CELEX: 32019M9319
Language: en
Date: 2019-06-26 00:00:00
Title: Commission Decision of 26/06/2019 declaring a concentration to be compatible with the common market (Case No COMP/M.9319 - DP WORLD / P&O GROUP) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

EUROPEAN COMMISSION
                                                               Brussels, 26.6.2019
                                                               C(2019) 4921 final
                                                                                 PUBLIC VERSION
                                                                 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                                                                 information omitted has been replaced by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.
                                                               To the notifying party
Subject:            Case M.9319 – DP World / P&O Group
                    Commission decision pursuant to Article 6(1)(b) of Council Regulation
                    No 139/20041 and Article 57 of the Agreement on the European Economic
                    Area2
Dear Sir or Madam,
(1)       On 17 May 2019, the European Commission received notification of a proposed
          concentration pursuant to Article 4 of the Merger Regulation by which DP World
          FZE (United Arab Emirates),3 part of the DP World PLC group (“DP World”,
          United Arab Emirates), acquires within the meaning of Article 3(1)(b) of the Merger
          Regulation sole control of the whole of Dubai Ferries Holding FZE (“P&O Group”,
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 1, 3.1.1994, p. 3 (the 'EEA Agreement').
3    DP World FZE is wholly owned by DP World PLC, which is an undertaking incorporated in Dubai
     (United Arab Emirates) and is 80.45% indirectly owned by the Government of Dubai, with the remaining
     19.55% shareholding listed on NASDAQ Dubai. DP World PLC regards itself as an economic unit with
     independent power of decision-making from the rest of other entities ultimately owned by the Government
     of Dubai.
Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE
Europese Commissie, DG COMP MERGER REGISTRY, 1049 Brussel, BELGIË
Tel: +32 229-91111. Fax: +32 229-64301. E-mail: COMP-MERGER-REGISTRY@ec.europa.eu.
 ---pagebreak---         United Arab Emirates) by way of a purchase of shares (“the Transaction”).4 DP
        World and P&O Group are collectively referred to as the “Parties”.
1.      THE PARTIES
(2)     DP World, which is majority-owned by the Government of Dubai, is a worldwide
        operator of marine terminals and other port infrastructure. Its terminals handle
        general and bulk cargo, roll-on/roll-off and load-on/load-off vessels and passengers.
        DP World also provides cargo handling and logistics services, that is to say, the
        discharging and loading of vessels and related activities, such as handling of trucks /
        rail / barges, warehousing, container repair and container storage. Following its
        recent acquisition of sole control over Unifeeder5, DP World is also active in the
        provision of maritime transportation services for containerised goods in Northern
        Europe and the Mediterranean.
(3)     P&O Group is active in the operation of cargo and passenger ferries in the United
        Kingdom, Ireland and Northern Europe (primarily Benelux & France) through P&O
        Ferries Holdings Limited (“P&O Ferries”), and the provision of freight forwarding
        and logistics services on a pan-European basis through P&O Ferrymasters Holdings
        Limited (“P&O Ferrymasters”). In addition, P&O Ferrymasters has a vertically
        integrated trailer and intermodal division, which provides road and rail services, both
        to P&O Ferrymasters’ freight forwarding division and third parties.
(4)     P&O Group is indirectly owned by the Government of Dubai. In previous decisions6,
        the Commission considered DP World as an undertaking independent of other
        entities ultimately owned by the Government of Dubai. P&O Group therefore
        represents an undertaking separate from DP World.
2.      THE OPERATION
(5)     Pursuant to a share purchase agreement signed on 20 February 2019, DP World will
        purchase the entire issued share capital of P&O Group. As a consequence, DP World
        will acquire sole control over P&O Group.
(6)     In light of the above, the Transaction constitutes a concentration within the meaning
        of Article 3(1)(b) of the Merger Regulation.
3.      EU DIMENSION
(7)     The undertakings concerned have a combined aggregate world-wide turnover of
        more than EUR 5 000 million7 (DP World: EUR 5 854 million; P&O
        Group: EUR […] million). Each of them has an EU-wide turnover of more than
        EUR 250 million (DP World: EUR […] million; P&O Group: EUR […] million),
4   Publication in the Official Journal of the European Union No C 179, 24.05.2019, p. 20.
5   Case M.9093 – DP World Investments/Unifeeder.
6   Cases M.6060 – Citigroup/Public Sector Pansion Investment Board/DP World D/P World Australia/JV;
    M.6913 – DP World/Goodman/DP World Asia; M.9093 – DP World Investments/Unifeeder.
7   Turnover calculated in accordance with Article 5 of the Merger Regulation and the Commission
    Consolidated Jurisdictional Notice (OJ C 95, 16.4.2008, p. 1).
                                                          2
 ---pagebreak---         but they do not achieve more than two-thirds of their aggregate EU-wide turnover
        within one and the same Member State.
(8)     The Transaction therefore has an EU dimension within the meaning of Article 1(2)
        of the Merger Regulation.
4.      MARKET DEFINITION
(9)     DP World and P&O Group are both active on the markets for:
         (i)    intra-European door-to-door multimodal transport services and
         (ii)   short-sea container shipping services.
(10)    In addition, two vertical relationships arise from the Transaction:
        (iii)   P&O Ferrymasters’ (P&O Group) freight forwarding (downstream) and
                Unifeeder’s (DP World) LoLo short-sea container shipping services
                (upstream), and
        (iv)    Unifeeder’s (DP World) short-sea container shipping services (downstream)
                and P&O Ferrymasters’ (P&O Group) road and/or rail container transport
                services (upstream).
  4.1.    Intra-European door-to-door multimodal transport services
4.1.1. Relevant product market
(11)    Door-to-door multimodal transport services consist in taking up cargo at an agreed
        point and delivering it to another agreed point. Customers decide where the point of
        loading and point of delivery are situated and transport services providers adapt to
        this. As the cargo is containerised, it can travel on vessels, trucks, trains and barges.8
(12)    The Parties submit that the relevant market is the market for the provision of intra-
        European door-to-door multimodal transport services. According to the Parties,
        different modes of transport for intra-European volumes are generally substitutable
        from the perspective of end customers.9
(13)    In a prior decision, the Commission noted that sea vessel operators, truck, rail and
        barge companies offering door-to-door transport ultimately compete on the provision
        of multimodal transport services, as transport operators often need to combine
        different modes of transport in order to provide a full door-to-door service.
