Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE  
Europese Commissie, DG COMP MERGER REGISTRY, 1049 Brussel,   BELGIË  
 
Tel: +32 229 -91111. Fax: +32 229 -64301. E -mail: COMP -MERGER -REGISTRY@ec.europa.eu .  EUROPEAN COMMISSION  
Brussels, 14.12.2020  
C(2020 ) 9233 final  
PUBLIC VERSION  
 
To the notifying p arty 
Subject : Case M. 9968  – TOTAL/Ørsted UK  
Commission decision pursuant to Article 6(1)(b) of Council Regulation 
No 139/20041 and Article 57 of the Agreement on the European Economic 
Area2 
Dear Sir or Madam,  
(1) On 16 November 2020 , the Commission received notification of a concentration 
pursuant to Article 4 of the Merger Regulation  which  would result from a proposed 
transaction by which  TOTAL S.E.  (“TOTAL ”), through its wholly owned 
subsidiary, Total Gas and Power Limited , intends to acquire  control,  within the 
meaning of Article 3(1)(b) of the Merger Regulation o ver the whole o f a portfo lio of 
electricity and gas  contracts  for business customers located in Great Britain3 and 
some related assets4 (the “ Target ”) from Ørsted Sales Limited and Ørsted Power 
Sales Limited  which are both wholly owned subsidiaries of Ørsted A/S  (“Ørsted” )5. 
In this Decision, TOTAL  and the Target  are referred to as ‘the Parties’ . 
                                                 
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 ”)  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  Great Britain inc ludes England, Wales and Scotland.  
4  See paragraph 3.  
5  Publication in the Official Journal of the European Union No C 402, 25..11.2020 , p. 5. 
In the published version of this decision, 
some information has been omitted 
pursuant to Article 17(2) of Council 
Regulation (EC) No 139/2004 concerning 
non-disclosure of business secrets and other  
confidential information. The omissions are 
shown thus […] . Where possible the 
information omitted has been replaced by 
ranges of figures or a general description.  
 
 
2 1. THE PARTIES  
(2) TOTAL  is a French multinational company that is active across the oil and gas 
supply chain , including upstream  activities  (hydrocarbon exploration, development 
and product ion), wholesale  activities  (refining, petrochemicals, specialty chemicals, 
trading and shipping of crude oil and petroleum ) and retail supply of oil and energy . 
TOTAL is also  active in the electricity generation and carbon neutrality businesses 
(energy eff iciency, carbon capture usage and storage, hydrogen and nature -based 
solutions). TOTAL operates in more than 130 countries. In Great Britain TOTAL is 
present through its wholly -owned subsidiary Total Gas and Power Limited , and it is 
active in  the trading o f energy commodities and the supply  of gas and electricity to 
industrial, commercial and public sector companies .   
(3) The Target comprises the majority  of the Ørsted 's portfolio of electricity and gas 
industrial and commercial (I&C) customer contracts in Gre at Britain , in particular 
the following assets:6  
(a) Around […] I&C customer contracts in Great Britain, with a total contracted 
volume of approximately […] TWh gas and electricity from […]; 
(b) related customer data, hedges, green certificates (renewable obligation 
certificates (ROCs) and Renewable Energy Guarantees of Origin (REGOs));  
(c) the benefit of commission pre -paid to third party intermediaries (but not yet 
recovered from customers); and  
(d) up to […] full-time equivalent employees all of whom will trans fer to the 
acquirer under local employment laws.  
2. THE TRANSACTION  
(4) The Transaction is to be achieved by means of the execution of a business purchase 
agreement concluded between TOTAL and Ørsted, pursuant to which TOTAL is to 
acquire the Target from Ørsted  and hence to acquire control of the whole of the 
Target . 
(5) The acquisition of control over intangible assets can be considered a concentration if 
these assets constitute a part of an undertaking, that is to say a business with a 
market presence, to which mark et turnover can be attributed. In particular, the 
transfer of the client base of a business can fulfil the above criteria if this is sufficient 
to transfer a business with a market turnover.7 In the present  case, t he Target 
constitutes an undertaking to wh ich a mar ket turnover can be attributed because the 
assets listed in paragraph 3 above generated turnover in the financial year prior to the 
Transaction  Also, the Transaction involves the acquisition of assets enabling the 
acquirer to access the market. Th erefore, the Target constitutes an undertaking 
within the meaning of Article 3(1)(b) of the Merger Regulation.  
                                                 
