CELEX: 32019M9095
Language: en
Date: 2019-01-23 00:00:00
Title: Commission Decision of 23/01/2019 declaring a concentration to be compatible with the common market (Case No COMP/M.9095 - UPL / ARYSTA LIFESCIENCE) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

EUROPEAN COMMISSION
                                                               Brussels, 23.1.2019
                                                               C(2019) 656 final
                                                                                 PUBLIC VERSION
                                                                 In the published version of this decision,
                                                                 some information has been omitted
                                                                 pursuant to Article 17(2) of Council
                                                                 Regulation (EC) No 139/2004 concerning
                                                                 non-disclosure of business secrets and
                                                                 other confidential information. The
                                                                 omissions are shown thus […]. Where
                                                                 possible the information omitted has been
                                                                 replaced by ranges of figures or a general
                                                                 description.
                                                               To the notifying party
Subject:            Case M.9095 - UPL / Arysta LifeScience
                    Commission decision pursuant to Article 6(1)(b) of Council Regulation
                    No 139/20041 and Article 57 of the Agreement on the European
                    Economic Area2
Dear Sir or Madam,
(1)       On 7 December 2018, the European Commission received notification of a proposed
          concentration pursuant to Article 4 of the Merger Regulation by which United
          Phosphorus Corporation Ltd. ("UPL Corp"), a wholly owned subsidiary of United
          Phosphorus Ltd. ("UPL" or the "Notifying Party"), would acquire sole control of
          Arysta LifeScience Inc. ("Arysta" and, together with UPL, the "Parties") (the
          "Transaction").
1.        THE PARTIES
(2)       UPL is active worldwide in the manufacture of products for the protection of
          plantations, intermediates, specialty chemicals and other industrial chemicals,
1    OJ L 24, 29.1.2004, p. 1 (the 'Merger Regulation'). With effect from 1 December 2009, the Treaty on the
     Functioning of the European Union ('TFEU') has introduced certain changes, such as the replacement of
     'Community' by 'Union' and 'common market' by 'internal market'. The terminology of the TFEU will be
     used throughout this decision.
2    OJ L 1, 3.1.1994, p. 3 (the 'EEA Agreement').
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---       including insecticides, fungicides, herbicides, fumigants, plant growth regulators
      ('PGR') and rodenticides.
(3)   Arysta is a global provider of innovative crop protection solutions, including bio-
      solutions and seed treatments. Arysta specialises in the development, formulation,
      registration, marketing and distribution of differentiated crop protection chemicals
      for a variety of crops and applications.
2.    THE CONCENTRATION
(4)   Through the Transaction, UPL would acquire sole control of Arysta from Arysta's
      current owner Platform Specialty Products Corporation by way of a purchase of
      shares.
(5)   The Transaction would constitute a concentration within the meaning of
      Article 3(1)(b) of the Merger Regulation.
3.    UNION DIMENSION
(6)   The Transaction does not have a Union dimension within the meaning of Article 1 of
      the Merger Regulation as it does not meet the thresholds of Article 1(2) or
      Article 1(3).
(7)   However, on 29 August 2018, the Notifying Party informed the Commission by
      means of a reasoned submission that the concentration would be notifiable in four
      Member States and would fulfil a number of further criteria for its referral to the
      Commission. In particular, the referral to the Commission would avoid multiple
      national filings, thereby increasing administrative efficiency. On that basis, under
      Article 4(5) of the Merger Regulation, the Notifying Party requested the
      Commission to examine the Transaction.
(8)   The Commission agrees that the referral request meets the legal criteria set out in
      Article 4(5) of the Merger Regulation in that the Transaction is capable of being
      reviewed under the national merger control laws of at least three Member States,
      namely France, Germany, Poland and Spain. In addition, none of the Member States
      competent to examine the Transaction under the respective national laws expressed
      their disagreement within 15 working days of receiving the reasoned submission.
(9)   Therefore, the concentration is deemed to have a Union dimension pursuant to
      Article 4(5) of the Merger Regulation.
4.    MARKET DEFINITIONS
 4.1. Commission precedents
(10)  In past cases – notably Dow/DuPont, ChemChina/Syngenta and Bayer/Monsanto –
      the Commission found that the relevant product markets for formulated crop
      protection products can be defined on the basis of crop/pest combinations, where
      each such combination constitutes a separate relevant product market. Moreover, the
                                                2
 ---pagebreak---          Commission found that, for herbicides, further distinctions can be made depending
         on the time of application of the relevant crop protection products.3
(11)     On this basis, the Commission found that the relevant product markets for selective
         herbicides can be segmented by crop, weeds targeted and timing of their application.
         For PGR, it found that the relevant product markets can be segmented by crop. For
         fungicides, it found that each crop/disease combination constitutes a separate
         relevant market. Regarding the upstream markets for active ingredients ('AIs'), the
         Commission found that each AI is a distinct market.
(12)     As to the relevant geographic markets for crop protection products, in past cases the
         Commission found that they are national in scope. For AIs, the Commission found
         the markets to be at least EEA-wide, if not worldwide.
  4.2.   Notifying Party's views
(13)     In line with the Commission's precedents, the Notifying Party submitted data for
         formulated products on the basis of national markets segmented by indication, crop
         and pest (as well as timing of application in the case of herbicides), and on the basis
         of EEA-wide or global markets for each AI.4
  4.3.   Commission assessment
(14)     In light of the elements put forward by the Parties and the results of its investigation,
         the Commission confirms the conclusions reached in Dow/DuPont,
         ChemChina/Syngenta and Bayer/Monsanto regarding market definition.
(15)     The Commission’s findings in those cases were based on a number of different
         elements, including:
         (a)     Farmers buy formulated crop protection products to address specific needs,
                 based on the crop, pest, timing of application they want to target. This
                 implies a narrow relevant product dimension consisting of a crop / pest
                 combination which is not substitutable from the point of view of the farmer
                 with other products that apply to a different crop / pest combination.
         (b)     Formulated products have labels that typically indicate AIs, formulation,
                 permitted use crops, targeted pests, options for tank mixing, etc.
         (c)     Discovery and production of a new formulated product involve high costs
                 and a long period, making supply side substitutability very limited.
(16)     These elements were broadly confirmed by respondents to the market investigation.
(17)     Based on its precedents, and on the results of the market investigation, the
         Commission thus takes the view that the relevant product markets for selective
         herbicides can be segmented by crop, weeds targeted and timing of their application.
         For PGR, the Commission takes the view that the relevant product markets can be
3    See Commission Decisions in Case M.7932 – Dow/DuPont (2017), notably recitals 319, 332, 657
     and 1769; Case M.7962 – ChemChina/Syngenta (2017), notably recitals 102, 117, 138, 166 and 174; Case
     M.8084 – Bayer/Monsanto (2018), notably recitals 1361 and 2296-2298.
4    Form CO.
                                                        3
 ---pagebreak---       segmented by crop. For fungicides, the Commission takes the view that each
      crop/disease combination constitutes a separate relevant market. Regarding the
      upstream markets for AIs, the Commission takes the view that each AI is a distinct
      market.
(18)  As to the relevant geographic markets for crop protection products, in its precedents
      the Commission found that:
      (a)     Product portfolios are adapted for varying demand of customers in different
              Member States;
      (b)     Customer habits, needs and preferences are dependent on geography and
              differ across EEA countries.
      (c)     Formulated products are registered at national level;
      (d)     Design, brand products and prices vary across countries;
      (e)     At the same time, some characteristics of crop protection products (AI
              approval, R&D) are determined at the EEA level and impact national
              competitive dynamics.
(19)  These elements were broadly confirmed in the market investigation.
(20)  Therefore, based on its precedents and on the results of the market investigation, the
      Commission takes the view that the relevant markets are national in scope.
(21)  As regards AIs which are used in formulated products, the Commission found in its
      precedents that their relevant geographic market is at least EEA wide, based in
      particular on the fact that they are registered on a European basis.
(22)  For AIs, the Commission therefore takes the view that the markets are at least EEA-
      wide.
 4.4. Conclusion
(23)  In light of its precedents and taking into account the results of its investigation, the
      Commission will assess markets for formulated crop protection products (including,
      for the avoidance of doubt, PGR) at the national level on the basis of crop/pest
      combinations – as well as the timing of application for herbicides. For AIs, the
      Commission will assess each AI as a separate market, at the EEA level or
      worldwide.