        Therefore, the Commission concluded that there is a market for door-to-door
        transport services, including all modes of transportation.10
(14)    In the present case, the Commission will assess the effects of the Transaction on the
        market for intra-European door-to-door multimodal transport services.
8   Case M.7523 – CMA CGM/OPDR, paragraph 24.
9   Form CO, paragraph 56.
10 Case M.7523 – CMA CGM/OPDR, paragraph 31.
                                                     3
 ---pagebreak--- 4.1.2. Relevant geographic market
(15)    In previous cases, the Commission considered that the market for door-to-door-
        multimodal transport services could be defined on a trade basis, by aggregating
        country pairs (e.g. Northern Europe to British Isle), or on a country pair basis, (e.g.
        Germany to the UK).11 Ultimately, the Commission left the geographic market
        definition open.12
(16)    The Parties consider the geographic scope of the market to be Northern Europe, but
        acknowledge that the Commission has previously considered narrower market
        definitions.13
(17)    For the purpose of this assessment, the exact geographic scope of the market for
        door-to-door multimodal container transport services can be left open, since the
        Transaction would not raise serious doubts as to its compatibility with the internal
        market under any plausible geographic market definition.
4.1.3. Conclusion
(18)    Therefore, for the purpose of this decision, the Commission considers the relevant
        market to be the one for intra-European door-to-door multimodal transport services,
        to be assessed on the basis of the narrower geographic market, that is, on the
        country-by-country basis.
  4.2.    Short-sea container shipping services
4.2.1. Relevant product market
(19)    Short-sea container liner shipping involves the provision of regular, scheduled intra-
        continental (usually, costal trade) services for the carriage of cargo by container liner
        shipping companies.
(20)    In its prior decisional practice, the Commission has left open whether shipping
        services should be part of a broader door-to-door multimodal transport services
        market.14 Should a separate market for shipping services exist, the Commission has
        concluded that (i) container shipping is distinct from non-containerised shipping
        (such as bulk shipping), (ii) short-sea container shipping is distinct from long-sea
        container shipping (i.e. deep-sea shipping), (iii) container liner shipping (scheduled
        service) is different from non-linear shipping (that is, charter, tramp or specialised
        transport services).
11  Cases M.9093 – DP World Investments/Unifeeder, paragraph 25 and M.7523 – CMA CGM/OPDR,
    paragraphs 36 and 37.
12 Cases M.9093 – DP World Investments/Unifeeder, paragraph 27 and M.7523 – CMA CGM/OPDR,
    paragraph 37.
13 Form CO, paragraph 78.
14 Cases M.9093 – DP World Investments/Unifeeder, paragraph 31; M.8330 – Maersk Line/HSDG,
    paragraph 19; M.7523 – CMA CGM/OPDR, paragraph 48.
                                                   4
 ---pagebreak--- (21)   The Commission has also considered, but ultimately left open, whether a distinction
       should be made between reefer (that is, refrigerated) and non-reefer (that is, not
       refrigerated) services.15
(22)   The Commission has also to date left open whether the transport of wheeled
       container cargo on ferries (“RoRo”) should be considered as a different product
       market from the transport of lift on - lift off (“LoLo”) container cargo on container
       vessels.16
(23)   Finally, the Commission has also considered, but left open, whether feeder services,
       i.e. transport of cargo between hub ports and (smaller) outports, should be
       considered as part of the short-sea container transport services market or as a
       separate product market.17
(24)   The Parties submit that short-sea container shipping services should be regarded as
       part of a broader market for intra-European door-to-door multimodal container
       transport services, encompassing all modes of transport.18
(25)   However, the Parties argue that, if short-sea container shipping services were to be
       considered as a separate market, then RoRo and LoLo short-sea container shipping
       services should be considered as distinct sub-segments. RoRo ferries transport
       wheeled cargo and the relevant vessels have built-in ramps for the “rolling-on” and
       “rolling-off” of the cargo. On LoLo ferries, cargo is transported in containers that are
       loaded and unloaded by cranes. Therefore, LoLo vessels must be called in at
       terminals with LoLo facilities, primarily container cranes, whereas RoRo terminals
       do not require such cranes. The Parties therefore conclude that LoLo and RoRo
       vessels differ in structure and are not substitutable.19
(26)   Furthermore, the Parties submit that feeder services should be considered as a
       separate market from the short-sea container shipping market. According to the
       Parties, feeder services represent a different type of services. They involve the
       onward transportation of container volumes that originate from outside Europe from
       a large European hub port to a European outport and vice-versa. Instead, short-sea
       services relate to the transportation of container volumes that originate within
       Europe, primarily between smaller European outports. Customers of feeder services
       also differ from those of short-sea services. Feeder services are provided or sub-
       contracted by deep-sea liners as part of end-to-end shipping services, whereas short-
       sea service operators provide the end-to-end shipping service directly to freight
       forwarders or beneficial cargo owners (“BCOs”). Last, competitors for feeder
       services largely differ from short-sea service providers.
(27)   The Commission notes that, for the purpose of assessing this Transaction, there is no
       need to distinguish between reefer and non-reefer services, considering that the
       Transaction does not give rise to horizontal effects. As to the other plausible market
15 Cases M.9093 – DP World Investments/Unifeeder, paragraph 34; M.8330 – Maersk Line/HSDG,
   paragraph 19; M.7523 – CMA CGM/OPDR, paragraph 52.
16 Cases M.9093 – DP World Investments/Unifeeder, paragraph 32; M.8330 – Maersk Line/HSDG,
   paragraph 19; M.7523 – CMA CGM/OPDR, paragraph 50.
17 Case M.9093 – DP World Investments/Unifeeder, paragraph 32.
18 Form CO, paragraph 59.
19 Form CO, paragraphs 62 and 63.
                                                     5
 ---pagebreak---         definitions, the questions of whether there is a market for short-sea container liner
        shipping services and, if so, whether RoRo ferry services, LoLo short-sea services
        and feeder services should constitute separate markets can be left open, as the
        Transaction would not raise serious doubts as to its compatibility with the internal
        market under any plausible product market definition.
