DECISION No. 51 from

Transcription

1 DECISION No. 51 from regarding the economic concentration realized through the acquisition of the joint control by Smithfield Foods Inc. and Mr. Mounir Chafic Halawani over SC FRIGORIFER SA The President of the Competition Council 1. Having regard to the Decree no. 57/ regarding the appointment of the members of the Competition Council, 2. Having regard to the Competition Law no. 21/1996 with the subsequent amendments and completions, 3. Having regard to the Regulation on organization, functioning and procedure of the Competition Council with the subsequent amendments and completions, 4. Having regard to the Regulation concerning the authorization of the economic concentrations, published in the Official Journal, Part 1, no. 280 from , 5. Having regard to the documents from the file (RS-250/ ), 6. Having regard to the Note of the Commission which coordinates the antitrust department (GM/499/ ). Where as: 1. The Smithfield Foods Inc. company and Mr. Mounir Chafic Halawani acquired the joint control over SC Frigorifer SA, through the Letter of intention of the , which did for the Shares Selling Purchasing Contract until it was concluded between Mss. Lana Halawani, as seller, Mr. Mounir Chafic Halawani, as strategic partner, and SC Frigorifer SA as underwriter, on one hand, and SC Shannon Expert SRL, subsidiary of Smithfield International Investments Inc., which is also a subsidiary of Smithfield Foods Inc., as buyer, on the other hand, on the ; 2. Acquiring the joint control by SC Shannon Expert SRL, subsidiary of Smithfield International Investments Inc., which is also a subsidiary of Smithfield Foods Inc. and Mr. Mounir Chafic Halawani over SC Frigorifer SA, represents an economic concentration according to the provisions of article 11 (2)(b) of the Competition Law no.21/1996 as amended taking in view that the three conditions of the point 20 of the Regulation concerning the authorization of the economic concentrations are met: - the existence of the joint control; - the join venture has an autonomous structure because it has financial, human and technical resources necessary for the developing on a long period of all the activities or functions carried out normally by any other undertaking that acts on the respective markets; 1

2 - the joint venture does not have as aim or effect the coordination of competitive behavior of parent-undertakings and/or the undertakings controlled by these due to the fact that the parent-undertakings are not present on the markets where SC Frigorifer SA is acting; 3. The aggregate turnover amounted by the undertakings involved in the economic concentration, in 2003, has overcome the first threshold provided in art.15 of the Competition Law no.21/1996, as amended, and there are two undertakings involved in the economic concentration, each of them achieving, on the Romania territory, a turnover which exceeds the second threshold provided in art.15 of the law; 4. The notification form of the economic concentration realized through the acquisition of the joint control by Smithfield Foods Inc. and Mr. Mounir Chafic Halawani over SC FRIGORIFER SA was registered at the Competition Council under no. RS - 250/ The notification became effective on the ; 5. According to the Guidelines on relevant market definition with a view to determining the significant market share, having in view the products sold or the services provided by the involved parties and considering the narrowest definition of the relevant markets, in comparison with the frozen products market, the product relevant markets are: 1. the frozen chicken meat market at the trading level; 2. the of frozen fish market at the trading level; 3. the of the frozen vegetables market at he trading level; 4. the market of frozen products at the storage level. The commercialized products come both from import and from internal market. The geographical dimension of the relevant markets: the whole national territory for trading; the South East area of Romania for storage having in view that not all the undertakings, which have like object trading of the frozen products, hold cold storages in the harbours of the Danube and Black Sea, this being the narrowest definition of the relevant market, in contrast to national market; 6. The market shares held by SC Frigorifer SA, the group controlled by Halawani family and by Smithfield Group, in 2003, were the following: - on the market of frozen chicken the market share of SC Frigorifer SA is not exceeding [ ]%, SC Agroalim Distribution SRL (Halawani Group) holds a market share under [ ]%, and together under[ ]%; - on the market of frozen fish SC Frigorifer SA holds market share under [ ]%, SC Agroalim Distribution SRL holds under [ ]% and together under[ ]%; - on the market of the frozen vegetables - SC Frigorifer SA holds market share under [ ]%, SC Agroalim Distribution SRL holds under [ ]% and together under[ ]%; 2

3 - on the market of frozen products at the storage level SC Frigorifer SA holds market share under [ ]%, SC Mixalim Impex SRL (Halawani Group) under [ ]%and together under[ ]% 1 ; 7. The entry barriers are not major, by reason of: there are not laying customs duties on frozen meat; the customs duty for varieties of pork, beef, chicken represents 20%; for the imported chicken meat from Bulgaria, Czech Republic, Poland, Slovakia, Slovenia and Hungary the customs duties represent 28%; there are not necessary wide scope and on long term investments; 8. The economic concentration does not lead to a significant restriction, prevention or distortion of competition on the identified relevant markets, having regard to the fact that the concentration degree of the markets remained the same. 9. According to the clause no.12 of the Shares Selling Purchasing Contract, both the seller and the Strategic Partner are agree for a 3-year period from the date of closing, respectively from the ceasing of the last agreements of holding the shares, of leading, working, representation, supervision or providing other services concluded with the company, not to carry on, to be involved or to have any economic interest in a company which is a competitor of SC Frigorifer SA at the date of the contract or the date of closing the agreements, the competitive activity meaning any activity regarding manufacturing, distribution and/or trading of meat and vegetables, fresh or in cold storage. Pursuant to the point 14 of the Regulation concerning the authorization of the economic concentrations the non-competition obligation between the parent undertakings and a joint venture for a three year period may be considered directly related and necessary to the implementation of the economic concentration, so long as it is not extending beyond the lifetime of the joint venture. Regarding the restriction imposed to the strategic partner after he gives over the shares which confer him the joint control, could not be regarded as directly related and necessary to the implementation of the economic concentration, according to the point 114 of the Regulation concerning the authorization of the economic concentrations. Therefore, the restriction imposed to the Strategic Partner must be limited for a period of three years from the date of concluding this contract only that it may be considered as directly related to the implementation of the economic concentration. In accordance to the point 116 in the Regulation concerning the authorization of the economic concentrations, the non-competition clause must be limited to products and services constituting the economic activity of the joint venture. This may include products and services at an advanced stage of development at the time of the transaction, as well as products and services, which are fully developed but not yet marketed. Regarding processing, distribution and/or commercialization of meat and fresh vegetables, they could be considered as being part of a category of products and services which have not been marketed 1 These shares could be smaller by reason of a possible bigger dimension of the market, being that the producers, the importers, poultry firms, have not been included in the estimated dimension of the market. 3