(24)  In the present case, the Commission will therefore assess the affected national
      markets for potato PGR, scab fungicides for pome fruit and post-emergence
      broadleaf herbicides for sugar beet.
(25)  As regards 'broad spectrum fungicides for other fruit', this encompasses different
      crops but is the narrowest segmentation for which data is available. The Commission
      will therefore assess the effects of the Transaction on competition in national
      markets at that level, but will take into account in its assessment competitive
      dynamics for products targeting the same individual crops within that the cluster.
                                                   4
 ---pagebreak--- (26) Finally, the Commission will assess the vertically affected markets regarding the
     upstream supply of chlorpropham and the downstream markets in which products
     containing the AI chlorpropham are sold.
5.   COMPETITIVE ASSESSMENT
5.1. Overall Framework
(27) Under Article 2(2) and (3) of the Merger Regulation, the Commission must assess
     whether a proposed concentration would significantly impede effective competition
     in the internal market or in a substantial part of it, in particular through the creation
     or strengthening of a dominant position.
(28) The Commission considers below the competitive effects of the Transaction in the
     areas in which the Parties have overlapping sales giving rise to affected national
     markets in the EEA: (i) PGR for potatoes (in Belgium, France, Germany, the
     Netherlands, Spain and the United Kingdom), (ii) broad spectrum fungicides for
     other fruit (in Greece), (iii) scab fungicides for pome fruit (in France and Greece),
     and (iv) post-emergence broadleaf herbicides for sugar beet (in Austria, Belgium,
     France, Italy, the Netherlands and the United Kingdom).
(29) Regarding the supply of AIs to third parties, the only (vertically) affected markets
     concern products containing chlorpropham. Therefore, no other markets
     regarding the supply of AIs to third parties will be further discussed in this decision,
     considering that the Parties are otherwise active only to a limited extent in this
     business and for each of the AIs that they supply to third parties in the EEA the
     Parties hold a limited share and there appears to be a significant number of
     alternative suppliers.
(30) The Parties overlap only to a very limited extent in herbicides and fungicides for
     other crops, as well as in insecticides and other crop protection indications, without
     giving rise to any horizontally or vertically affected market other than the ones
     mentioned above. These activities are, therefore, not further discussed in this
     decision.
(31) Overall, the Transaction does not give rise to affected markets which are not
     assessed in this decision.
5.2. Notifying Party's views
(32) The Notifying Party considers that the Transaction would not significantly impede
     effective competition in the EEA or any substantial part thereof, in essence because
     in each of the horizontally or vertically affected markets: (i) there are many suppliers
     and products available, among which growers are able to choose freely to meet their
     needs; (ii) other suppliers offer products based on the same AIs as those offered by
     the Parties; (iii) there is also a large number of products based on alternative AIs
     which are not part of the Parties' offer; (iv) the vast majority of the AIs used in these
     markets are off-patent, meaning that they are open to generic competition; (v)
     switching between AIs and formulated products is easy for distributors and growers
     because the application techniques and needed equipment are the same across the
     product range; (vi) a number of strong competitors will remain post-Transaction,
     typically with significantly larger market shares than the merged entity, which would
                                                 5
 ---pagebreak---         typically have relatively low combined market shares and no market power; (vii)
        there is significant regulatory pressure on most of the Parties' overlapping products,
        in particular on chlorpropham, the use of which will therefore likely significantly
        decrease within a short period of time; (viii) […], such that there is no scope for
        either customer or input foreclosure in the vertically affected markets.5
5.3.    Plant growth regulators for potatoes
(33)    The main overlap between the Parties' activities in the EEA arises in the area of PGR
        for potatoes.
(34)    PGR are used to inhibit the sprouting of potatoes during storage, which enables
        longer storage with better product quality. Because potatoes may be stored for
        months, several treatments are often necessary, either with the same products or by
        combining different products. In particular, products used in field (based on maleic
        hydrazide) only prevent sprouting during storage for a limited period of time and
        typically require the use of additional anti-sprouting treatments.
             5.3.1.   Activities of the Parties and their competitors
(35)    UPL sells products based on chlorpropham (also called 'CIPC') – the traditional and
        cheapest option for potato anti-sprouting treatments – with EEA sales of
        approximately EUR [5-9] million in 2017. UPL produces the AI and formulates
        some of its finished products, but also uses […] as a 'toll formulator' (that is, a
        contract manufacturer of finished formulated products).
(36)    Arysta sells products based on both chlorpropham and maleic hydrazide, another AI,
        with EEA sales of approximately EUR [8-12] million in 2017. Arysta purchases the
        chlorpropham AI exclusively from […] – which in turn purchases it […] – and
        formulates its finished products. Regarding maleic hydrazide products, Arysta
        procures them from a toll-formulator. Arysta is also in the process of launching a
        new product based on orange oil.
(37)    The Parties' competitors sell products based on a number of AIs.
(38)    The Parties’ main competitor is Certis, a fully independent player which is active
        through the same AI as the Parties' main sales (chlorpropham). Certis is a larger
        player in EEA markets than the Parties, and the main seller of products based on
        chlorpropham, as evidenced by the market shares in Tables 1 to 6. Certis procures
        the AI from a Chinese supplier and holds an approval for the molecule at the EEA
        level.
(39)    Several competitors (Xeda International, DormFresh, Restrain, Freshpallet, Adama)
        recently launched products based on different new molecules, such as
        1,4-dimethylnaphthalene ('1,4-DMN'), ethylene, carvone or mint oil, in response to
        the severe pressure from regulators and food-chain users regarding the use of
        chlorpropham.
5   Form CO, notably paragraphs 9, 11 and 129-131, as well as Annexes PGR Potatoes, Chlorpropham,
    Herbicides Sugar Beets, Fungicides Pome Fruit and Fungicides Other Fruit; Response to State of Play
    Meeting.
                                                     6
 ---pagebreak--- (40)      Products based on chlorpropham such as those sold by the Parties and Certis are
          used either at the moment of the placement of potatoes into storage, or during
          storage. By contrast, products based on maleic hydrazide are sprayed in the field,
          and their anti-sprouting effect is limited in time. Products based on other AIs are
          typically used during storage only.
               5.3.2.   Market shares
(41)      Tables 1 to 6 show the market shares provided by the Notifying Party for the
          affected markets in potato PGR in the EEA.