6  The Target does not include a number of Large Industrial customer contracts (i.e. […] large corporate 
clients with consumption above […]GWh ) [which will be retained by Ørsted] . 
7  See ‘Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the  
control of concentrations between undertakings  (2008/C 95/01)’ , in particular paragraph 24.  
 
 
3 (6) It follows that the Transaction would result in a concentration within the meaning of 
Article 3(1)(b) of the  Merger Regulation.  
3. UNION  DIMENSION  
(7) The Parties  have a combined aggregate worldwide turnover of more than EUR 5 000 
million  [TOTAL: EUR […] million; the Target: EUR […] million].8 Each of them 
has a n Union-wide turnover in excess of EUR 250 million  [TOTAL: EUR […] 
million; the Target: EUR […] million] , but they do not achieve more than two -thirds 
of their aggregate Union-wide turnover within one and the same Member State. 
Therefore, the concentration  has a U nion dimension  within the meaning of Article 
1(2) of the Merger Regulation.  
4. COMPETITIV E ASSESSMENT  
(8) The Parties overlap in relation to the retail supply of (i) electricity and (ii) gas  to 
business  customers in Great Britain.  However, affected market arise only in relation 
to the retail supply of gas .9 
Product market definition  
(9) In the past10 the Commission  considered the retail supply of gas as a separate  market 
and subdivided it between (i) households,  (ii) SMEs, (iii) large industrial  customers 
and (iv) gas-fired power  plants .11 That definition, which is not contested by the 
Parties, is to b e retained for the purposes of this Decision . 
Geographic market definition  
(10) The Commission has previously considered the retail supply of  gas to be national in 
scope . In the context of the United Kingdom, the Commission has defined the 
geographic market as encompassing Great Britain, excluding Northern Ireland .12 The 
Parties do not contest this geographic market definition  and it is retained for the 
purposes of this decision . 
  
                                                 
8  Turnover calculated in accordance with Article 5 of the Merger Regulation . 
9  The Transaction gives rise to overlaps in the markets for the retail supply of electricity to SMEs (with a 
combined market share of [5-10]%) and the retail supply of electricity to large industrial customers ( [5-
10]%). These markets are therefore not affected and thus not discussed further in this Decision.  
10  See e.g. M. 8870 E.ON/Innogy, M.8358 Macquarie/National Grid/Gas Distribution Business of National 
Grid.  
11  In many recent cases, it has not been necessary to decide on a precise threshold to distinguish between 
customers in the different relevant product markets. Earlier Commission decisions have variously used 
thresholds based on consumption,  metering or connection type, although the precise threshold has differed 
according to  the national market concerned. S ee e.g. COMP/M.4180 GDF/Suez . 
12  COMP/M.8870 – E.ON/Innogy, COMP/M.7228 – Centrica/Bord Gais Energy ; COMP/M.5224 – 
EDF/British Energy ; COMP/M.4517 – Iberdrola/Scottish Power .   
 
