COMMISSION DECISION of 06/10/1999 declaring a concentration to be compatible with the common market (Case No IV/M.1689 - NESTLÉ/PILLSBURY/HÄAGEN-DAZS US) according to Council Regulation (EEC) No 4064/89 (Only the English text is authentic)

Brussels, 06.10.99

To the notifying parties

Dear Sirs,

Subject: Case No IV/M. 1689 - Nestlé/Pillsbury/Häagen-Dazs US

Notification of 3.9.1999 pursuant to Article 4 of Council Regulation No 4064/89

1. On 3.9.1999, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EEC) No 4064/89 by which the companies Nestlé USA - Food Group, Inc. ("Nestlé USA") controlled by Nestlé S.A., Switzerland, and The Pillsbury Company ("Pillsbury") acquire joint control of a newly created company constituting a joint venture, thereby merging their respective US-based ice cream and frozen desert businesses.

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

I. THE PARTIES' ACTIVITIES AND THE OPERATION

3. Nestlé USA is engaged in the manufacture, distribution and sale of frozen products, culinary products and ice cream products. Pillsbury manufactures and distributes frozen and canned products and superpremium ice cream.

4. The notified transaction combines the respective US-based ice cream and frozen dessert businesses of Nestlé USA and Pillsbury. To this end, the notifying parties will create a 50/50 joint venture to which Nestlé USA will contribute the US-based assets of its Ice Cream Division and Pillsbury will transfer the US-based assets of its Häagen-Dazs frozen dessert business with the exception of the Häagen-Dazs shop business. Neither Nestlé USA nor Pillsbury will contribute assets related to activities outside the USA to the joint venture.

II. COMMUNITY DIMENSION

5. Undertakings A and G have a combined aggregate worldwide turnover in excess of EUR 5,000 million [1] (Nestlé group, EUR 44,288 million; and Diageo/Pillsbury group, EUR 17,456 million ). Each of them has a Community-wide turnover in excess of EUR 250 million ( Nestlé group, EUR 17,692 million; and Diageo/Pillsbury group, EUR 7,197.1 million). Nestlé group and Diageo/Pillsbury group 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, but does not constitute a cooperation case under the EEA Agreement, pursuant to Article 57 of that Agreement.

[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.

III. COMPETITIVE ASSESSMENT

A. Relevant markets

6. The envisaged concentration concerns the ice cream business (including frozen desserts containing ice cream) in the USA. It is not necessary to further delineate the relevant product and geographic markets because, in all alternative market definitions considered, effective competition would not be significantly impeded in the EEA or any substantial part of that area.

B. Assessment

7. The envisaged concentration concerns the ice cream business in the USA. There are no affected markets in the EEA.

8. In view of the market position of the parties to the concentration, it appears that the notified operation will have no impact on competition in the EEA. Consequently, the proposed concentration does not create or strengthen a dominant position as a result of which effective competition would be significantly impeded in the EEA or any substantial part of that area.

V. CONCLUSION

9. For the above reasons, the Commission has decided 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,

Signed by Mario MONTI

Member of the Commission