1 - Market shares for potato PGR in Belgium
                      2015 (EURk)        2016 (EURk)         2017 (EURk)        MS% 2015         MS% 2016       MS% 2017
Brand Owner
Various (Certis)        [5,000-6,000]       [5,000-6,000]      [5,000-6,000]        [60-70]         [60-70]        [60-70]
UPL/Arysta             [2,000-3,000]       [2,000-3,000] [1,500-2,500]             [30-40]         [30-40]        [20-30]
Arysta                  [1,000-2,000]       [1,000-2,000]      [1,000-1,900]        [20-30]         [20-30]        [10-20]
UPL                       [500-1,000]          [500-1,000]       [800-1,300]          [5-10]        [10-20]        [10-20]
Kreglinger                  [300-600]            [300-600]          [300-600]         [5-10]         [5-10]          [5-10]
Xeda International               [0-50]               [0-50]            [0-50]         [0-5]           [0-5]           [0-5]
Dorm-Fresh                       [0-50]               [0-50]            [0-50]         [0-5]           [0-5]           [0-5]
Restrain                         [0-50]               [0-50]            [0-50]         [0-5]           [0-5]           [0-5]
Grand Total             [8,000-9,000]       [8,000-9,000]      [8,000-9,000]           100.0          100.0           100.0
Source: Form CO
2 - Market shares for potato PGR in France
                             2015 (EURk) 2016 (EURk) 2017 EURk)                   MS% 2015        MS% 2016      MS% 2017
Brand Owner
Certis                       [4,000-5,000]    [7,000-8,000]    [8,000-9,000]           [30-40]        [50-60]       [50-60]
UPL/Arysta                   [4,000-5,000]    [4,000-5,000]    [4,000-5,000]           [30-40]        [20-30]       [20-30]
Arysta                       [3,000-4,000]    [2,500-3,500]    [2,000-3,000]           [20-30]        [20-30]       [10-20]
UPL                          [1,000-2,000]    [1,000-2,000]    [1,000-2,000]            [5-10]          [5-10]      [10-20]
Freshpallet                    [500-900]        [500-900]        [500-900]              [5-10]          [5-10]        [5-10]
Restrain                       [500-900]        [500-900]        [500-900]              [5-10]          [5-10]        [5-10]
Kreglinger                     [500-900]        [500-900]        [500-900]                [0-5]         [5-10]        [5-10]
Xeda International             [200-500]        [200-500]        [200-500]                [0-5]          [0-5]          [0-5]
                                [12,000-          [15,000-        [15,000-
Grand Total                      13,000]           16,000]         16,000]               100.0           100.0         100.0
Source: Form CO
3 - Market shares for potato PGR in Germany
                                                                                           MS%           MS%
                          2015 (EURk)         2016 (EURk)             2017 (EURk)           2015          2016   MS% 2017
 Certis                   [4,000-5,000]        [4,000-5,000]          [5,000-6,000]      [50-60]       [50-60]        [50-60]
 UPL/Arysta                [1,000-2,000]         [1,000-2,000]          [1,000-2,000]     [10-20]       [10-20]         [20-30]
 Frowein                  [2,000-3,000]        [2,000-3,000]          [1,000-2,000]      [20-30]       [20-30]        [10-20]
 Arysta                     [500-1,000]        [1,000-1,500]          [1,000-1,500]      [10-20]       [10-20]        [10-20]
 Kreglinger                   [500-900]             [300-600]              [300-700]       [5-10]         [0-5]          [5-10]
 UPL                          [200-500]             [200-500]              [200-500]        [0-5]         [0-5]          [5-10]
 Grand Total              [8,000-9,000]        [8,500-9,500]         [9,000-10,000]       100.00        100.00          100.00
Source: Form CO
                                                                7
 ---pagebreak--- 4 - Market shares for potato PGR in the Netherlands
                                                                                      MS%         MS%
                           2015 (EURk)       2016 (EURk)          2017 (EURk)                                MS% 2017
                                                                                        2015        2016
 Certis                    [3,000-4,000]     [2,000-3,000]        [2,000-3,000]     [40-50]     [30-40]        [30-40]
 UPL/Arysta                 [2,000-3,000]      [2,000-3,000]       [2,000-3,000]     [30-40]     [30-40]        [30-40]
 UPL                       [1,500-2,000]     [1,000-1,500]        [1,000-2,000]     [20-30]     [10-20]        [10-20]
 Arysta                    [1,000-2,000]     [1,000-2,000]        [1,000-2,000]     [10-20]     [10-20]        [10-20]
 Dorm-Fresh                      [0-500]     [1,000-1,500]        [1,000-1,500]         [0-5]   [10-20]        [10-20]
 Kreglinger                  [500-1,000]          [500-900]         [500-1,000]     [10-20]       [5-10]       [10-20]
 ADAMA                         [500-900]          [500-900]           [500-900]       [5-10]      [5-10]         [5-10]
 Xeda International             [50-200]           [50-100]            [50-100]         [0-5]       [0-5]         [0-5]
 Restrain                       [50-100]           [50-100]            [50-100]         [0-5]       [0-5]         [0-5]
 Freshpallet                    [50-200]           [50-100]            [50-100]         [0-5]       [0-5]         [0-5]
 Grand Total               [7,000-8,000]     [7,000-8,000]        [7,000-8,000]      100.00      100.00         100.00
Source: Form CO
5 - Market shares for potato PGR in Spain
                                                                                   MS%
                         2015 (EURk)       2016 (EURk)          2017 (EURk)          2015     MS% 2016       MS% 2017
 Certis                  [1,000-2,000]     [1,000-2,000]        [2,000-3,000]    [60-70]        [70-80]        [70-80]
 UPL/Arysta
                            [500-1,000]       [500-1,000]          [500-1,000]    [20-30]        [20-30]        [10-20]
 Arysta                    [500-1,000]          [500-900]           [200-600]    [20-30]        [10-20]        [10-20]
 UPL                          [50-100]           [50-100]           [100-400]        [0-5]         [0-5]         [5-10]
 BASF                        [100-400]          [100-400]           [100-400]      [5-10]         [5-10]         [5-10]
 Xeda International           [50-100]           [50-100]               [0-50]       [0-5]         [0-5]          [0-5]
 Grand Total             [2,000-3,000]     [2,000-3,000]        [2,000-3,000]     100.00         100.00         100.00
Source: Form CO
6 - Market shares for potato PGR in the United Kingdom
                                2015             2016              2017
Brand Owner                  (EURk)          (EURk)            (EURk)         MS% 2015          MS% 2016          MS% 2017
Kreglinger                 [300-600]       [300-600] [1,500-2,000]                   [5-10]            [5-10]         [20-30]
Arysta/UPL              [2,000-3,000]   [1,000-2,000]    [1,000-2,000]              [40-50]           [30-40]           [20-30]
Arysta                 [1,000-2,000]   [1,000-2,000]    [1,000-2,000]              [20-30]           [20-30]          [20-30]
Aceto                  [1,000-2,000]   [1,000-2,000]    [1,000-2,000]              [20-30]           [20-30]          [20-30]
Dow-Agrosciences       [1,000-2,000]   [1,000-2,000]    [1,000-2,000]              [20-30]           [30-40]          [10-20]
UPL                      [500-1,000]       [300-600]        [100-400]              [10-20]             [5-10]             [0-5]
Certis                      [50-100]       [200-500]        [200-500]                  [0-5]             [0-5]            [0-5]
Restrain                   [200-500]       [200-500]        [200-500]                [5-10]              [0-5]            [0-5]
Xeda International          [50-100]        [50-100]          [50-100]                 [0-5]             [0-5]            [0-5]
Grand Total            [5,000-6,000]   [5,000-6,000]    [5,000-6,000]                 100.0             100.0            100.0
Source: Form CO
              5.3.3.   The merged entity would continue to face significant competition,
                       including from players with larger market shares
(42)      Tables 1 to 6 show that the Parties' combined market shares remain below [20-30]%,
          with the exception of the Netherlands where the combined share is […] above
          [30-40]%.
                                                            8
 ---pagebreak--- (43)    The main other competitor selling products based on the same AI, Certis, has much
        larger sales and market shares than the Parties combined in Belgium ([60-70]%
        compared with [20-30]% for the Parties), France ([50-60]% compared with
        [20-30]% for the Parties), Germany ([50-60]% compared with [20-30]% for the
        Parties) and Spain ([70-80]% compared with [20-30]% for the Parties).
(44)    In Belgium, as detailed in recital (55), there is strong pressure from the food chain
        for potato growers and storage operators to use products alternative to those
        containing chlorpropham.
(45)    In Germany, Frowein is another player with a significant market share ([10-20]%) –
        also based on chlorpropham products. […], it formulates its products independently.
(46)    In the Netherlands, as can be seen in Table 4, Certis' market share is comparable to
        the Parties' combined share ([30-40]% compared with [30-40]% for the Parties),6
        and both DormFresh and Kreglinger have market shares similar to those of each
        Party (respectively [10-20]% and [10-20]%).
(47)    In Spain, BASF is also a significant competitor to the Parties with sales of products
        based on chlorpropham.
(48)    Certis is not only a larger player than the Parties: it is also a close competitor to them
        as it sells products based on the same AI as many of the Parties' products
        (chlorpropham) in all Member States except the United Kingdom, and is
        independent from the Parties as regards the sourcing of this AI.
(49)    In the United Kingdom, Arysta only sells maleic hydrazide products. In that market,
        Aceto […] appears to be the market leading seller of chlorpropham products, ahead
        of UPL and Certis, and a closer competitor than Arysta.
(50)    The merged entity would continue to face significant competition post-Transaction
        from at least one larger and close competitor active through the same AI in all
        nationally affected markets – with the possible exception of the United Kingdom,
        where the Parties do not sell products based on the same AI; as well as the
        Netherlands, where however the available market share data appears not to be
        reliable in that regard (see footnote 6) – throughout the EEA.