 
4 Competitive assessment  
(11) The Transaction gives rise to the following affected markets13: 
(a) The supply of gas to SMEs  in Great Britain; and  
(b) The supply of gas to large industrial customers in Great Britain.  
(12) The Parties argue that the Transaction raises no competition concerns  because (i) the 
combined market shares are modest with a limited increment , (ii) post-transaction 
TOTAL will continue to face strong competition in Great Britain from a number of 
strong  suppliers , (iii) customers have countervailing buyer power, (iv) there is 
limited customer loyalty and switching is easy  and ( v) barriers to entry are low.  
(13) On the basis of the information available to it  and in the  light of the results of the 
market investigation , the Commission considers that the Transaction is unlikely to 
raise competition concerns for the following reasons.  
(14) First, the Parties have a moderate combined market share and the increment brought 
about  by the Transaction is limited.  Post-transaction the Parties’ combined market 
share will be [20-30]% in the market for the retail supply of gas to SMEs (with an 
increment of [0-5]%) and [20-30]% in the market for the  retail  supply of gas to large 
industrial customers (with an increment of [5-10]%). 
(15) Second , there is a significant number of credible alternatives to the Parties that will 
remain active in the relevant markets post -merger.  
(16) With particular regard to  the retail supply of gas to SMEs, the Parties’ competitors 
include several sizeable players some  of which are large international energy 
companies with activities in several countries: Corona Energy (with a market share 
of [10-20]%), British Gas ( [5-10]%), Gazprom Energy ( [10-20]%), SSE ( [5-10]%), 
ENGIE ( [0-5]%) and E.ON UK ( [0-5]%).  
Table 1: Market  shares in the retail supply of gas to SMEs in Great Britain (by 
volume ) 
 Volume (in GWh)  Market share  
TOTAL  […] [20-30]% 
Target  […] [0-5]% 
Combined  […] [20-30]%  
Corona Energy  […]  [10-20]% 
British Gas  […]  [5-10]% 
                                                 
13  The retail supply of gas to households is not relevant to the Transaction, as neither Party is active in that 
market .  
 
 
5  Volume (in GWh)  Market share  
Gazprom Energy  […] [10-20]% 
SSE […] [5-10]% 
ENGIE  […] [0-5]% 
E.ON UK  […] [0-5]% 
Others  […] [10-20]% 
Total  […] 100%  
Source: Parties’ estimates  
(17) Similarly, for the retail supply of gas to large industrial customers the Parties will 
continue to face competition from large international players. These include: 
Gazprom Energy - that with a share of [20-30] % will remain the largest supplier 
even post -merger, ENI ( [5-10]%), Corona Energy ( [5-10]%), E.ON UK ( [0-5]%) 
and ENGIE ( [0-5]%).  
Table 2: Market shares in the retail supply of gas to large industrial customers  
in Great Britain  (by volume ) 
 Volume  (in GWh)  Market share  
TOTAL  […] [20-30]%  
Target  […] [5-10]%  
Combined  […] [20-30]%  
Gazprom Energy  […] [20-30]% 
ENI […] [5-10]% 
Corona Energy  […] [5-10]% 
E.ON UK  […] [0-5]% 
ENGIE  […] [0-5]% 
Others  […] [20-30]% 
Total  […] 100%  
Source: Parties’ estimates  
(18) Third , the evidence gathered by the Commission consistently point s to the Parties 
not being  particularly close competitors .  
 
