CELEX: 32018M8829
Language: en
Date: 2018-07-30 00:00:00
Title: Commission Decision of 30/07/2018 declaring a concentration to be compatible with the common market (Case No COMP/M.8829 - Total Produce / DFC Holdings) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

EUROPEAN COMMISSION
                                                                Brussels, 30.7.2018
                                                                C(2018) 5178 final
  In the published version of this decision, some
  information has been omitted pursuant to                                PUBLIC VERSION
  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  has been replaced by ranges of figures or a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.8829 – Total Produce/Dole Food Company
                    Commission decision pursuant to Article 6(1)(b) in conjunction with
                    Article 6(2) of Council Regulation No 139/20041
Dear Sir or Madam,
(1)       On 11 June 2018, the European Commission received notification of a proposed
          concentration pursuant to Article 4 of the Merger Regulation, by which Total
          Produce PLC ("Total Produce") will acquire, within the meaning of
          Article 3(1)(b) and 3(4) of the Merger Regulation, joint control over DFC
          Holdings LLC, and thus indirectly over its wholly-owned subsidiary, Dole Food
          Company, Inc. (together referred to as "Dole") together with its current sole
          owner, Mr. David H. Murdock by way of purchase of shares (the "Transaction")2.
          Total Produce and Dole are referred to as the "Parties".
1.        THE PARTIES
(2)       Total Produce is a leading fresh produce distributor, with approximately 70% of
          its annual turnover being generated in Europe. Total Produce also operates banana
          ripening centres which are mainly used for its own ripening needs but
          occasionally for banana ripening services to third parties. Total Produce was
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       Publication in the Official Journal of the European Union No C 214, 19.06.2018, p. 7.
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---      formed in 2006 following a separation of the general produce and distribution arm
     of Fyffes Plc ("Fyffes"). It is now an independent and separately quoted company
     with no residual shareholding relationship with Fyffes.
(3)  Mr. David H. Murdock is currently the ultimate sole owner of Dole through The
     David H. Murdock Living Trust. DFC Holdings LLC (and therefore ultimately
     Dole Food Company, Inc.) is held by The David H. Murdock Living Trust, of
     which Mr. David H. Murdock is the trustee and the ultimate beneficiary. In
     addition to Dole, Mr. David H. Murdock also holds controlling interests in
     businesses primarily involved in real estate development and ownership, transport
     equipment leasing, building materials manufacturing, aviation services, as well as
     mortgage, hotel, and oil and gas operations.
(4)  Dole is a producer, marketer and distributor of fresh fruit and vegetables,
     operating in many locations worldwide but with a principal geographic focus on
     North America. In 2016, Europe represented only 24% of Dole's worldwide
     turnover.
2.   THE OPERATION AND CONCENTRATION
(5)  Pursuant to a binding Securities Purchase Agreement ("SPA") signed on
     1 February 2018, Total Produce intends to acquire a 45% shareholding in DFC
     Holdings LLC, and thus indirectly in its wholly-owned subsidiary, Dole Food
     Company, Inc. from the current sole owner, Mr. David H. Murdock via The
     David H. Murdock Living Trust. Total Produce will also obtain the right to
     nominate half of the members of the board and acquire veto rights over the key
     strategic and commercial decisions of Dole. This transaction is valued at
     USD 300 million in cash.
(6)  As a result of the Transaction, Total Produce will obtain joint control over Dole
     together with Mr. Murdock.
(7)  Dole will be a joint venture performing on a lasting basis all the functions of an
     autonomous economic entity. First, Dole already has and will continue to have
     significant capital to fund its operations as well as the staff and a dedicated
     management team necessary to operate independently of its shareholders. Second,
     Dole will continue to have access to and presence on the market, where it will
     continue to service its customers. Third, Dole is intended to operate on a lasting
     basis, with plans to expand its business in the years ahead.
(8)  The Transaction therefore constitutes a concentration pursuant to Article 3(1)(b)
     and Article 3(4) of the Merger Regulation.
3.   EU DIMENSION
(9)  The undertakings concerned have a combined aggregate world-wide turnover of
     more than EUR 5 000 million3. Each Total Produce and Dole have an EU-wide
     turnover in excess of EUR 250 million (Total Produce EUR […] million in 2017,
3   Turnover calculated in accordance with Article 5(1) of the Merger Regulation and the Commission
    Consolidated Jurisdictional Notice (OJ C95, 16.4.2008, p. 1).
                                                     2
 ---pagebreak---        Dole EUR […] million in 2017), but each does not achieve more than two-thirds
       of its aggregate EU-wide turnover within one and the same Member State. The
       notified operation therefore has an EU dimension pursuant to Article 1(2) of the
       Merger Regulation.
4.     APPLICABILITY OF THE EEA AGREEMENT
(10)   Fresh produce falls outside the scope of the Agreement on the European
       Economic Area ("EEA Agreement") pursuant to Article 8(3)(a) of the EEA
       Agreement. The assessment of the impact of the Transaction in the EFTA States
       hence falls outside the jurisdiction of the Commission.4
5.     BANANAS
(11)   The Parties' activities in the EU overlap in bananas (assessed in Section 5),
       bagged salad (assessed in Section 6), pineapples (assessed in Section 7) and other
       fruit and vegetables (assessed in Section 8).
(12)   Dole is a vertically integrated business for bananas; it owns farmland in Central
       and South America and South Africa, manufacturing plants, pack houses and
       grows its own bananas, and also purchases them from third parties. It also has its
       own refrigerated ships, containers and port facilities, and operates a limited
       number of banana ripening centres.
(13)   Total Produce is a wholesale distribution business with only limited assets at
       other levels of the supply chain. In contrast to Dole, which is focused on a more
       limited range of products (with bananas and pineapples accounting for 43%
       and 8% of Dole’s worldwide sales), Total Produce deals in a broad portfolio of
       products across both vegetables and fruits, with bananas accounting for just 10%
       of its worldwide sales.
5.1.   The import and supply of bananas
(14)   The majority of bananas marketed in the EU are imported, with approximately
       70% coming from Central and South America (so-called 'dollar' bananas) and
       approximately 20% coming from a variety of African, Caribbean and Pacific
       countries (so-called 'ACP bananas'), although there is some production within the
       EU (the remainder).5
(15)   Bananas grown on farms are harvested green at the appropriate maturity, and
       packaged on or near the farm where it is grown. Once quality inspections have
       been passed, these bananas are prepared for transportation to the EU. Bananas
       must be stored at low temperatures of around 14°C, and for this reason,
4    Article 8(3)(a) of the EEA Agreement states that products falling within Chapters 1 to 24 of the
     Harmonised Commodity Description and Coding System are not covered by the EEA Agreement,
     unless such products are listed in Protocol 3 of said Agreement. Therefore edible fruits and
     vegetables (fresh or chilled), which are listed in Chapter 8 of the Harmonised Commodity
     Description and Coding System and are not listed in Protocol 3 of the EEA Agreement, are not
     covered by the EEA Agreement.
5    https://ec.europa.eu/agriculture/fruit-and-vegetables/product-reports/bananas_en.
                                                        3
 ---pagebreak---         specialised refrigerated cargo ships (or 'conventional reefers') or refrigerated
        containers on general container shipping lines, may be used.6
(16)    Once in the EU, green bananas must be ripened in temperature-controlled
        ripening chambers for 4 – 6 days, which may be owned by either the importer, the
        retailer, or a third party provider. Finally, these bananas, now yellow, may travel
        much shorter distances and must arrive at customer distribution centres for sale to
        retailers, wholesalers or the food service sector.7
5.1.1. Relevant product market
5.1.1.1. Distinction between bananas and other fresh produce
        Parties' arguments
(17)    The Parties submit that bananas form part of the whole market for fresh fruit and
        produce, on the basis that (i) there are considerable similarities between the
        supply chains for bananas and other fresh fruit, especially given that bananas no
        longer need to be shipped on dedicated refrigerator ships, and (ii) banana
        suppliers also supply other fruit. Nevertheless, the Parties also acknowledge that
        the import and supply of bananas has consistently been analysed separately by the
        Commission in the past.
        Previous decisional practice
(18)    In the Commission's most recent precedent, in merger case M.7220 Chiquita
        Brands International/Fyffes, the Commission chose to define the market for
        bananas as distinct from the market for fresh fruit, from the perspective of both
        competitors and customers.8
(19)    The Commission's market investigation in case M.7220 Chiquita Brands
        International/Fyffes found a number of specificities associated with bananas on
        the supply-side. In particular, the competitors noted the following specificities
        that distinguish the supply of bananas from the supply of other fruit: (i) a lower
        degree of price variability, (ii) the distance travelled from origin to destination,
        (iii) the use of plastic packaging, (iv) the presence of import duties, (v) the
        perishability and need for regular supply of bananas, (vi) the need for ripening
        services, (vii) the existence of yearly contracts with growers and (viii) the
        transport and storing in chilled conditions.9
(20)    On the demand-side, the investigation found that customer demand for bananas
        was inelastic, with very limited substitutability with other fruits, and relatively
        constant throughout the year (whilst other fresh produce is typically seasonal).
        Furthermore, it was found that retailers tend to organise separate tenders for
        bananas and that bananas are the lowest cost fruit.10
6     Form CO, paragraph 43.1.
7     Form CO, paragraph 115.
8     Case M.7220 – Chiquita Brands International/Fyffes, recital 34.
9     Case M.7220 – Chiquita Brands International/Fyffes, recital 33.
10    Case M.7220 – Chiquita Brands International/Fyffes, recital 29-32.
                                                    4
 ---pagebreak---         Commission assessment
(21)    The Commission's market investigation in the present case confirmed that the
        arguments outlined above are all broadly still relevant. In particular, the majority
        of competitors stated that there were specificities in supplying bananas as
        opposed to supplying other fresh fruit.11 The specificities most often cited
        include: (i) year-round sourcing of bananas, (ii) the need to ripen bananas prior to
        sale; (iii) yearly price negotiations, and (iv) special conditions for transportation.12
        Responses by customers also show that ripening is more important for bananas
        than for other fruit and that yearly contracts and pricing set bananas apart from
        other fruit.13
(22)    On the basis of the replies received during the Commission's market investigation,
        the Commission considers that the definition of the bananas market as a distinct
        product market from other fresh fruit should be maintained.
5.1.1.2. Distinction based on stage of ripening process: green vs. yellow bananas
(23)    Bananas are generally imported green from overseas and ripened into yellow
        bananas by undergoing a ripening process, usually in geographic proximity of the
        customer. Bananas can be imported green and sold green to ripening service
        providers or customers with ripening facilities, or ripened by the importers
        themselves and sold yellow.
        Parties' arguments
(24)    The Parties argue that it is not necessary to define separate markets for green and
        yellow bananas as both suppliers and customers can readily switch between
        supplying and purchasing green and yellow bananas.
(25)    According to the Parties, there is plenty of ripening capacity across the EU,
        should suppliers or customers wish to switch between green and yellow bananas.
        Furthermore, if required, new ripening capacity may be easily and promptly
        created by suppliers. The Parties refer to Total Produce budgeting a cost of
        around EUR […] for the construction of […] ripening rooms in a new facility in
        Denmark and a cost of around EUR […] for […] new rooms in Sweden.
        According to the Parties, retailers can also easily and promptly vertically integrate
        into ripening or procure ripening services from independent third parties. Finally,
        the Parties argue that with the increasing flexibility of ripening and trucking
        arrangements, bananas can be ripened in one EEA country and quickly, easily and
        cheaply transported across the border to other countries.14
        Previous decisional practice
(26)    In case M.7220 Chiquita Brands International/Fyffes, the Commission did not
        consider it necessary to distinguish separate markets for green and yellow
11    Replies to question 8 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
12    Replies to question 8.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
13    Replies to question A.C.A.1 and question A.C.A.1.1 of Questionnaire 1 to Customers – Fresh
      Fruit/Bagged Salad;
      Replies to question 12 and question 12.1 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables.
14    Form CO, paragraph 134.13.
                                                       5
 ---pagebreak---         bananas, deeming it sufficient to look at the overall volumes of bananas sold to
        customers independently of their ripening stage.
        Commission assessment
(27)    The Commission's market investigation revealed that suppliers, wholesalers and
        retailers can and do purchase both green and yellow bananas. For green bananas,
        a variety of ripening options are available: (i) suppliers of green bananas with
        ripening facilities can provide ripening services for the bananas they supply;
        (ii) suppliers of green bananas with ripening facilities can provide ripening
        services for their customers' bananas (supplied by other suppliers); (iii) ripening
        services are provided by independent third party ripeners; and (iv) wholesalers
        and, to a lesser extent, retailers can operate own ripening facilities.15
(28)    The majority of competitors who responded indicated that they own ripening
        facilities16 and a number of them have indicated that they have opened new
        ripening facilities in the last 5 years.17 The majority of wholesalers and retailers
        who responded consider that there is currently sufficient ripening capacity to meet
        their needs.18 Some retailers have also indicated that ripening facility providers
        can and would, on request, expand their ripening capacity.19
(29)    On the basis of the results of the market investigation, the Commission considers,
        for the purposes of the present Transaction, that the relevant product market for
        the import and supply of bananas comprises of both green and yellow bananas.
5.1.1.3. Distinction based on certification: Fairtrade, organic and conventional
(30)    Bananas certified as 'Fairtrade' are those which meet certain ethical, social and
        environmental standards upheld by the Fairtrade Foundation. Bananas certified as
        'organic' are those that meet the criteria specified in the Council
        Regulation (EC) No. 834/2007 on the organic production and labelling of organic
        products. Some bananas may bear the double label 'Fairtrade' and 'organic'.
        Conventional bananas are those which meet neither Fairtrade nor organic
        requirements.
        Parties' arguments
(31)    The Parties submit that a distinction should not be made between Fairtrade and
        organic bananas, due to the wide prevalence of double-label bananas. The Parties
        further contend that conventional bananas should also be treated within the same
        frame of reference, arguing that there is a high degree of supply-side
15    Replies to question 40 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit; Replies to
      question 42 and question 42.1 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables; Replies to
      question A.E.B.B.1 and question A.E.B.B.2 of Questionnaire 1 to Customers – Fresh Fruit/Bagged
      Salad; Minutes of a conference call with a customer, 8 May 2018, 14.00; Minutes of a conference
      call with a customer, 16 May 2018, 11.15; Minutes of a conference call with a customer,
      30 May 2018, 11.00.
16    Replies to question 40 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
17    Replies to question 42 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
18    Replies to question A.E.B.B.1.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad;
      Replies to question 42.1 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables.
19    Minutes of a conference call with a customer, 16 May 2018, 11.15; Minutes of a conference call
      with a customer, 5 July 2018, 10.30.
                                                       6
 ---pagebreak---        substitutability between the categories. The Parties suggest that importers,
       wholesalers and retailers purchase a broad mix of all such bananas, depending on
       the prevailing tastes in the destination territory.20
(32)   Furthermore, although there are certain differences in the way bananas are
       produced, once bananas enter the supply chain, there is no material difference in
       terms of packing, shipping, ripening, distributing and retailing the products. Both
       products are ultimately sold on the same supermarket shelves at similar price
       points.21
       Previous decisional practice
(33)   In case M.7220 Chiquita Brands International/Fyffes, the Commission considered
       that it would be justified to define separate markets for (i) conventional bananas
       and (ii) organic and Fairtrade bananas. Any further distinction between organic
       and Fairtrade bananas was considered unnecessary as the presence of double-label
       bananas (both organic and Fairtrade) blurred the difference between the two.22
       Commission assessment
(34)   The large majority of competitors, retailers and wholesalers that responded to the
       Commission's questionnaire do not consider non-conventional (i.e. Fairtrade and
       organic) bananas to be substitutable with conventional bananas.23 The market
       investigation indicates that customers that specify their need for Fairtrade or
       organic bananas would not consider substituting these for conventional bananas.
       Moreover, Fairtrade and organic bananas command a premium price, which on
       average was quoted as being around 30-40% higher than conventional bananas
       (and up to 100% in certain markets).24
(35)   Overall, the market for Fairtrade and organic bananas appears to be growing, with
       sales of these non-conventional bananas steadily growing over the last few
       years.25
(36)   As regards the substitutability of Fairtrade and organic bananas, the replies to the
       market investigation are less conclusive than for the substitutability of
       conventional and non-conventional bananas. Whilst a large number of
       competitors, retailers and wholesalers that responded to the Commission's
       questionnaire regard Fairtrade and organic bananas as not substitutable, a number
       of them pointed out that the majority of organic bananas are already Fairtrade
       certified and that as long as Fairtrade and organic bananas are priced similarly,
20   Form CO, paragraph 172.
21   Form CO, paragraph 43.20.
22   Case M.7220 – Chiquita Brands International/Fyffes, recital 73.
23   Replies to question A.C.A.2.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad; Replies
     to question 13.1 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables; Replies to question 9.2
     of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
24   Replies to question A.C.A.2.1.2 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad;
     Replies to question 13.1.2 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables; Replies to
     question 9.1.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
25   Replies to question 13.1 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables; Minutes of a
     conference call with a customer, 8 May 2017, 14.00.
                                                      7
 ---pagebreak---         they could be seen as substitutable.26 Moreover, whilst some of the respondents to
        the Commission's questionnaire noted a price difference between Fairtrade and
        organic bananas, this price difference appears to be a lot more modest than the
        price difference between conventional and non-conventional bananas.27
(37)    On the basis of the results of the market investigation and having regard to its
        previous decisional practice, the Commission considers that it is justified to
        define separate markets for (i) conventional bananas and (ii) Fairtrade and/or
        organic bananas. The Commission does not find that there are separate markets
        for Fairtrade and organic bananas.
5.1.1.4. Distinction based on branding
(38)    Bananas may be sold unbranded or under a range of brands, including from the
        producer, importer or wholesaler. Private label bananas are characterised as being
        branded with a retailer's label rather than a supplier's label.
        Parties' arguments
(39)    The Parties consider that distinguishing separate markets on the basis of brand is
        not justified, and argue that consumer choice is driven by price and perceived
        quality rather than the brand. They add that retailers increasingly carry both
        branded and private label bananas, which is to a large extent due to the
        competitive pressure from discount retailers, such as Aldi and Lidl, fuelling the
        growth of private label bananas and therefore also constraining prices for branded
        bananas. The Parties consider that the price premium for branded bananas has
        been decreasing, currently estimated at 15%.28
        Previous decisional practice
(40)    In case M.7220 Chiquita Brands International/Fyffes, the Commission did not
        consider it necessary to distinguish the market between branded and non-branded
        bananas.