            5.3.4.      Products alternative to chlorpropham are likely to capture significant
                        sales and erode its market relevance in view of pressure from the food
                        chain, as is already the case in the two most 'progressive' national
                        markets
(51)    Beside the competitive constraint currently exerted by alternative suppliers of
        formulated products based on the same AI as the Parties (chlorpropham), the merged
        entity is likely to face significant competition from new products based on
        alternative AIs.
(52)    As evidenced in Tables 4 and 6, in countries where users are more open to new
        treatments such as the Netherlands and the United Kingdom, alternative products
6  According to the Notifying Party, if products incorrectly allocated to Kreglinger in the market data were
   correctly allocated to Certis, Certis would be the market leader ahead of the Parties also in the Netherlands
   (see the Response to State of Play Meeting, footnote 9).
                                                          9
 ---pagebreak---         mainly based on maleic hydrazide and 1,4-DMN but also on ethylene or mint oil
        have already captured significant sales from chlorpropham-based products, in spite
        of higher prices.
(53)    For instance, as shown in Table 4, DormFresh's market share – which are based on
        1,4-DMN products – in the Netherlands grew from nil in 2015 to [10-20]% in 2017.
(54)    This trend appears to be the result of growing reluctance from the food chain to
        purchase potatoes treated with chlorpropham, which has been assessed by the
        European Food Safety Authority ('EFSA') as leaving residues detrimental to human
        health.7 This assessment is the basis for the Commission's proposal not to renew the
        approval of chlorpropham in the EEA, as discussed in Section 5.3.5.
(55)    For instance, in Belgium, the Reskia project, an initiative of the potato processing
        industry, traders and growers, is focused on finding and scaling up alternative
        products to chlorpropham. Information available on the project’s website concludes
        that 1,4-DMN, mint oil and ethylene are good alternatives to chlorpropham, with
        strong support being shown for 1,4-DMN in particular.8
(56)    Because these serious human health risk considerations apply equally to all countries
        and consumers in the EEA, it is likely that, moving forward, these alternative
        products – particularly 1,4-DMN, which appears to be considered the best alternative
        to chlorpropham – would gradually replace chlorpropham products also in other
        national markets – as they obtain product authorisations, which are in progress –
        thereby limiting the scope for effects on competition the Transaction could have.9
(57)    Such a trend is for the moment visible in the available market data in countries such
        as the Netherlands and the United Kingdom where new products have been
        successfully launched, but it can be expected that alternative products will
        increasingly compete with the products of the Parties based on chlorpropham also in
        other countries.
(58)    For example, 1,4-DMN was only launched during 2017 in other countries, in
        particular Belgium and France, and has not yet been launched in Spain. Market
        shares for 2017 do not yet reflect this development for those countries, but the share
        of supply of alternative products is expected to grow significantly in the coming
        years.
            5.3.5.    Chlorpropham is facing regulatory risks, significantly impacting the
                      Parties' positions in potato PGR markets in the EEA
(59)    In addition to the other elements detailed in this assessment, on the basis of which
        the Commission considers that the Transaction does not raise serious doubts as to its
        compatibility with the internal market and with the EEA Agreement with respect to
        PGR for potatoes in Belgium, France, Germany, the Netherlands, Spain and the
        United Kingdom, and in particular the reduced acceptance of products based on
7  EFSA, Peer review of the pesticide risk assessment of the active substance chlorpropham, 18 June 2017,
   available at: https://efsa.onlinelibrary.wiley.com/doi/epdf/10.2903/j.efsa.2017.4903 ('EFSA risk
   assessment').
8  https://www flandersfood.com/projecten/reskia.
9  Response to State of Play Meeting.
                                                      10
 ---pagebreak---         chlorpropham due to concerns of customers in the supply chain, the ability of the
        Parties to compete in the relevant markets is likely to be reduced by the current
        regulatory pressure on chlorpropham.
(60)    In light of the above-referenced EFSA conclusions on serious health risks for
        consumers,10 the Commission has already proposed several times to the relevant
        decision-making body (the Standing Committee on Plants, Animals, Food and Feed
        – 'SCoPAFF') not to renew chlorpropham's approval.11 No decision has yet been
        made at that level, and the Commission reiterates its proposal on the agenda for the
        next SCoPAFF meeting scheduled for 24-25 January 2019.12
(61)    Finally, the Rapporteur Member State in charge of chlorpropham's review – the
        Netherlands, a very significant potato-growing country – has recently taken the
        official position that, although continued safe uses as a herbicide could in its view be
        managed, it can in any event no longer support the use of chlorpropham on potatoes,
        notably in view of EFSA's conclusions on serious health risks for consumers.13
(62)    In that regard, even assuming that chlorpropham's approval at the EEA level would
        be renewed, Member States would still individually need to consider user and
        consumer safety when assessing the ensuing requests for market authorisations for
        individual finished products to be issued at the Member State level: "[f]ollowing
        renewal of approval of an active substance, all plant protection products containing
        that active substance must also undergo a renewal assessment to make sure that
        products comply with the updated assessment of the active substance and with new
        scientific and technical knowledge".14
(63)    In doing so, Member States would thus need to consider EFSA's conclusions
        regarding serious health risks for consumers, which would likely prevent them from
        delivering product authorisations for use as potato PGR. In particular, Member
        States would be free not to deliver authorisations for products containing
        chlorpropham, even if it would have been approved at the EEA level.
(64)    Accordingly, it is likely that the Parties' combined market shares would overestimate
        their competitive position in the near future.
10 EFSA risk assessment, Table 5.
11 Draft Commission Implementing Regulation concerning the non-renewal of approval of the active
   substance chlorpropham, in accordance with Regulation (EC) No 1107/2009 of the European Parliament
   and of the Council concerning the placing of plant protection products on the market, and amending
   Implementing Regulation (EU) No 540/2011 (5 page(s), in English) Reference: G/TBT/N/EU/565.
12 Agenda for the SCoPAFF meeting of 24-25 January 2019, document sante.ddg2.g.5(2018)7356188,
   available at: https://ec.europa.eu/food/sites/food/files/plant/docs/sc phyto 20190124 ppl agenda.pdf. In
   the event that a qualified majority of Member States would then not support its proposal, the Commission
   can – first – appeal the vote and then, in case it again does not have the needed support at that level, in a
   second step – provided there is on appeal no qualified majority against its proposal – eventually decide
   unilaterally.
13 Letter from the Dutch Minister of Agriculture, Nature and Food Quality to the President of the Dutch
   Parliament, 11 December 2018, Annex 1 to the Response to State of Play Meeting.
14 Quote from https://ec.europa.eu/food/plant/pesticides/authorisation of ppp/application procedure en.
   More detailed information is available on this Commission website.
                                                          11
 ---pagebreak---             5.3.6.    The Transaction is unlikely to significantly affect competition in potato
                      PGR markets in the EEA
(65)   In sum, the Commission's investigation confirmed that while both UPL and Arysta
       compete in potato PGR through products based on chlorpropham:15
       (a)      They face close competition from Certis, a larger player marketing products
                based on the same AI (chlorpropham).
       (b)      The only markets where Certis is not larger than the Parties combined (the
                Netherlands and the United Kingdom) are markets where the available
                information shows that chlorpropham products are being largely replaced by
                newer and safer options due, among others, to concerns about the residues
                left by chlorpropham products which may entail dangers for human health. In
                the Netherlands, for instance, as illustrated by Table 4, the evolution of sales
                since 2015 shows that as chlorpropham products have lost sales to newer
                products, this has disproportionately affected more prominent chlorpropham
                players such as Certis (decreasing from a [40-50]% to a [30-40]% market
                share), but also UPL (decreasing from [20-30]% to [10-20]%).
       (c)      There is a reduced likelihood of the Parties being able to significantly
                compete in the medium term through chlorpropham products due to the same
                concerns, which have increased regulatory pressure on the molecule, for
                which the Commission has proposed not to further renew the approval.
       (d)      In the United Kingdom, Arysta only sells products based on maleic
                hydrazide, and there is thus no overlap with UPL at the molecule level. The
                Parties therefore do not compete closely and face competition from different
                players.
(66)   While some customers responding to the Commission’s investigation expressed
       concerns, most market respondents indicated they do not expect the Transaction to
       result in anticompetitive effects.
(67)   Moreover, even those respondents to the market investigation which expressed some
       concerns16 acknowledged that any effect may be short lived due to the significant
       regulatory and food-chain pressure on the use of chlorpropham, and the fact that
       market participants anticipate that its authorisation will not be renewed in the very
       short term.
