EUROPEAN COMMISSION C(2017) 5579 final

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To the notifying party: Subject:Case M.8493 - Deere/Wirtgen

Commission decision pursuant to Article 6(1)(b) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area Dear Sir or Madam, (1)On 28 June 2017 the European Commission received notification of a proposed concentration pursuant to Article 4 of the Merger Regulation by which the undertaking Deere & Company ("Deere", USA) acquires within the meaning of Article 3(1)(b) of the Merger Regulation sole control of the entire operative business of the Wirtgen Group ("Wirtgen", Germany) by way of purchase of shares and assets. Deere and Wirtgen are designated hereinafter as the 'Notifying Parties' or 'Parties' to the proposed transaction. 1.The parties (2)Deere is a US based global company manufacturing agricultural, construction and forestry machinery, industrial diesel engines and certain other components as well as lawn care equipment. Deere also offers financial services for its own equipment mainly. Deere is listed among the S&P 500 on the NYSE. (3)Wirtgen is a German based manufacturer of road construction equipment and specific mining machinery, incorporating the product brands Wirtgen, Vögele, Hamm, Kleemann, Benninghoven and Ciber, including sales and service companies. Wirtgen is active globally. 2.The operation (4)The operation consists in Deere’s purchasing of all Wirtgen shares and certain specified assets that belong to Wirtgen's current shareholder, the Wirtgen Group Holding GmbH, thus acquiring the entire operative business of Wirtgen Group. After the Transaction, Deere will thus solely control Wirtgen. 3.EU dimension (5)The undertakings concerned have a combined aggregate world-wide turnover of more than EUR 5 000 million (Deere EUR 24 020 million, Wirtgen EUR 2 589 million). Each of them has an EU-wide turnover in excess of EUR 250 million (Deere EUR […] million, Wirtgen EUR […] million), but they do not achieve more than two-thirds of their aggregate EU-wide turnover within one and the same Member State. The notified operation therefore has an EU dimension. 4.Competitive Assessment 4.1.Product market 4.1.1.Markets for construction equipment