4.2.2. Relevant geographic market
(28)    In its prior decisional practice, the Commission has considered that the short-sea
        container shipping market should be segmented on the basis of (i) either single trade
        or corridor, defined by the range of ports which are served at both ends of the
        service; or (ii) single leg of trades, hence, direction of the trade flows. It has however
        left the exact scope of the geographic market open.20
(29)    The Parties submit that, from a demand-side perspective, the relevant geographic
        market should be Northern Europe.21
(30)    For the purpose of this assessment, the exact geographic scope of the market for
        short-sea container shipping services can be left open, since the Transaction seems
        unlikely to give rise to serious doubts under any plausible geographic market
        definition.
4.2.3. Conclusion
(31)    Therefore, for the purpose of this decision, the Commission considers the relevant
        markets are those for RoRo/LoLo short-sea shipping services and for LoLo short-sea
        shipping services to be assessed either on the basis of the leg of trade or on the basis
        of the country pair delineation.
  4.3.    Freight forwarding services
4.3.1. Relevant product market
(32)    The Commission has defined the freight forwarding services market in its prior
        decisional practice as the organisation of transportation of items (possibly including
        activities such as customs clearance, warehousing, ground services, etc.) on behalf of
        customers according to their needs.22
(33)    The Commission has considered the possibility of sub-segmenting the market into
        domestic and cross-border freight forwarding and into freight forwarding by air, land
        and sea.23
(34)    The Parties do not express any disagreement with the Commission’s approach.24
20  Cases M.9093 – DP World Investments/Unifeeder, paragraph 36 and 38; M.7523 – CMA CGM/OPDR,
    paragraphs 53, 60 and 61.
21  Form CO, paragraph 78.
22  Cases M.8120 – Hapag-Lloyd/United Arab Shipping Company, paragraph 26; and M.7268 –
    CSAV/HGV/Kühne Maritime/Hapag-Lloyd AG, paragraph 37.
23  Cases M.8120 – Hapag-Lloyd/United Arab Shipping Company, paragraph 26; M.7268 –
    CSAV/HGV/Kühne Maritime/Hapag-Lloyd AG, paragraph 37; and M.5450 – Kühne/HGV/TUI/Hapag-
    Lloyd, paragraph 18.
24  Form CO, paragraph 82.
                                                     6
 ---pagebreak--- (35)    For the purpose of this assessment, the exact product market definition can be left
        open since the Transaction would not raise serious doubts as to its compatibility with
        the internal market under any plausible product market definition.
4.3.2. Relevant geographic market
(36)    The Commission in its previous decisional practice has considered the geographic
        scope of the market as either national or wider in scope.25
(37)    The Parties consider the geographical market to be wider than national in scope,
        encompassing at least Northern Europe.
(38)    For the purpose of this assessment, the exact geographic scope of the market for
        freight forwarding services can be left open, since the proposed Transaction does not
        raise serious doubts under any plausible geographic market definition.
4.3.3. Conclusion
(39)    Therefore, for the purpose of this decision, the Commission considers the relevant
        market to be the one for the freight forwarding services further segmented into
        domestic and cross-border freight forwarding and on the basis of the mode of
        transport (by air, land and sea) at national level.
5.      COMPETITIVE ASSESSMENT
  5.1.    Horizontal overlaps
(40)    The Transaction does not give rise to any horizontally affected markets. The
        activities of DP World (through Unifeeder) and P&O Group (through P&O Ferries)
        overlap in the market for containerised transportation services. However, the Parties’
        combined market share does not exceed 20% on any plausible product and
        geographic market definition.
5.1.1. Intra-European door-to-door multimodal transport services in Northern Europe
(41)    Irrespective of whether the door-to-door multimodal transport services market is
        defined as regional (such as, Northern Europe) or on the basis of individual legs of
        trade, the Parties’ market shares do not exceed 20%.
(42)    There are a multitude of operators which provide containerised transport services in
        Northern Europe, those active in the transportation of containers by road and rail via
        the Channel tunnel, as well as those which offer highly frequent RoRo ferry and
        LoLo short-sea container shipping services, including DFDS, Stena, Cobelfret, A2B,
        Samskip and Eurotunnel. As acknowledged by the Commission in prior decisions,
        truck companies indeed represent one of the main competitors of carriers that
        provide door-to-door multimodal transport services.26
25  Cases M.8120 – Hapag-Lloyd/United Arab Shipping Company, paragraph 26; and M.7268 –
    CSAV/HGV/Kühne Maritime/Hapag-Lloyd AG, paragraph 39.
26 Case M.9016 – CMA CGM/Container Finance, paragraphs 104-106.
                                                    7
 ---pagebreak---          Table 1: Market shares - Door-to-door multimodal transport services in Northern Europe
                   Party                                     Shares by volume (TEU / %)
          DP World (Unifeeder)                       […]                                [5-10]%
          P&O Group (P&O                             […]                                 [0-5]%
          Ferries)
          P&O Ferrymasters                           […]                                 [0-5]%
          (road/rail)
                                                          27
          TOTAL MARKET                              […]                                   100%
5.1.2. Intra-European door-to-door multimodal transport services based on legs of trade
(43)     The Parties have also provided best estimates of their market shares in the door-to-
         door multimodal transport services market with respect to the legs of trade where
         their activities overlap, namely: the UK to the Netherlands (and vice versa); the UK
         to Belgium (and vice versa); the UK to Germany (and vice versa); the Netherlands to
         Italy (and vice versa); the Netherlands to Poland (and vice versa); Belgium to Italy
         (and vice versa); Germany to the Netherlands (and vice versa); the Netherlands to
         Poland (and vice versa); the United Kingdom to Portugal.
(44)     In none of the above legs of trade the Parties' combined market shares exceed 20%.