(68)   For instance, a competitor explained that "CIPC , which could be the problem , will
       probably be banned". Another competitor confirmed that: "YES: they are direct
       competitors for chloorprofam [sic]. But re-registration (Annex I renewal) of
       chloorprofam [sic] is uncertain, so this AI may disappear".17
15 Q1 – Questionnaire to Competitors, questions 5-15; Q2 – Questionnaire to Customers and Others,
   questions 5-15.
16 Q1 – Questionnaire to Competitors, questions 5-15; Q2 – Questionnaire to Customers and Others,
   questions 5-15.
17 Q1 – Questionnaire to Competitors, questions 9.1 and 10.1.
                                                       12
 ---pagebreak--- (69)    A customer similarly explained that the "ban of CIPC will effect [sic] market more
        than merge [sic] UPL / ARYSTA".18
(70)    Overall, the respondents to questions on this niche market did not expect the
        Transaction to significantly affect competition in potato PGR in the EEA.19
             5.3.7.     Conclusion
(71)    Based on the above, the Commission considers that the Transaction does not raise
        serious doubts as to its compatibility with the internal market and with the EEA
        Agreement with respect to PGR for potatoes in Belgium, France, Germany, the
        Netherlands, Spain and the United Kingdom.
5.4.    Broad spectrum fungicides for other fruit20
(72)    Broad spectrum fungicides for other fruit are products designed to address several
        diseases (scab, powdery mildew, Monilia, Taphrina, Phytophtora, etc.) in a number
        of crops – including stone fruit, olives and citrus – rather than for each crop
        individually.
(73)    The competitive dynamics for products addressing diseases in these different crops
        are likely inaccurately reflected by data at such an aggregate level (namely several
        crops taken together rather than individually). It is therefore unclear to what extent
        there would truly be any affected "market" in this case. In any event, Greece would
        be the only EEA country where there would be possible affected markets in such a
        hypothetical "market" according to the data provided by the Notifying Party, with a
        combined share for the Parties of [30-40]%.
(74)    On the basis of the information provided by the Notifying Party, the Commission
        considers that there are no affected markets for individual crop/disease combinations
        within this aggregation.21
7 - Market shares for broad spectrum fungicides for other fruit in Greece
                                                                                               MS%        MS%       MS%
Brand Owner                          2015 ( EURk) 2016 ( EURk) 2017 ( EURk)                    2015       2016      2017
Arysta                                [500-1,000]        [500-1,000] [1,000-2,000] [10-20] [10-20] [10-20]
UPL                                 [1,000-2,000]        [500-1,000]         [500-1,000] [10-20] [10-20] [10-20]
UPL/Arysta                          [1,000-2,000] [1,000-2,000] [2,000-3,000] [30-40] [30-40] [30-40]
Griffin                               [500-1,000]        [500-1,000]         [500-1,000] [10-20] [10-20]           [5-10]
Nufarm                                  [100-400]          [200-500]           [300-700]      [5-10]     [5-10]    [5-10]
Various                               [500-1,000]          [300-600]           [200-500] [10-20]         [5-10]    [5-10]
Industrias Quimicas del Valles          [300-600]          [300-600]           [300-600]      [5-10]     [5-10]    [5-10]
Farma-Chem                              [300-600]          [300-600]           [300-600]      [5-10]     [5-10]    [5-10]
18  Q2 – Questionnaire to Customers and Others, question 14.1.
19  Q1 – Questionnaire to Competitors, question 14; Q2 – Questionnaire to Customers and Others,
    question 14.
20 For the avoidance of doubt, 'other fruit' in this decision should not be read as meaning 'fruits other than
    pome fruit' – assessed in Section 5.5 – but rather fruits other than those identified as separate crops in the
    available market data. These are, in essence, the crops listed in recital (72).
21 See also Form CO, Annex Fungicides Other Fruit, Tables 6 to 28 and paragraph 114-123.
                                                           13
 ---pagebreak---                                                                                     MS%     MS%       MS%
Brand Owner                        2015 ( EURk) 2016 ( EURk) 2017 ( EURk)           2015    2016      2017
Agri-Estrella                          [50-100]       [200-500]         [200-500]   [0-5]   [0-5]     [0-5]
Caffaro                               [200-500]       [200-500]         [200-500]   [0-5]   [0-5]     [0-5]
Bayer                                 [100-400]       [100-400]         [100-400]   [0-5]   [0-5]     [0-5]
Others                                [600-900]     [600-1,000]       [600-1,000] [10-20] [10-20]   [10-20]
                                  [5,000-6,000] [5,000-6,000] [6,000-7,000]          100     100       100
Source: Form CO
(75)      Moreover, the Parties overlap only with respect to copper-based products, for which
          there is a significant number of other possible suppliers (at least eight on the basis of
          Table 7),22 be it in the same chemical form as the one sold by the Parties (copper-
          sulphate) or in other chemical forms (copper-hydroxide, copper-oxychloride) which
          can also be used.
(76)      In addition to the other elements detailed in this assessment, on the basis of which
          the Commission considers that the Transaction does not raise serious doubts as to its
          compatibility with the internal market and with the EEA Agreement with respect to
          broad spectrum fungicides for other fruit in Greece, products sold by the Parties such
          as copper products as well as mancozeb and captan are under regulatory pressure.
          Their use is thus being restricted, which may be of concern when it comes to their
          efficacy such that current sales likely overestimate their competitive relevance in the
          near future.
(77)      On the one hand, the approval for copper salts was recently renewed at EEA level
          (November 2018) but with a limited maximum dose as the result of eco-
          toxicological concerns raised during the review process. In consequence, the dose
          rate per single application and/or the number of sprays to cover the sensitive
          vegetative period may be too low, particularly for organic growers. For this reason,
          growers may choose more relevant fungicides to ensure a high level of protection of
          their orchards.
(78)      On the other hand, mancozeb is currently under evaluation by EFSA for renewal.
          EFSA’s conclusions are not known yet. However, the result of the evaluation carried
          out by the rapporteur Member State (the UK’s Chemicals Regulation Division -
          CRD) and the publication of the comments made during the consultation period give
          a clear indication of the concerns related to the AI. The CRD has stated that
          mancozeb might be considered as having endocrine disruption properties, which
          would prevent the notifiers (Mancozeb Task Force composed of Indofil and UPL)
          from renewing the approval for the AI. Whatever decision is made by the
          Commission (withdrawal or specific restriction on uses), this may have an
          immediate effect on mancozeb sales and the Parties’ market shares.
(79)      In addition to the EU regulatory drivers, each country implements its own policies
          on pesticides which can have a very strong influence on market dynamics.
          Ecological taxes or other incentive/disincentive schemes on certain products with
          specific “classifications” or profiles can impact prices and growers’ choices.
22  See also Form CO, Annex Fungicides Other Fruit, Tables 38 and 49.
                                                      14
 ---pagebreak--- (80)      Conversely, new product launches are planned in the near future, for instance an AI
          by Agro Kanesho planned for launch in the EEA, possibly also in the sizeable Greek
          market.
(81)      In addition, by contrast with UPL, Arysta does not itself manufacture the main
          products it sells and only acts as a reseller of products manufactured by a third party
          (which also supplies other players in that market). Arysta's competitive relevance is
          therefore likely lower than suggested by its share of sales in Table 7.
(82)      Finally, a clear majority of the respondents to the Commission's investigation did not
          expect that the Transaction would significantly affect competition in broad spectrum
          fungicides for other fruit.23
(83)      Based on the above, the Commission considers that the Transaction does not raise
          serious doubts as to its compatibility with the internal market and with the EEA
          Agreement with respect to broad spectrum fungicides for other fruit in Greece.
5.5.      Scab fungicides for pome fruit
(84)      Scab fungicides for pome fruit are products designed to address scab in pome fruit
          (apples and pears).
(85)      As shown in Tables 8 and 9, France and Greece would be the only EEA affected
          markets according to the data provided by the Notifying Party, with relatively
          modest combined shares of approximately [20-30]%, far behind the market leader
          BASF.
