Thursday, 24 February 2011 00:00

Decision 515/2011

Decision on the prior notification, pursuant to article 4b of former L. 703/77, of the acquisition of control over the Group of companies “MAKEDONIKI MILK INDUSTRY – MEVGAL S.A.” by the group of companies “VIVARTIA Holdings S.A”.

Decision 515/2011
File (PDF) Decision 515/2011
Date of Issuance of Decision February 14th, 2011
Government Gazette Issue No
Relevant Market

Milk products

Subject of the Decision

Merger

Legal Framework

Phase II-in-depth investigationof article 4d of L. 703/1977

Operative part of the Decision

Clearance under conditions

Acquiring company(ies)

VIVARTIA Holding S.A

Target company(ies)

MAKEDONIKI MILK INDUSTRY – MEVGAL S.A

Summary of Decision

On 15.09.2010, the company “VIVARTIA Holdings S.A” notified to the HCC, in accordance with the provisionsof article 4b of former law 703/77, the acquisition of 43% of the nominal share capital of the company “MAKEDONIKI MILK INDUSTRY – MEVGAL – S.A”.

The notified merger concerned the acquisition of sole control  by the notifying company VIVARTIA (through its subsidiary DELTA TROFIMA) over the company MEVGAL, given that VIVARTIA would have the absolute majority of its shares and voting rights and it wouldtherefore be capable of taking decisions of strategic importance concerning MEVGAL. VIVARTIA is active in the following sectors:

  • In the dairy and beverages sector, through the production and distribution of dairy products, such as milk and similar yoghurt and fruit juices,
  • In the catering and entertainment services, through the production and distribution of catering products, via the operation of chain restaurants, fast food restaurants and cafes, and catering services, and
  • In the frozen food sector, throughthe production and distribution of frozen foods, such as vegetables and ready-made recipes.

MEVGAL is active in the production and distribution of dairy products, such as milk and similar yogurt products, as well as fruit juices.

The concentration will lead to horizontal overlaps in the markets for fresh milk, high-pasteurized milk, condensed milk, chocolate milk, milk with coffee, milk-based desserts, bulk yogurt, standardized yoghurt withflavors,standardized baby yogurt, juices, soft standardized yoghurt, soft bulk cheese, semi-soft cheese, hard cheese, hard bulk cheese, and milk cream. Significant horizontal overlap also occurs in the fresh milk supply market, both nationally and locally / regionally (production zone of Macedonia).

Nevertheless, taking into consideration the affected relevant markets, the notified concentration is not expected to significantly restrictthe operation of effective competition, taking into account mainly the low cumulative market share of the new entity in relation to its competitors or/and of the low level of concentration in each relevant market after the completion of the merger / acquisition, the existence of strong competitors (that possess significant market shares, established brands, as well as surplus production capacity), the reduced market share of VIVARTIA and the possibility of  (partial) substitution with related product categories. For these reasons, the only affected markets considered in detail, given that restrictive competition effects might arise were the following: fresh milk, chocolate milk, bulk yogurt, standardized baby yogurt, and fresh milk supply (both locally and nationally).

In terms of vertical effects on competition, upon completion of this transaction, the new entity would have a market share of over 25% in dairy inputs (mainly fresh pasteurized milk, chocolate milk and yogurt products) for markets, where one of the participating parties, and mainly VIVARTIA (downstream markets) is active, and in particular inthe relevant markets of fast-food restaurants, cafes and catering.

However, according to the opinion of the members of the Commission, in the examined merger, the conditions for safely assuming adverse vertical effects and exclusion of competitors in the downstream markets from access to inputs, are not met.

The Plenary Session of the HCC, in one of the more significant merger decisions, taking into account the possible adverse effects of the case in the operation of competition, as these are described in detail in the full text of the Decision, decided the clearance of the merger concerning the acquisition of control over the company MEVGAL by the company VIVARTIA, under the following terms and conditions (remedies), according to article 4d of former L. 703/77, on the basis of the commitments proposed by the acquirer.

Based on the Commission decision, the acquirer shall:

  1. Divest the business activity consisting of the chocolate milk under the brand “Topino”, as it is currently used and sold by the target company, to remove the horizontal overlap in the relevant chocolate milk market. To ensure the viability and competitiveness of the divested business, accompanying measures are provided - for a transitional period of two (2) years from the completion of the sale - for the prospective buyer to have access (if he decides to do so) to the existing distribution network, as well as to the production (with contract) by the new entity of the relevant product.
  1. Tomake available to its competitors, for a period of five (5) years from the date of the merger, up to thirty thousand (30,000) tons of domestic raw cow’s milk per year at cost prices, based on objective, transparent and verifiable criteria in order to ensure the sufficient access of competitors to the necessary input/raw material (raw milk).
  1. To lift and abstain, for a period of five (5) years from the date of notification of the Decision to the parties, from actions that result or lead, directly or indirectly (either by concluding contracts, or by providing financial incentives), to exclusivities in the big and small retail outlets, which also include any exclusivity conditions regarding the use of refrigerators (fixed assets) within retail outlets.
  1. To continue directly to buy, for a period of three (3) years from the realization of the merger, according to the absolute choice and freedom of producers and within the framework of reasonable trading conditions, the existing offered quantities of raw milk by the producersin the prefectures of Thessaloniki, Imathia, Pella, Serres and Kilkis, who were cooperating with the acquirer and the acquired from 15.09.2010 up to 31.12.2010, based on the data of the Greek Milk and MeatOrganization (ELOGAK).

The HCC was particularly concerned with maintaining conditions of effective competition in the dairy sector, through the unimpeded access of competitors to the relevant markets and final points of sale, but also the strengthening of the bargaining power of raw milk producers in the prefectures of northern Greece, where the new entity exhibits increased purchasing power.

The HCC mentioned that the strengthening of collective structures, the establishment of more direct access of producers to the retail markets, the promotion of the vital agriculture / livestock sector, and the buildup of quality development models under the auspices of ELOGAK, are expected to make a decisive contribution to the more rational organisation and management of the production process and to stimulate the bargaining power of producers.

Judicial Means Appeal.
Decisions by the Court of Appeal of Athens (Administrative Division) ACAA 5045/2013
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