         Table 3: Market shares – Door-to-door multimodal transport on individual legs of trade
                                                                                P&O               P&O
                                           DP World              (P&O
                 Legs of trade                                              Ferrymasters      Ferrymasters
                                          (Unifeeder)           Ferries
                                                                                Road               Rail
          UK to Netherlands                  [0-5]%              [0-5]%        [0-5]%           Not Active
          Netherlands to UK                  [0-5]%              [0-5]%        [0-5]%           Not Active
          UK to Belgium                      [0-5]%             [5-10]%        [0-5]%           Not Active
                                                                        28         29
          Belgium to UK                      [0-5]%           [10-20]%          0%              Not Active
          UK to Germany                      [0-5]%            Not Active      [0-5]%           Not Active
          Germany to UK                      [0-5]%            Not Active      [0-5]%           Not Active
          Netherlands to Italy               [0-5]%            Not Active      [0-5]%           Not Active
          Italy to Netherlands               [0-5]%            Not Active      [0-5]%           Not Active
27  DP World (Unifeeder) considers that this is a conservative estimate of total containerised transport in
    Northern Europe, as it primarily takes account of traffic going to hub ports rather than between smaller
    ports or between cities where there is no port (i.e., by road or rail).
28 P&O Ferries estimates that it has a share of approximately [10-20]% on a combined RoRo/LoLo market).
    The Parties do not have reliable data as to the total market of other forms of container transportation (such
    as road and rail) are brought into the total market, but P&O Ferries’ share would in any event be lower
    than the market shares on a RoRo/LoLo basis.
29 P&O Ferrymasters has confirmed that it does not transport containers between Belgium and the United
    Kingdom by road and therefore its share on an all container transport market on this route of trade is in
    fact 0%. The combined market shares of the Parties on an all door-to-door multimodal transport market on
    the “Belgium to the UK” leg of trade therefore does not exceed [10-20]%.
                                                              8
 ---pagebreak---                                                                                P&O              P&O
                                              DP World       (P&O
                Legs of trade                                              Ferrymasters     Ferrymasters
                                             (Unifeeder)     Ferries
                                                                               Road              Rail
         Netherlands to Poland                  [0-5]%    Not Active          [0-5]%          Not Active
         Poland to Netherlands                  [0-5]%    Not Active          [0-5]%          Not Active
         Belgium to Italy                       [0-5]%    Not Active          [0-5]%          Not Active
         Italy to Belgium                       [0-5]%    Not Active          [0-5]%          Not Active
         Germany to Netherlands                 [0-5]%    Not Active          [0-5]%          Not Active
         Netherlands to Germany                 [0-5]%    Not Active          [0-5]%          Not Active
         Netherlands to Poland                  [0-5]%    Not Active          [0-5]%          Not Active
         Poland to Netherlands                  [0-5]%    Not Active          [0-5]%          Not Active
         UK to Portugal                         [0-5]%    Not Active          [0-5]%          Not Active
5.1.3. RoRo/LoLo short-sea container shipping services
(45)    As explained in paragraph (25), the Parties do not consider that a combined
        RoRo/LoLo short-sea shipping services market would be an appropriate market
        definition.
(46)    The Parties do not have reliable total market data with respect to a hypothetical
        RoRo/LoLo short-sea shipping services market. However, they consider that on such
        a market their combined shares would not exceed 20% on any of the legs of trade
        where their activities overlap, namely: the UK to the Netherlands (and vice versa);
        the UK to Belgium (and vice versa).
        Table 4: Market shares –RoRo/LoLo short-sea services on overlapping legs of trade
             Legs of trade                  DP World         P&O Ferries           Combined       Total market
                                           (Unifeeder)                               market
                                                       30
                                         (Containers)        (Containers)            shares       (Containers)
         UK to Netherlands              […]        [0-5]%   […]        [0-5]%        [0-5]%            […]
         Netherlands to UK              […]        [0-5]%   […]        [0-5]%        [0-5]%            […]
         UK to Belgium                  […]        [0-5]%   […]       [5-10]%       [5-10]%            […]
         Belgium to UK                  […]        [0-5]%   […]      [10-20]%      [10-20]%            […]
        Source: UK Government Statistics (https://www.gov.uk/government/statistical-data-sets/port-and-domestic-
        waterborne-freight-statistics-port)
5.1.4. LoLo short-sea container shipping services
(47)    If the market for containerised transportation was segmented to comprise only LoLo
        short-sea container shipping services, the horizontal overlap between DP World
        (through Unifeeder) and P&O Ferries would be almost entirely removed, as P&O
30  As UK Government statistics are not provided in TEUs, DP World (Unifeeder)’s volumes have been
    converted to containers where 2 TEU equates to approximately 1 container.
                                                          9
 ---pagebreak---         Ferries does not generally operate LoLo short-sea container shipping services, with
        the exception of a single LoLo vessel which operates between Hull (the UK) and
        Zeebrugge (Belgium).
(48)    On a Northern European basis, the Parties estimate that their combined market share
        is well below 20% (indeed on the Parties’ best estimates is approximately [0-5]%).
        Furthermore, as P&O Ferries only provides LoLo short-sea container shipping
        services on the route between Hull and Zeebrugge the increment brought about by
        the Transaction on this market is de minimis and would not result in any appreciable
        impact on competition.
        Table 5: Market shares - provision of LoLo short-sea services in Northern Europe (2018)
          Parties                      Shares by volume (TEU / %)
          DP World (Unifeeder)         […]                                     [0-5]%
          P&O Ferries                  […]                                     [0-5]%
                               31           32
          TOTAL MARKET                 […]                                     100%
  5.2.     Vertical relationships
(49)    DP World (through Unifeeder) is active in the market for door-to-door multimodal
        transport services and in the market for short-sea container shipping services, while
        P&O Ferrymasters is active in the market for freight forwarding services and also
        provides, via a trailer and intermodal division, certain trucking and rail services both
        to P&O Ferrymasters’ freight forwarding services and to third parties. In this
        context, the Parties' activities do not overlap. However, the Parties' activities are
        vertically related. The Transaction creates vertical links between:
        (a)      DP World operations in the upstream market for door-to-door- multimodal
                 transport services and (LoLo) short-sea container shipping services, on the
                 one hand, and P&O Ferrymasters’ operations in the downstream market for
                 freight forwarding services, on the other hand; and
        (b)      P&O Ferrymasters’ operations in the upstream market for road and rail
                 services and DP World’s operations in the downstream market for door-to-
                 door multimodal transport services and short-sea container shipping services.
