CELEX: 32014M7216
Language: en
Date: 2014-07-10 00:00:00
Title: Commission Decision of 10/07/2014 declaring a concentration to be compatible with the common market (Case No COMP/M.7216 - REGGEBORGH / ARGOS GROUP HOLDING) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

|[pic]                             |EUROPEAN COMMISSION                                                                                      |

                                        Brussels, 10.7.2014
                                        C(2014) 4992 final

                                        [pic]

                                        |To the notifying party:                                                |                                                                       |
|                                                                       |                                                                       |

Dear Sir/Madam,

Subject:    Case No COMP/M.7216 – REGGEBORGH / ARGOS GROUP HOLDING Commission decision pursuant to Article 6(1)(b) of Council Regulation
         No 139/2004[1]

    1) On 4 June 2014, the European Commission received a notification of a proposed concentration pursuant to Article 4  of  Council  Regulation
       (EC) No 139/2004[2] by which Reggeborgh Invest B.V. ("Reggeborgh", the Netherlands) acquires within the meaning of Article 3(1)(b) of  the
       Merger Regulation sole control over the Argos Group Holding ("Argos Holding",  the  Netherlands),  by  way  of  purchase  of  shares  (the
       "proposed transaction"). Reggeborgh is hereinafter also referred to as the "Notifying Party", Argos Holding is also  referred  to  as  the
       "Target" and both Reggeborgh and Argos Holding are referred to as the "Parties".

       THE PARTIES

    2) Reggeborgh is a Dutch company active through Argos Holding in trade and supply of petroleum products for land and waterbound use, property
       development and through its controlled company Koninklijke Volker Wessels Stevin ("KVWS") in the construction services sector.

    3) Argos Holding is active in trade in and the supply of petroleum products for land and waterbound use.

    4) Argos Holding's current shareholders are Reggeborgh with [more than 50%] AEG Invest with [less than 25%], Ruby B.V.  ("Ruby")  [less  than
       20%] and Stichting Administratiekantoor with Managementsbelang NSP ("STAK") with [less than 5%].

       THE CONCENTRATIOIN

    5) According to the Notifying Party, Reggeborgh acquired sole control over Argos Holding in several steps.

       The 2011 Transaction

    6) In 2011, Reggeborgh and AEG Invest transferred the activities of their respective subsidiaries in the supply of petroleum  products  in  a
       joint venture. This joint venture initially operated under the name of North Sea Group, but was later renamed Argos Holding.

    7) The Commission cleared the transaction in its decision COMP/M.6261 North Sea Group / Argos  Groep  /  JV  dated  27  September  2011.  The
       shareholder structure was as follows:

       Reggeborgh: [more than 50%]
       AEG Invest: [more than 25%]
       Ruby:      [less than 20%]
       STAK:       [less than 5%]

    8) In its decision the Commission noted that the adoption of the Business Plan and long-term cooperation with other undertakings require  the
       prior approval of the General Assembly of Shareholders with a quorum of 75% of the share capital. The Commission therefore concluded  that
       Reggeborgh and AEG Invest (at the time Argos Energy Group) acquire joint control over Argos Holding.

       The 2013 Put-Transfer

    9) Under the 2011 Merger Agreement, AEG Invest had the contractual right to sell some of its shares in Argos Holding back to Reggeborgh ("put-
       option"). On 28 June 2013 AEG Invest exercised this put-option and transferred [less than  5%]  of  its  shares  to  a  bank,  which  then
       transferred approximately [less than 5%] of these shares to Reggeborgh and the remaining shares to Ruby. The legal transfer occurred on  4
       and 5 July 2013 (the "Put-transfer").

   10) As a result of this transaction Reggeborgh's share capital in Argos Holding increased to [more than 50%] and  the  share  capital  of  AEG
       Invest decreased to [less than 25%], namely [less than 25%] threshold granting the  power  to  veto  certain  decisions.  After  the  Put-
       Transfer, the shareholder structure was as follows:

      Reggeborgh: [more than 50%]
       AEG Invest: [less than 25%]
       Ruby:      [less than 20%]
       STAK:       [less than 5%]

   11) According to the Notifying Party, as a result of this transaction, AEG Invest lost the veto right with regard to  a  number  of  strategic
       decisions including the adoption of the Business Plan. The Notifying Party concludes that AEG  Invest  thereby  lost  its  negative  joint
       control over the joint venture. However, the Notifying Party states that  it  was  only  due  to  AEG  Invest's  unilateral  action,  that
       Reggeborgh acquired sole control over the Target.

   12) In line with paragraph 58 of the Consolidated Jurisdictional Notice[3] the Commission notes that  negative  sole  control  usually  occurs
       where only one shareholder holds 50% in an undertaking whilst the remaining 50% is held by several other shareholders.  Besides,  negative
       sole control usually occurs where there is a supermajority required for strategic decisions which confers  a  veto  right  upon  only  one
       shareholder.

   13) In the case at hand, Reggeborgh holds more than 50% of the share in the Target, whilst the remaining shares are split between three  other
       shareholders. Moreover, AEG Invest lost its veto right regarding many strategic decisions such as the adoption of the Business  Plan,  the
       nomination of directors and long-term cooperation with other undertakings. After the exercise of the Put-Transfer, Reggeborgh is the  only
       shareholders with a veto right regarding these decisions.