8 - Market shares for scab fungicides for pome fruit in France
                                                                            MS%     MS%       MS%
Brand Owner            2015 (EURk)       2016 (EURk)       2017(EURk)       2015    2016      2017
BASF                     [3,500-4,500]      [4,500-5,500]     [5,000-6,000] [30-40] [30-40] [30-40]
UPL/Arysta                [3,000-4,000]     [3,000-4,000]     [3,000-4,000] [20-30] [20-30] [20-30]
Arysta                   [2,000-3,000]      [2,000-3,000]     [2,000-3,000] [20-30] [10-20] [10-20]
UPL                           [100-400]     [1,000-2,000]     [1,000-2,000]   [0-5]  [5-10]    [5-10]
Compo                       [500-1,000]       [500-1,000]       [500-1,000]   [0-5]  [5-10]    [5-10]
Biofa-Farming                   [0-100]           [0-100]       [500-1,000]   [0-5]    [0-5]   [5-10]
Bayer                       [500-1,000]     [1,000-2,000]       [500-1,000]  [5-10]  [5-10]     [0-5]
Dow-Agrosciences            [500-1,000]       [500-1,000]       [500-1,000]  [5-10]    [0-5]    [0-5]
ADAMA                    [1,000-2,000]          [200-500]         [200-600]  [5-10]    [0-5]    [0-5]
Certis                        [200-600]         [200-600]         [200-600]   [0-5]    [0-5]    [0-5]
Agros                         [100-400]         [100-400]         [100-400]   [0-5]    [0-5]    [0-5]
Others                   [1,500-2,500]      [2,000-3,000]       [500-1,000] [10-20] [10-20]    [5-10]
Total                  [12,000-13,000] [14,000-15,000] [13,000-14,000] 100.0% 100.0% 100.0%
Source: Form CO
23  Q1 – Questionnaire to Competitors, question 26; Q2 – Questionnaire to Customers and Others,
    question 26.
                                                      15
 ---pagebreak--- 9 - Market shares for scab fungicides for pome fruit in Greece
Brand Owner              2015 (EURk)    2016 (EURk)     2017 (EURk)  MS% 2015   MS% 2016    MS% 2017
BASF                    [2,500-3,500]  [2,000-3,000]   [2,000-3,000]   [30-40]     [30-40]      [30-40]
UPL/Arysta              [1,000-2,000]  [1,000-2,000]   [1,500-2,500]   [10-20]     [20-30]      [20-30]
Arysta                    [500-1,000] [1,000-2,000] [1,000-2,000]      [10-20]     [10-20]      [10-20]
Bayer                   [1,000-2,000] [1,000-2,000] [1,000-2,000]      [10-20]     [10-20]      [10-20]
Dow-Agrosciences            [400-800]      [400-800]       [200-600]    [5-10]      [5-10]       [5-10]
UPL                         [200-500]      [200-500]       [200-500]    [5-10]       [0-5]       [5-10]
ADAMA                       [200-500]      [200-500]       [200-500]     [0-5]       [0-5]        [0-5]
Sharda                       [50-100]      [100-400]       [100-400]     [0-5]       [0-5]        [0-5]
Others                    [500-1,000]    [500-1,000]     [500-1,000]   [10-20]     [10-20]      [10-20]
Total                   [6,000-7,000] [6,000-7,000] [6,000-7,000]         100         100          100
Source: Form CO
(86)      Moreover, in France, the Parties do not overlap in the composition of their products,
          since UPL sells products based on copper and mancozeb whereas Arysta sells
          products based on pyrimethanil, dodine and captan. The Parties are therefore
          unlikely to be close competitors in France.
(87)      In Greece, the Parties overlap in the composition of their products only with respect
          to mancozeb and copper-based products, for which there is a significant number of
          other possible suppliers, be it in the same chemical form as the one sold by the
          Parties (copper-sulphate) or in other chemical forms (copper-hydroxide, copper-
          oxychloride) which can also be used.
(88)      In addition to the other elements detailed in this assessment, on the basis of which
          the Commission considers that the Transaction does not raise serious doubts as to its
          compatibility with the internal market and with the EEA Agreement with respect to
          scab fungicides for pome fruit in France and Greece, products sold by the Parties
          such as copper products as well as mancozeb and captan are under regulatory
          pressure. Their use is thus being restricted, which may be of concern when it comes
          to their efficacy such that current sales likely overestimate their competitive
          relevance in the near future.
(89)      On the one hand, the approval for copper salts was recently renewed at EEA level
          (November 2018) but with a limited maximum dose as the result of eco-
          toxicological concerns raised during the review process. In consequence, the dose
          rate per single application and/or the number of sprays to cover the sensitive
          vegetative period may be too low, particularly for organic growers. In France, recent
          registrations of copper-based products have been granted with very low dose rates on
          orchards and a limited number of applications (for worker exposure reasons), which
          may be of concern when it comes to efficacy. For this reason, growers may choose
          more relevant fungicides to ensure a high level of protection of their orchards.
          Similarly, other national authorisations of formulated products may also apply
          restrictions in the forms of dose rates and buffer zones.
(90)      On the other hand, mancozeb is currently under evaluation by EFSA for renewal.
          EFSA’s conclusions are not known yet. However, the result of the evaluation carried
          out by the rapporteur Member State (the UK’s Chemicals Regulation Division -
          CRD) and the publication of the comments made during the consultation period give
          a clear indication of the concerns related to the AI. The CRD has stated that
                                                     16
 ---pagebreak---        mancozeb might be considered as having endocrine disruption properties, which
       would prevent the notifiers (Mancozeb Task Force composed of Indofil and UPL)
       from renewing the approval for the AI.
(91)   Indeed, following the request of the CRD, the Mancozeb Task Force removed pome
       fruits from the list of representatives uses since a safe use was unlikely to be found.
       This would indicate that pome fruits should not be treated with formulations
       containing mancozeb and this would force growers to go for other solutions. If for
       any reason existing registrations on pome fruits can be maintained at country level,
       the likeliness of getting large buffer zones (50 meters), lower dose rates and/or
       limited number of sprays, the level of ecotax (in France), the limited possibilities of
       tank mixes (in France) would render the use of mancozeb on pome fruits less
       relevant for growers compared to other solutions. Whatever decision is made by the
       Commission (withdrawal or specific restriction on uses), this may have an
       immediate effect on mancozeb sales and the Parties’ market shares.
(92)   In addition to the EU regulatory drivers, each country implements its own policies
       on pesticides which can have a very strong influence on market dynamics.
       Ecological taxes or other incentive/disincentive schemes on certain products with
       specific “classifications” or profiles can impact on prices and growers’ choices.
(93)   France, for example, has increased the level of an already high tax on mancozeb, a
       key UPL product, which will rapidly and negatively impact UPL’s market share.
       Specifically, the level of ecotax for mancozeb in France increased on 1 January 2019
       from EUR 5.10 per kg of AI to a total tax of EUR 14 per kg of AI, an increase of
       175% of the existing level of tax which will likely result in growers shifting to more
       affordable solution (not or less affected by ecotax).
(94)   Conversely, new products have recently been launched in 2017 for instance by Bayer
       in Greece (for an approximate 2018 market share of 6%) and BASF in France (for an
       approximate 2018 market share of 1%). Other product launches are planned in the
       EEA in the near future, for instance AIs by Bayer, Agro Kanesho, Nissan Chemical,
       Nihon Nohyaku and Nippon Soda. These would in the future likely be launched in
       the sizeable French and Greek markets for scab in pome fruit.
(95)   In addition, by contrast with UPL, Arysta does not itself manufacture the products
       with the same composition as UPL's products and only acts as a reseller of products
       manufactured by a third party (which also supplies other players in that market).
       Arysta's competitive relevance is therefore likely lower than suggested by its share
       of sales in Tables 8 and 9.
(96)   Finally, a clear majority of the respondents to the Commission's investigation did not
       expect that the Transaction would significantly affect competition in scab fungicides
       for pome fruit.24
(97)   Based on the above, the Commission considers that the Transaction does not raise
       serious doubts as to its compatibility with the internal market and with the EEA
       Agreement with respect to scab fungicides for pome fruit in France and Greece.
24 Q1 – Questionnaire to Competitors, question 22; Q2 – Questionnaire to Customers and Others,
   question 22.
                                                   17
 ---pagebreak--- 5.6.      Post-emergence broadleaf herbicides for sugar beet
(98)      Post-emergence broadleaf herbicides for sugar beet are products designed to address
          broadleaf weeds in already emerged sugar beets.
