EN Official Journal of the European Union C 23/28

Final Report of the Hearing Officer (1)

COMP/M.5658 — Unilever/Sara Lee Body Care

2012/C 23/09

Unilever N.V. and Unilever Plc, (together hereinafter, referred to as ‘Unilever’) notified the Commission on 21 April 2010 of its acquisition of sole control of the undertaking Sara Lee Household and Body Care International (hereinafter, referred to as ‘Sara Lee’), belonging to Sara Lee Corporation by way of an irrevocable binding offer announced on 25 September 2009.

Upon examination of the notification, the Commission concluded that the notified operation falls within the scope of Council Regulation (EC) No 139/2004 (2) (hereinafter, referred to as ‘the Merger Regulation’) and that the operation raised serious doubts as to its compatibility with the internal market and the Agreement on the European Economic Area. Accordingly, on 31 May 2010, the Commission initiated proceedings and opened a Phase II investigation pursuant to Article 6(1)(c) of the Merger Regulation.

A Statement of Objections was sent to Unilever on 12 August 2010 in which the Commission set out its preliminary conclusion that the notified concentration would significantly impede effective competition in a substantial part of the common market within the meaning of Article 2 of the Merger Regulation.

After having been given access to the file, Unilever requested on 17 August 2010, inter alia, further disclosure of certain documents which it claimed had been excessively redacted. As a result, the Commission contacted the information providers and obtained, for certain documents, a less redacted version which was then provided to Unilever. The latter reserved its right to claim that its rights of defence had been impeded in light of such a deferred access to file. However, Unilever never reverted to this issue in the remaining of the procedure or sought the decision of the Hearing Officer.

Unilever replied to the Statement of Objections on 27 August 2010, without requesting an oral hearing.

I have admitted one company as an interested third party who was provided with information on the nature and subject-matter of the proceedings and was invited by the Commission to submit its comments.

Additional facts gathered by the Commission after the adoption of the Statement of Objections were presented to Unilever in a Letter of Facts sent on 1 October 2010, on which they were given the opportunity to submit observations after they had received further access to the file.

In order to render the proposed concentration compatible with the internal market, Unilever proposed a first set of commitments which were market-tested. Following the market test, the notifying party submitted a revised set of commitments which was also market tested. Unilever received access to the observations received following the market tests.

A final set of commitments were subsequently submitted which the Commission considers that it addresses the competition concerns identified in the Statement of Objections, notably in the market for non-male deodorants in Belgium, Denmark, Ireland, the Netherlands, Portugal, Spain and the UK as well as the market for male deodorants in Spain. Unilever did not raise any objection as regards the objectivity of the market test carried out by the Commission (3).

In essence, the final commitments proposal consists of a full divestiture of the Sanex business across all product categories in the EEA. This comprises in particular all Sanex trademarks in Europe owned by Unilever as well as other intellectual property rights (referred to as ‘IPRs’) which are used in or relate to the Sanex business.

Thereby, the Commission finds that the amended commitments constitute an acceptable remedy to the overall competition concerns identified in the Statement of Objections. The Commission therefore proposes to declare, pursuant to Articles 8(2) and 10(2) of the Merger Regulation, the notified concentration compatible with the internal market and with the EEA Agreement, subject to the above conditions and obligations.

No queries or submissions have been made to me by the notifying party, the other involved party or any third party. In view thereof and taking into account that the case does not call for any particular comments as regards the right to be heard, I consider that the parties' right to be heard in this case has been respected.

Brussels, 12 November 2010. Michael ALBERS

(1) Pursuant to Articles 15 and 16 of Commission Decision (2001/462/EC, ECSC) of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings (OJ L 162, 19.6.2001, p. 21).

(2) OJ L 24, 29.1.2004, p. 1.

(3) Article 14 of Commission Decision 2001/462/EC.