5.2.1. Legal framework
(50)    According to the Non-Horizontal Merger Guidelines,33 foreclosure occurs when
        actual or potential rivals' access to markets is hampered, thereby reducing those
31  The total market size is based on DP World (Unifeeder)’s best estimates.
32  DP World (Unifeeder) considers that this is a conservative estimate of LoLo short-sea transportation in
    Northern Europe, as it primarily takes account of traffic going to hub ports (rather than between smaller
    ports).
33 Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of
    concentrations between undertakings, OJ C 265, 18.10.2008, p. 7 ("Non-Horizontal Merger Guidelines").
                                                         10
 ---pagebreak---        companies' ability and/or incentive to compete.34 Such foreclosure can take two
       forms: (i) input foreclosure, when access of downstream rivals to supplies is
       hampered;35 and (ii) customer foreclosure, when access of upstream rivals to a
       sufficient customer base is hampered.36
(51)   For input or customer foreclosure to be a concern, three conditions need to be met
       post-Transaction: (i) the merged entity needs to have the ability to foreclose its
       rivals; (ii) the merged entity needs to have the incentive to foreclose its rivals; and
       (iii) the foreclosure strategy needs to have a significant detrimental effect on
       competition on the downstream market (input foreclosure) or on customers
       (customer foreclosure).37 In practice, these factors are often examined together since
       they are closely intertwined.
  5.3.   Overview of the vertically affected markets
(52)   Related markets in which DP World or P&O Ferries holds a market share of at least
       30% in the upstream market and/or in the downstream market are considered to be
       vertically affected by the Transaction.
(53)   As regards the upstream markets for door-to-door multimodal transport services and
       (LoLo) short-sea container shipping services, with respect to the downstream market
       for freight forwarding services, DP World (through Unifeeder) 's market share would
       exceed 30% only in the market for (LoLo) short-sea container shipping services and
       only if the geographic scope of such market were defined narrowly on the basis of
       country pair legs of trade. In such a case, DP World (through Unifeeder)’s market
       shares would exceed 30% on the following four legs of trade: Germany to the UK
       ([70-80]%), the UK to Germany ([60-70]%), Poland to the UK ([40-50]%) and the
       UK to Poland ([40-50]%).
                                     Table 6 – Vertically affected markets
                                  (DP World's market shares exceeding 30%)
                                                                           P&O Group’s share
                                                    DP World’s share       downstream affected
                    Upstream market                 upstream affected            markets
                                                          market
                                                                            Freight forwarding
         LoLo short-sea from Germany to the UK           [70-80]%                 [0-5]%
         LoLo short-sea from the UK to Germany           [60-70]%                 [0-5]%
         LoLo short-sea from Poland to the UK            [40-50]%                 [0-5]%
         LoLo short-sea from the UK to Poland            [40-50]%                 [0-5]%
       Source: Parties’ estimates
34  Non-Horizontal Merger Guidelines, paragraphs 20-29.
35  Non-Horizontal Merger Guidelines, paragraph 31.
36 Non-Horizontal Merger Guidelines, paragraph 58.
37 Non-Horizontal Merger Guidelines, paragraphs 32 and 59.
                                                      11
 ---pagebreak--- (54)   As regards the downstream market for door-to-door multimodal transport services
       and (LoLo) short-sea container shipping services, with respect to the upstream
       market for road and rail services, DP World's market share would exceed 30% only
       if the geographic scope of the market were defined narrowly on the basis of the
       country pair legs of trade indicated under paragraph (31).
                                     Table 7 – Vertically affected markets
                                  (DP World’s market shares exceeding 30%)
                                                                       DP World’s share
                                    P&O Group’s share
            Upstream market                                       downstream affected markets
                                     upstream affected
                                                                    LoLo short-sea shipping
                                          market
         Road and Rail services            [0-5]%              [70-80]% (from Germany to the UK)
         Road and Rail services            [0-5]%              [60-70]% (from the UK to Germany)
         Road and Rail services            [0-5]%               [40-50]% (from Poland to the UK)
         Road and Rail services            [0-5]%               [40-50]% (from the UK to Poland)
       Source: Parties’ estimates
  5.4.   Assessment of the vertically affected markets
       DP World (Unifeeder)’s upstream market for (LoLo) short-sea container
       shipping services and P&O Ferrymasters’ downstream market for freight
       forwarding services
(55)   The Commission will assess in this section whether the Transaction would lead to (i)
       input foreclosure, pursuant to which DP World would foreclose P&O Ferrymasters'
       competitors by restricting access to, or deteriorating the quality of, the (LoLo) short-
       sea container shipping services that it provides to P&O Ferrymasters' competitors in
       Germany, Poland or the United Kingdom; or (ii) customer foreclosure, pursuant to
       which P&O Group would foreclose DP World's competitors by sourcing its (LoLo)
       short-sea container shipping services requirements in Germany, Poland or the United
       Kingdom mostly or exclusively from DP World.
5.4.1. Input foreclosure
       DP World’s view
(56)   DP World argues that, irrespective of its market share, the Transaction would not
       lead to any foreclosure scenario, as DP World (Unifeeder) would have neither the
       ability nor the incentive to engage in input foreclosure strategies.38
       The Commission assessment
(57)   For input foreclosure to be a concern, the vertically integrated firm resulting from
       the merger must have a significant degree of power in the upstream market and thus,
       possibly, on prices and supply conditions in the downstream market.39
38  Form CO, paragraphs 118-124.
39  Non-Horizontal Merger Guidelines, paragraph 35.
                                                     12
 ---pagebreak--- (58)  The Commission notes that post-Transaction, DP World (Unifeeder)’s market share
      in Northern Europe for the provision of containerised transport will be less than
      [5-10]% and less than [0-5]% on a (LoLo) short-sea container shipping basis. Only
      under the narrowest possible geographic market definition, that is, single legs of
      trade between country pairs, DP World (Unifeeder)’s market shares would
      exceed 30% and lead to four affected legs of trade: Germany to the UK ([70-80]%);
      the UK to Germany ([60-70]%); Poland to the UK ([40-50]%); and the UK to
      Poland ([40-50]%).