(99)      As shown in Tables 10 to 15, according to the data provided by the Notifying Party
          the Parties' activities in post-emergence broadleaf herbicides for sugar beet give rise
          to affected markets in Austria, Belgium, France, Italy, the Netherlands and the
          United Kingdom.
(100) In each case, the combined market share or increment would be low (inferior to one
          percentage point). The only exception is Austria, where, however, the available data
          seems unreliable: in particular, the available data does not split sales by market
          player (the Parties sales and shares were computed on the basis of their internal data,
          not the third-party panel market data), and the total market size is small, increasing
          the effect of possible data inaccuracies.
(101) Similarly, the available panel data for the United Kingdom is incomplete in that it
          does not include 2016 or 2017 data. Accordingly, only actual sales data for the
          Parties is available for those years, which explains the 100% market share in
          Table 15 for the Parties combined in 2016 and 2017, which is obviously incorrect.
          Based on the 2015 data, UPL held a market share of [20-30]% but there was no
          overlap between the Parties. While panel data for 2017 is not available, the Parties’
          2017 sales data indicates only a very limited overlap between the Parties
          (UPL: EUR [2-4] million; Arysta EUR [0-0.5] million).
10 - Market shares for sugar beet post-emergence broadleaf herbicides in Austria
  Country             Market         UPL share      Arysta share     Combined          Other
                    Size (EUR            (%)               (%)       share (%) competitors
                     million)                                                           (%)
   Austria              [0-1]          [20-30]           [10-20]        [30-40]       [60-70]
Source: Form CO
11 - Market shares for sugar beet post-emergence broadleaf herbicides in Belgium
 Brand owner           2015 (EURk)     2016 (EURk)    2017 (EURk)  MS% 2015    MS% 2016    MS% 2017
UPL/Arysta            [2,500-3,500]   [3,500-4,500] [4,000-5,000]    [20-30]     [20-30]      [30-40]
UPL                   [2,500-3,500]   [3,000-4,000] [4,000-5,000]    [20-30]     [20-30]      [30-40]
ADAMA                 [4,000-5,000]   [4,000-5,000] [4,000-5,000]    [30-40]     [30-40]      [30-40]
Bayer                 [1,000-2,000]   [1,000-2,000] [1,000-2,000]      [5-10]      [5-10]       [5-10]
DuPont                   [500-1,000]    [500-1,000]    [500-1,000]     [5-10]      [5-10]       [5-10]
Various                  [500-1,000]    [500-1,000]    [500-1,000]     [5-10]      [5-10]       [5-10]
Agrichem                 [500-1,000]    [500-1,000]    [500-1,000]     [5-10]      [5-10]       [5-10]
Dow-Agrosciences           [100-400]      [100-400]      [100-400]       [0-5]      [0-5]        [0-5]
Syngenta                   [100-400]      [100-400]      [100-400]       [0-5]      [0-5]        [0-5]
Arysta                     [100-400]      [100-400]      [100-400]       [0-5]      [0-5]        [0-5]
                            [11,000-       [11,000-       [12,000-
 Grand Total                                                          100.00      100.00       100.00
                             12,000]        12,000]        13,000]
Source: Form CO
                                                     18
 ---pagebreak--- 12 - Market shares for sugar beet post-emergence broadleaf herbicides in France
                                2015 ( EURk)        2016 ( EURk)          2017 ( EURk)        MS%         MS%         MS%
 Brand owner                                                                                  2015        2016        2017
    Bayer                   [15,000-16,000]     [13,000-14,000]       [15,000-16,000]      [20-30]     [20-30]     [20-30]
 UPL/Arysta                 [10,000-11,000]     [10,000-11,000]       [14,000-15,000]      [10-20]     [10-20]     [20-30]
    UPL                       [9,000-10,000]      [9,000-10,000]      [13,000-14,000]      [10-20]     [10-20]     [20-30]
    ADAMA                      [8,000-9,000]    [10,000-11,000]       [10,000-11,000]      [10-20]     [10-20]     [10-20]
    DuPont                     [8,000-9,000]       [7,000-8,000]       [9,000-10,000]      [10-20]     [10-20]     [10-20]
    Sipcam-Phyteurop           [7,000-8,000]       [7,000-8,000]         [6,000-7,000]     [10-20]     [10-20]     [10-20]
    Belchim                    [2,000-3,000]       [1,500-2,500]         [1,500-2,500]        [0-5]       [0-5]       [0-5]
    Tradi-Agri                    [500-1,000]         [500-1,000]        [1,000-2,000]        [0-5]       [0-5]       [0-5]
    Dow-Agrosciences              [500-1,000]         [500-1,000]          [500-1,000]        [0-5]       [0-5]       [0-5]
    Sangosse                        [200-500]                                                 [0-5]       [0-5]       [0-5]
    Protex                           [50-100]               [0-50]            [100-400]       [0-5]       [0-5]       [0-5]
    Unknown                         [100-400]           [100-400]             [100-500]       [0-5]       [0-5]       [0-5]
    Arysta                          [400-800]           [100-400]             [100-400]       [0-5]       [0-5]       [0-5]
    Sumi-Agro                        [50-100]            [50-100]                [0-50]       [0-5]       [0-5]       [0-5]
    Various                             [0-50]              [0-50]            [100-400]       [0-5]       [0-5]       [0-5]
    Life-Scientific-Limited       [500-1,000]            [50-100]                [0-50]       [0-5]       [0-5]       [0-5]
    Chia-Tai                            [0-50]              [0-50]               [0-50]       [0-5]       [0-5]       [0-5]
    FMC                                 [0-50]                                   [0-50]       [0-5]       [0-5]       [0-5]
    Societe-Financiere-de-
                                                            [0-50]               [0-50]       [0-5]       [0-5]       [0-5]
 Pontarlier
    Syngenta                        [100-400]               [0-50]                            [0-5]       [0-5]       [0-5]
    Barclay                          [50-100]               [0-50]                            [0-5]       [0-5]       [0-5]
    BHS                                                     [0-50]                            [0-5]       [0-5]       [0-5]
    BASF                                [0-50]              [0-50]                            [0-5]       [0-5]       [0-5]
    Jouffray-Drillaud                   [0-50]                                                [0-5]       [0-5]       [0-5]
    Sapec                                                   [0-50]                            [0-5]       [0-5]       [0-5]
    Nufarm                                                  [0-50]                            [0-5]       [0-5]       [0-5]
 Grand Total                [50,000-60,000]     [50,000-60,000]       [60,000-70,000]       100.00      100.00      100.00
Source: Form CO
13 - Market shares for sugar beet post-emergence broadleaf herbicides in Italy
                              2015 ( EURk)      2016 ( EURk)        2017 ( EURk)        MS%         MS%         MS% 2017
 Brand owner                                                                            2015        2016
 ADAMA                       [1,500-2,500]       [1000-2000]       [1,500-2,500]     [30-40]     [30-40]          [40-50]
 UPL/Arysta                    [500-1,000]        [500-1000]       [1,000-2,000]     [10-20]     [10-20]          [20-30]
 UPL                            [500-1,000]       [500-1000]       [1,000-2,000]     [10-20]     [10-20]          [20-30]
 Various                     [1,000-2,000]        [500-1000]         [500-1,000]     [20-30]     [20-30]          [10-20]
 Bayer                            [200-500]       [500-1000]           [200-500]       [5-10]    [10-20]            [5-10]
 Sipcam                           [200-500]         [200-500]          [200-500]       [5-10]      [5-10]           [5-10]
 Dow-Agrosciences                 [200-500]         [200-500]          [200-500]       [5-10]      [5-10]            [0-5]
 Arysta                               [0-50]            [0-50]              [0-50]      [0-5]       [0-5]            [0-5]
 Agrichem                         [100-400]          [50-100]               [0-50]      [0-5]       [0-5]            [0-5]
 Grand Total                 [5,000-6,000]     [4,000-5,000]       [4,000-5,000]      100.00      100.00           100.00
Source: Form CO
                                                          19
 ---pagebreak--- 14 - Market shares for sugar beet post-emergence broadleaf herbicides in the
Netherlands
                                       2015 ( EURk)          2016 ( EURk)            2017 ( EURk)        MS%          MS%         MS% 2017
  Brand owner                                                                                            2015         2016
  UPL/Arysta                          [4,000-5,000]         [3,500-4,500]           [5,000-6,000]     [30-40]      [20-30]             [30-40]
     UPL                              [4,000-5,000]         [3,500-4,500]           [5,000-6,000]     [20-30]      [20-30]             [30-40]
     ADAMA                            [4,000-5,000]         [4,000-5,000]           [4,000-5,000]     [20-30]      [20-30]             [20-30]
