# C_2016450EN.01001001.xml

| 2.12.2016 | EN | Official Journal of the European Union | C 450/10 |
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2.12.2016

EN

Official Journal of the European Union

C 450/10

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Final Report of the Hearing Officer (1)

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FedEx/TNT Express

(Case M.7630)

(2016/C 450/08)

I.   BACKGROUND

BACKGROUND

| 1. | On 26 June 2015, the European Commission (the ‘Commission’) received a notification of a proposed concentration (hereinafter ‘the Transaction’) pursuant to Article 4 of the Merger Regulation (2) by which FedEx Corporation (‘FedEx’) intends to acquire sole control over TNT Express NV (‘TNT’) within the meaning of Article 3(1)(b) of the Merger Regulation by means of a public takeover under Dutch law. FedEx is hereafter also referred to as ‘the Notifying Party’ and FedEx and TNT are hereinafter referred to as ‘the Parties’. |
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1.

On 26 June 2015, the European Commission (the ‘Commission’) received a notification of a proposed concentration (hereinafter ‘the Transaction’) pursuant to Article 4 of the Merger Regulation (2) by which FedEx Corporation (‘FedEx’) intends to acquire sole control over TNT Express NV (‘TNT’) within the meaning of Article 3(1)(b) of the Merger Regulation by means of a public takeover under Dutch law. FedEx is hereafter also referred to as ‘the Notifying Party’ and FedEx and TNT are hereinafter referred to as ‘the Parties’.

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II.   PROCEDURE

PROCEDURE

Article 6(1)(c) decision and access to key documents

Article 6(1)(c) decision and access to key documents

| 2. | On 31 July 2015, the Commission adopted a decision to initiate proceedings pursuant to Article 6(1)(c) of the Merger Regulation finding that the Transaction raised serious doubts as to its compatibility with the internal market and the EEA Agreement (hereinafter the ‘6(1)(c) decision’). |
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2.

On 31 July 2015, the Commission adopted a decision to initiate proceedings pursuant to Article 6(1)(c) of the Merger Regulation finding that the Transaction raised serious doubts as to its compatibility with the internal market and the EEA Agreement (hereinafter the ‘6(1)(c) decision’).

| 3. | The Parties submitted their written comments to the 6(1)(c) decision on 12 August 2015. |
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3.

The Parties submitted their written comments to the 6(1)(c) decision on 12 August 2015.

| 4. | Following a request by the Notifying Party on 17 August 2015, non-confidential versions of certain key submissions of third parties collected during the first phase investigation were provided to the Notifying Party the very same day, complementing those documents already sent to it. Further key submissions of third parties were provided to the Notifying Party on a rolling basis during the second phase. |
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4.

Following a request by the Notifying Party on 17 August 2015, non-confidential versions of certain key submissions of third parties collected during the first phase investigation were provided to the Notifying Party the very same day, complementing those documents already sent to it. Further key submissions of third parties were provided to the Notifying Party on a rolling basis during the second phase.

Extension of the time limit

Extension of the time limit

| 5. | On 12 August 2015, at the request of the Parties, the time limit for taking a final decision was extended by 20 working days pursuant to the second subparagraph of Article 10(3) of the Merger Regulation. |
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5.

On 12 August 2015, at the request of the Parties, the time limit for taking a final decision was extended by 20 working days pursuant to the second subparagraph of Article 10(3) of the Merger Regulation.

Interested third person

Interested third person

| 6. | Following its written request of 15 October 2015, United Parcel Service, Inc. (hereinafter ‘UPS’) was recognised as an interested third person on 21 October 2015. Pursuant to Article 16(1) of the Merger Implementing Regulation (3) DG Competition informed UPS by letter of 27 October 2015 of the nature and subject matter of the procedure and invited UPS to submit any additional comments in writing taking into account that UPS had already met with DG Competition and made several submissions in the course of the investigation of the Transaction, thereby exercising its right to be heard pursuant to Article 18(4) of the Merger Regulation.
  In its written submission of 4 November 2015 addressed to both DG Competition and the hearing officer, UPS made known its views on the Transaction but claimed that the Commission had not provided any information of the nature and subject matter of the procedure that was not already publicly known on the basis of the Commission’s Press Release IP/15/5463 of 31 July 2015. UPS therefore considered that the Commission had not satisfied the legal requirement set out in the aforementioned Article 16(1) of the Merger Implementing Regulation.
  DG Competition replied to UPS by letter of 11 November 2015 indicating that the depth and detail of UPS’s submission of 4 November 2015 showed that UPS was sufficiently informed of the nature and subject matter of the procedure in this case so as to enable it to make its views known. DG Competition moreover expressed its willingness to engage with UPS and to give UPS a further opportunity to make its views known in a subsequent meeting that indeed took place on 18 November 2015.
  In a letter of 25 November 2015 addressed to the hearing officer, UPS maintains however that the limited information which has been provided does not enable UPS to exercise its rights of defence, and UPS therefore requests further detailed information notably about the Commission’s reasoning and the preliminary conclusions of its investigation.
  I have examined UPS’s request in the light of Articles 18 of the Merger Regulation, Articles 11 and 16 of the Merger Implementing Regulation, relevant case law and UPS’s involvement in the Commission’s procedure. My conclusion is that, in so far as UPS’s right to be heard as a recognised interested third person is concerned, UPS has been sufficiently informed about the nature and subject matter of the procedure pursuant to Article 16 of the Merger Implementing Regulation and that UPS has moreover been closely associated with the procedure in this case, thus enabling UPS to effectively exercise its right to be heard in accordance with Article 18(4) of the Merger Regulation. On the basis hereof, I have rejected UPS’s request by a decision pursuant to Article 7(2)(d) of Decision 2011/695/EU. |
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6.

