COMMISSION DECISION of 06/05/1999 declaring a concentration to be compatible with the common market (Case No IV/M.1502 - KUONI / FIRST CHOICE) according to Council Regulation (EEC) No 4064/89 (Only the English text is authentic)

Brussels, 06.05.1999

SG(99)D/3306

To the notifying parties

Dear Sirs,

Subject: Case No IV/M.1502- KUONI/FIRST CHOICE

Notification of 31 March 1999 pursuant to Article 4 of Council Regulation No 4064/89

1. On 31 March 1999, The Commission received a notification of a proposed concentration by which Kuoni Reisen Holding AG ("Kuoni") and First Choice Holidays PLC ("First Choice") undertake a full legal merger within the meaning of Article 3(1)(a).

2. After examination of the operation the Commission, has concluded that the notified operation falls within the scope of the Council Regulation No 4064/89 and does not raise serious doubts as to its compatibility with the common market and the functioning of the EEA Agreement.

I. THE PARTIES

3. Kuoni is a public company established in Switzerland. It is the holding company of the Kuoni group, which operates world-wide in travel services. First Choice is a UK based company listed on the London Stock Exchange. It is mainly active as a tour operator in the UK, Ireland and Canada. The First Choice group also operates a charter airline ("Air2000) and a travel agency business.

II. THE OPERATION AND THE CONCENTRATION

4. The notified operation constitutes a concentration within the meaning of Article 3(1)(a) of the Merger Regulation. The operation will consist of two steps: first a new UK company, listed in the London and Swiss Stock Exchanges will be formed (Kuoni Holdings Plc). The new company will then make a take-over offer for Kuoni under Swiss laws and a take-over offer for First Choice under the UK's City Code on Takeovers and Mergers.

III. COMMUNITY DIMENSION

5. The joint world-wide turnover of the undertakings concerned exceeds EUR 5 billion (1). (EUR [ ] billion for First Choice and EUR [ ] billion for Kuoni). Each of the undertakings have a Community-wide turnover in excess of EUR 250 million (EUR [ ] for First Choice and EUR [ ] for Kuoni), but they do not achieve more than two-thirds of their aggregate Community-wide turnover within one and the same Member State. The notified operation therefore has a Community dimension.

(1) Turnover calculated in accordance with Article 5(1) of the Merger Regulation and the Commission Notice on the calculation of turnover (OJ C66, 2.3.1998, p25). To the extent that figures include turnover for the period before 1.1.1999, they are calculated on the basis of average ECU exchange rates and translated into EUR on a one-for-one basis.

IV. COMPETITIVE ASSESSMENT

A. Relevant product markets

6. The sectors involved in the operation are those of business and leisure travel services. However only Kuoni is active in the business travel sector therefore the only overlap takes place within the leisure travel services sector and business travel services will not be considered further. In previous decisions the Commission has regarded leisure travel services and business travel services as distinct markets (2).The following markets can be distinguished within the leisure travel service industry:

(2) Decision IV/M.229 - Thomas Cook/LTU/WestLB of 14.07.1992

a) Tour operators

7. Tour Operators assemble holidays as packages of accommodation and return travel, (so called "package holidays"). Package holidays, either domestic or with a foreign destination, may be defined as packages involving both return transport between the point of origin and a destination and accommodation in the destination point. Kuoni is not active in domestic package holidays in the U.K. or Ireland, and First Choice has only a "de minimis" presence in UK domestic holidays; therefore foreign package holidays are the relevant market in the present case. It seems clear that in the UK domestic package holidays do not compete with foreign package holidays, given differences of climate, culture, prices, etc The majority of package holidays having for destination a foreign country usually involve travel by air using mainly charter flights. In previous decisions the Commission has defined an overall market for foreign package holidays; further segmentation cannot be excluded e.g. short-haul , long-haul destinations, but is not required for the purposes of this case given the low market shares of the parties (see below).

b) Travel agents

8. Travel agents act as retailers. They generally act as an agent of a tour operator principal and are remunerated by a commission on the price of the holidays sold. Travel agencies also supply other products such as air flights, either charter or scheduled, hotel and other accommodation bookings, car rental, insurance and other travel related services. There is no horizontal overlap in the current case in this market, and the market is considered below only from the point of view of vertical integration, and only as far as foreign package holidays are concerned.

c) Charter airlines

9. Charter airlines exist primarily to serve tour operators, particularly in the most popular sectors of the foreign holiday market. Charter airlines operate between the country of origin and the airports closest to major holiday destinations. The choice of routes and the frequency of flights is dictated by demand from tour operators. Charter airlines will change flying patterns to reflect changes in demand for foreign package holidays to particular destinations. Charter airlines generally expect a tour operator to buy blocks of seats for at least a holiday season. In previous decisions the Commisison has defined an overall market for charter airline services; further segmentation cannot be excluded (e.g. short-haul, long-haul destinations), but is not required for the purposes of this case since the market is considered below only from the point of view of vertical integration.

