Horizontal Merger Guidelines, paragraph 64 and 67.)

258   Non-Horizontal Merger Guidelines, paragraph 114.

259   Non-Horizontal Merger Guidelines, paragraph 113.

260   i.e. under the plausible narrower product market for in-flight catering services provided by traditional suppliers.

261   Replies of the Parties to the Commission’s questions to the parties 4 dated 4 February 2020, question 9, Reply of the Parties to Commission’s request for information 17 to the Parties dated 26 March 2020, question 3 and Reply of the Parties to Commission’s request for information 18 to the Parties dated 30 March 2020, question 1 and Reply of the Parties to Commission’s request for information 19 to the Parties dated 2 April 2020, question 3

262   Replies of the Parties to the Commission’s Questions to the Parties 4 dated 4 February 2020, question 9 and Reply of the Parties to request for information 17 to the Parties 4 dated 26 March 2020, question 3.

263   Replies to Q2 - Questionnaire to Customers, question 68.

264   Replies to Q2 - Questionnaire to Customers, question 69.

265   Replies to Q2 - Questionnaire to Customers, question 70.

266   Replies to Q2 - Questionnaire to Customers, question 74.

267   Replies to Q1 - Questionnaire to Competitors, question 73.

268   Form CO as updated on 9 March 2020, paragraph 36.

269   Reply of the Parties to the Commission’s request for information 18 dated 30 March 2020, question 2.

270   Reply of the Parties to Commission’s request for information 18 dated 30 March 2020, question 2.

271   Form CO as updated on 9 March 2020, paragraph 368.

272   i.e. under the plausible narrower product market for in-flight catering services provided by traditional suppliers and the plausible narrower product markets for frozen foods to the commercial foodservice sector, chilled foods to the commercial foodservice sector and fresh foods to the commercial foodservice sector.

273   See Case M.8137 – HNA Group/Servair, paragraph 112 et seq.

274   Form CO as updated on 9 March 2020, paragraph 348 and Replies of the Parties to the Commission’s request for information 3 dated 25 February 2020, question 51.

275   Replies of the Parties to the Commission’s request for information 16 dated 25 March 2020, question 1.

276   Replies to Q1 – Questionnaire to Competitors, question 67; Q2 – Questionnaire to Customers, question 66.

277   Form CO as updated on 9 March 2020, paragraph 356.

278   Replies of the Parties to the Commission’s request for information 16 dated 25 March 2020, question 3.

279   Gategroup’s average margins are […]% for in-flight catering and [...]% for retail on-board services (Replies of the Parties to the Commission’s request for information 3 dated 25 February 2020, question 54).

280   i.e. under the plausible narrower product market for in-flight catering services provided by traditional

suppliers and the plausible narrower product markets for retail on-board services of snacking products and retail on-board services of duty-free products.

281   Form CO as updated on 9 March 2020, paragraphs 323-324.

282   Replies of the Parties to the Commission’s request for information 13 dated 21 March 2020, question 7.

283   Form CO as updated on 9 March 2020, paragraph 420.

284   Form CO as updated on 9 March 2020, paragraph 45 and 66. The combined worldwide turnover for equipment services in 2018 amounted to EUR […]. At a worldwide level, Gategroup achieved a turnover of EUR […] through retail on-board services.

285   Form CO as updated on 9 March 2020, paragraph 38.

286   Form CO as updated on 9 March 2020, paragraph 112.

287   Form CO as updated on 9 March 2020, paragraph 327.

288   i.e. under the plausible narrower product markets for retail on-board services of snacking products and retail on-board services of duty-free products.

289   Form CO as updated on 9 March 2020, paragraph 348 and Replies of the Parties to the Commission’s request for information 3 dated 25 February 2020, question 51.

290   Replies of the Parties to the Commission’s questions to the parties 4 dated 4 February 2020, question 9.

291   Replies of the Parties to the Commission’s request for information 13 dated 21 March 2020, question 7.

292   Replies to Q1 – Questionnaire to Competitors, question 67; Q2 – Questionnaire to Customers, question 66.

293   Reply of the Parties to the Commission’s request for information 18 dated 30 March 2020, question 2.

294   Form CO as updated on 9 March 2020, paragraph 38.

295   Replies of the Parties to the Commission’s request for information 13 dated 21 March 2020, question 7.

296   i.e. under the plausible narrower product markets for retail on-board services of snacking products and retail on-board services of duty-free products and the plausible narrower product markets for frozen foods to the commercial foodservice sector, chilled foods to the commercial foodservice sector and fresh foods to the commercial foodservice sector.

297   Commission Notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004 (the “Remedies Notice”) (OJ C 267, 22.10.2008, p. 1-27.), paragraph 5.