Following its written request of 15 October 2015, United Parcel Service, Inc. (hereinafter ‘UPS’) was recognised as an interested third person on 21 October 2015. Pursuant to Article 16(1) of the Merger Implementing Regulation (3) DG Competition informed UPS by letter of 27 October 2015 of the nature and subject matter of the procedure and invited UPS to submit any additional comments in writing taking into account that UPS had already met with DG Competition and made several submissions in the course of the investigation of the Transaction, thereby exercising its right to be heard pursuant to Article 18(4) of the Merger Regulation.

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In its written submission of 4 November 2015 addressed to both DG Competition and the hearing officer, UPS made known its views on the Transaction but claimed that the Commission had not provided any information of the nature and subject matter of the procedure that was not already publicly known on the basis of the Commission’s Press Release IP/15/5463 of 31 July 2015. UPS therefore considered that the Commission had not satisfied the legal requirement set out in the aforementioned Article 16(1) of the Merger Implementing Regulation.

DG Competition replied to UPS by letter of 11 November 2015 indicating that the depth and detail of UPS’s submission of 4 November 2015 showed that UPS was sufficiently informed of the nature and subject matter of the procedure in this case so as to enable it to make its views known. DG Competition moreover expressed its willingness to engage with UPS and to give UPS a further opportunity to make its views known in a subsequent meeting that indeed took place on 18 November 2015.

In a letter of 25 November 2015 addressed to the hearing officer, UPS maintains however that the limited information which has been provided does not enable UPS to exercise its rights of defence, and UPS therefore requests further detailed information notably about the Commission’s reasoning and the preliminary conclusions of its investigation.

I have examined UPS’s request in the light of Articles 18 of the Merger Regulation, Articles 11 and 16 of the Merger Implementing Regulation, relevant case law and UPS’s involvement in the Commission’s procedure. My conclusion is that, in so far as UPS’s right to be heard as a recognised interested third person is concerned, UPS has been sufficiently informed about the nature and subject matter of the procedure pursuant to Article 16 of the Merger Implementing Regulation and that UPS has moreover been closely associated with the procedure in this case, thus enabling UPS to effectively exercise its right to be heard in accordance with Article 18(4) of the Merger Regulation. On the basis hereof, I have rejected UPS’s request by a decision pursuant to Article 7(2)(d) of Decision 2011/695/EU.

III.   DRAFT DECISION

DRAFT DECISION

| 7. | The draft Commission decision provides for the unconditional clearance of the Transaction pursuant to Article 8(1) of the Merger Regulation.
  Given that the in-depth market investigation did not confirm the serious doubts initially raised in the Article 6(1)(c) decision, the Commission now considers that the Transaction does not significantly impede effective competition in the relevant markets and, accordingly, no Statement of objections has been sent to the Notifying Parties. |
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7.

The draft Commission decision provides for the unconditional clearance of the Transaction pursuant to Article 8(1) of the Merger Regulation.

Given that the in-depth market investigation did not confirm the serious doubts initially raised in the Article 6(1)(c) decision, the Commission now considers that the Transaction does not significantly impede effective competition in the relevant markets and, accordingly, no Statement of objections has been sent to the Notifying Parties.

IV.   CONCLUDING REMARKS

CONCLUDING REMARKS

| 8. | Apart from abovementioned request of UPS, I have not received any other procedural request or complaint from any party. |
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8.

Apart from abovementioned request of UPS, I have not received any other procedural request or complaint from any party.

| 9. | Overall, I conclude that the effective exercise of the procedural rights of all parties has been respected in this case. |
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9.

Overall, I conclude that the effective exercise of the procedural rights of all parties has been respected in this case.

Brussels, 18 December 2015.

Joos STRAGIER

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(1)  Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (‘Decision 2011/695/EU’).

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(2)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ L 24, 29.1.2004, p. 1) (the ‘Merger Regulation’).

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(3)  Commission Regulation (EC) No 802/2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 133, 30.4.2004, p. 1; corrigendum OJ L 172, 6.5.2004, p. 9) (the ‘Merger Implementing Regulation’).

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