(59)  Nevertheless, the following elements question the ability of DP World (Unifeeder)'s
      to foreclose P&O Ferrymasters' competitors. On the affected routes of trade,
      numerous competing and attractive providers will be present. More precisely, post-
      Transaction, on the Germany to the UK (and vice versa) and Poland to the UK (and
      vice versa) legs of trade short-sea and deep-sea shipping services providers, such as
      Containerships, DFDS, Hapag Lloyd, Seago, and MSC will be present, as well as
      RoRo shipping providers such as DFDS and Stena.40 Therefore, in response to any
      attempt by DP World (Unifeeder) to increase prices or deteriorate/refuse its services,
      P&O Ferrymasters’ competitors could easily react by shifting their volumes to a
      competing shipping services provider.
(60)  Moreover, official statistics compiled by Eurotunnel show that a certain amount of
      freight volumes are moved in and out the United Kingdom via the Eurotunnel.
      Precisely, in 2017 1.63 million trucks, which roughly correspond to 3.26 million
      TEU, have gone through the Eurotunnel. By comparison, DP World (Unifeeder)’s
      short-sea shipping activity represents less than [0-5]% of the freight that in 2017 was
      transported in and out of the United Kingdom by trucks through the Eurotunnel.41 As
      a result, short-sea shipping on routes connecting the United Kingdom to the
      continent does not appear to be an important input for freight forwarding services, in
      the sense that it can easily be substituted by road and rail transport modes. This is
      line with the Commission’s acknowledgement in prior decisions, that short-sea
      container shipping services are exposed to competitive pressure from other modes of
      transport.42
(61)  The Parties also argue that the affected legs of trade are dominated by RoRo rather
      than LoLo shipping services, while DP World (Unifeeder) only provides LoLo
      shipping services. This is confirmed by a report on UK Port Freight Statistics
      published in 2017 by the Department of Transport, which states that RoRo services
      are more significant than LoLo services: 100.8 million tonnes of cargo had been
      shipped to/from UK major ports as RoRo freight, whereas only 64.0 million tonnes
      had been LoLo freight.43 Moreover, only 38.7 % of the LoLo freight had been
      shipped to the EU, while the majority had been shipped to Asia, whereas 97.7 % of
      the RoRo freight had been shipped to the EU.44
(62)  In light of the above, the Commission considers that, on balance, DP World has no
      ability to engage in an input foreclosure strategy in Germany, Poland, and the United
      Kingdom.
40 Form CO, paragraph 156.
41 Form CO, paragraphs 122-124.
42 M.9016 – CMA CGM/Container Finance, paragraph 106; M.7523 – CMA CGM/OPDR, paragraph 91.
43 UK Port Freight Statistics 2017, Department for Transport, 22 August 2018, page 5.
44 UK Port Freight Statistics 2017, Department for Transport, 22 August 2018, page 21.
                                                       13
 ---pagebreak--- (63)   The incentive to foreclose depends on the degree to which foreclosure would be
       profitable. In this context, a vertically integrated firm would take into account how
       its supplies of inputs to downstream competitors would affect not only the profits of
       its upstream activities, but also of its downstream activities. Essentially, the merged
       entity faces a trade-off between the profit lost in the upstream market due to a
       reduction of input sales to (actual or potential) rivals and the profit gain, in the short
       or longer term, from expanding sales downstream or, as the case may be, being able
       to raise prices to consumers. The incentive for the integrated firm to raise rivals'
       costs further depends on the extent to which downstream demand is likely to be
       diverted away from the foreclosed rivals and the share of that diverted demand that
       the downstream division of the integrated firm can capture.45
(64)   The market investigation in this case has confirmed that freight transport is a
       dynamic business in the EEA. Asked whether the ratio between ship transport and
       road/rail transport had changed over the past five years on routes between the United
       Kingdom and Germany or Poland, a freight forwarder replied that, “[t]he business of
       moving loads is always changing and evolving, mainly due to price spiking and
       customer cost saving requirements”.46 The market investigation has also confirmed
       that transport by sea is only one of the ways in which freight is transported from
       Germany or Poland to the United Kingdom. A customer has explained that, in
       deciding which means of transport to use to transport containers between the United
       Kingdom and Germany or Poland, “the transit time is the key factor [although]
       product type, loading/onload restrictions&destinations all have to be taken into
       account before decid[ing] on the logistical method”. This operator has further
       explained that, “the self-drive trailer [is] the quickest but the most expensive and the
       container via rail being the cheapest but slowest … This isn’t the “absolute law” on
       pricing and transit as there are a lot of factors / permutations that can affect and/or
       alter the final choice”.47
(65)   Moreover, the merged entity would gain limited benefits on the upstream market
       from a foreclosure strategy of downstream competitors. Given the limited demand
       represented by P&O Ferrymasters, any refusal by DP World (Unifeeder) to supply
       short-sea shipping services to P&O Ferrymasters’ competitors would indeed lead to
       a loss of volumes for DP World (Unifeeder) without substantial increase in the
       volumes treated by P&O Ferrymasters. The Commission therefore finds that, even if
       DP World were to have the ability to engage in an input foreclosure strategy, it
       would likely lack the incentive to do so.
(66)   Moreover, as the Commission has established in prior decisions, in the intra-
       European short-sea shipping markets there are no major barriers to entry or
       expansion.48 Hence, short-sea shipping services providers active on legs of trade
       different from the affected ones could easily expand their activities, so as to include
       the Germany to the UK (and vice-versa), and Poland to the UK (and vice-versa) legs
       of trade, were DP World (Unifeeder) to decide to start engaging in a foreclosure
       strategy.
45 Non-Horizontal Merger Guidelines, paragraphs 40 and 41.
46 E-mail of Kuehne + Nagel of 4 June 2019.
47 E-mail of Kuehne + Nagel of 4 June 2019.
48 Cases M.9016 – CMA CGM/Container Finance, paragraphs 96-99; M.8330 – Maersk Line/HSDG,
   paragraph 209; M.7523 – CMA CGM/OPDR, paragraph 109.