4 by SC Frigorifer SA, but they could be marketed anytime. Moreover, the meat and fresh vegetables could be the raw materials for Frigorifer SA, which encases, freezes and sells them. For Frigorifer SA to develop its activity on good terms, it needs these resources and therefore needs to be protected against the seller and the strategic partner, the buyer being protected in the same time. DECIDES Art. 1. On the ground of the provisions of article 51(1)(b) of the Competition Law no.21/1996, with the subsequent amendments and completions, the Regulation concerning the authorization of the economic concentrations, it is authorised the economic concentration realized through the acquisition of the joint control, by SC Shannon Export SRL, subsidiary of Smithfield International Investments Inc., which is also a subsidiary of Smithfield Foods Inc. and Mr. Mounir Chafic Halawani over SC Frigorifer SA. Even this operation of economic concentration is subject to the Competition Law, there are no serious doubts regarding its compatibility with a normal competitive environment on the relevant market. Art.2. SC Shannon Export SRL, subsidiary of Smithfield International Investments Inc., which is also a subsidiary of Smithfield Foods Inc. and Mr. Mounir Chafic Halawani are obliged, according to the provisions of art. 33(1) of the Competition Law no. 21/1996, as amended, to pay the authorization fee of the notified economic concentration. Art. 3. The authorization fee amounts Lei [ ] and it is calculated according to the provisions of the Guidelines issued by the Competition Council on the application of article 33 of the Competition Council no. 21/1996, based on the turnover calculated on the basis of the balance sheets and communicated by the representing company of Smithfield Foods Inc. and Mr. Mounir Chafic Halawani through the letter registered at the Competition Council under no. CC/DBC/260/ , revised by letters CC/DBC/270/ and CC/DBC/294/ Art. 4. The amount representing the authorization fee will be transferred by SC Shannon Export SRL, subsidiary of Smithfield International Investments Inc., which is also a subsidiary of Smithfield Foods Inc. and Mr. Mounir Chafic Halawani to the state budget, with a treasury payment order, in the account IBAN RO43TREZ XXXXX opened at the National Bank of Romania Timis Subsidiary, beneficiary The Timis Treasury, with the mention: tax for the authorization of the economic concentrations according to the provisions of the Competition Law no.21/1996, within maximum 30 days from the date of the communication of the present Decision. A copy of the payment order will be transmitted to the Competition Council immediately. Art. 5. Within 5 days from the submission of the annual simplified Statement of Assets and Liabilities of to the local fiscal bodies within the Ministry of Public Finance, SC Shannon Export SRL, subsidiary of Smithfield International Investments Inc., which is also a subsidiary of Smithfield Foods Inc. and Mr. 4

5 Mounir Chafic Halawani, through legal representative, shall provide to the Competition Council a copy of the balance sheets of SC Agrotorvis SRL, SC A groalim Distribution SRL, SC Frigorifer SA, SC Mixalim Impex SRL, SC Ilact SA, SC Rimco SRL, SC Service Avicola SA, SC Frozfood Impex SRL, SC Puinprod SRL, and also a Note regarding the calculation of turnover broken down according to the identified relevant market, pursuant to the balance sheets of of each of the companies above mentioned and for Smithfield Group from Romania, in compliance with the Guidelines on the application of the provisions of art.33 of the Competition Law no. 21/ 1996, regarding calculation of the authorization fee for economic concentrations. The Competition Council has the right to recalculate the amount of the authorization fee in the case in which the turnovers calculated on the basis of the final data significantly differs from the temporary turnovers taken into account for the calculation of the authorization fee stipulated in art.3 of this Decision. Art.6. According to the provisions of article 52(4) of the Competition Law no.21/1996, with the subsequent amendments and completions, the present Decision may be appealed before the Court of Appeal Bucharest, Administrative Contentious Section within 30 days of the date of its communication. Art.7. This Decision shall be applicable as of the date it is communicated. Art.8. The General Secretariat and the Consumer Goods Directorate within the Competition Council shall pursue the fulfillment of the present Decision. Art.9. This Decision shall be communicated by the General Secretariat within the Competition Council, to the headquarters of: Shannon Expert SRL, subsidiary of Smithfield International Investments Inc., which is the subsidiary of Smithfield Foods Inc., Headquarters: 4 Polona Street, Timisoara, Timis District; and Mr. Mounir Chafic Halawani, strategic partner of Agroalim Distribution SRL Headquarters: 18 Frigului Street, Sector 4, Bucharest Through: Nestor Nestor Diculescu Kingston Petersen Headquarters: Neocity Tower floors 9-12, 237B Calea Dorobantilor Street, sector 1, Bucharest, Tel: , Fax: Mihai Berinde President 5