        Commission assessment
(41)    The vast majority of competitors, wholesalers and retailers that responded to the
        Commission's questionnaires regard branded and non-branded bananas as
        substitutable.29 Whilst some respondents indicated that brands are important to
        some customers, that some customers may be brand loyal and that certain branded
26    Replies to question 9.2 and question 9.2.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh
      Fruit; Replies to question A.C.A.2.2 and question A.C.A.2.2.1 of Questionnaire 1 to Customers –
      Fresh Fruit/Bagged Salad; Replies to question 13.2 and question 13.2.1 of Questionnaire 2 to
      Customers – Fresh Fruit/Vegetables.
27    Replies to question 9.2.2 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit; Replies to
      question A.C.A.2.2.2 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad; Replies to
      question 13.2.2 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables.
28    Form CO, paragraph 43.25.3.
29    Replies to question A.C.A.2.3 and question A.C.A.2.3.1 of Questionnaire 1 to Customers – Fresh
      Fruit/Bagged Salad; Replies to question 13.3 and question 13.3.1 of Questionnaire 2 to Customers –
      Fresh Fruit/Vegetables; Replies to question 9.3 and question 9.3.1 of Questionnaire 3 to
      Competitors – Bananas/Other Fresh Fruit.
                                                       8
 ---pagebreak---         bananas (e.g. Chiquita) can command a premium price,30 others have noted that
        customers mostly do not distinguish between branded and non-branded bananas,
        that price, quality and presentation at point of sale are more important for
        consumers and that the price premium for branded bananas is relatively modest.31
(42)    On the basis of the results of the investigation, and with regard to its previous
        decisional practice, the Commission considers that, for the purposes of the present
        Transaction, the relevant product market for the import and supply of bananas
        comprises of both branded and non-branded bananas.
5.1.1.5. Import and supply of bananas to retailers and wholesalers
(43)    Importers can sell bananas either directly to retailers in the EU, mainly to the
        modern retail channel (supermarkets), or to wholesalers who further distribute the
        bananas to retailers and other customers, including to channels other than the
        modern retail channel (i.e. cash & carry shops, open markets, food services,
        institutional catering etc.).
        Parties' arguments
(44)    The Parties submit that the relevant product market for the import and supply of
        bananas should not be distinguished between supplies to retailers and
        wholesalers. The Parties argue that there is no material overlap between them in
        relation to the non-modern retail channel and suggest therefore that there is no
        need to decide in the present case on whether and to what extent it should form a
        distinct product market.32
        Previous decisional practice
(45)    In case M.7220 Chiquita Brands International/Fyffes, the Commission defined
        the relevant market as the import and supply of bananas to retailers and
        wholesalers, having found that major wholesalers not only sell directly to the
        large retailers (in addition to smaller retailers and food service channel
        customers), but that they also directly sourced bananas and traded them with other
        wholesalers at European ports.33
        Commission assessment
(46)    According to the responses to the market investigation, competitors do not appear
        to distinguish between supplying customers along the retail or the wholesale
        channels.34
30    Replies to question A.C.A.2.3.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad;
      Minutes of a conference call with a customer, 8 May 2017, 14.00.
31    Replies to question A.C.A.2.3.2 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad;
      Replies to question 13.3.2 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables; Replies to
      question 9.3.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit; Minutes of a
      conference call with a customer, 30 May 2018, 11.00.
32    Form CO, paragraph 45.14.
33    Case M.7220 – Chiquita Brands International/Fyffes, recitals 95 and 98.
34    Replies to question 20.1 and 20.2 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit;
      Replies to question A.C.A.3 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad; Replies
      to question 14 and 14.1 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables
                                                        9
 ---pagebreak--- (47)    Competitors do point to some specificities, as one respondent puts it: "retailers
        tend to prefer a vertically integrated supplier that can consistently deliver quality
        products throughout the year"35 and some explain that contracts with the retail
        sales channel tend to be renewed on a yearly basis while wholesalers buy more on
        the spot market. Further, they add that small customers, such as food services,
        require in general more individual attention36, whereas cash and carry outlets are
        less sophisticated clients with simpler portfolios. Notwithstanding these
        differences, respondents noted that in general there were no specific barriers to
        the supply bananas to the respective sales channels.37
(48)    On the basis of the responses to the market investigation, and with regard to its
        decisional practice, the Commission considers that for the purposes of the
        assessment of the present Transaction, the relevant market for the import and
        supply of bananas comprises the supply to both retailers in the modern retail
        channel (i.e. supermarkets) and wholesalers who may sell the bananas to channels
        other than the modern retail channel (i.e. cash & carry shops, open markets, food
        services, institutional catering etc.).
5.1.1.6. Distinction based on banana origin and class of banana
(49)    The Parties submit that it is not appropriate to distinguish the relevant market by
        origin of bananas or by class of banana.38
(50)    In case M.7220 Chiquita Brands International/Fyffes, distinguishing separate
        markets based on origin was not considered relevant39 and in the same case, the
        Commission concluded that it was not appropriate to define separate relevant
        markets according to the class of banana.40
(51)    In the present case, on the basis of the Commission's previous precedent, the
        Commission considers that the relevant product market for the import and supply
        of bananas should not be further distinguished according to the different classes
        of banana or for the different origin of the banana.
5.1.2. Relevant geographic market
5.1.2.1. Parties' arguments
(52)    The Parties submit that the appropriate geographic frame of reference for the
        import and supply of bananas is at least regional if not EEA-wide for the reasons
        outlined below. In the alternative, and for the same reasons, the Parties submit
        that at the very least, it is important to take into account the evidence for assessing
        the Proposed Transaction on the basis of regional clusters41.
35    Replies to question 20.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
36    Replies to question 10 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
37    Replies to question 20.1 and 20.2 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
38    Form CO, paragraphs 45.7 – 45.9, 45.12.
39    Case M.7220 – Chiquita Brands International/Fyffes, recitals 49-52.
40    Case M.7220 – Chiquita Brands International/Fyffes, recitals 57-60.
41    Form CO, paragraph 45.35.
                                                       10
 ---pagebreak--- (53)    The Parties put forward that the market is wider than national for the following
        reasons: (1) bananas are sold very widely across the entire EEA, arriving at
        various European ports for onward supply to all parts of the EEA; (2) there is an
        increasing flexibility of shipping arrangements and trucking operators willing to
        make frequent intra-EEA deliveries of fresh produce are readily available;
        (3) customers active in multiple Member States coordinate their banana
        procurement across different territories, sometimes sourcing the entirety of their
        European banana requirements under single multi-territory contracts; (4) many
        retailers procure bananas and other fresh produce across several EEA Member
        States; (5) wholesalers of any reasonable size procure fruit across borders, in
        order to obtain supplies on the most cost-effective basis and to ensure the
        procurement of the full range of produce, which is unlikely to be available
        domestically; (6) wholesale prices move in a similar way in EEA regions as a
        result of strong common cost and demand factors; (7) banana ripening centres
        with spare capacity are widely available across all of the EEA, meaning that green
        bananas can be transported across borders before being ripened in the destination
        country.42
5.1.2.2. Previous decisional practice
(54)    In case M.7220 Chiquita Brands International/Fyffes, the Commission found that
        the market for the supply of bananas is national in scope.43 The market
        investigation in that case revealed that there were a number of differences in the
        preferences of banana consumers among the different Member States, including
        as to quality, size, origin, brands, certification and packaging of bananas.44
        Moreover, it was found that: (i) the nature of customers (retailer or wholesaler)
        varied significantly across countries, (ii) there were considerable differences in
        prices among countries, despite the fact that bananas were often imported through
        the same ports, (iii) retailers tended to negotiate prices at a national level,
        (iv) competitors tended to have different pricing strategies per country, and
        (v) expansion or entry would not be a timely reaction to a 5-10% permanent
        increase in price of bananas in a given country.45
5.1.2.3. Commission assessment
(55)    The results of the market investigation do not support the view that customers
        purchase bananas on a regional basis, with a vast majority of competitors,
        wholesalers and retailers stating that this is not the case.46
(56)    The vast majority of competitors, wholesalers and retailers that have responded to
        the Commission's questionnaire observe differences in prices for bananas between
        various EU countries.47 A difference in prices of bananas between various EU
42    Form CO, paragraphs 45.28 – 45.34.
43    Case M.7220 – Chiquita Brands International/Fyffes, recital 131.
44    Case M.7220 – Chiquita Brands International/Fyffes, recitals 119-124.
45    Case M.7220 – Chiquita Brands International/Fyffes, recitals 125-130.
46    Replies to question 21 and question 21.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh
      Fruit; Replies to question 21 and question 21.1 of Questionnaire 2 to Customers – Fresh
      Fruit/Vegetables; Replies to question A.D.3 and question A.D.3.1 of Questionnaire 1 to Customers
      – Fresh Fruit/Bagged Salad.
47    Replies to question 22 and question 23 of Questionnaire 3 to Competitors – Bananas/Other Fresh
      Fruit; Replies to question 23and 24 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables;
                                                      11
 ---pagebreak---       countries was found to exist irrespective of whether the sales in question were
      through the modern retail channel (supermarkets, retailers) or not (cash & carry,
      wholesalers, food service channel etc.).48
(57)  Whilst many competitors and the majority of wholesalers and retailers that
      responded to the Commission's questionnaires stated that there were no barriers to
      trade flows between different EU countries for banana sales to the modern retail
      and wholesale channels,49 some respondents noted that there were different
      requirements depending on each country or even retailer. For example, one
      competitor stated that Spain prefers bananas of EU origin (Canaries), Denmark
      prefers "small fingers per box" and Eastern Europe does not require certified
      bananas.50 Another respondent said that "the retail markets in europe are not the
      same", noting "different retailers, different concepts, different price strategy"
      between different EU countries.51 Some retailers have also noted that they cannot
      purchase yellow bananas from other countries due to limited shelf life and that
      longer deliveries are more complicated as ripening needs to be controlled, but that
      it is possible to buy green bananas and ripen them closer to their warehousing
      facilities.52 Indeed, the results of the market investigation reveal that where the
      retailers are purchasing yellow bananas from other countries, they tend to do so
      from the immediately bordering countries, whereas green bananas are sometimes
      purchased from further afield, including from growers directly.53
(58)  Whilst some of the competitors that responded to the Commission's questionnaire
      stated that they have faced difficulties entering a particular country in the EU,
      owing to existing competition, presence of multinationals with cheaper logistics
      costs and local differences, some others stated that they have not faced such
      difficulties.54
(59)  On the basis of the evidence before it, and having regard to its decisional practice,
      the Commission considers that the relevant geographic market for the import and
      supply of bananas is at least national, although the exact geographic market
      definition can be left open as no serious doubts arise under any plausible market
      definition.
     Replies to question A.D.5 and question A.D.6 of Questionnaire 1 to Customers – Fresh
     Fruit/Bagged Salad.
48   Replies to question 23.2, question 24 and question 24.2 of Questionnaire 3 to Competitors –
     Bananas/Other Fresh Fruit.
49   Replies to question 20, question 20.1 and question 20.2 of Questionnaire 3 to Competitors –
     Bananas/Other Fresh Fruit; Replies to question 20, question 20.1 and question 20.2 of
     Questionnaire 2 to Customers – Fresh Fruit/Vegetables; Replies to question A.D.2,
     question A.D.2.1 and question A.D.2.2 of Questionnaire 1 to Customers – Fresh Fruit/Bagged
     Salad.
50   Replies to question 20.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
51   Replies to question A.D.6.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
52   Replies to question A.D.2.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
53   Replies to question A.D.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
54   Replies to question 27 and 27.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
                                                      12
 ---pagebreak--- 5.1.3. Conclusion on the market definition for the import and supply of bananas
(60)   For the purposes of its assessment of the present Transaction, the Commission
       analyses the markets for the import and supply of bananas, which includes
       (i) both green and yellow bananas; (ii) supplies both to retailers in the modern
       retail channel (i.e. supermarkets) and to wholesalers. The Commission also
       analyses a separate product market for the import and supply of Fairtrade and
       organic bananas (as opposed to conventional bananas). The geographic market is
       at least national, although the geographic market definition can be left open as no
       serious doubts arise under any plausible market definition.
5.2.   Banana ripening services
(61)   Green bananas need to be ripened prior to their sale to customers and end-
       consumers. The process consists in placing the boxes of green bananas into a
       sealed ripening chamber where ethylene gas is circulated for 4 to 6 days
       depending on the degree of ripeness required, in order to gradually ripen the
       bananas. Once the bananas are ripened, they become more fragile. Therefore,
       transporting yellow bananas faces more limitations.
(62)   Ripening services can be carried out by the importer itself, in its own ripening
       facility, or by third party independent ripeners. Alternatively, some retailers also
       operate their own ripening facilities.
5.2.1. Relevant product market
(63)   The Parties note that in M.7220 Chiquita Brands International/Fyffes, the
       Commission concluded that the supply of banana ripening services constituted a
       separate product market. However, the Parties submit that their activities do not
       overlap in the provision of ripening services as Dole has not been providing any
       third party ripening in the EEA.
(64)   In case M.7220 Chiquita Brands International/Fyffes, the Commission considered
       a relevant market for banana ripening services, based on the fact that many
       independent providers of ripening services exist next to the vertically integrated
       suppliers and many importers owning ripening facilities sell banana ripening
       services to third parties.55
(65)   The results of the market investigation in the present case confirmed the presence
       of a distinct market for the provision of banana ripening services with
       independent supplier and third party ripening by importers56.
(66)   On the basis of the evidence before it, and having regard to its decisional practice,
       the Commission considers that there is a distinct market for the provision of
       banana ripening services.
55    Case M.7220 – Chiquita Brands International/Fyffes, recitals 102-105.
56    Replies to question 49 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit; Replies to
      question 42 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables; Replies to question A.D.2 of
      Questionnaire 1 to Customers - Fresh Fruit/Bagged Salad.
                                                     13
 ---pagebreak--- 5.2.2. Relevant geographic market
(67)   In case M.7220 Chiquita Brands International/Fyffes, the Commission considered
       that the geographic market for ripening services was at least national, based on
       the limited geographic range where ripened bananas can be transported.57
(68)   The majority of the competitors that responded to the Commission's questionnaire
       in the present case stated that the location of their banana ripening facilities limit
       the geographic scope of their banana sales in the EU, with 200-300 km being on
       average the radius of deliveries from a ripening facility.58
(69)   This is consistent with the view expressed by a large number of retailers and
       wholesalers, who prefer to have ripening facilities as near as possible and to
       deliver yellow bananas from ripening facilities located in the same country or,
       depending on distance, some neighbouring countries. Respondents in this case
       indicated an even larger, up to 500 km radius where ripened bananas could be
       transported without deterioration of quality and in sufficient quantities.59
(70)   On the basis of the evidence before it, and having regard to its decisional practice,
       the Commission considers that the relevant geographic market for the provision
       of banana ripening services is at least national, although the exact geographic
       market definition can be left open as no serious doubts arise under any plausible
       market definition.
5.2.3. Conclusion on the market definition for banana ripening services
(71)   For the purposes of its assessment of the present Transaction, the Commission
       analyses the markets for the provision of banana ripening services, for which the
       geographic market is at least national, although the market definition can be left
       open as no serious doubts arise under any plausible market definition.
5.3.   Assessment of potential horizontal non-coordinated effects for the import
       and supply of bananas and horizontal non-coordinated and vertical effects
       for banana ripening
5.3.1. Import and supply of bananas
(72)   The main areas of horizontal overlap between the Parties' import and supply of
       bananas in the EU are in Denmark and Sweden. Furthermore, affected markets
       arise in the Czech Republic, Spain, the Netherlands, Portugal and Romania.
(73)   Since the arguments with respect to the import and supply of Fairtrade/organic
       bananas are essentially the same as with respect to the import and supply of
       conventional bananas, for the purposes of this decision, these are dealt with
       together, highlighting the evidence specific to Fairtrade/organic bananas where
       relevant.
57    Case M.7220 – Chiquita Brands International/Fyffes, recitals 132-135.
58    Replies to question 25 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
59    Replies to question A.D.8, question A.D.8.1 and question A.D.8.2 of Questionnaire 1 to Customers
      – Fresh Fruit/Bagged Salad; Replies to question 26, question 26.1 and question 26.2 of
      Questionnaire 2 to Customers – Fresh Fruit/Vegetables.
                                                      14
 ---pagebreak--- 5.3.1.1. Parties' arguments
(74)    The Parties argue that they are not close competitors. While Dole is a traditional
        banana importer who ships green bananas into Europe and has an established
        banana brand, Total Produce is a fresh produce distributor and procures bananas
        from a variety of importers and supplies bananas to its customers together with
        many other different fruits and vegetables.60
(75)    The Parties argue that there are numerous other competitors who are able to
        supply customers in Denmark and Sweden with green bananas, which are easily
        transportable. With regard to Sweden and Denmark, the Parties identify large
        competitors, such as Fyffes, Del Monte, Chiquita and Greenyard (Ewerman in
        Sweden) that are able to supply any national market, in addition to local
        competitors, such as Poulsen & Finsen with H&P Frugtimport61 and Eurofrugt in
        Denmark, and Lundbladh and Biodynamiska in Sweden, as well as potential
        entrants such as Bama and Agroban.62
(76)    The Parties also argue that retail markets are concentrated, with four large retail
        chains (ICA, Coop, Axfood and Bergendahls) controlling 94% of the Swedish
        retail market, and three (Coop, Dansk Supermarked Group and Rema) accounting
        for approximately 80% of the banana market in Denmark. In addition, a number
        of retail chains operate their own wholesale and logistics arm in competition with
        the Parties. Therefore, according to the Parties, retailers in these countries
        exercise buyer power and would be able to resist any price increases.63
5.3.1.2. Commission assessment
        Denmark
(77)    With respect to the import and supply of conventional bananas, the Parties have
        significant combined market shares in Denmark ([70-80]%), with Total Produce's
        market share of [50-60]% and Dole's [20-30]%.64 With respect to the import and
        supply of Fairtrade/organic bananas, the Parties were unable to provide an
        estimate of the market size of the Danish Fairtrade/organic market.65 However,
        they note that Dole's sales are very limited (c. EUR […]) and any market share
        increment is likely to be very small. In Denmark, approximately 10% to 20% of
        all bananas sold are Fairtrade/organic.66
(78)    Whilst some competitors have noted that the supply of bananas market is highly
        concentrated in Denmark67 and market participants considered that Total Produce
60    Form CO, paragraph 138.3.
61    The Parties submit that the two companies belong to the same group. Form CO, footnote 288.
62    Form CO, paragraph 138.22.
63    Form CO, paragraphs 138.4 and 138.5.
64    Annex 7.4 to the Form CO (rounding errors may exist). The Parties do not distinguish between sales
      of green (unripened) and yellow (ripened) bananas in their sales data. In Denmark, Total Produce
      provides ripening and logistics services for the supply of bananas from [third party customer
      names], and the sales of these bananas have also been allocated to Total Produce's total sales of
      bananas in Denmark.