10. The major tour operators in the U.K. travel market are vertically integrated, each with its own charter airline. Therefore, when assessing the charter airline market, it has to be borne in mind that self-supply of charter airline services is not part of the market, which latter consists of sales to third-parties.

B. Relevant geographic markets.

11. The Commission has accepted in previous decisions that the markets within Europe for the supply of foreign package holidays are still essentially national in character (3). Tour operators in a Member State sell packages with a point of departure in that member state and market them to residents of that member state. Travel agents in turn market nationally within their Member States. Charter airline services can also be regarded as national in character, as they fly out of and return to their country of origin and licensing. There are a number of practical obstacles which would make it difficult for a traveller resident in Member State A to book a package holiday with a tour operator or travel agent resident in Member State B. Quite apart from the lack of information about what is available (i.e. access to brochures or foreign tour operators and travel agents), linguistic differences can cause problems in terms of understanding exactly what is included in the price. In addition, there are legal complications due to the fact that the contract would normally be governed by the law of residence of the foreign tour operator or travel agent, thus making it difficult for the traveller to seek redress in the event of a complaint. A further inconvenience arises from the fact that the traveller would have to make his or her own arrangements to the point of departure in the territory of the foreign tour operator or travel agent.

(3) For example Havas Voyage/American Express (IV/M.564), TCG/LTU/West LB (IV/M.229), West LB/TCG (IV/M.350), Waons-Lits/Carlson (IV/M.867), Westdeutsche Landesbank/Carlson/Thomas Cook (IV/M.1341)

C. Competitive assessment.

12. First Choice is active in all three above-mentioned product markets although only in the UK and Ireland within the EU. Kuoni is active in the tour operator and travel agent markets within the EU, only in Germany, Denmark, France, Italy, the Netherlands, Austria, Spain and Greece and in the UK Kuoni is active in tour operating only. Taking into account the national scope of these markets the only market where the parties activities overlap will be the UK tour operator market.

13. As noted in previous Commission decisions (4) the U.K. leisure travel sector, is characterised by a degree of vertical integration, whereby the major operators are each active in all three of the above mentioned markets, that is, tour operating, travel agencies and charter airline services. Thus a single operator will produce leisure travel packages, operating on in-house charter flight capacity, and sold through in-house travel agencies to members of the public.

(4) IV/M.1341 - Westdeutsche Landesbank/Carlson/Thomas Cook

a) Horizontal aspects; the U.K. tour operator market

14. In previous decisions (5) the Commission has used for the purpose of market share calculations, annual statistics produced by the British National travel Survey (also used by the U.K. Merger and Monopolies Commission report on U.K. Foreign Package Holidays (6)). Other sources are AC Nielsen and the U.K. Civil Aviation Authority. According to the source used, First Choice had between 8% and 15% of the UK tour operator market in 1998; whatever the source used, Kuoni had about 1% of this market in 1998, giving a combined share of the market for the merging parties of between 9% and 16%, well below that of strong competitors such as Thomson, the market leader with between 20% and 25%.

(5) IV/M.1341 - Westdeutsche Landesbank/Carlson/Thomas Cook

(6) CM 3813, December 1997

b) Vertical aspects

15. As noted above, the major UK tour operators tend to be vertically integrated into travel agencies and charter airlines.

16. As far as the U.K. travel agency market is concerned, First Choice's share (in terms of agency outlets) is less than [ ]%. It is reliant on its competitors' travel agencies to sell its own package holidays, and conversely sells its competitors' holidays through its own agencies.

17. As far as the U.K. charter airline market is concerned, First Choice uses about two-thirds of its in-house airline ("Air 2000") capacity for its own customers, selling the remaining third to its competitors; conversely, about two-thirds of First Choices' charter airline needs were met by Air 2000, the remaining third being met by third parties. The Commission's investigation has revealed that First Choice, through Air 2000, does not have more than about [ ]% of the markets for the sale of charter airline capacity to third parties. To the extent that the combined entity might re-orientate its strategy toward using in-house charter airline and travel agency capacity to meet the needs of existing Kuoni customers, rather than purchase capacity from third parties, this would liberate that capacity from third parties and render it available to customers who have hitherto purchased from First Choice. Moreover, the total demand of the merged entity for charter flight and travel agency capacity (whether sourced "in-house" or from third parties) will in any event be a function of, and limited by, the volume of its tour operating activities, which, as stated above, currently represent only at most [ ]% of the total U.K. market.

18. In conclusion, the vertical integration of the combined entity would not create significant foreclosure effects on the relevant markets.

19. In the course of its examination of the proposed merger, the Commission also investigated the likely degree of combined buying power of the merged entity on the procurement market for hotel accommodation at EEA holiday destinations, but found that no individual hotel owner questioned had significant proportions of his business with the parties and that therefore there was no possibility of the creation of dominance.

V. CONCLUSION

20. For the above reasons, the Commission decides not to oppose the notified operation and to declare it compatible with the common market and with the EEA Agreement. This decision is adopted in application of Article 6(1)(b) of Council Regulation (EEC) No 4064/89.

For the Commission,