                                                     14
 ---pagebreak--- (67)   In general, a merger will raise competition concerns due to input foreclosure when it
       leads to increased prices in the downstream market thereby significantly impeding
       effective competition.49 If there remain sufficient credible downstream competitors
       whose costs are not likely to be raised, for example because they are themselves
       vertically integrated or capable of switching to adequate alternative inputs,
       competitions from those firms may constitute a sufficient constraint on the merged
       entity and therefore prevent output prices from rising above pre-merger levels.50
(68)   Based on the above considerations and all evidence available to it, the Commission
       concludes that a post-Transaction input foreclosure strategy by DP World
       (Unifeeder) in order to exclude P&O Ferrymasters’ competitors in Germany, Poland,
       and the United Kingdom is unlikely.
5.4.2. Customer foreclosure
       DP World’s view
(69)   DP World argues that no customer foreclosure can arise as P&O Ferrymasters is not
       an important customer of short-sea services. Hence, DP World (Unifeeder)’s short-
       sea competitors cannot be plausibly foreclosed from significant volumes.51
       The Commission assessment
(70)   Any customer foreclosure strategy of the merged entity would also be unlikely. For
       customer foreclosure to be a concern, the merger must involve a company which is
       an important customer with a significant degree of market power in the downstream
       market. By contrast, if, the existing or future customer base is sufficiently large to
       turn to independent suppliers, vertical foreclosure concerns are unlikely to arise.52
(71)   In the present case, the merged entity cannot be considered to be an important
       customer of (LoLo) short-sea container shipping services. In Northern Europe, P&O
       Ferrymasters’ market share in the freight forwarding services market is [0-5]%, and
       only […]% of their activity involves a seaward leg. Furthermore, in any single
       Member State P&O Ferrymasters’s market share remains [0-5]%. Even when
       considering all possible sub-segments of the freight forwarding services market,
       therefore the domestic and cross-border segments as well as the freight forwarding
       by air, land and sea segments, P&O Ferrymasters’ market shares remain well below
       [20-30]%.53 As a consequence, it is unlikely that DP World’s competitors could be
       foreclosed from significant volumes as a result of the Transaction. .
(72)   The merged entity would also have no incentive to engage in any foreclosure
       strategy since such strategy would in all likelihood not be profitable. Should P&O
       Ferrymasters decide to exclusively procure (LoLo) short-sea container shipping
       services from DP World (Unifeeder), there would still remain numerous operators in
       the freight forwarding services market, such as Kuehne+Nagel, Internationale LKW
49  Non-Horizontal Merger Guidelines, paragraph 47.
50  Non-Horizontal Merger Guidelines, paragraph 50.
51 Form CO, paragraphs 128-130.
52 Non-Horizontal Merger Guidelines, paragraph 58.
53 Form CO, paragraph 116.
                                                    15
 ---pagebreak---        Walter and Erontrans, to which DP World (Unifeeder)’s competitors could offer
       their shipping services.
(73)   For this reason the Commission considers that any foreclosure strategy is unlikely to
       have an adverse impact on competition. It is indeed only when a sufficiently large
       fraction of upstream output is affected by the revenue decreases resulting from the
       vertical merger that the merger may significantly impede effective competition on
       the upstream market. If there remain a number of upstream competitors that are not
       affected, competition from those firms may be sufficient to prevent prices from
       rising in the upstream market and, consequently, in the downstream market.54
(74)   Based on the above considerations, the Commission concludes that a post-
       Transaction customer foreclosure strategy by P&O Ferrymasters in Germany, Poland
       and the UK is unlikely.
       P&O Ferrymasters’ upstream market for road and rail services and DP World
       (Unifeeder)’s downstream market for (LoLo) short-sea container shipping
       services
(75)   The Commission will assess in this section whether the Transaction could lead to
       (i) input foreclosure, pursuant to which P&O Ferrymasters would foreclose DP
       World's competitors by restricting access to, or deteriorating the quality of, its road
       and rail services in Germany, Poland or the United Kingdom; or (ii) customer
       foreclosure, pursuant to which DP World would foreclose P&O Ferrymasters'
       competitors by sourcing its road and rail services requirements in Germany, Poland
       or the United Kingdom mostly or exclusively from P&O Ferrymasters.
5.4.3. Input foreclosure
       DP World’s view
(76)   DP World argues that no input foreclosure can arise as P&O Ferrymasters is not an
       important supplier of road and rail services. As a consequence, DP World
       (Unifeeder)’s short-sea shipping services competitors cannot be plausibly foreclosed
       from significant volumes.55
       The Commission assessment
(77)   The Commission notes that P&O Ferrymasters provides containerised transportation
       services by rail on ten legs of trade only four of which - Poland to Netherlands (and
       vice versa), and Germany to Romania (and vice versa) – relate to routes where
       Unifeeder’s short-sea shipping services can be considered as “affected markets”. On
       each of these routes, P&O Ferrymasters’ market share does not exceed [0-5]%. P&O
       Ferrymasters also provides containerised transport services by road throughout
       Europe. However, its market share does not exceed [0-5]% on any individual leg of
       trade.56 As a result, P&O Ferrymasters’ rail and road services cannot be considered
       to represent an important input for DP World’s competitors in the downstream
       market.
54  Non-Horizontal Merger Guidelines, paragraph 72.
55  Form CO, paragraphs 108-109.
56 Form CO, paragraph 103.
                                                    16
 ---pagebreak--- (78)    Moreover, P&O Ferrymasters faces competition from a number of rail and road
        service providers in Germany, Poland and the UK, such as Samskip, ECS2XL, A2B
        and LKW. Post-Transaction DP World (Unifeeder)’s short-sea shipping competitors
        could therefore switch to a variety of alternative transportation providers, should
        P&O Ferrymasters decide to restrict or deteriorate access to its road and rail services.
        The market investigation has confirmed that transport by rail represents a valid
        alternative to road transport especially in countries with a good rail network, “…
        clients moving from road to container/rail...is ultimately driven by the needs of the
        client and when they need to receive goods. The rail/container network is very poor
        in most European countries for the ability to be flexible to the client’s need. The
        main “good” countries are … Belgium, Netherlands, Luxembourg, Cerntral and
        Northern Germany and Central and Northern Poland”.57 As a consequence, a
        foreclosure strategy would simply result in a loss of volumes for P&O Ferrymasters
        with no likelihood that such losses could be recouped with a increased volumes
        coming from DP World (Unifeeder). Therefore, P&O Ferrymasters neither appear to
        have the ability nor the incentive to engage in an input foreclosure strategy.