65    Parties' reply Response to the Commission's RFI No. 3 Question 33 and Annex 7.4 to the Form CO.
66    Annex 7.4 to the Form CO (rounding errors may exist).
67    Replies to question 35.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
                                                       15
 ---pagebreak---       and Dole compete closely in Denmark,68 the evidence collected during the market
      investigation reveals that the market for the supply of bananas in Denmark is
      competitive and is likely to remain so after the Transaction for the reasons set out
      in recitals (79) to (85).
(79)  First, the majority of competitors stated that they could supply yellow bananas to
      Denmark from another country at a competitive price for regular deliveries on a
      not insignificant scale, for example from Northern Germany (Hamburg area) or
      Southern Sweden.69
(80)  Second, most of the retailers identified a number of potential suppliers of yellow
      bananas in Denmark. Thus, in addition to the Parties, retailers could potentially
      source yellow bananas from suppliers such as Chiquita, Citromex, Fyffes, H&P
      Frugtimport, Max Havelaar, Poulsen & Finsen, Trio Fruit and Uncle Tuca.70 Most
      of the respondents concurred that these suppliers would be able to supply them
      with yellow bananas of quantity and quality sufficient for their needs. 71 Chiquita
      and Fyffes in particular were identified as strong competitors. In addition to Total
      Produce and Dole, the majority of competitors ranked Fyffes and Chiquita as the
      other two important competitors among their top three most important
      competitors.72
(81)  The same was found to be true for Fairtrade/organic bananas specifically, with
      most retailers identifying a number of potential suppliers of Fairtrade/organic
      bananas of quantity and quality sufficient for their needs, such as Chiquita,
      Citromex, Don Mario, H&P Frugt, Max Havelaar and Poulsen & Finsen.73
(82)  Third, many respondent competitors also stated that they could supply green
      bananas to Denmark, which could then be ripened either at their own or at third
      party ripening facilities.74 This is consistent with the view of most of the
      respondent retailers, who identified a number of potential suppliers of green
      bananas in Denmark (in addition to the Parties), from whom they could
      potentially source green bananas of sufficient quantity and quality, such as
      Chiquita, Citromex, Compagnie Fruitière, Continental, Don Mario, Euro Frugt,
      Favorita, Max Havelaar, Poulsen & Finsen, Trio Fruit and Uncle Tuca.75 The
68   Replies to question 33 and question 34 of Questionnaire 3 to Competitors – Bananas/Other Fresh
     Fruit; Replies to question A.E.B.A.1.1, question A.E.B.A.1.2, question A.E.B.A.5.1 and
     question A.E.B.A.5.2 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
69   Replies to question 47, question 47.1, question 47.2 and question 48 to Questionnaire 3 to
     Competitors – Bananas/Other Fresh Fruit.
70   Replies to question A.E.B.A.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
71   Replies to question A.E.B.A.1.3 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
72   Replies to question 31 and question 31.2 of Questionnaire 3 to Competitors – Bananas/Other Fresh
     Fruit.
73   Replies to question A.E.B.A.5 and question A.E.B.A.5.3 of Questionnaire 1 to Customers – Fresh
     Fruit/Bagged Salad.
74   Replies to question 48, question 48.1 and 48.2 to Questionnaire 3 to Competitors – Bananas/Other
     Fresh Fruit.
75   Replies to question A.E.B.A.3 and question A.E.B.A.3.3 of Questionnaire 1 to Customers – Fresh
     Fruit/Bagged Salad.
                                                     16
 ---pagebreak---        majority of respondents have stated that they could also purchase bananas directly
       from a banana grower. Indeed, a number of them already do so today.76
(83)   Fourth, there is evidence of countervailing buyer power. The market investigation
       confirmed the Parties' assertion that the Danish retail market is highly
       concentrated and that retailers exercise buyer power.77 A number of competitors
       provided instances of customers successfully using various strategies (or threats)
       in their dealings with them, including: (i) switching to an alternative suppliers,
       (ii) transferring additional costs to the suppliers, (iii) delisting the supplier,
       (iv) reducing the prominence of the supplier's goods on the shelves, and
       (v) demanding reverse payments (e.g. discounts, contributions to promotions,
       stocking fees etc.).78 This was confirmed by the customer responses to the
       Commission's questionnaire, the majority of whom confirmed using strategies
       such as switching or delisting suppliers and demanding reverse payments, as well
       as, to a lesser extent, transferring costs to suppliers, reducing the prominence of
       their goods on the shelves and paying in arrears.79 As one supplier explained: "All
       customers use the threat of switching to alternative suppliers and/or delisting as
       part of normal contract negotiations. In some cases the entire contract is lost and
       in others some part of the supply base may be lost. Support of promotional
       activities is also a normal part of business with large retail customers and may be
       agreed as part of an annual contract or on an ad hoc basis during the year."80
       The use of the above-mentioned strategies applies especially to retailers such as
       supermarket chains, but also to wholesalers (depending on size, as larger
       wholesalers were noted to behave, and exercise buyer power, in a way similar to
       larger retailers).81
(84)   Fifth, a number of competitors have provided examples of instances of customers
       switching banana suppliers within the last five years.82 This was confirmed by
       responses from the customers in Denmark with respect to both yellow and green
       bananas.83 As one supplier in Denmark observed, "[a]ll of our customers can
       switch to alternate suppliers if we don't deliver right quality or price. Especially
       supermarkets use [the strategy of switching to alternative suppliers] to demand
       contributions to their campaigns/sales".84
(85)   Sixth, whilst a very small number of competitors and retailers considered that the
       Transaction would strengthen the Parties' position in Denmark and that as a result
       of the Transaction prices may increase, the majority of the competitors and
76   Replies to question A.E.B.B.12 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit;
     Replies to question A.E.A.2.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
77   Replies to question 35.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
78   Replies to question 28 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
79   Replies to question A.E.A.1.1, question A.E.A.1.2, question A.E.A.1.3, question A.E.A.1.4,
     question A.E.A.1.5, question A.E.A.1.6 and question A.E.A.1.7 of Questionnaire 1 to Customers –
     Fresh Fruit/Bagged Salad.
80   Replies to question 28.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
81   Replies to question 28.1 and question 30 of Question 3 to Competitors; Replies to question A.E.A.3
     of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
82   Replies to question 56 of and question 56.1 of Questionnaire 3 to Competitors – Bananas/Other
     Fresh Fruit.
83   Replies to question A.E.B.A.2 and question A.E.B.A.4 of Questionnaire 1 to Customers – Fresh
     Fruit/Bagged Salad.
84   Replies to question 28.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
                                                      17
 ---pagebreak---        retailers that responded to the Commission's market investigation considered that
       the Transaction will not have any significant impact for the supply of bananas in
       Denmark, since the market is likely to remain competitive, with a number of
       alternative suppliers and with strong retailers exercising significant buyer
       power.85 As one respondent noted, "it is the retailers that control the price setting
       in the market, as bananas are a very important product for retailers" and for this
       reason they do not consider that the merged Parties "would be able to push
       through significant price rises".86
       Sweden
(86)   With respect to the import and supply of conventional bananas to retailers and
       wholesalers, the Parties have combined market shares in Sweden of [50-60]%,
       with Total Produce having a market share of [20-30]% and Dole [20-30]%.87
(87)   With respect to the import and supply of Fairtrade/organic bananas in Sweden,
       the Parties have combined market shares of [50-60]%, with Total Produce having
       a market share of [30-40]% and Dole [20-30]%.88 In Sweden, Fairtrade/organic
       bananas account for a significant share of all banana sales (approximately 55% -
       65% of all bananas sold in Sweden are Fairtrade/organic89).
(88)   Whilst several competitors have noted that the supply of bananas market is highly
       concentrated in Sweden90 and market participants considered that Total Produce
       and Dole compete closely in Sweden,91 the evidence collected during the market
       investigation reveals that the market for the supply of bananas in Sweden is
       competitive and is likely to remain so after the Transaction for the reasons set out
       in paragraphs (89) to (96).
(89)   First, although Sweden is geographically situated further away from ripening
       facilities in neighbouring countries than Denmark, making the import of yellow
       bananas into Sweden more logistically complicated and costly,92 most of the
       retailers that responded to the Commission's questionnaire identified a number of
       potential suppliers that would be able to supply them with yellow bananas of
       quantity and quality sufficient for their needs.93 Thus, in addition to the Parties,
       retailers could potentially source yellow bananas from suppliers such as Chiquita,
       Citromex, Del Monte, Ewerman, Fyffes, KA Lundbladh, and Max Havelaar.94
       Chiquita and Fyffes in particular were identified as strong competitors, with the
85   Replies to question 69 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit; Replies to
     question A.F.2 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad; Minutes of a
     conference call with a customer, 16 May 2018, 11.15.
86   Minutes of a conference call with a customer, 30 May 2018, 11.00.
87   Annex 7.4 to the Form CO.
88   Annex 7.4 to the Form CO (rounding errors may exist).
89   Annex 7.4 to the Form CO (rounding errors may exist).
90   Replies to question 35.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
91   Replies to question 33 and question 34 of Questionnaire 3 to Competitors – Bananas/Other Fresh
     Fruit; Replies to question A.E.B.A.1.1, question A.E.B.A.1.2, question A.E.B.A.5.1 and
     question A.E.B.A.5.2 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
92   Replies to question 45 and question 45.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh
     Fruit.
93   Replies to question A.E.B.A.1.3 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
94   Replies to question A.E.B.A.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
                                                      18
 ---pagebreak---        majority of respondent competitors ranking them (in addition to the Parties)
       among their top three most important competitors in Sweden (though Chiquita's
       offering in Fairtrade/organic bananas was noted as being less relevant).95
(90)   Second, the market investigation revealed that there is no shortage of supply of
       green bananas into Sweden. The majority of respondent competitors stated that
       they could supply Sweden with green bananas, which could be easily ripened in
       ripening facilities in Sweden. Indeed, this appears to be the way that many
       competitors already operate today.96 This was confirmed by responses from the
       retailers, who stated that they could potentially source green bananas of sufficient
       quantity and quality from suppliers such as Chiquita, Citromex, Del Monte,
       Favorita, Fyffes and Max Havelaar.97
(91)   The same was found to be true for Fairtrade/organic bananas specifically, with
       most retailers identifying a number of potential suppliers of Fairtrade/organic
       bananas of quantity and quality sufficient for their needs, such as Chiquita,
       Citromex, Ewerman, Fyffes, KA Lundbladh and Max Havelaar.98
(92)   Third, the majority of competitors and some of the customers that responded to
       the Commission's questionnaire have stated that they could purchase bananas
       directly from a banana grower. Indeed, a number of them already do so today. 99
(93)   Fourth, there is evidence of countervailing buyer power regarding the purchase of
       bananas. The market investigation confirmed the Parties' assertion that the
       Swedish retail market is highly concentrated and that retailers exercise buyer
       power.100 As one supplier observed, "[t]he Swedish market is competitive and
       with high trade standards on quality. We believe there is a healthy competition
       climate on the market."101 Another supplier in Sweden said that "[s]upermarkets
       are becoming very strong and they dictate the conditions on the market."102
(94)   A number of competitors in Sweden provided instances of customers successfully
       using various strategies (or threats thereof) in their dealings with them, including
       (i) switching to alternative suppliers, (ii) transferring additional costs to the
       suppliers, (iii) delisting the supplier, (iv) reducing the prominence of the
       supplier's goods on the shelves, and (v) demanding reverse payments
       (e.g. discounts, contributions to promotions, stocking fees etc.).103 This was
       confirmed by the customers, the majority of whom admitted to using strategies
95   Replies to question 31 and question 31.2 of Questionnaire 3 to Competitors – Bananas/Other Fresh
     Fruit.
96   Replies to question 46 and question 46.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh
     Fruit.
97   Replies to question A.E.B.A.3 and question A.E.B.A.3.3 of Questionnaire 1 to Customers – Fresh
     Fruit/Bagged Salad.
98   Replies to question A.E.B.A.5 and question A.E.B.A.5.3 of Questionnaire 1 to Customers – Fresh
     Fruit/Bagged Salad.
99   Replies to question A.E.B.B.12 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit;
     Replies to question A.E.A.2.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad; Minutes
     of a conference call with a customer, 5 July 2018, 10.30.
100  Replies to question 35.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
101  Replies to question 28.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
102  Replies to question 28.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
103  Replies to question 28 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
                                                      19
 ---pagebreak---        such as switching or delisting suppliers and demanding reverse payments, as well
       as, to a lesser extent, transferring costs to suppliers, reducing the prominence of
       their goods on the shelves and paying in arrears.104 The use of the above-
       mentioned strategies applies especially to retailers such as supermarket chains,
       but also to wholesalers (depending on size, as larger wholesalers were noted to
       behave, and exercise buyer power, in a way similar to larger retailers).105
(95)   Fifth, some competitors have provided examples of instances of customers
       switching banana suppliers in Sweden within the last 5 years.106 This was
       confirmed by responses from the customers in Sweden.107
(96)   Sixth, whilst a very small number of competitors and retailers considered that the
       Transaction would strengthen the Parties' position in Sweden and that as a result
       of the Transaction prices may increase, the majority of the competitors and
       retailers that responded to the Commission's questionnaire considered that the
       Transaction will not have any significant impact for the supply of bananas in
       Sweden, since the market is likely to remain competitive with strong retailers
       exercising significant buyer power, with some customers even expecting lower
       prices as a result of the Transaction.108
       Other affected markets
(97)   As regards the other affected markets, the Parties have a relatively large
       combined market share for the supply of conventional bananas in the Czech
       Republic of [30-40]%, where the Parties each have approximately the same
       market position (Total Produce – [10-20]%, Dole – [10-20]%),109 whereas on the
       other affected markets the market share increment is limited (between 2-8%).
       These other affected markets are Spain ([30-40]%), Portugal ([20-30]%),
       Romania ([20-30]%) and the Netherlands ([30-40]%), where the Parties also have
       a combined market share of [20-30]% for the supply of Fairtrade/organic
       bananas.110
(98)   With regard to the Czech Republic, the market investigation has revealed that the
       market for the import and supply of bananas in the Czech Republic is competitive
       and is likely to remain so after the Transaction, with retailers and wholesalers
       identifying a number of alternative suppliers of both yellow and green bananas in
       the Czech Republic.111 There also do not seem to be any significant barriers to
       entry, with the majority of the competitors that responded to the Commission's
104  Replies to question A.E.A.1.1, question A.E.A.1.2, question A.E.A.1.3, question A.E.A.1.4,
     question A.E.A.1.5, question A.E.A.1.6 and question A.E.A.1.7 of Questionnaire 1 to Customers –
     Fresh Fruit/Bagged Salad.
105  Replies to question 28.1 and question 30 of Questionnaire 3 to Competitors – Bananas/Other Fresh
     Fruit; Replies to question A.E.A.3 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
106  Replies to question 55 of and question 55.1 of Questionnaire 3 to Competitors – Bananas/Other
     Fresh Fruit.
107  Replies to question A.E.B.A.2 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
108  Replies to question 68 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit; Replies to
     question A.F.A.3 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad; Minutes of a
     conference call with a customer, 8 May 2017, 14.00.
109  Annex 7.4 to the Form CO.
110  Annex 7.4 to the Form CO (rounding errors may exist).
111  Replies to question 32 and question 34 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables.
                                                      20
 ---pagebreak---         questionnaire considering it easy to enter and/or gain market share for the sale of
        bananas in the Czech Republic.112 Several competitors and customers also
        provided examples of instances where the customers have switched banana
        supplier in the Czech Republic.113 Furthermore, the majority of competitors and
        customers that responded to the Commission's questionnaires consider that the
        Transaction will have no or limited effect in the Czech Republic.114
(99)    With regard to the Netherlands, Portugal, Romania and Spain, the market
        investigation did not reveal any concerns: (i) entry and/or gain of market share for
        the sale of bananas in these countries was generally not perceived as difficult;115
        (ii) a number of alternative suppliers of bananas were identified (including for
        Fairtrade/organic bananas in the Netherlands) and some wholesalers and retailers
        have indicated that they source from growers directly (in particular in Spain),116
        and (iii) there is evidence of switching suppliers, with several competitors
        providing examples of instances where their customers have switched banana
        supplier in these countries.117 Furthermore, the majority of competitors and
        several customers that responded to the Commission's questionnaire considered
        that the Transaction will have no or limited effect in the Netherlands, Portugal,
        Spain and Romania.118
5.3.1.3. Conclusion
(100) On the basis of the above, the Commission concludes that the Transaction does
        not raise serious doubts as regards its compatibility with the internal market due
        to horizontal overlaps in the markets for the import and supply of conventional
        bananas in Denmark, Sweden, Czech Republic, Spain, the Netherlands, Portugal
        and Romania, and does not raise serious doubts as regards compatibility with the
        internal market due to horizontal overlaps in the markets for the import and
        supply of Fairtrade/organic bananas in Denmark, Sweden and the Netherlands.
5.3.2. Provision of banana ripening services in Denmark and Sweden
5.3.2.1. Parties' arguments
(101) The Parties submit that Dole has not provided any third party ripening services in
        any of its facilities in the EEA and generally sells its bananas green – with the
        exception of Germany, Italy and Sweden, where it has some own ripening
        facilities. Total Produce has a very limited presence in the supply of third-party
        banana ripening services in the EEA, the only notable market presence in ripening
        being in Denmark and in Hungary. Therefore, there is no horizontal overlap
        between the Parties' banana ripening activities and the Parties argue that the
112   Replies to question 38 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
113   Replies to question 57.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit; Replies to
      question 33 and question 35 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables.
114   Replies to question 70 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit; Replies to
      question 56.1 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables.
115   Replies to question 38 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
116   Replies to question 32, question 32.3, question 34, question 34.3, question 36 and question 39 of
      Questionnaire 2 to Customers – Fresh Fruit/Vegetables.
117   Replies to question 57.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
118   Replies to question 70 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit; Replies to
      question 56.1 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables.
                                                       21
 ---pagebreak---         Transaction could not be expected to give rise to any competition concerns as
        regards the provision of ripening services to third parties.