(6)The Parties are active in different types of equipment worldwide and in the EEA. Deere is active in earth moving and material handling equipment (more specifically in excavators, loaders, levelling machines and ADTs (articulated dump trucks) and trucks, and Wirtgen specialises on specific road construction machinery (more specifically on cold milling machines, recyclers, road pavers, rollers, asphalt plants and slipform pavers) and on mining and quarries equipment (more specifically surface miners, crushers and screens). Wirtgen has one product (compactors) that could be classified into the more general earth moving and material handling segment. (7)As concerns construction equipment, Wirtgen's products are highly specialized, whereas Deere's products are of general purpose. Horizontal overlap between the Parties' activities only arises under the assumption that Deere's general earth moving and material handling equipment can potentially be employed in road construction and mining, too. (8)Therefore, a horizontal overlap could be established if the relevant product market is defined broadly as: (a)The overall market for road construction equipment that includes all earth moving and material handling equipment (excavators, loaders, levelling machines, ADTs compactors), and all specific road construction equipment (cold milling machines, recyclers, road pavers, rollers, asphalt plants, slipform pavers). (b)The overall market for mining and quarries equipment including some of the equipment for earth moving and material handling (excavators, loaders, and trucks) and also specific mining equipment (surface miners, crushers and screens). (9)A horizontal overlap can furthermore be established under a narrower market definition, considering earth moving and material handling equipment only (the market encompassing Wirtgen's compactors and Deere's excavators, loaders, levelling machines, ADTs,) (10)The Parties support the Commission's approach in several cases to distinguish between different types of equipment and define separate product markets based on functionality and application. (11)In its past practice, the Commission has not considered road construction equipment specifically but has considered construction, earth moving and material handling machinery in a large number of cases. (12)Within the broader category of construction equipment, the Commission has distinguished (i) earthmoving machines, (ii) road making machines and (iii) material handling machines, while the ultimate market definition was left open. (13)Other precedents of the Commission distinguished between heavy and light equipment, further sub-segmenting the heavy equipment into individual product types, such as heavy excavators, heavy loaders, and heavy levelling machines. A recent precedent considered an even narrower product market sub-segmenting ADT's per capacity. (14)For the purpose of this decision, the exact scope of the relevant product market can be left open as horizontally affected markets do not arise under any alternative market definition, and the delineation does not have an impact on the outcome of the market investigation. 4.1.2.The market for the distribution of machine equipment (15)The product market concerned consists of the distribution of agricultural, forestry, turf, earth moving and material handling, construction and mining equipment. (16)The Notifying Party holds that the distribution of agricultural, turf and forestry equipment is separate from the distribution of earth moving and material handling, road construction and mining equipment, as these two broad categories of equipment are not distributed through the same network. The Notifying Party submits that none of its distributors for agricultural, forestry and turf equipment would carry the expertise or would have access to the respective customers to distribute construction equipment. Regarding distribution in those segments in general, this may only very rarely be the case. Both Parties hold that the distributor needs in-depth knowledge and specific expertise of the equipment distributed. (17)With respect to a further sub-segmentation according to types of equipment, the Parties submit that their (third party) dealers generally carry different types of equipment to offer their respective customer groups a comprehensive suite of equipment which customers in the respective sector demand. For example, Deere-dealers supplement their portfolio of agricultural products with products which Deere does not manufacture or distribute in Europe but which customers from the agricultural sector demand. Similarly, many Wirtgen dealers also distribute other construction machinery, such as excavators, wheel loaders, concrete mixers, drilling machines, cranes, etc. Whenever Wirtgen distributes via its own subsidiaries, third-party equipment is only sold to an insignificant extent and not methodically. (18)The Commission in its precedents has assessed distribution network for passenger cars and held that it was downstream from the manufacture of the cars. (19)The question whether the distribution of machine equipment should be further segmented per individual types of equipment has not been explicitly addressed by Commission precedents; however, one case held that often several types of agricultural equipment were distributed together. (20)For the purpose of this Transaction, whether the relevant market should be broken down by type of equipment can be left open as it does not have an impact on the outcome of the market investigation. 4.1.3.The markets for engines and for other mechanical components (21)The Transaction further involves several components which are manufactured and sold by Deere and can be (theoretically, but are currently not) used in Wirtgen’s construction and mining equipment.

(22)The markets for the components are upstream from the manufacture of earth moving and construction and mining equipment. (23)Without any consideration of compatibility or effective suitability, eight components were identified that could potentially be used in Wirtgen equipment: I.industrial diesel engines; II.generator drive engines; III.transmissions (hydrostatic); IV.axles; V.pump drives; VI.planetary drives; VII.electronic components and; VIII.hydraulic cylinders. (24)Diesel engines generate rotary motion which can be used to perform work in different applications. Diesel engines are used in a broad range of industrial, on highway ruck, power generation and marine applications As concerns diesel engines, the Parties submit that a uniform market exists for industrial diesel engines and that a further sub-segmentation is not warranted. (25)The Commission has considered in a past case that a subdivision of diesel engines by end-use into (i) construction, (ii) earthmoving applications, (iii) material handling, and (iv) agriculture was not appropriate as the base engine is similar for all such applications and the engines for the different applications thus are interchangeable. (26)For the purpose of this decision, the exact definition of the relevant product market for engines can be left open as no serious doubts arise under any plausible product market definition. (27)As regards the other seven components manufactured by Deere, the Parties submit that these constitute already the narrowest possible products markets, therefore no need arises to consider the market definition for each of these products in greater detail. If separate markets were to be defined by each component, Deere would have a minor market position on such markets, both on a global ([0-5]%) and an EU-wide scale ([0-5]%). (28)For the purpose of this Transaction, the exact product definition of the eight components can be left open as it does not have an impact on the outcome of the market investigation. 4.1.4.The neighbouring market for leasing services (29)Deere is active in equipment financing solutions with equipment leasing, equipment loans and parts and services financing, which post-Transaction could also be provided for Wirtgen products. (30)The Parties submit that no need arises to draw ultimate conclusions with respect to the exact scope of the relevant market since under all conceivable approaches to market definition Deere’s market share for financing services is [0-5]%. (31)In its past practice, the Commission has considered leasing solutions to be a separate relevant product market and further considered to distinguish between (i) operating leasing, financial leasing and car fleet leasing; (ii) by type of assets; or (iii) by size of customers. (32)For the purpose of assessing the Transaction, the exact scope of the relevant product market can be left open as it does not have an impact on the outcome of the market investigation.