298   Remedies Notice, paragraphs 9 and 61.

299   Remedies Notice, paragraph 6.

300   Remedies Notice, paragraph 12.

301   Remedies Notice, paragraph 9.

302   Remedies Notice, paragraph 11.

303   Remedies Notice, paragraph 54.

304   Remedies Notice, paragraph 81.

305   Remedies Notice, paragraph 10.

306   Replies to R1 – Market test - Questionnaire to Competitors, question 1; R2 – Market test – Questionnaire to Customers, question 1.

307   Replies of two customers to R2 – Market test – Questionnaire to Customers, question 1.1.

308   Replies to R1 – Market test - Questionnaire to Competitors, questions 26, 54, 73, 84; R2 – Market test – Questionnaire to Customers, questions 26, 53, 72, 83.

309   Replies to Replies to R1 – Market test - Questionnaire to Competitors, questions 29, 32, 57, 76, 86; R2 – Market test – Questionnaire to Customers, questions 29, 33, 56, 75, and 85.

305   Replies to R1 – Market test - Questionnaire to Competitors, question 83; R2 – Market test – Questionnaire to Customers, question 82.

306   Replies to R1 – Market test - Questionnaire to Competitors, question 7.1; R2 – Market test – Questionnaire to Customers, question 1.2 and 2.1.

307   Replies to R1 – Market test - Questionnaire to Competitors, question 2.1; R2 – Market test – Questionnaire to Customers, question 2.1.

312   Reply of a customer to R2 – Market test – Questionnaire to Customers, question 2.1.

313   Reply of a competitor to R1 – Market test - Questionnaire to Competitors, question 9.1; Replies of customers to R2 – Market test – Questionnaire to Customers, questions 8 and 9.

314   Replies of customers to R2 – Market test – Questionnaire to Customers, questions 6 and 7.

315   Reply of a customer to R2 – Market test – Questionnaire to Customers, question 15.

316   Replies of customers to R2 – Market test – Questionnaire to Customers, question 18.1.

317   Reply of a competitor to R1 – Market test - Questionnaire to Competitors, question 14.

318   Reply of a competitor to R1 – Market test - Questionnaire to Competitors, question 42.1.

319   Replies to R1 – Market test - Questionnaire to Competitors, question 64; R2 – Market test – Questionnaire to Customers, question 63.

320   Replies to R1 – Market test - Questionnaire to Competitors, question 45; R2 – Market test – Questionnaire to Customers, question 44.

321   Reply of a competitor to R1 – Market test - Questionnaire to Competitors, question 45.1.

322   Reply of a customer to R2 – Market test – Questionnaire to Customers, question 44.1.

323   Reply of a customer to R2 – Market test – Questionnaire to Customers, question 48.

324   Reply of a customer to R2 – Market test – Questionnaire to Customers, question 49.

325   Replies of competitors to R1 – Market test – Questionnaire to Competitors, questions 47.1. and 49.

326   Replies of customers to R2 – Market test – Questionnaire to Customers, question 52.

327   Reply of a customer to R2 – Market test – Questionnaire to Customers, question 63.1.

328   Reply of a customer to R2 – Market test – Questionnaire to Customers, question 63.1.

329   Replies of customers to R2 – Market test – Questionnaire to Customers, questions 63.1, 65.1, 67 and 74.1.

330   Reply of a customer to R2 – Market test – Questionnaire to Customers, question 76.1.

331   See paragraph (271).

332   Form RM, as updated on 02 April 2020, Annex I – Commitments, paragraph 6b and Schedule B, paragraph 1.

333   Form RM, as updated on 02 April 2020, Annex I – Commitments, paragraph 6b and Schedule B, paragraphs 4 and 16.

334   Form RM, as updated on 02 April 2020, Annex I – Commitments, paragraph 6b and Schedule B, paragraph 13.

335   Form RM, as updated on 02 April 2020, Annex I – Commitments, Schedule B, paragraph 13.

336   Form RM, as updated on 02 April 2020, Annex I – Commitments, paragraph 6d and Schedule C, paragraphs 1 and 6.

337   Form RM, as updated on 02 April 2020, Annex I – Commitments, paragraph 6d and Schedule C, paragraph 11.

338   Form RM, as updated on 02 April 2020, Annex I – Commitments, Schedule C, paragraph 14.

339   Form RM, as updated on 02 April 2020, Annex I – Commitments, paragraph 7.

340   Form RM, as updated on 02 April 2020, Annex I – Commitments, paragraph 3.

341   See paragraph (271).

342   Representing a market share of [0-5]% (in 2018, revenue was below […] million and market share below [0-5]%).