(102) The Parties argue that once green bananas have been imported into these two
        countries, there is no difficulty in obtaining ripening services in order for retailers
        to be supplied with yellow bananas. The Parties state that it is ultimately the
        customers who determine which bananas should be ripened for them and that the
        provision of ripening services is in practice not bundled with the sale of green
        bananas.
(103) In particular, the Parties argue that they are not able to leverage control of their
        banana ripening facilities in order to foreclose other importers and banana
        suppliers from the market. Banana ripening is a simple process and does not
        require significant investment, such that any importer or indeed retailer could
        easily incur the cost of expanding, or building new, banana ripening capacity. The
        Parties also point out that there are alternative facilities to which customers can
        turn for their ripening needs.
5.3.2.2. Commission assessment
        Denmark
(104) While there is no horizontal overlap between the Parties in ripening services in
        Denmark, the Commission has assessed whether the Transaction leads to vertical
        concerns regarding customer or input foreclosure.
(105) Total Produce has a share of the banana ripening capacity in Denmark of
        [80-90]%.119 Dole does not provide ripening services in Denmark. An
        independent competitor active in third party ripening in Denmark is H&P
        Frugtimport together with Poulsen & Finsen,120 with a share of banana ripening
        capacity in Denmark of [10-20]%.
(106) In the market investigation, the majority of wholesalers and retailers considered
        that there is currently sufficient ripening capacity to meet their needs.121
        Moreover, some retailers have also indicated that ripening facility providers can
        and would, on request, expand their ripening capacity.122 The majority of the
        customers indicated that they could purchase green bananas from another country
        for import into Denmark for regular deliveries of not only insignificant scale and
        at competitive price for ripening in Denmark.123
(107) The Commission considers that any attempt by the Parties to foreclose other
        importers and banana suppliers from the Danish market by leveraging its banana
        ripening capacity after the Transaction is likely to be unsuccessful for the reasons
        set out in paragraphs (108) to (112).
119   Form CO, paragraph 135.12 Table B.
120   The Parties submit that the two companies belong to the same group. Form CO, footnote 288.
121   Replies to question A.E.B.B.1.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad;
      Replies to question 42.1 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables.
122   Minutes of a conference call with a customer, 16 May 2018, 11.15; Minutes of a conference call
      with a customer, 5 July 2018, 10.30.
123   Replies to question A.E.B.B.11 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
                                                       22
 ---pagebreak--- (108) First, in particular, since yellow bananas can be transported for distances of
      between 100 and 500 kilometres (or potentially even further, depending on
      transport conditions),124 suppliers and customers in Denmark could still obtain
      yellow bananas relatively easily from other countries, even if they could not
      access sufficient ripening capacity in Denmark. Indeed, the majority of
      competitors and customers that responded to the Commission's questionnaire
      stated that they could supply Denmark with yellow bananas from another country
      at a competitive price for regular deliveries of not only insignificant scale and that
      many of them already do so, notably from ripening facilities and distribution
      centres in Northern Germany (Hamburg area).125
(109) Second, those suppliers who currently have spare capacity are not likely to refuse
      third party banana ripening in their facilities. As one competitor observed: "For
      companies who own ripening facilities it is in their interests to maximise
      utilisation and efficiency therefore they are in general willing to offer service
      provision to 3rd parties if they have excess capacity".126
(110) Third, even though some competitors have indicated that they consider there to be
      entry barriers to banana ripening in Denmark,127 the majority of customers do not
      deem this to be the case, with one customer remarking: "Anybody could build
      ripening facility".128 According to the results of the market investigation, a new
      ripening facility could be constructed for EUR 1-4 million, depending on the
      capacity required, in as little as 6 months.129
(111) Fourth, banana competitors agree and assert that on customer demand they would
      be ready to set up ripening centres.130 A large banana competitor remarked to "…
      position their ripening centres based on demand by customers", adding that "It is
      not a "push market"' but a "pull market" by the customers."131 These comments
      support the Parties' view that customer demand is the driver for the creation of
      ripening capacities.
(112) Fifth, the market investigation provided evidence that competitors have indeed
      been opening (and also closing down) ripening centres all across the EU, which
      seems to be a dynamic process.
(113) As concerns a potential foreclosure of green bananas towards the only third party
      ripener (H&P Frugtimport) by the Parties, the market investigation provided
124  Replies to question 44 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit; replies to
     question A.E.B.B.7 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
125  Replies to question 47, question 47.1, question, question 48, question 48.1 and question 48.2 of
     Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit; Replies to question A.E.B.B.10 and
     question A.E.B.B.10.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
126  Replies to question 51.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
127  Replies to question 51 and question 51.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh
     Fruit.
128  Replies to question A.E.B.B.4 and question A.E.B.B.4.1 of Questionnaire 1 to Customers – Fresh
     Fruit/Bagged Salad.
129  Replies to question 43.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit; Replies to
     question, question 45.2 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables and
     question A.E.B.B.6.2 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
130  Replies to question 43 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
131  Minutes of a conference call with a competitor on 23 May 2018, 11h00.
                                                      23
 ---pagebreak---       evidence that the Parties would not have the incentive and the ability to carry it
      out. A retailer in Denmark confirmed132 that it is not the ripener but the retailer
      who negotiates and contracts yearly supply agreements with the importers for the
      supply green bananas. The retailer also explained that the selection and
      contracting of the ripener happened independently from the green banana supply
      process; a separate contract is signed with much longer time horizons, potentially
      several years. Following these two agreements, the ripener then establishes a
      contractual relationship for the banana deliveries with the green banana importer.
(114) Resulting from this contractual structure, the importer of green bananas could
      easily lose its sales to the retailer, the latter having ample choice of alternative
      green banana suppliers to whom it can easily switch, while at the same time being
      tied to its ripener through the long-term contract.
      Sweden
(115) The Parties' ripening activity in Sweden is entirely captive133 and they have a
      significant share of the total banana ripening capacity in Sweden of [50-60]%
      ([20-30]% Total Produce, [20-30]% Dole).134
(116) The Commission considers that any attempt by the Parties to foreclose other
      importers and banana suppliers from the Swedish market by leveraging its banana
      ripening capacity after the Transaction is likely to be unsuccessful for the reasons
      set out in paragraph (117) to (121).
(117) First, the majority of competitors indicated that they would not be able to supply
      yellow bananas to Sweden for regular deliveries at competitive prices, mainly due
      to logistical issues, such as excessive lead times135 for yellow bananas, and freight
      costs. However, the majority of competitors stated that they could supply green
      bananas and have them ripened in Sweden, holding that this was possible at
      competitive prices136 and also with good logistical solutions for the rest of
      Sweden.137
(118) Second, the Parties estimate that the largest alternative ripener, Chiquita, is also
      active in third party ripening with ca. 33% capacity share. Smaller players present
      on the market are Ewerman, Lundbladh and Agroban with 9%, 6% and 3% shares
      respectively. Therefore, there appears to be sufficient ripening capacity in Sweden
      beyond the Parties.138
132  Minutes of a conference call with a customer on 16 May, 2016.
133  Form CO, paragraph 134.4.
134  Form CO, paragraph 140.27.
135  Replies to question A.E.B.B.8.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad;
     Replies to question A.E.B.B.9.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
136  Replies to question 46 and question 46.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh
     Fruit.
137  Replies to question 46.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
138  Replies to question 50.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
                                                      24
 ---pagebreak--- (119) Third, customers are of the view that any of the available ripeners in Sweden
        would ripen bananas for them in order to use up their spare capacity, irrespective
        of whether or not they are competing with them at the wholesale level.139
(120) Fourth, entry barriers onto the Swedish ripening market were considered to be
        low by respondents.140 Some of the competitors that do not currently have their
        own ripening facilities have indicated that, given sufficient demand, they would
        consider making the investment to build one,141 for the cost of EUR 1-4 million
        within 6 months as noted in recital (110) above. The recent entry of a new ripener
        in Sweden, Agroban, is also indicative of the fact that entry barriers to banana
        ripening in Sweden are modest.
(121) Fifth, the majority of competitors and customers that responded to the
        Commission's market investigation did not express any significant concerns in
        relation to the market for ripening services in Sweden. One customer even
        expressed the view that the Transaction could lead to lower prices for banana
        ripening in Sweden.142
5.3.2.3. Conclusion
(122) On the basis of the above, the Commission concludes that the Transaction does
        not raise serious doubts as to its compatibility with the internal market as regards
        its impact on competition for banana ripening services in Denmark or Sweden,
        due to either horizontal overlaps or vertical effects.
6.      BAGGED SALAD
(123) Bagged salad is loose or cut salad leaves mixed together or mixed with other cut
        vegetables, which is washed, dried, packaged and ready to eat. Bagged salad is
        considered to be a type of convenience product. The Parties' activities in bagged
        salad overlap only in Sweden and, to a lesser extent, Denmark.
6.1.    Market definition
6.1.1. Relevant product market
6.1.1.1. Parties' arguments
(124) The Parties argue that bagged salad should be considered part of the same product
        market as fresh vegetables. This is because consumers tend to spend a fixed
        amount of money on vegetables as a whole, and therefore at the retail level all
        vegetable categories should be considered substitutable. They further argue that
        the delineation between vegetables and bagged salads is blurred given that bagged
139   Minutes of a conference call with a customer, 5 July 2018, 10.30.
140   Replies to question A.E.B.B.3 and question A.E.B.B.3.1 of Questionnaire 1 to Customers – Fresh
      Fruit/Bagged Salad.
141   Replies to question 43 and 43.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit;
      Replies to question A.E.B.B.6 and question A.E.B.B.6.1 of Questionnaire 1 to Customers – Fresh
      Fruit/Bagged Salad; Minutes of a conference call with a customer, 30 May 2018, 11.00
142   Minutes of a conference call with a customer, 8 May 2017, 14.00.
                                                       25
 ---pagebreak---         salads may contain vegetables such as spinach, carrots, beans, kale, peppers,
        sweetcorn, celery and spring onions.
(125) The Parties suggest that there is a high degree of substitutability of washed
        bagged salad with unwashed, and even with whole-head salad. They also reason
        that salad bars and ready-to-eat meals containing salad compete in the same
        category with bagged salad, as these are all convenience products.
        Acknowledging that the prices of these products significantly differ, the Parties
        argue that these products form part of a continuum of products: from loose salad,
        over unwashed, to bagged, up to salad bars, where each type of product exerts a
        competitive constraint on the other.
(126) From a supply-side perspective, the Parties argue that barriers to entry into
        bagged salad are low, since a washing and bagging facility could be easily set up
        and the supply chain for vegetables, loose salad and bagged salad are identical,
        consisting of growing, washing, packing and distributing them to retailers and
        wholesalers.
(127) The Parties also submit that the supply of bagged salad should not be further
        distinguished according to the sales channel into sales to retailers or food service,
        as there is complete supply-side substitutability between the two. Bagging
        machines can be easily switched to bag larger portions (for example 1 kg bags for
        food service vs. 150-400g bags for retail customers). They also argue that
        branding is not an issue, at least not in the Nordics, since retail sales are largely
        unbranded. They submit that quality standards are equally high for supply to the
        retailer and food service channels.
6.1.1.2. Commission assessment
(128) A previous case143 briefly touched upon the market for bagged salad, without a
        market definition being specified. However, there were some indications from the
        market investigation that bagged and pre-cut salads could belong to the market for
        fresh vegetables, given the high degree of substitutability for the consumer
        between bulk and bagged pre-cut salads.
(129) The market investigation in the present case indicated that washed bagged salad
        should constitute a distinct product market.
(130) First, the market investigation revealed a limited degree of supply-side
        substitutability between the manufacture of unwashed salad and vegetables, and
        bagged salad, as the latter requires the capital-intensive establishment of a
        washing and bagging facility. The market investigation among salad producers
        revealed only a few market players to be active in the bagging and washing of
        salads, whereas many more in the supply of unwashed and whole-head salad and
        vegetables. The two clusters were clearly separate.144
(131) Second, from the demand side, washed bagged salad is not a product that retailers
        would be able to remove from their shelves on the basis of demand-side
143   Case COMP/M.4216 – CVC/De Weide Blik/Bocchi, recital 22.
144   Replies to question 5 and question 29 of Questionnaire 4 to Competitors – Bagged Salad.
                                                       26
 ---pagebreak---        substitutability with other fresh vegetable or salad products. Both, suppliers145 and
       retailers, agreed that washed bagged salad was a 'must-have' product.
(132) Third, respondents to the market investigation were of the view that there was
       indeed some functional substitutability between unwashed bagged salad and
       washed bagged salad. In contrast, they considered that there was less
       substitutability of washed bagged salad with loose or cut salad, whole-head salad,
       salad bars and stir-fry vegetables. Respondents also agreed that the prices
       between washed bagged salad, unwashed salad and whole-head salad were
       significantly different.146
(133) Fourth, respondents explained that the distinction between washed bagged salad
       and unwashed and whole-head salad is mainly driven by distinct consumer
       preferences: some held the market was moving towards more convenience and
       more washed salad, some held the market was moving towards less processing
       with less washed salad.147
(134) Fifth, also, internal documents of the Parties148 and market feedback suggest that
       washed bagged salad is a so-called "value-added" product, differentiating it from
       other loose salad or vegetables: it commands considerably higher prices and also
       has considerably higher ([5-10]% as opposed to [0-5]% of vegetables in general)
       operating margins.
(135) As concerns the distinction of sales to retail or to food service channels, these
       have traditionally been defined as separate markets by Commission precedents.149
       The majority of customers responding to the market investigation in the present
       case150 suggested that supplying the food service channel with bagged salad made
       entry into the retail channel easy. However, all but one competitor suggested the
       opposite. Some explained that there were structural differences on the two
       markets (packaging, size and logistics set-up were all different) and also
       mentioned that entry barriers onto the retail market were high.151
(136) For the above reasons, the Commission considers that a distinct product market
       for the manufacture and sale of washed bagged salad is justified. Whether the
       relevant product market for washed bagged salad is to be further distinguished by
       sales to the retail channel and food service channel can be left open because
       serious doubts arise in the supply of washed bagged salad to both customer
       groups considered together and individually.
145  See replies to question 8 of Questionnaire 4 to Competitors – Bagged Salad; Replies to
     question B.B.1 of Questionnaire 1 to Customers - Fresh Fruit/Bagged Salad.
146  Replies to questions 9-14 of Questionnaire 4 to Competitors - Bagged Salad; Replies to
     questions B.B.2-B.B.7 of Questionnaire 1 to Customers - Fresh Fruit/Bagged Salad.
147  Replies to questions 9-14 of Questionnaire 4 to Competitors - Bagged Salad; Replies to
     questions B.B.2 – B.B.7 of Questionnaire 1 to Customers - Fresh Fruit/Bagged Salad.
148  See e.g. [internal document submitted by the Parties], December 2017, or see e.g. minutes of a
     conference call with a competitor on 30 May, 2018, 11.00.
149  See e.g. Case COMP/M.6143 – Princes/Premier Foods Canned Grocery Operations, recital 11.
     Sale of food products to the wholesale, retail and food service channels defined as separate product
     markets.
150  Replies to question 16 of Questionnaire 4 to Competitors – Bagged Salad; Replies to question B.B.9
     of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
151  Answer specific to the Swedish market with reference to concentrated retail market.
                                                       27
 ---pagebreak--- 6.1.2. Relevant geographic market
6.1.2.1. Parties' arguments
(137) The Parties submit that the geographic market for washed bagged salad is at least
        regional, if not EU-wide.
(138) They argue that there are no obstacles to purchasing bagged salad from suppliers
        in other Member States. The Parties estimate that a typical bagged salad would
        lose only around one day of its shelf life if it were imported from another EU
        country, rather than sourced domestically and submit that there is evidence of
        bagged salads being supplied across borders: [example of cross-border supply by
        a Party]. Moreover, the largest bagged salad suppliers in the EU – such as
        Bonduelle, Agrial and Les Crudettes – operate across various countries.
(139) The Parties argue that the 'Made in Sweden' labelling, although mandatory from a
        legal compliance point of view for all bagged salad suppliers, does not bring any
        commercial benefit, as bagged salad does not tend to be marketed as a locally
        produced product.
6.1.2.2. Commission assessment
(140) On a general note, the market investigation confirmed that washed bagged salad
        was traded across borders and that the washing and bagging facility did not need
        to be necessarily located in the country of destination.152 However, only a
        minority of responding salad suppliers affirmed that they could market their
        products Europe-wide. While many reported of existing export activities, these
        tended to be only to neighbouring countries, for example shipping bagged salad
        from Germany to Denmark, from Italy to France, from France to Belgium, form
        Spain to Portugal or from the UK to Ireland. Importantly, no evidence was found
        on any imports into Sweden specifically.
(141) The market investigation found a number of elements pointing to a national
        market for washed bagged salad.
(142) First, two thirds of responding competitors153 were of the view that prices for
        bagged salad were significantly different among the different EU countries.
(143) Second, only a minority of customers said that they would look for bagged salad
        suppliers abroad if prices in Sweden increased by 10%.154
(144) Third, in contrast to the Parties' assessment, the vast majority of customers stated
        that the "Made in Sweden" label strongly drives the decision of the customer.155
(145) Fourth, the large majority of responding suppliers thought that national
        distribution assets and an established relationship with local customers were
        necessary to be active on the market.156
152   Replies to question 17 of Questionnaire 4 to Competitors - Bagged Salad.
153   Replies to question 17 of Questionnaire 4 to Competitors - Bagged Salad.
154   Replies to question 17 of Questionnaire 4 to Competitors - Bagged Salad; Replies to question B.C.3
      of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
155   Replies to question B.C.10 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
                                                       28
 ---pagebreak--- (146) Sixth, market respondents noted that due to the limited shelf life of the product, a
        one-day delivery requirement typically limited the delivery radius.157
(147) For the above reasons, for the purposes of this decision, the Commission
        considers that the geographic market for washed bagged salad is national in
        scope.
6.1.3. Conclusion
(148) For the purposes of its assessment of the present Transaction, the Commission
        analyses the markets for the supply of washed bagged salad, for which the
        geographic market is national.
6.2.    Assessment of potential horizontal non-coordinated effects in Sweden
6.2.1. Parties’ arguments
(149) The Parties argue that the large bagged salad supplier Salico in Sweden is an
        effective competitive force constraining the Parties. Although Salico's business
        currently mainly focuses on supplying the food service channel, they argue that
        Salico would be able to increase its supply to the food retail channel.
(150) Further, the Parties suggest that alternative suppliers are not constrained by
        geography or transport and customers could at any time turn to alternative
        suppliers outside of Sweden, just as the Parties who are supplying customers in
        Denmark from their Swedish facilities.