   14) In view of the above, the Commission considers that the exercise of the put-option by AEG Invest and the subsequent implementation of  the
       Put-Transfer, led to a change in the control structure of the Target from joint control by AEG Invest and Reggeborgh to  sole  control  by
       Reggeborgh.

   15) The change from joint control to sole control constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation.

   16) The Commission therefore considers on the basis of the information at hand, that the exercise  of  the  put-option  and  the  Put-transfer
       constitute a concentration within the meaning of Article 3(1)(b) of the Merger Regulation.

       The 2014 Transaction

   17) By way of the now envisaged transaction, AEG Invest will sell its remaining 23.67% share in Argos Holding to Reggeborgh  and  Ruby.  As  a
       result of this transaction, the shareholder structure will be as follows:

       Reggeborgh: [more than 70%]
       Ruby:      [less than 25%]
       STAK:       [less than 5%]

   18) However, the Commission considers that this transaction does not constitute a change in control, since Reggeborgh  already  acquired  sole
       control as a result of the 2013 Put-Transfer.

       EU DIMENSION

   19) The undertakings concerned have a combined aggregate world-wide turnover in 2013 of more than EUR […] million  (Reggeborgh: EUR […]million
       and Argos Holding: EUR […] million). Each of them has an EU-wide turnover in 2013 in excess  of  EUR  […]  million  (Reggeborgh:  EUR  […]
       million, Argos Holding: 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 proposed transaction therefore has an EU dimension within the meaning of Article 1(2) of the Merger Regulation.

       COMPETITIVE ASSESSMENT

   20) Reggeborgh is active in construction, civil engineering and real estate development, in the Netherlands,  Belgium  and  Germany,  the  UK,
       Canada and the United States, mainly through its subsidiary KVWS.

   21) Argos Holding is active in the international trading of bulk petroleum products and derivatives, the storage of  petroleum  products,  the
       non-retail sale of petroleum products, the retail sale of petroleum products and the bunkering of marine fuels. Its  activities  focus  on
       the Benelux and Germany but Argos Holding is also active in Switzerland, France and the United Kingdom.

   22) The transaction does not lead to any horizontally or vertically affected markets.

   23) Furthermore, the Notifying Party submits that as a result of the change from joint to sole control, the acquisition  of  sole  control  by
       Reggeborgh over Argos Holding cannot be expected to result in a different strategic competitive behaviour of Argos Holding.

   24) The Commission considers that Reggeborgh does not have incentives going beyond its interests as a financial investor in Argos Holding.  In
       particular, Reggeborgh does not compete with any activities of Argos Holding. Moreover, Argos Holding is neither  an  important  supplier,
       nor an important customer to Reggeborgh and its competitors. Therefore the Commission considers  that  Reggeborgh  has  no  incentives  to
       strategically influence the policies of Argos Holding for the benefit of its own group companies or to the detriment of competitors.

   25) In view of the above and all available evidence, the Commission considers it unlikely that the acquisition of sole control  by  Reggeborgh
       over the Target will lead to a different strategic competitive behaviour of Argos Holding. The Commission  therefore  considers  that  the
       transaction does not raise serious doubts as to its compatibility with the internal market.

       CONCLUSION

   26) For the above reasons, the European Commission has decided not to oppose the notified operation and to  declare  it  compatible  with  the
       internal market and with the EEA Agreement. This decision is adopted in application of Article 6(1)(b) of the Merger Regulation.

   27) However, in view of the facts described above with regard to the change in the quality of control, the Commission takes the view  that  an
       infringement of the stand-still obligation in Article 7(1) and of the notification requirement in Article 4(1) of  the  Merger  Regulation
       cannot be excluded in the present case and the Commission may examine in a separate procedure whether a sanction under Article  14(2)  the
       Merger Regulation is appropriate.

                                        For the Commission

                                        (signed)
                                        Joaquín ALMUNIA
                                        Vice-President

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[1]   OJ L 24, 29.1.2004, p. 1 ('the Merger Regulation'). With effect from 1 December 2009, the Treaty on the Functioning of the  European  Union
      ('TFEU') has introduced certain changes, such as the replacement of 'Community' by 'Union' and 'common market' by  'internal  market'.  The
      terminology of the TFEU will be used throughout this decision.

[2]              OJ L 24, 29.1.2004, p. 1 (the "Merger Regulation").
[3]   Commission Consolidated Jurisdictional Notice under  Council  Regulation  (EC)  No  139/2004  on  the  control  of  concentrations  between
      undertakings ("Jurisdictional Notice"), OJ C95, 16 April 2008, p.1.

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 In the published version of this decision, some information has been omitted pursuant to Article 17(2) of Council Regulation (EC)  No  139/2004
 concerning non-disclosure of business secrets and other confidential information.  The  omissions  are  shown  thus  […].  Where  possible  the
 information omitted has been replaced by ranges of figures or a general description.

                                                                  PUBLIC VERSION

                                                                 MERGER PROCEDURE