 
6 (a) Diversion ratios: the Parties estimated that in 2019 only a small proportion of 
all gas customers TOTAL lost across the two markets under investigation14 
diverted to Ørsted, and vice versa, evidencing that the Parties do not compete 
closely. The d iversio n ratio from Total to Ørsted in 2019 is estimated to be 
less than [0-5]%. The d iversion ratio from Ørsted to Total is larger 
(approximately [10-20]%) but it  is significantly lower  than would be 
expected if Ørsted customers diverted to TOTAL  proportionally to TOTAL’s  
market share ( approximately [20-30]%) which further points to the lack of 
any significant closeness between the Parties . 
(b) TOTAL’s internal documents : TOTAL prepares monthly internal reports that 
summarise the aggregate gains and losses across the two markets under 
investigation  for the month, as well as the year to date. TOTAL’s internal 
assessment suggests that TOTAL gains and los es volume  to a wide set of 
rivals , […]. Other [than Ørsted ] suppliers, for example, […], appear to be 
competing more closely  with TOTAL.   
(c) The Commission’s market investigation questionnaire : during the market 
investigation only one respondent indicated that it sourc ed gas from both 
TOTAL and Ørsted.15 When asked to which supplier they would switch 
should its supplier (i .e. TOTAL or Ørsted) stop supplying them , the vast 
majority of respondents did not indicate the other Party as an alternative.  The 
vast majority  of respondents submitted that they would conduct a competitive 
tender process  and would invite several suppliers to bid . In particular, 
respondents indicated that  “there are now a number of large gas suppliers in 
the UK, examples include – Centrica (Briti sh Gas), EDF Energy, Scottish & 
Southern Energy, E.ON & Scottish Power. In the absence of a full 
competitive tender process, [we are] unable to confirm which competitor it 
would be most likely to switch to in place of Total but [consider ] that there 
are a large number of credible alternatives to which it could switch ”, that “in 
the event that Total were no longer able to supply gas, we would conduct a 
tendering process for a new supplier (…) Ørsted have not been included in 
any tender process for supply of gas”, and that “in this scenario, [we] would 
conduct a tender exercise on the open market to get the best value for the 
volume of gas ”.16 
(19) Fourth, the vast majority of respondents (including both SMEs and large industrial 
customers) to the market investigati on indicated that the Transaction  would have 
little or no material impact on the intensity of competition . Several  of the  
respondents  to the Commission’s market investigation  replied that the market for gas 
supply to end customers in the UK is highly compe titive, and thus would not 
anticipate the Transaction to adversely affect competition. One of the respondents 
stated that it would not expect any impact on the intensity of competition since 
“[t]he UK Gas supply market is very competitive with multiple sup pliers available to 
provide pricing ”. Similarly , other respondents submitted that “ we do not consider 
                                                 
14  The available data refers to the meters and volumes each Party gained / lost in 2019 fo r non -domest ic gas 
customers altogether because the Parties  were not able to segment this data between SMEs  and large 
industrial customers . 
15  See questionnaire Q1 (gas customers ), replies to question 1.  
16  See questionnaire Q1 (gas customers), replies to question  2. 
 
 
7 that there will be a significant impact on the intensity of competition, due to the 
competing suppliers in the UK market and with new potential suppliers entering the 
market place ”, that “ there are several suppliers in the market for the retail supply of 
gas in the UK already, including Gazprom, SSE, BPG, Corona, British Gas, EDF, 
Eon, Scottish Power. In our view, the Transaction will not affect the intensi ty of 
competition in this market ”, and that “ this transaction is unlikely to have any impact 
on the intensity of competition. While Total has been (and continues to be) our gas 
supplier, historically we have not considered Ørsted as a potential alternative  and 
they have not been included in our tender processes for supply of gas ”.17  
(20) Fifth, in its most recent report on the State of the Energy Market (2019),18 OFGEM, 
the energy regulator  in the United Kingdom , looked  across the whole non -
domestic/business reta il segment  and noted that  there were a large number (86) of 
active licensed suppliers , the HHI19 levels were moderate20, at or just below 1,000 
for the large gas business segment and slightly above 1,000 (1,148) for the small gas 
business segment, and concen tration levels  continued to decline.  
(21) In light of the above, the Commission considers that the Transaction  does not give 
rise to serious doubts as to its compatibility with the internal market with regard to 
the retail supply of gas to SME s and large indust rial customers in Great Britain.  
5. CONCLUSION  
(22) For the above reasons, the Commission has decided not to oppose the notified 
operation and to declare it compatible with the internal  market and with the EEA 
Agreement. This Decision is adopted in application of Article 6(1)(b) of the Merger 
Regulation and Article 57 of the EEA Agreement .  
For the Commission  
 
 
(Signed)  
Margrethe VESTAGER  
Executive Vice-President  
 
                                                 
17  See questionnaire Q1 (gas customers), replies to question  5. 
18  https://www.ofgem.gov.uk/system/files/docs/2019/11/20191030_state_of_energy_market_revised.pdf  
19  The Herfindahl -Hirschman Index (HHI) measures market concentration by summing the squares of  
the market share of each player.  
20  According to its Horizontal Merger Guidelines (paragraph 19), t he Commission  “is unlikely to identify 
horizontal competition concerns in a market with a post -merger HHI below 1 000. Such markets normally 
do not require extensive analysis ”.