(151) Accordingly, the Parties argue that actual and potential suppliers could include
        manufacturers of bagged salad all over the Nordics and from as far as Italy, from
        where fresh and whole-head salad is often sourced for the retailers' shelves and as
        an input for bagged salad production. The Parties argue that companies such as
        Bonduelle, Agrial and Les Crudettes are active and can supply bagged salad all
        over Europe, and that bagged salad and frozen vegetable manufacturers such as
        Orcla and Findus could easily enter the market for bagged salad.
(152) The Parties also argue that any of the numerous suppliers for unwashed loose
        salad or vegetables could easily expand into creating the production facilities for
        washed bagged salad, especially if sponsored by a large retailer.
(153) Finally, the Parties submit that they would be constrained by significant
        countervailing buyer power of the retailers, Sweden being an extremely
        concentrated food retail market with four large retail chains.
6.2.2. Commission assessment
(154) The Parties have significant market share in washed bagged salad in Sweden
        (combined [70-80]%), [20-30]% for Total Produce and [50-60]% for Dole,
156   Replies to question 17 of Questionnaire 4 to Competitors - Bagged Salad.
157   Replies to question 21 of Questionnaire 4 to Competitors - Bagged Salad and see e.g. minutes of a
      conference call with a bagged salad competitor on 26 June, 2018, minutes of a conference call with
      Swedish customer on 15 May 2018, 08.00.
                                                      29
 ---pagebreak---        according to the Parties' own estimate.158 The largest and only significant
       competitor remaining is Salico.
(155) The market investigation confirmed the Parties' strong position, with market
       participants estimating their share in Sweden at around two-thirds of the
       market.159
(156) Responding customers stated that in Sweden, Dole and Total Produce were each
       other's closest competitors for washed bagged salad.160 Competitors also
       confirmed the Parties as the main competitors in Sweden, alongside Salico.161 The
       market investigation also confirmed that Salico currently focuses on supply to the
       food service channel, but does also sell to the food retail channel.
(157) As regards the argument of significant bargaining power exercised by large retail
       chains the Commission observes that indeed the retail market in Sweden is
       concentrated, with the four large retailers being ICA Sweden, Axfood, Coop
       Sweden and Bergendahls. However, although one large competitor had
       experienced loss of volumes or other form of pressure from retailers,162 there was
       limited additional evidence in the market investigation of buyer power exercised
       with respect to washed bagged salad.
(158) Very few customers confirmed having switched suppliers in the past five years;
       and customer relationships consequently seem to be more long term
       (alternatively, this could be an indication of limited suppliers to whom customers
       may switch).163 Less than half of the retailers claimed having reduced purchases
       from a supplier in order to negotiate better prices164 and many do not
       multisource.165
(159) In fact, many customers expressed concerns as to the impact of the Transaction on
       washed bagged salad in Sweden and a significant majority of the customers who
       replied considered that the Parties would be in a position to raise prices after the
       Transaction.166
(160) The Commission observes that there are currently limited imports of washed
       bagged salad into Sweden from abroad, including from Denmark. In the market
       investigation, while salad suppliers reported of shipping bagged salad for instance
       from Germany to Denmark, from Italy to France, from France to Belgium, from
       Spain to Portugal or from the UK to Ireland, they did not report of imports into
       Sweden specifically.
158  Reply to question 19 of the Commission's questions of 11 June 2018.
159  Minutes of conference calls with various customers on 8 May, 2018, 14.00, on 15 May 2018, 08.00
     and on 30 May 2018,11.00.
160  Replies to question 17 of Questionnaire 4 to Competitors - Bagged Salad; Replies to
     question B.D.16 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
161  Replies to question 38 and question 39 of Questionnaire 4 to Competitors - Bagged Salad
162  Replies to question 27 of Questionnaire 4 to Competitors - Bagged Salad.
163  Replies to question B.D.5 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
164  Replies to question B.D.6 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
165  Replies to question B.D.3 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
166  Replies to question B.E.3 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
                                                      30
 ---pagebreak--- (161) Some respondents indicated that the limited shelf life of washed bagged salad put
       a limit on its transport radius. In the case of Sweden in particular, it was also
       noted that supplying Denmark from Sweden was logistically easier as the
       factories in the south of Sweden could reach the whole of Denmark with no
       additional logistical capabilities, whereas for Danish suppliers to supply Sweden
       meant completely new logistical challenges, for a country several times the size
       of Denmark.167 Market participants noted that it would take an extra day to ship
       washed bagged salad from Denmark to Sweden and limiting the shelf life of
       washed bagged salad by one day would be unacceptable to retailers, in light of the
       relatively short shelf life of washed bagged salad.168
(162) Indeed, the Parties and also their largest competitor Salico achieve considerable
       presence on the washed bagged salad market in Denmark, whereas the presence
       of Danish producers could not be detected in Sweden. In the case of Sweden in
       particular, respondents mentioned that the higher price level of the surrounding
       countries made exports from Sweden attractive but did not make imports into
       Sweden competitive. For example, Denmark or Norway have much higher price
       levels and production costs.
(163) The market investigation confirmed that customers in Sweden received all of their
       supplies for bagged salad from Swedish-based suppliers.169 Furthermore, the
       market investigation found no evidence of competitors willing to start supplying
       Sweden even in circumstances where the prices for bagged salad would
       increase.170
(164) As regards barriers to entry and expansion into bagged salad, the market
       investigation did not support the Parties' view that these were minimal. Rather,
       respondents considered that barriers to entry were high. In particular, the costs of
       establishing a new plant were estimated to be between EUR 5 and 10 million and
       would take on average at least 18 months to build.171
6.2.3. Conclusion
(165) On the basis of the above, the Commission concludes that the Transaction raises
       serious doubts as to its compatibility with the internal market as regards its impact
       on competition for bagged salad in Sweden, due to horizontal non-coordinated
       effects.
6.3.   Assessment of potential horizontal non-coordinated effects in Denmark
(166) In Denmark, supplies of bagged salad from Total Produce's and Dole's Swedish
       plants result in a combined market share of [30-40]%, [10-20]% by Total Produce
167   Minutes of a conference call with a competitor, 28 June 2018, 10.45; Minutes of a conference call
      with a competitor, 26 June 2018, 16.00.
168   Minutes of a conference call with a competitor, 28 June 2018, 14.30.
169   Replies to question B.C.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
170   Replies to question 31 of Questionnaire 4 to Competitors - Bagged Salad.
171   Replies to question 29 of Questionnaire 4 to Competitors - Bagged Salad.
                                                       31
 ---pagebreak---        and [10-20]% by Dole.172 This market share in Denmark has been achieved by the
       Parties [details of Parties' supply arrangements].
(167) In contrast to Sweden, the Commission's investigation found evidence of imports
       of bagged salad into Denmark, not only from Sweden but also from Germany and
       the Netherlands. In addition, there are a greater number of bagged suppliers
       present in Denmark. The number of competitors identified by customers173 is
       higher than in Sweden, with Hessing, AP Grönt, Yding Grönt, Flensted or Fresh
       Choice all present.
(168) Respondents to the market investigation did not raise concerns regarding the
       impact of the Transaction on the bagged salad market in Denmark.
(169) On the basis of the above, the Commission concludes that the Transaction does
       not raise serious doubts as to its compatibility with the internal market as regards
       its impact on competition for bagged salad in Denmark, due to horizontal non-
       coordinated effects. In any event, the horizontal overlap between the Parties'
       activities in the supply of bagged salad in Denmark is eliminated by the Final
       Commitments proposed by the Parties, notably the divestment of Dole's bagged
       salad business in Sweden.
7.     PINEAPPLES
(170) Pineapples are tropical fruit that are resilient to a range of weather conditions.
       Over 80% of pineapples imported into Europe are of the MD2 variety, which was
       developed by Del Monte in the mid-1990s to have a sweet taste, high vitamin C
       content and longer shelf life. Other pineapples in Europe mostly comprise of the
       Smooth Cayenne, Sugarloaf and Victoria varieties174.
(171) Some volumes of pineapples are sold as organic, Fairtrade or as dual-certified
       (i.e. both organic and Fairtrade), although this accounts for only a very limited
       volume of pineapples175.
(172) Costa Rica is the leading supplier of pineapples to Europe, accounting for
       approximately 87% of supply in 2015, with increases in production and
       productivity still being seen. Brazil, the Philippines and Thailand also produce
       significant quantities, however Brazil and Thailand do not currently export
       significant quantities and the Philippines currently focus on supplying Asia and
       the Middle East. Significant alternative supplies are arriving from countries
       including Ecuador, Ivory Coast, Panama and Ghana, particularly as they diversify
       into the popular MD2 variety176.
172  Replies to question 24 of the Commission's questions of 22 May 2018 and reply to question 19 of
     the Commission's questions of 11 June, 2018. In the absence of facilities there, they were unable to
     provide reliable estimates for bagged salad only in Denmark, therefore, the shares also include
     unwashed baby leaves.
173  Replies to question B.C.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
174  Form CO, paragraph 142.1.
175  Form CO, paragraph 142.1.
176  Form CO, paragraph 142.2.
                                                      32
 ---pagebreak--- 7.1.    Market definition
7.1.1. Relevant product market
7.1.1.1. Parties' arguments
(173) The Parties argue in favour of a single market for all fresh fruit, with the possible
        exclusion of bananas. They assert that the consumption and volume of pineapples
        fluctuate in response to the availability of other fresh fruit, particularly seasonal
        and local fruit, indicating the presence of demand-side substitution. Furthermore,
        the Parties argue that consumers tend to spend a fixed amount of money when
        purchasing fresh fruit in general which are all largely substitutable with each
        other.
(174) As regards supply-side substitutability, the Parties argue that with the exception
        of the ripening stage (which is not required for pineapples), the respective supply
        chains for bananas and pineapples are broadly identical177, and fruit importers
        may readily switch to sourcing and supplying pineapples given the similarities in
        their supply chain to other fresh fruit as regards packing, shipping, distributing
        and retailing the products. The Parties therefore submit that at least all key banana
        competitors are able to supply pineapples and that there are in fact also additional
        competitors who do not supply bananas but other fresh fruit. This large number of
        competitors therefore constrains the Parties' activities in the market for
        pineapples.
7.1.1.2. Commission assessment
(175) In Chiquita/Fyffes178, the Commission chose to leave open whether the import
        and supply of pineapples constitute a distinct product market or whether they are
        part of a wider market for fresh fruits (excluding bananas). However, it was noted
        that retailers would be relatively unresponsive in terms of purchasing patterns to a
        price increase of 5-10% for pineapples. Moreover, many retailers were found to
        organise separate tenders for pineapples, and stated that their customers would not
        consider pineapples to be substitutable with other fresh fruit.
(176) In the market investigation in the present case, a vast majority of respondents179
        reject the demand-side substitutability of pineapples with other fresh fruit. They
        consider that pineapples have a specific exotic taste which differentiates them
        from more 'customary' fruit such as bananas, and customers will not substitute to
        other fruit when it cannot be found. Furthermore, those that disagree consider that
        the seasonality of pineapples may only make them partially substitutable with
        fruits of their season, for instance local berries, soft and stoned fruits.
        Nevertheless, some market respondents suggested that brand loyalty was weaker
        with pineapples than for bananas180 and internal business documents provide
177   Form CO, paragraph 143.2.
178   Case M.7220 – Chiquita Brands International/Fyffes, recitals 367-371.
179   Replies to question A.C.B.2 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad; Replies to
      question 16 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables; Replies to question 12 of
      Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
180   Minutes of a conference call with a customer, 16 May 2018, 11.15.
                                                       33
 ---pagebreak---         evidence in favour of fluctuations of pineapple prices over time, which ultimately
        exert pressure on the margins of suppliers.
(177) There is a stronger case for supply-side substitutability, with the majority of
        market respondents181 suggesting that there are no specificities in purchasing
        pineapples as compared with any other fresh fruit. The majority of retailers were
        found to source pineapples on the spot market on a weekly or monthly basis,182
        indicating that there is in general no additional or specific capital investment to be
        attributed to the procurement of pineapples.
(178) However, the Commission considers that the exact product market definition for
        the import and supply of pineapples can be left open, as no serious doubts arise
        under any plausible market definition, including a separate market for the import
        and supply of pineapples only.
(179) As regards a possible separate product market for organic pineapples, this market
        is small within the overall supply of pineapples, with few being supplied into
        Europe. The Parties were not able to provide market shares for sales of organic
        pineapples. Specifically, Total Produce does not make any material sales of
        organic produce in the EU for pineapples, and Dole's sales in this area are
        minimal, with a total turnover for organic pineapples in the EU at EUR […]
        in 2017. Dole does not track the sales of its organic pineapples.183 As such the
        Commission considers that it is not necessary to define a separate product markets
        for organic pineapples, since no serious doubts arise under any plausible market
        definition.
7.1.2. Relevant geographic market
7.1.2.1. Parties' arguments
(180) The Parties submit that the geographic market for pineapples is at least
        EEA-wide. They argue that wholesale prices are homogenous and pineapples can
        be purchased and transported from any country, as transportation of pineapples
        over longer distances is easier than for bananas given their less delicate nature.
7.1.2.2. Commission assessment
(181) The Chiquita/Fyffes precedent found arguments both in favour of an EU-wide
        market for pineapples (no obstacles in sourcing them from other Member States)
        and also against (for instance, price differences and price negotiations which take
        place at Member State level). The market definition for the import and supply of
        pineapples was ultimately left open.184
181   Replies to question A.C.B.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad; Replies to
      question 15 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables; Replies to question 11 of
      Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
182   Replies to question 31 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables; Minutes of a
      conference call with a customer, 16 May 2018, 11.15; Minutes of a conference call with a customer,
      5 July 2018, 10.30; Minutes of a conference call with a customer, 23 May 2018, 11.00.
183   Form CO, paragraph 48.7, footnote 165.
184   Case M.7220 – Chiquita Brands International/Fyffes, recitals 372-375.
                                                       34
 ---pagebreak--- (182) The market investigation in the present case indicated that customers in Sweden
        and Denmark do consider competitor firms in other countries to Dole and Total
        Produce in the supply of pineapples, with suppliers from Germany and the
        Netherlands being the most frequently cited.185 Customers were comfortable that
        these alternate suppliers would be able to provide products of sufficient quality
        and quantity.186 Furthermore, there is no evidence of trade barriers impeding
        activity,187 and respondents stated that they would not anticipate any difficulty
        entering any particular country in the EU if they wished.188
(183) On the other hand, the majority of customers recognise a difference in prices
        between EU countries189, and transport costs form a large proportion of final costs
        for customers. This suggests that location in the EU does matter, and that firms
        have an incentive to source closer to their final location.
(184) The Commission considers that the exact geographic market definition for the
        import and supply of pineapples can be left open, as no serious doubts arise under
        any plausible market definition, including separate national geographic markets
        for pineapples.
7.1.3. Conclusion
(185) For the purposes of its assessment of the present Transaction, the Commission
        analyses the markets for the import and supply of pineapples, for which the
        geographic market is national, although the market definition can be left open as
        no serious doubts arise under any plausible market definition.
7.2.    Assessment of potential horizontal non-coordinated effects
7.2.1. Parties' arguments
(186) The Parties argue that they are constrained by a large number of competitors in all
        affected markets, including at least all key banana suppliers given the similarity
        of the banana and pineapple supply chains, as well as some additional competitors
        who supply other fresh fruit.
(187) In Sweden, where the Parties have the highest combined market share ([70-80]%)
        the Parties claim that the four large retailers, ICA, Coop, Bergendahls and Axfood
        can and do readily constrain any attempt by their suppliers to increase prices or
        lower quality in an anti-competitive manner. The Parties argue that due to the size
        and the volume of their orders, the suppliers' market share mirrors the retailers'
        market share, and that supply contracts are negotiated annually with the threat of
185   Replies to question A.D.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad; Replies to
      question 19 and question 50 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables.
186   Replies to question A.E.C.1.3 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad; Replies
      to question 50.3 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables.
187   Replies to question A.D.2.3 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad; Replies to
      question 20.3 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables; Replies to question 20.3 of
      Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
188   Replies to question 27.2 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
189   Replies to question A.D.6.3 Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad; Replies to
      question 23.3 and 24.3 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit (but for
      'other fruit and veg').
                                                       35
 ---pagebreak---  ---pagebreak---        Transaction would have no impact on the market for the import and supply of
       pineapples in Sweden190.
(193) In the course of the Commission's investigation, several competitors have noted
       that the supply of pineapples (in Sweden and in the EU more generally) is
       "abundant" or "plentiful", with "a large number of independent
       growers/exporters" present on the market, which has "good logistic links and low
       barriers to entry".191
(194) On the one hand, the market for pineapples in Sweden is small, at approximately
       EUR 5 million192, and on the other, there are a number of competitors present on
       the market who are able to exert a competitive constraint on the merged entity.
       One Swedish retailer explained that "sourcing and logistics are in general easier
       [for pineapples] than for bananas"193 (referring to the fact that pineapples do not
       require ripening as bananas do), and another noted that "the market for pineapples
       is more fluid than the market for bananas, simply by virtue of these simpler
       distribution requirements".194 This allows retailers "greater degrees of
       freedom"195 with respect to procurement and sourcing.
(195) Competitors that are able to supply pineapples in Sweden are global competitors
       Chiquita, Del Monte and Fyffes. Regional competitors, such as Bama and
       Swedish banana suppliers Ewermann (Greenfood) and KA Lundbladh also have
       the potential of expanding into pineapples.196 According to the market
       investigation, these companies and others, including competitors from Denmark
       (at least 5 to 6 according to one customer197), the Netherlands and Germany198 are
       ready and able to supply pineapples to Sweden if required. The vast majority of
       retailers that responded to the Commission's questionnaire consider that they
       would be able to procure pineapples of sufficient quantity and quality from
       suppliers other than the Parties in Sweden.199
(196) The Commission therefore concludes that there are a number of actual and
       potential suppliers of pineapples that would be able to exert a competitive
       constraint in Sweden after the proposed Transaction.
(197) In addition, as noted at recital (93), the Swedish retail market is highly
       concentrated and the market investigation found evidence of countervailing buyer
       power regarding the purchase of bananas. On the basis that the sourcing of
       pineapples is even easier than sourcing of bananas (see recital (194)) and the
190  Replies to question A.F.B.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad; Minutes
     of conference call with a customer, 8 May 2017, 14.00.
191  Replies to question 62.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit; Minutes of
     conference call with a customer, 8 May 2017, 14.00.