4.2.Geographic market 4.2.1.Markets for construction equipment (33)The Parties submit that in view of the fact that mining equipment is almost always of large scale and that transportation costs are of very limited relevance (compared to the value of the products), the product market for construction equipment is global. (34)In its past practice, the Commission has defined the markets for construction equipment and earth moving and material handling machinery as at least EEA-wide in scope. (35)For the purpose of this Transaction, the exact geographic definition for construction equipment can be left open as it does not have an impact on the outcome of the market investigation. 4.2.2.The market for the distribution of machine equipment (36)The Commission precedent concerning the distribution network for passenger cars considered national markets, however, left the exact definition of the geographic market open. (37)For the purpose of this Transaction, the exact geographic definition of the market for the distribution of machine equipment can be left open as it does not have an impact on the outcome of the market investigation. 4.2.3.Markets for engines and for other mechanical components (38)As regards engines, the Parties submit that the market is at least EEA-wide. (39)The Commission has in previous decisions considered that the relevant geographic market for diesel engines is at least EEA-wide but that it could not be excluded that it is even wider and that it is a global market. (40)For the purpose of this Transaction, the exact geographic definition can be left open as it does not have an impact on the outcome of the market investigation. (41)As regards the seven other components, the Parties submit that no need arises to consider market definition for each of these products in greater detail and that if separate markets were to be defined by type of component, Deere would have a minor market position on such markets, both on a global ([0-5]%) and EU-wide scale ([0-5]%). (42)In its past practice, the Commission has not assessed the geographic market pertaining to these components. However, seen their generic nature and the low cost of transportation they require the relevant geographic market could be considered either EEA-wide or global. (43)For the purpose of this Transaction, the exact geographic definition of the market for engines and other mechanical components can be left open as it does not have an impact on the outcome of the market investigation. 4.2.4.Markets for leasing services (44)The Parties submit that the market for leasing services is national. In its past practice, the Commission has considered the markets for leasing services as generally (at least) national in scope. (45)For the purpose of this Transaction, the market for leasing will be considered as national. 4.3.Competitive assessment 4.3.1.Overview

(46)The Transaction does not lead to horizontally affected markets. (47)Vertical effects are assessed relating to: (a)Deere's manufacture of components upstream and Wirtgen's manufacture of road construction equipment downstream. Although Deere has marginal positions in the manufacture and sale of each of these components, the Transaction leads to eight vertically affected markets due to the fact that Wirtgen has higher than 30% market share in road construction equipment (where Deere is not active). (b)The Parties' distribution networks that could potentially be combined and lead to affected markets due to the fact that Wirtgen has higher than 30% market share in road construction equipment (where Deere is not active). (48)Conglomerate effects are assessed relating to: (a)The financial leasing services that Deere currently provides for its equipment and the potential future offer of those financing services in conjunction with Wirtgen's products. Although Deere has a small market presence in financial leasing services and only provides these services captively for its own equipment, Wirtgen has a strong position in road construction equipment and certain of its products are viewed as particularly important with few relevant alternatives. (b)The Parties' broad product portfolios and the potential bundling and tying of the individual products. 4.3.2.No horizontally affected markets (49)A horizontal overlap only arises when assuming that some of Deere's earth moving and material handling equipment could potentially be used in road construction and in mining. (50)Under these two hypothetical, broad markets the combined market shares of the Parties would remain low ([5-10]% worldwide and [5-10]% EU-wide for overall road construction and [0-5]% worldwide and [5-10]% EU-wide for overall mining equipment), and would not lead to affected markets. (51)On the narrower market encompassing Deere's earth moving and material handling machines and including Wirtgen's compactors, combined market shares do not lead to affected markets ([0-5]% worldwide and [0-5]% EU-wide). (52)If, in line with Commission precedents, narrower market segments broken down by product functionality or application are considered, there is no horizontal overlap at EU and EEA level, as displayed in Table 1 below. Table 1 - Deere's and Wirtgen's product portfolio Source: The Notifying Party 4.3.3.Vertical links 4.3.3.1.Vertical link between Deere's components and engines and Wirtgen's road construction equipment (53)Although Wirtgen does not source any components from Deere, a number of Deere's components could theoretically be used in Wirtgen’s equipment, the relevant types of components being industrial diesel engines, generator drive engines, transmissions (hydrostatic), axles, pump drives, planetary drives, electronic components (including display modules, telematics components and controls). (54)Vertically affected markets arise due to Wirtgen's relatively high EEA market share ([50-60]% volume based and [40-50]% value based) in road construction equipment (where only Wirtgen is active) or on the narrower markets for specific road construction equipment of Wirtgen namely road pavers ([70-80]% market share), cold milling machines ([90-100]% market share), recyclers ([90-100]% market share), rollers ([30-40]% market share) and slipform pavers ([90-100]% market share) and Deere's manufacturing of certain components.