(79)    Based on the above considerations, the Commission concludes that a post-
        Transaction input foreclosure strategy by P&O Ferrymasters in order to exclude DP
        World’s downstream competitors in Germany, Poland, and the United Kingdom is
        unlikely.
5.4.4. Customer foreclosure
        DP World’s view
(80)    DP World argues that no customer foreclosure can arise as DP World (Unifeeder) is
        not an important customer of road and rail services in any of the affected countries.
        Hence, DP World (Unifeeder)’s short-sea shipping services competitors cannot be
        plausibly foreclosed from significant volumes.
        The Commission assessment
(81)    The Commission notes that DP World (Unifeeder) appears to be a small consumer of
        road and rail transportation services in any of the routes/legs where Unifeeder’s
        services can be considered as “affected countries”. In 2018, DP World (Unifeeder)
        only spent EUR […] on road and rail transportation services (EUR […] in Germany,
        EUR […] in the UK and EUR […] in Poland). Post-Transaction the merged entity
        will not represent an important customer of road and rail transportation service
        providers in any of the affected countries. As a result, P&O Ferrymasters' rivals will
        not be foreclosed from access to substantial cargo volumes. This is particularly so
        given that, on the one hand, shipping providers are not considered major consumers
        of road and rail transportation providers58, and, on the other hand, P&O
        Ferrymasters' limited presence (particularly on rail routes) means that it currently
        lacks the ability to service all of DP World (Unifeeder)’s transportation requirements
        in the affected countries
57  E-mail of Kuehne + Nagel of 4 June 2019.
58  Cases M.8330 - Maersk Line/HSDG, paragraph 264; M.8120 - Hapag Lloyd/United Arab Shipping
    Company, paragraph 145.
                                                  17
 ---pagebreak--- (82)   Based on the above, it is unlikely that the Transaction will give rise to any
       significant risk of consumer foreclosure strategies.
  5.5.   Conglomerate effects
(83)   The Transaction may have a conglomerate dimension, as it involves services that
       belong to related markets (i.e. short-sea container liner shipping services and road
       and rail services), i.e., products that are purchased by a significant set of consumers
       for a similar end use (either together in a bundle or separately). The main
       competition concern raised by conglomerate mergers is foreclosure of competitors.
       The combination of products in related markets may confer on the merged entity the
       ability and incentive to leverage a strong market position from one market to another
       by means of tying of bundling. Those practices are common and often have no
       anticompetitive consequences. Companies engage in tying and bundling in order to
       provide their customers with better products or offerings in cost-effective ways.59
       The Parties’ views
(84)   The Parties submit that the Transaction will not lead to any conglomerate
       anticompetitive effect. Even if in principle post-Transaction DP World could offer
       an end-to-end transport service to freight forwarders and beneficial cargo owners, it
       would have no incentive to do so.60
       The Commission’s assessment
(85)   Whereas it is acknowledged that conglomerate mergers in the majority of
       circumstances will not lead to any competition problems, in certain specific cases
       there may be harm to competition.61 In order to assess the likelihood of such
       anticompetitive foreclosure strategy, the Commission will examine whether the
       merged entity has (i) the ability to foreclose and (ii) the incentives to foreclose.
       Lastly, the Commission will assess whether such practices may have a significant
       negative impact on competition and consumers.62
(86)   The Commission considers that post-Transaction DP World will not be able to
       engage in a tying/bundling foreclosure strategy. On the one hand, P&O Ferrymasters
       has limited market presence in the supply of road and rail container transportation
       services. On the other hand, when organising transportation, freight forwarders have
       a lot of flexibility as to which road and rail provider to use. Even on a narrow
       geographic basis there are many alternatives to P&O Ferrymasters’ road and rail
       container transportation services. DP World (Unifeeder)’s shipping services are
       similarly not essential, as post-Transaction freight forwarders could easily switch to
       alternative providers which – as seen in paragraph (66) - are readily able to expand
       their fleet and establish new routes to serve demand.
(87)   DP World would not, in any case, have an incentive to engage in tying/bundling
       strategies. This reflects the fact that freight forwarders have a variety of alternative
       providers to choose from and, thus, could not be forced to accept a tied/bundled offer
59  Non-Horizontal Merger Guidelines, paragraph 93.
60  Form CO, paragraphs 139-140.
61 Non-Horizontal Merger Guidelines, paragraph 92.
62 Non-Horizontal Merger Guidelines, paragraph 94.
                                                    18
 ---pagebreak---      from DP World (Unifeeder). Any attempt to tie the purchase of P&O Ferrymasters’
     road and rail container transportation services to the supply of DP World
     (Unifeeder)’s short-sea shipping services would simply result in a loss of volume, as
     freight forwarders would switch to the service of one of DP World (Unifeeder)
     competitors.
(88) Finally, any hypothetical bundling/tying foreclosure strategy would have no
     anticompetitive effects. Rivals’ ability to compete for future contracts would not be
     affected by the potential loss of a few contracts, as a result of some customers
     accepting the bundled offer. This reflects in particular the fact that most rivals -
     shipping lines, such as Maersk and CMA CGM - are heavily vertically integrated
     with interests in inland transportation, such as road and rail as well as terminal/ports
     and shipping services. The loss of sales in one market would not lead to their exit,
     given their possibility of compensating that loss with commercial activities in
     another market. Competitors would remain active on other routes and any attempt by
     DP World to subsequently raise prices would invite re-entry.
(89) Based on the above considerations and in light of all the evidence available to it, the
     Commission considers that the Transaction does not raise serious doubts as to its
     compatibility with the internal market in relation to hypothetical conglomerate
     effects
6.   CONCLUSION
(90) 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 and Article 57 of the EEA Agreement.
                                                    For the Commission
                                                    (Signed)
                                                    Margrethe VESTAGER
                                                    Member of the Commission
                                                19