192  Annex 7.4 to the Form CO (rounding errors may exist).
193  Minutes of a conference call with a customer, 8 May 2018, 14.00.
194  Minutes of a conference call with a customer, 23 May 2018, 11.00.
195  Minutes of a conference call with a customer, 23 May 2018, 11.00.
196  Replies to question A.E.C.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad;
     Replies to question 62.1 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
197  Minutes of a conference call with a customer, 16 May 2018, 11.15.
198  Replies to question A.E.C.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
199  Replies to question A.E.C.1 and question A.E.C.1.3 to Questionnaire 1 to Customers – Fresh
     Fruit/Bagged Salad.
                                                      37
 ---pagebreak---         actual or potential suppliers of pineapples in Sweden are the same as those for
        bananas, the Commission considers that countervailing buyer power is also likely
        to be present as regards the purchase of pineapples. Further, a number of Swedish
        retailers have also provided examples of switching suppliers of fruit, including
        pineapples, in the past five years.200
7.2.2.2.   Other affected markets
(198) Similarly, there was no anticipated negative impact201 by the majority of
        respondents in the market for pineapples in the other affected markets, revealing
        very little concern on the part of the market respondents.
(199) In the Czech Republic (combined market share of [20-30]%) and Spain
        (combined market share of [20-30]%), the market investigation confirmed the
        presence of a number of competitors who would be able to exert a competitive
        constraint on the Parties202. Customers were able to name several alternate
        suppliers who would be able to supply them with pineapples of quantity and
        quality sufficient for their needs,203 and indeed some suggested that they regularly
        engage in multi-sourcing,204 indicating that there is a significant degree of buyer
        power. One customer noted that "the EU pineapple market is very competitive
        with lots of new entrants which have become active on the market in recent
        years"205, suggesting a dynamic and competitive market environment.
        Furthermore, several customers in the Czech Republic have indicated that they
        have switched pineapple suppliers in the past five years.206
(200) All respondents of the market investigation further suggested that they should be
        able to expand under short notice without significant additional cost in these
        markets207. Some respondents were able to confirm their own successful
        expansion into new EU countries such as the Czech Republic,208 further
        indicating ease of entry.
(201) With respect to Lithuania, Austria, and Germany in particular (combined market
        shares of [30-40]%, [20-30]%, and [20-30]% respectively), the Commission notes
        that the increment accrued by the proposed Transaction is limited ([0-5]%
        and [0-5]% in Germany and Austria and [5-10]% in Lithuania). In Lithuania,
        Total Produce has sales of EUR […], and [details of Total Produce's supply
        arrangements in Lithuania]. A similar situation is seen in Austria and Germany,
        with increments from Total Produce of less than EUR […] and EUR […] in each
        country respectively.
200   Replies to question A.E.C.4 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
201   Replies to question 57 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables; Replies to
      question 71 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
202   Replies to question 50 of Questionnaire 3 to Customers – Fresh Fruit/Vegetables to Customers –
      Fresh Fruit/Vegetables
203   Replies to question 50 and question 50.3 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables.
204   Replies to question 51 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables.
205   Replies to question 71.1 Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
206   Replies to question 51 of Questionnaire 2 to Customers – Fresh Fruit/Vegetables.
207   Replies to question 62 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
208   Replies to question 19 of Questionnaire 3 to Competitors – Bananas/Other Fresh Fruit.
                                                       38
 ---pagebreak--- 7.2.3. Conclusion
(202) On the basis of the above, the Transaction does not raise serious doubts as to its
       compatibility with the internal market as regards its impact on competition for the
       markets for the import and supply of pineapples in Sweden, the Czech Republic,
       Spain, Lithuania, Germany or Austria, due to horizontal non-coordinated effects.
8.     OTHER FRUIT AND VEGETABLES
(203) Dole is principally active in bananas and pineapples. However, due to Dole's
       controlling stake in a Swedish wholesaler, Saba Fruit & Grönt AB, the Parties'
       activities overlap in the supply of a number of other fruit and vegetables in
       Sweden.
(204) The Parties' activities lead to affected markets in the supply of the following other
       fruit and vegetables in Sweden: apples and pears (Total Produce [20-30]%,
       Dole [5-10]%), citrus fruits (Total Produce [20-30]%, Dole [0-5]%), grapes
       (Total Produce [20-30]%, Dole [0-5]%), stone and soft fruits (Total
       Produce [20-30]%, Dole [0-5]%), exotics (Total Produce [20-30]%,
       Dole [0-5]%), tomatoes (Total Produce [30-40]%, Dole [0-5]%).
8.1.   Relevant product market
8.1.1. Parties' arguments
(205) The Parties submit that the market for other fresh fruit and vegetables should not
       be distinguished further into different categories.
(206) They argue that most suppliers are capable of supplying the full range of fruits
       and vegetables, or at least a large array, and that 'specialist' wholesalers are not
       typical. They suggest that the handling of the each fruit or vegetable type is close
       to identical, with minor differences that may be accommodated in any warehouse.
(207) The Parties explain that this is further reflected by their internal organisational
       structure. Total Produce's sales organisation is [details of Total Produce's internal
       organisational structure], while Dole has [details of Dole's internal organisational
       structure].
8.1.2. Commission assessment
(208) A large body of precedents209 separate the markets for fresh fruit and vegetables,
       based on the significant differences in characteristics, prices and intended uses of
       each, suggesting an absence of sufficient demand-side substitutability.
       Nevertheless, the exact market definition has remained open to date in this
       respect.210
209   Case COMP/M.5201 – Total Produce/Haluco, recitals 14-15; Case COMP/M.4216 – CVC/De
      Weide Blik/Bocchi, rectials 15-20.
210   With the exception of bananas, which have been defined as separate. See case M.7220 – Chiquita
      Brands International/Fyffes.
                                                   39
 ---pagebreak--- (209) In CVC/ De Weide Blik/ Bocchi, the Commission identified various categories of
      fruit, namely bananas, deciduous fruit, citrus fruit, stone fruit, berries/soft fruit,
      kiwi fruit and tropical fruit, leaving the exact market definition open. The market
      investigation for this case however found some degree of substitutability,
      demonstrating among other things that consumers tend to spend a fixed amount of
      money on 'fruits' as a whole, and that in the event of a price increase for a certain
      fruit or vegetable type, they would be likely to simply switch to another.
(210) Furthermore, distinct markets are established for the import/production versus
      wholesale aspects of the process, on the basis that the customers for both differ
      (typically wholesalers or retailers at the import/production level and smaller
      wholesalers, restaurants, hospitals, etc. at the wholesale level).211 Market
      investigations in previous cases have broadly indicated this, although some note
      that the distinction becomes less important as larger customers such as retail
      chains increasingly purchase directly from importers/producers.
(211) Customers stated in the market investigation in the present case that they asked
      suppliers for quotes for different categories of fruit and vegetable separately212,
      and two thirds were of the view that wholesalers did to some extent specialise,
      without supplying the whole portfolio of fresh fruits and vegetables.213
(212) Questions regarding the demand-side substitutability of the different fresh fruit
      and vegetable categories did not result in a conclusive answer.214 In any event, the
      exact market definition for the supply of fresh fruit and vegetables may be left
      open as no serious doubts arise under any plausible market definition.
8.2.  Relevant geographic market
(213) Although the Parties provided market shares on a national basis, they argue in
      favour of an EEA-wide market.
(214) This is also supported by Commission precedents.215
(215) The present market investigation also indicated that the source of all different
      fruit and vegetables can be and often are located outside the country of sale.216
      Respondents were unable to identify any barriers to trade within the EU.217
(216) Nevertheless, the geographic market definition can be left open as no serious
      doubts arise under any plausible market definition, including a national Swedish
      market.
211  Case COMP/M.1409 – Fyffes/Capespan, recitals 24 and 27; Case COMP/M.5199 – De Weide
     Blik/Atlanta recital 10; Case COMP/M.4896 – CVC/Katope, recitals 12-3.
212  Replies to question A.C.C.3 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
213  Replies to question A.C.C.4 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
214  Replies to question A.C.C.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
215  Case COMP/M.4216 – CVC/De Weide Blik/Bocchi, recitals 28-9.
216  Replies to question A.D.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
217  Replies to question A.D.2 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
                                                      40
 ---pagebreak--- 8.3.  Conclusion
(217) For the purposes of its assessment of the present Transaction, the Commission
      analyses the markets for all fresh fruit and vegetables and also the narrower fruit
      and vegetable categories, for which the geographic market is national, although
      the market definition can be left open as no serious doubts arise under any
      plausible market definition.
8.4.  Assessment of potential horizontal non-coordinated effects
(218) Assuming an EU-wide market for fresh fruit and vegetables, the Transaction does
      not lead to affected markets.
(219) However, when considering narrower fruit and vegetable categories, affected
      markets arise in Sweden where combined market shares are [40-50]% in exotic
      fruit, [30-40]% in tomatoes, [30-40]% in deciduous fruit, [20-30]% in grapes,
      [20-30]% in stone and soft fruits and [20-30]% in citrus fruit. However, it must be
      noted that Dole's market presence [comparison between the Parties] of Total
      Produce and increments do not exceed [0-5]%.
(220) The Parties argue that the concentrated customers on the retail market in Sweden,
      Dole's marginal position and no overlap between the Parties customers all
      indicate the absence of a competition problem. The Parties also add that Total
      Produce's high market shares are merely a result of them having contracts with
      [customer names], two of the four large retailers.
(221) The market investigation has not revealed any concerns related to the supply of
      other fruits and vegetables in Sweden.218
(222) A number of competitors were confirmed to be present in Sweden in the market
      investigation who would be able to exert a competitive constraint on the
      Parties.219 Furthermore, there are no evident barriers to trade220, allowing fresh
      fruit and vegetables to currently be sourced from a number of countries221, and
      several indeed source directly from growers themselves, including apples and
      pears and stone and soft fruit in particular. Customers regarded these alternative
      suppliers as being able to provide produce of sufficient quantity and quality222.
      These results indicate that there exists ample competitive activity in the market
      that is likely to exert an adequate amount of competitive constraint on the
      merging entity.
(223) On the basis of the above, the Transaction does not raise serious doubts as to its
      compatibility with the internal market with regards its impact on competition for
      the markets for the supply of other fruit and vegetables, including in Sweden, due
      to horizontal non-coordinated effects.
218  Replies to question A.F.C.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
219  Replies to question A.E.C. 1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
220  Replies to question A.D. 2.3 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
221  Replies to question A.D.1 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
222  Replies to question A.E.C.3 of Questionnaire 1 to Customers – Fresh Fruit/Bagged Salad.
                                                      41
 ---pagebreak--- 9.    PROPOSED REMEDIES
9.1.  Framework for the Commission assessment
(224) Where, as in this case, a notified concentration raises serious doubts as to its
      compatibility with the internal market, the Parties may modify the notified
      concentration so as to remove the grounds for the serious doubts identified by the
      Commission with a view to having it declared compatible with the internal market
      pursuant to Article 6(1)(b) in conjunction with Article 6(2) of the Merger
      Regulation.
(225) As set out in the Commission Notice on Remedies,223 commitments have to
      eliminate the Commission's serious doubts entirely, they have to be
      comprehensive and effective from all points of view.
(226) In assessing whether or not commitments will restore effective competition, the
      Commission considers all relevant factors, including the type, scale and scope of
      the proposed commitments, with reference to the structure and particular
      characteristics of the market in which the Commission has identified serious
      doubts as to the compatibility of the notified concentration with the internal
      market, including the position of the Parties and other participants on the
      market.224
9.2.  Commitments submitted by the Parties
(227) In order to address the serious doubts raised by the Transaction in the market for
      bagged salad in Sweden with a view to rendering the concentration compatible
      with the internal market, the Parties have modified the notified concentration by
      submitting to the Commission proposed commitments.
(228) The Parties submitted two sets of commitments. Notably, the Parties formally
      submitted a remedy proposal on 9 July 2018 (the 'Initial Commitments'). After the
      Commission gathered the views of market participants on the Initial
      Commitments (the 'market test'), and informed the Parties of the remaining
      serious doubts raised by the Transaction, the Parties submitted a revised remedy
      proposal on 20 July 2018 (the 'Final Commitments')
(229) The Commission considers the Final Commitments sufficient to ensure that, if
      implemented, the Transaction no longer raises serious doubts as to its
      compatibility with the internal market. The Final Commitments are annexed to
      this decision and form an integral part of the decision.
223  Commission Notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under
     Commission Regulation (EC) No 802/2004 (2008/C 267/01), (the "Commission Notice on
     Remedies").
224  Commission Notice on Remedies, paragraph 12.
                                                  42
 ---pagebreak--- 9.2.1. Initial Commitments
(230) The Initial Commitments proposed by Total Produce and Dole consisted of the
       divestment of Saba Fresh Cuts AB, a Swedish legal entity currently wholly-
       owned by Dole and running a bagged salad plant in Helsingborg, Sweden
       ("Divestment Business"). The Divestment Business included:
       (a)       a washed bagged salad production plant, located in Helsingborg (Sweden);
       (b)       all licenses permits and authorisations issued by any governmental
                 organization or other body for the benefit of the Divestment Business and
                 allowing it to operate its business;
       (c)       all customer and supplier contracts and agreements;
       (d)       all personnel currently working at the bagged salad product plant;
       (e)       one employee (the [senior employee] of the Divestment Business) as Key
                 Personnel;
       (f)       a licence to use the DOLE brand for a transitional period of two years, at
                 the request of the purchaser;
       (g)       transitional services, comprising HR, IT, finance support, use of the
                 Enterprise Resource Planning ("ERP") system, to be provided by the
                 Parties on equivalent terms to those currently provided to the Divestment
                 Business, at the request of the purchaser.
(231) In addition the Parties entered into related commitments, inter alia regarding the
       separation of the divested businesses from their retained businesses, the
       preservation of the viability, marketability and competitiveness of the divested
       businesses, including the appointment of a monitoring trustee and, if necessary, a
       divestiture trustee.
9.2.2. The Commission’s market test
(232) The Commission launched a market test of the Initial Commitments on
       10 July 2017.
(233) In general, the view of the market test respondents was that the Initial
       Commitments could remedy the serious doubts identified by the Commission in
       the market for washed bagged salad in Sweden,225 subject to the modification of
       one specific element of the Initial Commitments.
(234) In particular, customers and competitors considered that additional positions
       should be added as key personnel to ensure the viability and competitiveness of
       the Divestment Business. The additional positions identified were: Plant
225   Replies to question 11 of Market Test Questionnaire on commitments offered by Total Produce and
      Dole.
                                                     43
 ---pagebreak---        Manager; Operations Manager; Production Manager; Sales and Marketing
       Manager; Product Development; and equipment maintenance engineers.226
(235) In all other respects, respondents considered that the Divested Business includes
       all necessary assets and would be able to compete effectively with the Parties
       after the Transaction. All respondents to the market test considered that the
       Divestment Business was sufficiently interesting to attract suitable purchasers,
       with one noting that the Divestment Business: "…is a good plant with efficient
       production."227
9.2.3. The Final Commitments
(236) The Final Commitments have been modified vis-à-vis the Initial Commitments
       described in Section 9.2.1 mainly as follows:
       (a)       12 additional Key Personnel have been added, with the following
                 positions: Purchase Manager; Product & Marketing Manager; Sales
                 Manager; Key Account Manager; Plant Manager; Production Supervisor;
                 Quality Manager; Product Development Manager; Production Planner;
                 Production Controller; Maintenance Manager; and Technical Manager.
       (b)       the transfer of the ERP system, which is currently used exclusively by the
                 Divestment Business, will be included in the Divestment Business at the
                 request of the purchaser.
9.3.   The Commission assessment
(237) The Commission considers that the Final Commitments set aside the serious
       doubts raised by the Transaction entirely because they remove the entire overlap
       between the Parties in bagged salad in Sweden, the market in which serious
       doubts were raised. The Commission also finds that the modifications contained
       in the Final Commitments and described at Section 9.2.3 above address the
       outstanding issues, as identified in the course of the market test, related to the
       viability and competitiveness of the Divestment Businesses. In particular the
       Final Commitments:
       (a)       consist of the removal of the entire overlap between the Parties' activities
                 in bagged salad in Sweden. The Divestment Business is significantly
                 larger than the bagged salad business of Total Produce in Sweden, with an
                 estimated market share of [50-60]% in bagged salad in Sweden, as
                 compared to the estimated [20-30]% market share achieved by Total
                 Produce in the same market;
       (b)       ensure the continued competitiveness and viability of the Divestment
                 Business. The Final Commitments consist of the divestment of a
                 standalone business, with no long term links to Dole.228 The Divestment
                 Business is profitable and currently operating successfully, with EUR […]
226   Replies to question 8 of Market Test Questionnaire offered by Total Produce and Dole.
227   Reply to question 11 of Market Test Questionnaire offered by Total Produce and Dole.
228   Transitional services for back-office functions comprising HR, IT and finance support will however
      be provided by the Parties if requested by the Purchaser.
                                                        44
 ---pagebreak---                in revenues and an EBITDA of EUR […] in 2017.229 In the Final
               Commitments, additional Key Personnel have been added covering all key
               functions in the Divestment Business, ensuring that it will continue to be
               run effectively;
      (c)      are likely to attract suitable purchasers. Respondents to the market test
               considered that the Divestment Business was sufficiently interesting to
               attract suitable purchasers and a number of respondents expressed an
               interest in purchasing the Divestment Business.230
(238) For the reasons outlined above, the Commission considers that the Final
      Commitments entered into by the undertakings concerned are sufficient to
      eliminate the serious doubts as to the compatibility of the Transaction with the
      internal market with respect to the market for bagged salad in Sweden. Moreover,
      the Final Commitments are comprehensive and effective from all points of view,
      and are capable of being implemented effectively within a short period of time.
10.   CONDITIONS AND OBLIGATIONS
(239) The fulfilment of the measures that gives rise to the structural change of the
      market is a condition, whereas the implementing steps that are necessary to
      achieve this result are generally obligations on the Parties. Where a condition is
      not fulfilled, the Commission's decision declaring the concentration compatible
      with the internal market is no longer applicable. Where the undertakings
      concerned commit a breach of an obligation, the Commission may revoke the
      clearance decision in accordance with Article 6(3) of the Merger Regulation. The
      undertakings concerned may also be subject to fines and periodic penalty
      payments under Articles 14(2) and 15(1) of the Merger Regulation.
(240) In accordance with the basic distinction between conditions and obligations, the
      commitments in Sections B as well as the Schedule of the Final Commitments set
      out in the Annex constitute conditions attached to this decision, as only through
      their full compliance can the structural changes in the relevant markets be
      achieved. The other commitments set out in the Annex constitute obligations, as
      they concern the implementing steps that are necessary to achieve the
      modifications sought in a manner compatible with the internal market.