(55)Vertically affected markets arise also in relation to Wirtgen's manufacture of surface miners, which is highly specialised equipment, sold only sporadically, where Wirtgen has [90-100]% market share in the EEA. Should this narrowest market be considered, the Transaction leads to vertically affected markets with Deere's manufacturing of certain components. (56)The potential vertical overlaps between Deere's components and Wirtgen's equipment are displayed in Table 2 below. Table 2 - vertical overlaps between Deere's components and Wirtgen's equipment Source: The Notifying Party (57)However, for each of these components, Deere has a small market position of [0-5]% globally (in each case) and [0-5]% in the EU. The Parties' views (58)The Parties argue that Deere's sales of these components on the merchant market is small and further submit that an input foreclosure scenario is the more unlikely as Deere has been marketing ca. […]% of its component production to competing OEMs already pre-Transaction, while the rest is used by Deere captively. (59)The Parties also submit that Wirtgen has been sourcing components from a large range of manufacturers, including its competitors, such as […]. The Commission's assessment (60)As regards input foreclosure, the Commission considers that Deere would not have the ability to foreclose components to Deere's or Wirtgen's competitors upstream, as Deere's position on the merchant market for these components is marginal and the components are widely available from other manufacturers. (61)Concerns relating to customer foreclosure are also unlikely to arise as the components can be sold in a wide array of equipment, where Wirtgen with its road construction and mining equipment represent only a small fraction of the total demand. In addition, Wirtgen would not be able to source its entire demand for components from Deere only, also considering that compatibility considerations have not been assessed as Wirtgen is currently not a customer of Deere. (62)Therefore, it is unlikely that the Transaction could raise foreclosure concerns related to the vertical link between Deere's component manufacturing and Wirtgen's manufacture of road construction equipment. 4.3.3.2.Vertical link between the Parties' distribution networks and the Parties' equipment manufacturing (63)Deere distributes its products through a third party distributor network, which consists of […] dealer groups and limited company owned distribution. Wirtgen on the other hand has its in house sales network but also employs third party distributors. (64)A competitor of Wirtgen expressed the concern that as a result of the Transaction, Wirtgen will be able to access and benefit from the large dealership network of John Deere dealers across the EEA. The competitor who itself has a more limited distribution network, fears that after the Transaction it won’t be able to access Deere distributors in the US, Canada and potentially in the EEA for the sales of its products and therefore it will be squeezed out from the market for cold milling machines and road pavers where Wirtgen has significant market power. The Parties' views (65)The Notifying Party affirms that Deere's distributors are fully independent and non-exclusive and on average, their sales of non-Deere products, which are Deere's competitors' products, account for […]% of the sales of Deere-dealers in the EEA. (66)In the EEA, the Notifying Party explains, Deere distributors do not distribute any construction equipment and the named competitor has not been distributing its products through the Deere dealer network. (67)The Notifying Party adds that in general Deere's distributors are specialized in agricultural products and they do not carry nor have expertise in relation to construction products. It is therefore unlikely that they would be able to distribute even Wirtgen's construction equipment in the future. The distribution of agricultural and construction equipment is kept separate by dealers and their customer groups are different. The Commission's assessment

