Opinion of the Advisory Committee on Concentrations given at the 102nd meeting on 19 October 2001 concerning a preliminary draft decision relating to case COMP/M.2416 - Tetra Laval/Sidel

(2004/C 39/03)

(Text with EEA relevance)

1. The Advisory Committee agrees with the Commission that the notified operation constitutes a concentration within the meaning of Article 3(1)(b) of the EC Merger Regulation and Article 57 in the EEA agreement.

2. The Advisory Committee agrees with the Commission that the notified operation has a Community dimension within the meaning of Article 1(2) of the EC Merger Regulation.

3. A majority of the Advisory Committee agrees with the Commission that PET and carton packaging systems belong to distinct but closely related neighbouring markets. A minority disagrees.

4. A majority of the Advisory Committee agrees with the Commission that on the level of equipment (carton machines or PET filling machines) the market should be segmented into (a) aseptic and (b) non-aseptic packaging systems and further by end use, in particular sensitive products. A minority disagrees.

5. The Advisory Committee agrees with the Commission that within the PET packaging sector there are the following relevant product markets:

- low capacity SBM machines,

- high capacity SBM machines,

- barrier technologies, including multilayer, plasma, barrier coating and monolayer,

- aseptic PET filling machines,

- non-aseptic PET filling machines,

- PET preforms divided into standard and barrier preforms.

6. The Advisory Committee agrees with the Commission that within the carton packaging sector there are the following relevant product markets:

- aseptic carton packaging machines,

- aseptic cartons,

- non-aseptic carton packaging machines,

- non-aseptic cartons.

7. The Advisory Committee agrees with the Commission that the relevant geographic market for all the above product markets is the EEA.

8. The Advisory Committee agrees with the Commission that the notified operation will create a dominant position in the market for PET packaging equipment, in particular SBM machines used for sensitive product segments in the EEA.

9. A majority of the Advisory Committee agrees with the Commission that the notified operation will strengthen a dominant position in aseptic carton packaging equipment and aseptic cartons in the EEA.

10. However, a minority of the Advisory Committee wish to qualify that they retained doubts that a case has been made to support the leveraging theory.

11. A majority of the Advisory Committee agrees with the Commission that the commitments submitted by the parties on 9 October 2001 will not remove all the competition concerns of the notified operation as identified above and in the draft decision.

12. A minority disagrees because they considered that the two divestment commitments remove all the competition concerns of the notified operation as identified above and in the draft decision.

13. A majority of the Advisory Committee agrees with the Commission that the notified operation shall be declared incompatible with the common market and the functioning of the EEA Agreement. A minority disagrees.

14. The Advisory Committee asks the Commission to take account of all points raised during the meeting and recommends the publication of its opinion in the Official Journal of the European Union.