(241) The full text of the Final Commitments is attached to this Decision as the Annex
      and forms an integral part of this Decision.
229  Form RM and response to RFI dated 9 July, question 4.
230  Replies to questions 11 and 15 of Market Test Questionnaire on commitments offered by Total
     Produce and Dole.
                                                   45
 ---pagebreak--- 11.   CONCLUSION
(242) For the above reasons, the Commission has decided not to oppose the notified
      operation as modified by the Final Commitments and to declare it compatible
      with the internal market, subject to full compliance with the conditions in
      Sections B as well as the Schedule of the Final Commitments annexed to the
      present decision and with the obligations contained in the other sections of the
      Final Commitments. This decision is adopted in application of Article 6(1)(b) in
      conjunction with Article 6(2) of the Merger Regulation.
                                                   For the Commission
                                                   (Signed)
                                                   Margrethe VESTAGER
                                                   Member of the Commission
                                             46
 ---pagebreak---                                           Annex
20/07/2018
Case M.8829 – Total Produce / Dole Food Company
COMMITMENTS TO THE EUROPEAN COMMISSION
Pursuant to Article 6(2) of Council Regulation (EC) No 139/2004 (the “Merger
Regulation”), Total Produce plc and DFC Holdings, LLC., including its wholly-owned
subsidiary Dole Food Company, Inc. (“Dole”), (together, the “Notifying Parties”) and
Dolicious Corporation, Castle & Cooke Holdings, Inc. and The David H. Murdock Living
Trust Dated May 28, 1986, As Amended (the “DHM Parties”), (together, “the Parties”),
hereby enter into the following Commitments (the “Commitments”) vis- à-vis the European
Commission (the “Commission”) with a view to rendering the acquisition of joint control
over Dole as a joint venture (the “Concentration”) compatible with the internal market and
the functioning of the EEA Agreement.
This text shall be interpreted in light of the Commission’s decision pursuant to Article
6(1)(b) of the Merger Regulation to declare the Concentration compatible with the internal
market and the functioning of the EEA Agreement (the “Decision”), in the general
framework of European Union law, in particular in light of the Merger Regulation, and by
reference to the Commission Notice on remedies acceptable under Council Regulation (EC)
No 139/2004 and under Commission Regulation (EC) No 802/2004 (the “Remedies
Notice”).
                                             1
 ---pagebreak--- Section A.     Definitions
1. For the purpose of the Commitments, the following terms shall have the following
    meaning:
Affiliated Undertakings: undertakings controlled by the Parties and/or by the ultimate
parents of the Parties, whereby the notion of control shall be interpreted pursuant to Article
3 of the Merger Regulation and in light of the Commission Consolidated Jurisdictional
Notice under Council Regulation (EC) No 139/2004 on the control of concentrations
between undertakings (the "Consolidated Jurisdictional Notice").
Assets: the assets that contribute to the current operation or are necessary to ensure the
viability and competitiveness of the Divestment Business as indicated in Section B,
paragraphs 5(a) to (d) and 6(a) and (b) and described more in detail in Schedule A.
Closing: the transfer of the legal title to the Divestment Business to the Purchaser.
Closing Period: the period of […] from the approval of the Purchaser and the terms of sale
by the Commission.
Confidential Information: any business secrets, know-how, commercial information, or
any other information of a proprietary nature that is not in the public domain.
Conflict of Interest: any conflict of interest that impairs the Trustee's objectivity and
independence in discharging its duties under the Commitments.
Decision: Commission’s decision pursuant to Article 6(1)(b) of the Merger Regulation to
declare the Concentration compatible with the internal market and the functioning of the
EEA Agreement.
DHM Parties: Dolicious Corporation, Castle & Cooke Holdings, Inc. and The David H.
Murdock Living Trust Dated May 28, 1986, As Amended, the affiliated undertakings of
DFC Holdings, LLC.
Divestment Business: Saba Fresh Cuts AB, a company incorporated under Swedish law and
having its registered office at Torbonav 13 B, 250 15 Helsingborg (Sweden) as defined in
Section B and in Schedule A.
Divestiture Trustee: one or more natural or legal person(s) who is/are approved by the
Commission and appointed by the Parties and who has/have received from the Parties the
exclusive Trustee Mandate to sell the Divestment Business to a Purchaser at no minimum
price.
Dole: DFC Holdings, LLC, a company incorporated under the Laws of the State of
Delaware, United States of America, with registered office in One Dole Drive, Westlake,
CA 91362, United States of America and its wholly-owned subsidiary Dole Food Company,
Inc., a company incorporated under the laws of North Carolina, US with registered office at
One Dole Drive, Westlake Village, CA 91362, United States of America.
Effective Date: the date of adoption of the Decision.
First Divestiture Period: the period of […] from the Effective Date.
                                                 2
 ---pagebreak--- Hold Separate Manager: the person appointed by the Parties for the Divestment Business
to manage the day-to-day business under the supervision of the Trustee.
Key Personnel: all personnel necessary to maintain the viability and competitiveness of the
Divestment Business, as listed in Schedule A, including the Hold Separate Manager.
Monitoring Trustee: one or more natural or legal person(s) who is/are approved by the
Commission and appointed by the Parties, and who has/have the duty to monitor the Parties’
compliance with the conditions and obligations attached to the Decision.
Parties: the Notifying Parties and the DHM Parties.
Personnel: all staff currently employed by the Divestment Business.
Purchaser: the entity approved by the Commission as acquirer of the Divestment Business
in accordance with the criteria set out in Section D.
Purchaser Criteria: the criteria laid down in paragraph 16 of these Commitments that the
Purchaser must fulfil in order to be approved by the Commission.
Saba Shared Service Center: a wholly-owned subsidiary of Dole, which provides back
office support functions to the Divestment Business, as described in Schedule A.
Schedule A: the schedule to these Commitments describing more in detail the Divestment
Business.
Trustee(s): the Monitoring Trustee and/or the Divestiture Trustee as the case may be.
Total Produce: Total Produce plc, a company incorporated under the laws of Ireland, with
its registered office at 29 North Anne Street, Dublin 7, D07 PH36, Republic of Ireland.
Trustee Divestiture Period: the period of […] from the end of the First Divestiture Period.
                                                3
 ---pagebreak--- Section B.      The commitment to divest and the Divestment Business
Commitment to divest
2. In order to maintain effective competition, the Parties commit to divest, or procure the
    divestiture of, the Divestment Business by the end of the Trustee Divestiture Period as a
    going concern to a purchaser and on terms of sale approved by the Commission in
    accordance with the procedure described in paragraph 16 of these Commitments. To
    carry out the divestiture, the Parties commit to find a purchaser and to enter into a final
    binding sale and purchase agreement for the sale of the Divestment Business within the
    First Divestiture Period. If the Parties have not entered into such an agreement at the end
    of the First Divestiture Period, the Parties shall grant the Divestiture Trustee an
    exclusive mandate to sell the Divestment Business in accordance with the procedure
    described in paragraph 29 in the Trustee Divestiture Period.
3. The Parties shall be deemed to have complied with this commitment if:
     (a) by the end of the Trustee Divestiture Period, the Parties or the Divestiture Trustee
          have/has entered into a final binding sale and purchase agreement and the
          Commission approves the proposed purchaser and the terms of sale as being
          consistent with the Commitments in accordance with the procedure described in
          paragraph 17; and
     (b) the Closing of the sale of the Divestment Business to the Purchaser takes place
          within the Closing Period.
4. In order to maintain the structural effect of the Commitments, the Parties shall, for a
    period of ten (10) years after Closing, not acquire, whether directly or indirectly, the
    possibility of exercising influence (as defined in paragraph 43 of the Remedies Notice,
    footnote 3) over the whole or part of the Divestment Business, unless, following the
    submission of a reasoned request from the Parties showing good cause and accompanied
    by a report from the Monitoring Trustee (as provided in paragraph 43 of these
    Commitments), the Commission finds that the structure of the market has changed to
    such an extent that the absence of influence over the Divestment Business is no longer
    necessary to render the proposed concentration compatible with the internal market.
Structure and definition of the Divestment Business
5. The Divestment Business consists of Saba Fresh Cuts AB, a Swedish legal entity
    currently wholly-owned by Dole and running a bagged salad plant in Helsingborg,
    Sweden. The legal and functional structure of the Divestment Business as operated to
    date is described in Schedule A. The Divestment Business, described in more detail in
    Schedule A, includes all assets and staff that contribute to the current operation or are
    necessary to ensure the viability and competitiveness of the Divestment Business, in
    particular:
     (a) all tangible and intangible assets (including intellectual property rights, as specified
          in paragraph 6(a));
     (b) all licences, permits and authorisations issued by any governmental organisation for
          the benefit of the Divestment Business;
                                                4
 ---pagebreak---     (c) all contracts, commitments and customer orders of the Divestment Business; all
         customer, credit and other records of the Divestment Business; and
    (d) the Personnel.
6. In addition, unless otherwise agreed with the Purchaser, the Divestment Business shall
   have the benefit, for a transitional period of up to two (2) years after Closing and on
   terms and conditions equivalent to those at present afforded to the Divestment Business,
   of:
     (a) the right to use DOLE brand granted by Dole Food Company, Inc., via a temporary
         trademark licence; and
     (b) all current arrangements under which Dole or its Affiliated Undertakings supply
         products or services to the Divestment Business, as detailed in Schedule A, unless
         otherwise agreed with the Purchaser. Strict firewall procedures will be adopted so
         as to ensure that any competitively sensitive information related to, or arising from
         such supply arrangements will not be shared with, or passed on to, anyone outside
         the relevant business unit/division within Dole providing the product/service.
Section C.      Related commitments
Preservation of viability, marketability and competitiveness
7. From the Effective Date until Closing, the Parties shall preserve or procure the
   preservation of the economic viability, marketability and competitiveness of the
   Divestment Business, in accordance with good business practice, and shall minimise as
   far as possible any risk of loss of competitive potential of the Divestment Business. In
   particular the Parties undertake:
     (a) not to carry out any action that might have a significant adverse impact on the
         value, management or competitiveness of the Divestment Business or that might
         alter the nature and scope of activity, or the industrial or commercial strategy or the
         investment policy of the Divestment Business;
     (b) to make available, or procure to make available, sufficient resources for the
         development of the Divestment Business, on the basis and continuation of the
         existing business plans of the Divestment Business;
     (c) to take all reasonable steps, or procure that all reasonable steps are being taken,
         including appropriate incentive schemes (based on industry practice), to encourage
         all Key Personnel to remain with the Divestment Business, and not to solicit or
         move any Personnel to the Parties’ remaining business. Where, nevertheless,
         individual members of the Key Personnel exceptionally leave the Divestment
         Business, the Parties shall provide a reasoned proposal to replace the person or
         persons concerned to the Commission and the Monitoring Trustee. The Parties shall
         demonstrate to the Commission that the replacement is well suited to carry out the
         functions exercised by those individual members of the Key Personnel. The
         replacement shall take place under the supervision of the Monitoring Trustee, who
         shall report to the Commission.
                                                5
 ---pagebreak--- Hold-separate obligations
8. The Parties commit, from the Effective Date until Closing, to keep the Divestment
    Business separate from the businesses that the Parties will be retaining and to ensure that
    unless explicitly permitted under these Commitments: (i) management and staff of the
    businesses retained by the Parties shall have no involvement in the Divestment Business;
    (ii) the Key Personnel and Personnel of the Divestment Business have no involvement in
    any businesses retained by the Parties and do not report to any individual outside of the
    Divestment Business.
9. Until Closing, the Parties shall assist the Monitoring Trustee in ensuring that the
    Divestment Business is managed as a distinct and saleable entity separate from the
    businesses which the Parties are retaining. Immediately after the adoption of the
    Decision, the Parties shall appoint a Hold Separate Manager. The Hold Separate
    Manager, who shall be part of the Key Personnel, shall manage the Divestment Business
    independently and in the best interest of the business with a view to ensuring its
    continued economic viability, marketability and competitiveness and its independence
    from the businesses retained by the Parties. The Hold Separate Manager shall closely
    cooperate with and report to the Monitoring Trustee and, if applicable, the Divestiture
    Trustee. Any replacement of the Hold Separate Manager shall be subject to the
    procedure laid down in paragraph 7(c) of these Commitments. The Commission may,
    after having heard the Parties, require the Parties to replace the Hold Separate Manager.
10. To ensure that the Divestment Business is held and managed as a separate entity the
    Monitoring Trustee shall exercise the Parties’ rights as shareholders in the legal entity or
    entities that constitute the Divestment Business (except for its rights in respect of
    dividends that are due before Closing), with the aim of acting in the best interest of the
    business, which shall be determined on a stand-alone basis, as an independent financial
    investor, and with a view to fulfilling the Parties’ obligations under the Commitments.
    Furthermore, the Monitoring Trustee shall have the power to replace members of the
    supervisory board or non-executive directors of the board of directors, who have been
    appointed on behalf of the Parties. Upon request of the Monitoring Trustee, the
    applicable Parties’ board members shall resign as a member of the boards or the Parties
    shall cause such members of the boards to resign.
Ring-fencing
11. The Parties shall implement, or procure to implement, all necessary measures to ensure
    that they do not, after the Effective Date, obtain any Confidential Information relating to
    the Divestment Business and that any such Confidential Information obtained by the
    Parties before the Effective Date will be eliminated and not be used by the Parties. This
    includes measures vis à vis the Parties’ appointees on the supervisory board and/or board
    of directors of the Divestment Business. In particular, the participation of the Divestment
    Business in any central information technology network shall be severed to the extent
    possible, without compromising the viability of the Divestment Business. This
    commitment is without prejudice to the Parties’ ability to obtain or keep information
    relating to the Divestment Business which is reasonably necessary for the divestiture of
    the Divestment Business or the disclosure or retention of which to or by the Parties is
    required by law including but not limited to information required for accounting
    purposes.
                                                6
 ---pagebreak--- Non-solicitation clause
12. The Parties undertake, subject to customary limitations, not to solicit, and to procure that
    Affiliated Undertakings do not solicit, the Key Personnel transferred with the
    Divestment Business for a period of two (2) years after Closing.
Due diligence
13. In order to enable potential purchasers to carry out a reasonable due diligence of the
    Divestment Business, the Parties shall, subject to customary confidentiality assurances
    and dependent on the stage of the divestiture process:
     (a) provide to potential purchasers sufficient information as regards the Divestment
          Business;
     (b) provide to potential purchasers sufficient information relating to the Personnel and
          allow them reasonable access to the Personnel.
Reporting
14. The Parties shall submit written reports in English on potential purchasers of the
    Divestment Business and developments in the negotiations with such potential
    purchasers to the Commission and the Monitoring Trustee no later than 10 days after the
    end of every month following the Effective Date (or otherwise at the Commission’s
    request). The Parties shall submit a list of all potential purchasers having expressed
    interest in acquiring the Divestment Business to the Commission at each and every stage
    of the divestiture process, as well as a copy of all the offers made by potential purchasers
    within five days of their receipt.
15. In the event the Parties decide to establish a data room, the Parties shall inform the
    Commission and the Monitoring Trustee on the preparation of the data room
    documentation and the due diligence procedure. The Parties shall also submit a copy of
    any information memorandum to the Commission and the Monitoring Trustee before
    sending the memorandum out to potential purchasers.
Section D.       The Purchaser
16. In order to be approved by the Commission, the Purchaser must fulfil the following
    criteria:
     (a) The Purchaser shall be independent of and unconnected to the Parties and their
          Affiliated Undertakings (this being assessed having regard to the situation
          following the divestiture).
     (b) The Purchaser shall have the financial resources, proven expertise and incentive to
          maintain and develop the Divestment Business as a viable and active competitive
          force in competition with the Parties and other competitors;
     (c) The acquisition of the Divestment Business by the Purchaser must neither be likely
          to create, in light of the information available to the Commission, prima facie
          competition concerns nor give rise to a risk that the implementation of the
          Commitments will be delayed. In particular, the Purchaser must reasonably be
                                                7
 ---pagebreak---           expected to obtain all necessary approvals from the relevant regulatory authorities
          for the acquisition of the Divestment Business.
17. The final binding sale and purchase agreement (as well as ancillary agreements) relating
    to the divestment of the Divestment Business shall be conditional on the Commission’s
    approval. When the Parties have reached an agreement with a purchaser, they shall
    submit a fully documented and reasoned proposal, including a copy of the final
    agreement(s), within one week to the Commission and the Monitoring Trustee. The
    Parties must be able to demonstrate to the Commission that the purchaser fulfils the
    Purchaser Criteria and that the Divestment Business is being sold in a manner consistent
    with the Commission's Decision and the Commitments. For the approval, the
    Commission shall verify that the purchaser fulfils the Purchaser Criteria and that the
    Divestment Business is being sold in a manner consistent with the Commitments
    including their objective to bring about a lasting structural change in the market. The
    Commission may approve the sale of the Divestment Business without one or more
    Assets or parts of the Personnel, or by substituting one or more Assets or parts of the
    Personnel with one or more different assets or different personnel, if this does not affect
    the viability and competitiveness of the Divestment Business after the sale, taking
    account of the proposed purchaser.
Section E.       Trustee
I.          Appointment procedure
18. The Parties shall appoint a Monitoring Trustee to carry out the functions specified in
    these Commitments for a Monitoring Trustee. The Parties commit not to close the
    Concentration before the appointment of a Monitoring Trustee.
19. If the Parties have not entered into a binding sale and purchase agreement regarding the
    Divestment Business one month before the end of the First Divestiture Period or if the
    Commission has rejected a purchaser proposed by the Parties at that time or thereafter,
    the Parties shall appoint a Divestiture Trustee. The appointment of the Divestiture
    Trustee shall take effect upon the commencement of the Trustee Divestiture Period.
20. The Trustee shall:
    (i)   at the time of appointment, be independent of the Parties and their Affiliated
          Undertakings;
    (ii) possess the necessary qualifications to carry out its mandate, for example have
          sufficient relevant experience as an investment banker or consultant or auditor; and
    (iii) neither have nor become exposed to a Conflict of Interest.
21. The Trustee shall be remunerated by the Parties in a way that does not impede the
    independent and effective fulfilment of its mandate. In particular, where the
    remuneration package of a Divestiture Trustee includes a success premium linked to the
    final sale value of the Divestment Business, such success premium may only be earned if
    the divestiture takes place within the Trustee Divestiture Period.