(68)The market investigation has confirmed that such a foreclosure strategy by Deere is unlikely in the EEA. (69)Market participants have not expressed concerns that the Transaction could negatively affect their ability to distribute their products. Competitors confirmed that they also distributed their products through either independent third party distributors or a combination between own and third party distribution and regarded these as sufficiently wide dealer coverage. (70)In general, customers believed that the Transaction did not have any impact on their businesses. One customer was concerned about the already powerful position of Wirtgen in cold milling machines and road pavers and without substantiating the Transaction's impact specifically feared that competing suppliers could potentially exit that market. However, at the same time, a competitor responding to the market investigation confirmed its plans to enter the market for cold milling machines specifically in 2018. Another competitor added that they were on the other hand already active in road pavers and considered further expansion. (71)Distributors did not see any impact, neither on their businesses nor on the market for cold milling machines or road pavers following the Transaction. (72)The Commission considers that the Parties would not have the ability to foreclose construction equipment manufacturers to access Deere's distribution networks as Deere does not have market power on the purchasing market for distribution services, as Deere uses distributors specialised on the agricultural equipment segment, which is a fraction of the total number of equipment distributors, therefore, and as the market investigation equally confirmed, there are alternative third party distributors available for the distribution of cold milling machines and road pavers specifically. (73)Therefore, it is unlikely that the Transaction could raise foreclosure concerns related to the vertical link between Deere's distribution network and Wirtgen's manufacture of road construction equipment. 4.3.4.Conglomerate considerations 4.3.4.1.The link between Deere's financing services (leasing services) and Wirtgen's road construction equipment (74)Deere offers leasing services for its entire product portfolio. [confidential information in relation to Deere’s strategy] (75)A competitor of Wirtgen in the road construction segment expressed concerns that Deere's in-house capacity for leasing services, when extended to Wirtgen products, could further strengthen Wirtgen's position in road construction equipment, squeezing out the remaining competitors: Through Deere's in-house capacity, the leasing services offered to Wirtgen customers post-Transaction will be more advantageous than the terms of a third party financial services provider, enabling Wirtgen to offer its products at an even more attractive conditions and gain additional market share. Thus, according to this competitor, the Transaction would reinforce a dominant position in certain specific types of equipment such as road pavers or cold milling machines where Wirtgen has very high market shares ([70-80]% and [90-100]% respectively in the EEA), (76)The competitor submits that financing of construction equipment is key for customers in the construction sector, who often have weak own financial resources and that more than 60-70% of construction equipment sold in the EEA is financed by such means. (77)The competitor further alleges that Wirtgen is in an exclusive partnership with Deutsche Leasing, the biggest independent provider of lease agreements. Therefore, the competitor fears that this privileged partnership combined with Deere financial services would further constrain competitors who cannot use Deutsche Leasing and would be forced to use other generalist financing service providers which are smaller, less specialized and generally offer less favourable conditions.



The Parties' views (78)The Parties submit that this will not give rise to competition concerns for several reasons. (79)First, Deere has been providing this service mostly to finance its own equipment and marginally to third parties, only in cases where the Deere equipment is sold by a distributor together with the equipment of another manufacturer and the whole package is financed by Deere. Deere estimates its market position to be [0-5]% for overall operating and financial leasing services in any of the countries where Deere is active. (80)Second, the Parties note that all major equipment manufacturers, such as Caterpillar or Volvo, have their in-house leasing provider. (81)Third, the Parties add, that in the EEA, only […]% of Wirtgen’s new machines are sold with financing solutions. (82)Fourth, whereas Wirtgen indeed has a […] working relationship with Deutsche Leasing, in view of the choices made by Wirtgen’s customers in 2016, it appears that customers are free to choose among a large variety of financing service providers for Wirtgen products. Deutsche Leasing provided […] of the financing activities sold with Wirtgen's cold milling machines and pavers in 2016 and for each product more than 50 and 80 financing providers, respectively, were used by customers to finance their Wirtgen cold milling machines and pavers. (83)Fifth, third-party banks offering financing services generally operate on a significantly larger scale than Deere and offer a broad range of financing solutions to a multitude of customers in various sectors. Consequently, such banks have economies of scale and scope, which captive financing divisions do not necessarily have.