                                                8
 ---pagebreak--- Proposal by the Parties
22. No later than one week after the Effective Date, the Parties shall submit the name or
    names of one or more natural or legal persons whom the Parties propose to appoint as
    the Monitoring Trustee to the Commission for approval. No later than one month before
    the end of the First Divestiture Period or on request by the Commission, the Parties shall
    submit a list of one or more persons whom the Parties propose to appoint as Divestiture
    Trustee to the Commission for approval. The proposal shall contain sufficient
    information for the Commission to verify that the person or persons proposed as Trustee
    fulfil the requirements set out in paragraph 20 and shall include:
     (a) the full terms of the proposed mandate, which shall include all provisions necessary
          to enable the Trustee to fulfil its duties under these Commitments;
     (b) the outline of a work plan which describes how the Trustee intends to carry out its
          assigned tasks;
     (c) an indication whether the proposed Trustee is to act as both Monitoring Trustee and
          Divestiture Trustee or whether different trustees are proposed for the two functions.
Approval or rejection by the Commission
23. The Commission shall have the discretion to approve or reject the proposed Trustee(s)
    and to approve the proposed mandate subject to any modifications it deems necessary for
    the Trustee to fulfil its obligations. If only one name is approved, the Parties shall
    appoint or cause to be appointed the person or persons concerned as Trustee, in
    accordance with the mandate approved by the Commission. If more than one name is
    approved, the Parties shall be free to choose the Trustee to be appointed from among the
    names approved. The Trustee shall be appointed within one week of the Commission’s
    approval, in accordance with the mandate approved by the Commission.
New proposal by the Parties
24. If all the proposed Trustees are rejected, the Parties shall submit the names of at least
    two more natural or legal persons within one week of being informed of the rejection, in
    accordance with paragraphs 18 and 23 of these Commitments.
Trustee nominated by the Commission
25. If all further proposed Trustees are rejected by the Commission, the Commission shall
    nominate a Trustee, whom the Parties shall appoint, or cause to be appointed, in
    accordance with a trustee mandate approved by the Commission.
II.         Functions of the Trustee
26. The Trustee shall assume its specified duties and obligations in order to ensure
    compliance with the Commitments. The Commission may, on its own initiative or at the
    request of the Trustee or the Parties, give any orders or instructions to the Trustee in
    order to ensure compliance with the conditions and obligations attached to the Decision.
                                                  9
 ---pagebreak--- Duties and obligations of the Monitoring Trustee
27. The Monitoring Trustee shall:
     (i)    propose in its first report to the Commission a detailed work plan describing
            how it intends to monitor compliance with the obligations and conditions
            attached to the Decision.
     (ii)   oversee, in close co-operation with the Hold Separate Manager, the on-going
            management of the Divestment Business with a view to ensuring its continued
            economic viability, marketability and competitiveness and monitor compliance
            by the Parties with the conditions and obligations attached to the Decision. To
            that end the Monitoring Trustee shall:
              (a) monitor the preservation of the economic viability, marketability and
                   competitiveness of the Divestment Business, and the keeping separate of
                   the Divestment Business from the businesses retained by the Parties, in
                   accordance with paragraphs 8 and 9 of these Commitments;
              (b) supervise the management of the Divestment Business as a distinct and
                   saleable entity, in accordance with paragraph 11 of these Commitments;
              (c) with respect to Confidential Information:
                        determine all necessary measures to ensure that the Parties do not
                         after the Effective Date obtain any Confidential Information relating
                         to the Divestment Business, in accordance with paragraph 11,
                        in particular strive for the severing of the Divestment Business’
                         participation in a central information technology network to the
                         extent possible, without compromising the viability of the
                         Divestment Business,
                        make sure that any Confidential Information relating to the
                         Divestment Business obtained by the Parties before the Effective
                         Date is eliminated and will not be used by the Parties and
                        decide whether such information may be disclosed to or kept by the
                         Parties as the disclosure is reasonably necessary to allow the Parties
                         to carry out the divestiture or as the disclosure is required by law.
              (d) monitor the splitting of assets and the allocation of Personnel between the
                   Divestment Business and Parties or their Affiliated Undertakings;
     (iii)  propose to the Parties such measures as the Monitoring Trustee considers
            necessary to ensure the Parties’ compliance with the conditions and obligations
            attached to the Decision, in particular the maintenance of the full economic
            viability, marketability or competitiveness of the Divestment Business, the
            holding separate of the Divestment Business and the non-disclosure of
            competitively sensitive information;
                                               10
 ---pagebreak---      (iv)     review and assess potential purchasers as well as the progress of the divestiture
              process and verify that, dependent on the stage of the divestiture process:
                 (a) potential purchasers receive sufficient and correct information relating to
                     the Divestment Business and the Personnel in particular by reviewing, if
                     available, the data room documentation, the information memorandum
                     and the due diligence process, and
                 (b) potential purchasers are granted reasonable access to the Personnel;
     (v)      act as a contact point for any requests by third parties, in particular potential
              purchasers, in relation to the Commitments;
     (vi)     provide to the Commission, sending the Parties a non-confidential copy at the
              same time, a written report within 15 days after the end of every month that
              shall cover the operation and management of the Divestment Business as well
              as the splitting of assets and the allocation of Personnel so that the Commission
              can assess whether the business is held in a manner consistent with the
              Commitments and the progress of the divestiture process as well as potential
              purchasers;
     (vii)    promptly report in writing to the Commission, sending the Parties a non-
              confidential copy at the same time, if it concludes on reasonable grounds that
              the Parties are failing to comply with these Commitments;
     (viii)   within one week after receipt of the documented proposal referred to in
              paragraph 17 of these Commitments, submit to the Commission, sending the
              Parties a non-confidential copy at the same time, a reasoned opinion as to the
              suitability and independence of the proposed purchaser and the viability of the
              Divestment Business after the Sale and as to whether the Divestment Business
              is sold in a manner consistent with the conditions and obligations attached to the
              Decision, in particular, if relevant, whether the Sale of the Divestment Business
              without one or more Assets or not all of the Personnel affects the viability of the
              Divestment Business after the sale, taking account of the proposed purchaser;
     (ix)     assume the other functions assigned to the Monitoring Trustee under the
              conditions and obligations attached to the Decision.
28. If the Monitoring and Divestiture Trustee are not the same legal or natural persons, the
    Monitoring Trustee and the Divestiture Trustee shall cooperate closely with each other
    during and for the purpose of the preparation of the Trustee Divestiture Period in order
    to facilitate each other's tasks.
Duties and obligations of the Divestiture Trustee
29. Within the Trustee Divestiture Period, the Divestiture Trustee shall sell at no minimum
    price the Divestment Business to a purchaser, provided that the Commission has
    approved both the purchaser and the final binding sale and purchase agreement (and
    ancillary agreements) as in line with the Commission's Decision and the Commitments
    in accordance with paragraphs 16 and 17 of these Commitments. The Divestiture Trustee
    shall include in the sale and purchase agreement (as well as in any ancillary agreements)
                                                 11
 ---pagebreak---      such terms and conditions as it considers appropriate for an expedient sale in the Trustee
     Divestiture Period. In particular, the Divestiture Trustee may include in the sale and
     purchase agreement such customary representations and warranties and indemnities as
     are reasonably required to effect the sale of the Divestment Business. The Divestiture
     Trustee shall protect the legitimate financial interests of the Parties, subject to the
     Parties’ unconditional obligation to divest at no minimum price in the Trustee
     Divestiture Period.
30. In the Trustee Divestiture Period (or otherwise at the Commission’s request), the
     Divestiture Trustee shall provide the Commission with a comprehensive monthly report
     written in English on the progress of the divestiture process. Such reports shall be
     submitted within 15 days after the end of every month with a simultaneous copy to the
     Monitoring Trustee and a non-confidential copy to the Parties.
III.         Duties and obligations of the Parties
31. The Parties shall provide and shall cause their advisors to provide the Trustee with all
     such co-operation, assistance and information as the Trustee may reasonably require to
     perform its tasks. The Trustee shall have full and complete access to any of the Parties’
     or the Divestment Business’ books, records, documents, management or other personnel,
     facilities, sites and technical information necessary in each case for fulfilling its duties
     under the Commitments and the Divestment Business shall provide the Trustee upon
     request with copies of any document. The Parties and the Divestment Business shall
     make available to the Trustee one or more offices on their premises and shall be
     available for meetings in order to provide the Trustee with all information necessary for
     the performance of its tasks.
32. The Parties shall provide the Monitoring Trustee with all managerial and administrative
     support that it may reasonably request on behalf of the management of the Divestment
     Business. This shall include all administrative support functions relating to the
     Divestment Business which are currently carried out at headquarters level. The Parties
     shall provide and shall cause their advisors to provide the Monitoring Trustee, on
     request, with the information submitted to potential purchasers, in particular give the
     Monitoring Trustee access to the data room documentation, if applicable, and all other
     information granted to potential purchasers in the due diligence procedure, if any. The
     Parties shall inform the Monitoring Trustee on possible purchasers, submit lists of
     potential purchasers at each stage of the selection process, including the offers made by
     potential purchasers at those stages, and keep the Monitoring Trustee informed of all
     developments in the divestiture process.
33. The Parties shall grant or procure Affiliated Undertakings to grant comprehensive
     powers of attorney, duly executed, to the Divestiture Trustee to effect the sale (including
     ancillary agreements), the Closing and all actions and declarations which the Divestiture
     Trustee considers necessary or appropriate to achieve the sale and the Closing, including
     the appointment of advisors to assist with the sale process. Upon request of the
     Divestiture Trustee, the Parties shall cause the documents required for effecting the sale
     and the Closing to be duly executed.
34. The Parties shall indemnify the Trustee and its employees and agents (each an
     “Indemnified Party”) and hold each Indemnified Party harmless against, and hereby
     agrees that an Indemnified Party shall have no liability to the Parties for, any liabilities
                                                 12
 ---pagebreak---     arising out of the performance of the Trustee’s duties under the Commitments, except to
    the extent that such liabilities result from the wilful default, recklessness, gross
    negligence or bad faith of the Trustee, its employees, agents or advisors.
35. At the expense of the Parties, the Trustee may appoint advisors (in particular for
    corporate finance or legal advice), subject to the Parties’ approval (this approval not to
    be unreasonably withheld or delayed) if the Trustee considers the appointment of such
    advisors necessary or appropriate for the performance of its duties and obligations under
    the Mandate, provided that any fees and other expenses incurred by the Trustee are
    reasonable. Should the Parties refuse to approve the advisors proposed by the Trustee the
    Commission may approve the appointment of such advisors instead, after having heard
    the Parties. Only the Trustee shall be entitled to issue instructions to its advisors.
    Paragraph 34 of these Commitments shall apply mutatis mutandis. In the Trustee
    Divestiture Period, the Divestiture Trustee may use advisors who served the Parties
    during the Divestiture Period if the Divestiture Trustee considers this in the best interest
    of an expedient sale.
36. The Parties agree that the Commission may share Confidential Information proprietary
    to the Parties with the Trustee. The Trustee shall not disclose such information and the
    principles contained in Article 17(1) and (2) of the Merger Regulation apply mutatis
    mutandis.
37. The Parties agree that the contact details of the Monitoring Trustee are published on the
    website of the Commission's Directorate-General for Competition and they shall inform
    interested third parties, in particular any potential purchasers, of the identity and the
    tasks of the Monitoring Trustee.
38. For a period of 10 years from the Effective Date the Commission may request all
    information from the Parties that is reasonably necessary to monitor the effective
    implementation of these Commitments.
IV.         Replacement, discharge and reappointment of the Trustee
39. If the Trustee ceases to perform its functions under the Commitments or for any other
    good cause, including the exposure of the Trustee to a Conflict of Interest:
    39.1. the Commission may, after hearing the Trustee and the Parties, require the Parties
          to replace the Trustee; or
    39.2. the Parties may, with the prior approval of the Commission, replace the Trustee.
40. If the Trustee is removed according to paragraph 39 of these Commitments, the Trustee
    may be required to continue in its function until a new Trustee is in place to whom the
    Trustee has effected a full hand over of all relevant information. The new Trustee shall
    be appointed in accordance with the procedure referred to in paragraphs 18-25 of these
    Commitments.
41. Unless removed according to paragraph 39 of these Commitments, the Trustee shall
    cease to act as Trustee only after the Commission has discharged it from its duties after
    all the Commitments with which the Trustee has been entrusted have been implemented.
    However, the Commission may at any time require the reappointment of the Monitoring
                                                13
 ---pagebreak---     Trustee if it subsequently appears that the relevant remedies might not have been fully
    and properly implemented.
Section F.       The review clause
42. The Commission may extend the time periods foreseen in the Commitments in response
    to a request from the Parties or, in appropriate cases, on its own initiative. Where the
    Parties request an extension of a time period, they shall submit a reasoned request to the
    Commission no later than one month before the expiry of that period, showing good
    cause. This request shall be accompanied by a report from the Monitoring Trustee, who
    shall, at the same time send a non-confidential copy of the report to the Parties. Only in
    exceptional circumstances shall the Parties be entitled to request an extension within the
    last month of any period.
43. The Commission may further, in response to a reasoned request from the Notifying
    Parties showing good cause waive, modify or substitute, in exceptional circumstances,
    one or more of the undertakings in these Commitments. This request shall be
    accompanied by a report from the Trustee, who shall, at the same time send a non-
    confidential copy of the report to the Notifying Parties. The request shall not have the
    effect of suspending the application of the undertaking and, in particular, of suspending
    the expiry of any time period in which the undertaking has to be complied with.
Section G.       Entry into force
44. The Commitments shall take effect upon the date of adoption of the Decision.
duly authorised for and on behalf of Total Produce plc
duly authorised for and on behalf of DFC Holdings, LLC, its subsidiaries and affiliates
                                              14
 ---pagebreak--- SCHEDULE A
1. The Divestment Business as operated to date has the following legal and functional
   structure: it constitutes Saba Fresh Cuts AB, a company incorporated under the laws of
   Sweden. The registered address / place of business of Saba Fresh Cuts AB is Torbonav
   13 B, 250 15 Helsingborg (Sweden). The only activity of Saba Fresh Cuts AB is the
   manufacturing of bagged salads. The corporate structure chart is hereby attached as
   Annex 1.
2. In accordance with paragraph 5 of these Commitments, the Divestment Business owns
   and operates a bagged salads business which includes, but is not limited to:
   2.1. the following main tangible asset: a bagged salad production plant, located at
        Torbonav 13 B, 250 15 Helsingborg (Sweden) with a size of 96,529 square feet and
        under full ownership of Saba Fresh Cuts AB.1 This plant includes the following
        equipment:
                 (a) […] triple wash systems of different capacity ([…] kg);
                 (b) […] wash line;
                 (c) […] horizontal spin dryers;
                 (d) […] air tunnel dryer (for baby leaves);
                 (e) […] stir dry line (for baby leaves);
                 (f) […] vertical form fill packaging lines;
                 (g) […] tray packing line; and
                 (h) equipment to serve the lines (cutters, elevators, trim lines and bin
                     dumpers).
   2.2. all licences, permits and authorisations issued by any governmental organization or
        other body for the benefit of the Divestment Business and allowing it to operate its
        business as described hereby, to the extent transferable under applicable law;
   2.3. all customer contracts, agreements, commitments, understandings and orders of the
        Divestment Business (“Customer Contracts”) and all contracts, agreements,
        commitments, understandings and orders relating to suppliers that supply the
        Divestment Business as at Closing (“Supplier Contracts”). The Parties will […]
        procure the consent of third parties, where applicable, to the transfer of the material
        Customer Contracts and Supplier Contracts to the Purchaser;
1      The Divestment Business also currently leases a very small office, located at Slånbåret 2
       Slånbärsgatan 8, 722 23 Västerås (Sweden), with a facility size of 172 square feet, […] as part of the
       ordinary course of business of the Divestment Business.
                                                    15
 ---pagebreak---    2.4. customer, credit and other records, in particular those relating to paragraph 2.3 of
        this Schedule above;
   2.5. the following Personnel who are mentioned in the Divestment Business’s
        organizational chart hereby attached as Annex 2. The Parties will provide
        reasonable assistance to facilitate the transfer of any members of the Personnel to
        the Purchaser, in so far as requested by the Purchaser;
   2.6. the following Key Personnel:
            Name                        Title                     Function
            […]                         […]                       […]
            […]                         […]                       […]
            […]                         […]                       […]
            […]                         […]                       […]
            […]                         […]                       […]
            […]                         […]                       […]
            […]                         […]                       […]
            […]                         […]                       […]
            […]                         […]                       […]
            […]                         […]                       […]
            […]                         […]                       […]
            […]                         […]                       […]
            […]                         […]                       […]
   2.7. any know-how held by the Divestment Business; and
   2.8. at the election of the Purchaser, the Enterprise Resource Planning (ERP) system,
        which is an IT data management system currently used solely by the Divestment
        Business.
3. Other than goodwill covered by paragraph 2.3 of this Schedule, the main intangible asset
   of the Divestment Business is the right to use the DOLE brand. The Divestment
   Business shall not own the right to use DOLE brand which is owned by Dole Food
   Company, Inc. via an implied licence for the benefit of Saba Fresh Cuts AB, except for a
   transitional period of two (2) years but only at the request of the suitable purchaser
   acquiring the Divestment Business.
                                               16
 ---pagebreak--- 4. The Divestment Business benefits from basic back office services/products from Dole
   which are provided by the Saba Shared Service Center. These services/products
   comprise IT support and systems (including Microsoft Office and Outlook, and an IT
   financial reporting system), finance, book keeping and human resources management.
   The Divestment Business shall continue to have the benefit of some or all of these
   services/products at the Purchaser’s election and on equivalent terms to those currently
   provided. This will be undertaken by way of a transitional services arrangement on terms
   which will be subject to Commission approval. In addition, the Purchaser will also be
   able to elect to acquire the ERP system as per paragraph 2.8 of this Schedule A above.
5. If there is any asset or personnel which is not be covered by paragraphs 2, 3 or 4 of this
   Schedule but which is both used (exclusively or not) in the Divestment Business and
   necessary for the continued viability and competitiveness of the Divestment Business,
   that asset or adequate substitute will be offered to potential purchasers.
6. Notwithstanding paragraph 8 of these Commitments, […] can, under the supervision and
   approval of the Monitoring Trustee, continue to provide services to Dole’s retained
   business, […], until Closing.
                                               17
 ---pagebreak---   ANNEX 1 – CORPORATE STRUCTURE CHART
                    […]
ANNEX 2 – PERSONNEL ORGANISATIONAL CHART
                    […]
                     18