     DuPont                           [1,500-2,500]         [1,500-2,500]           [1,500-2,500]     [10-20]      [10-20]             [10-20]
     Bayer                            [1,500-2,500]         [1,500-2,500]           [1,500-2,500]     [10-20]      [10-20]             [10-20]
     Syngenta                         [1,000-2,000]         [1,000-2,000]           [1,000-2,000]       [5-10]     [10-20]               [5-10]
     Dow-Agrosciences                 [1,000-2,000]         [1,000-2,000]           [1,000-2,000]       [5-10]       [5-10]              [5-10]
     Arysta                                     [0-50]                [0-50]              [50-100]       [0-5]        [0-5]               [0-5]
                                             [14,000-               [14,000-              [15,000-
  Grand Total                                 15,000]                15,000]               16,000]     100.00       100.00              100.00
Source: Form CO
15 - Market shares for sugar beet post-emergence broadleaf herbicides in the United
Kingdom
                                            2015 ( EURk)          2016 ( EURk)           2017 ( EURk)        MS%          MS%             MS%
  Brand owner                                                                                                2015          2016           2017
  UPL/Arysta                               [1,500-2,500]         [2,000-3,000]          [2,000-3,000]     [20-30]     [90-100]      [90-100]
     UPL Ltd.                              [1,500-2,500]         [2,000-3,000]          [2,000-3,000]     [20-30]      [90-100]     [90-100]
     Arysta                                         [0-50]                 [0-50]               [0-50]       [0-5]         [0-5]          [0-5]
     DuPont                                [2,000-3,000]                   [0-50]               [0-50]    [20-30]          [0-5]          [0-5]
     Goldengrass                                    [0-50]                 [0-50]               [0-50]       [0-5]         [0-5]          [0-5]
     Euro-Chemicals                                 [0-50]                 [0-50]               [0-50]       [0-5]         [0-5]          [0-5]
     Barclay                                        [0-50]                 [0-50]               [0-50]       [0-5]         [0-5]          [0-5]
     Various                                     [50-100]                  [0-50]               [0-50]       [0-5]         [0-5]          [0-5]
     Bayer                                 [2,500-3,500]                   [0-50]               [0-50]    [30-40]          [0-5]          [0-5]
     Hermoo                                         [0-50]                 [0-50]               [0-50]       [0-5]         [0-5]          [0-5]
     Novastar-Link-
  Limited                                           [0-50]                 [0-50]               [0-50]       [0-5]         [0-5]          [0-5]
     Chimac-Agriphar                                [0-50]                 [0-50]               [0-50]       [0-5]         [0-5]          [0-5]
     Adama                                   [500-1,000]                   [0-50]               [0-50]    [10-20]          [0-5]          [0-5]
     Dow-
  Agrosciences                               [500-1,000]                   [0-50]               [0-50]      [5-10]         [0-5]          [0-5]
  Grand Total                              [8,000-9,000]         [2,000-3,000]          [2,000-3,000]      100.00        100.00        100.00
Source: Form CO
Note: as explained in recital (101), the 100% market share for the Parties combined in 2016 and 2017 is not correct and reflects the fact
that only the Parties' sales data but no third-party panel data is available for these years.
(102) Moreover, the Parties appear to overlap in the composition of their products only
            with limited sales of products based on the AI clopyralid, which neither produces
            and which they both procure from […] (which itself also directly sells products
            based on that AI).
                                                                           20
 ---pagebreak--- (103) In addition, there are several other suppliers for each of the Parties' products based
        on molecules other than clopyralid, in each case typically with larger sales than the
        Parties.25
(104) More generally, the Parties' respective broader herbicide portfolios appear to have
        different foci: Arysta appears to target grasses in post-emergence, while UPL
        appears to focus on cross-spectrum/broadleaf products in pre-emergence, and seems
        to have deliberately developed sugar beet herbicides as a key focus (including with
        upcoming pipeline products). It is therefore unlikely that the Parties would be close
        and important competitors even in the relevant affected markets, and consequently
        that the Transaction would have a significant effect on competition in these markets.
(105) In addition to the other elements detailed in this assessment, on the basis of which
        the Commission considers that the Transaction does not raise serious doubts as to its
        compatibility with the internal market and with the EEA Agreement with respect to
        post-emergence broadleaf herbicides for sugar beet in Austria, Belgium, France,
        Italy, the Netherlands and the United Kingdom, UPL's products based on
        desmedipham and phenmedipham – in addition to those based on chlorpropham –
        are under regulatory pressure. Their approvals expire on 31 July 2019 and their
        evaluations have highlighted endocrine properties: they are thus likely to be banned
        or at least heavily restricted. Accordingly, their current sales likely overestimate their
        competitive relevance in the near future. Specifically, in the most likely scenario
        where both of the molecules (as well as chlorpropham) could no longer be used in
        the EEA, UPL would likely lose a total of EUR [20-30] million in sales. Projections
        provided by the Parties show that their combined market share in the different
        affected markets would in the most likely scenario either remain relatively similar or
        decrease.26
(106) Conversely, new products have recently been launched for instance by Bayer,
        Adama, Syngenta, Dow and BASF in 2017 or 2018. Other launches are planned in
        the near future, for instance products by Bayer, BASF, FMC and others.27
(107) Finally, a clear majority of the respondents to the Commission's investigation did not
        expect that the Transaction would significantly affect competition in post-emergence
        broadleaf herbicides for sugar beets.28
(108) Based on the above, the Commission considers that the Transaction does not raise
        serious doubts as to its compatibility with the internal market and with the EEA
        Agreement with respect to post-emergence broadleaf herbicides for sugar beet in
        Austria, Belgium, France, Italy, the Netherlands and the United Kingdom.
5.7.    Vertically affected markets
(109) Under the framework established in the Commission’s guidelines on the assessment
        of non-horizontal mergers,29 the Commission assesses so-called vertically affected
25  See Form CO, Annex Herbicides Sugar Beet, Tables 11, 35, 38, 41, 45 and 48.
26  See Form CO, Annex Herbicides Sugar Beet, paragraphs 37-42 and 92-93, 97-98, 102-103, 111-112 and
    Tables 20, 24, 28, 32 and 42.
27 See Form CO, Annex Herbicides Sugar Beet, paragraphs 79-80 and Tables 12-13.
28 Q1 – Questionnaire to Competitors, question 19; Q2 – Questionnaire to Customers and Others,
    question 19.
                                                     21
 ---pagebreak---        markets when proposed concentrations concern companies which are respectively
       active on upstream and downstream markets from each other (that is to say, are in
       supplier-customer situations). In that context, the Commission mainly considers
       whether an operation is likely to result in input foreclosure or customer foreclosure.
(110) Regarding possible input foreclosure, on the one hand, UPL is in the EEA a
       significant seller of chlorpropham as an AI – with an approximate EEA market share
       of [30-40]%30 – which is then incorporated in a number of finished herbicides and
       potato PGR sold on downstream markets.
(111) On the other hand, Arysta makes sales on these downstream markets, notably with
       products containing chlorpropham.
(112) There is therefore in theory scope for input foreclosure, where the merged entity
       would attempt to increase its downstream sales by preventing downstream
       competitors from having access to the necessary upstream input (in this case, the
       chlorpropham AI).
(113) However, Arysta's (as well as the combined entity's) downstream market shares in
       markets where Arysta sells products incorporating chlorpropham are typically below
       20% (herbicides for other vegetables in France, Poland, the Netherlands and the
       United Kingdom, and for ornamentals in the Netherlands and the United Kingdom).
(114) For potato PGR, the only Member State for which the market is vertically affected
       but not horizontally affected – and therefore is not already assessed in Section 5.3 –
       is Italy, with a [30-40]% market share for Arysta (there is no horizontal overlap
       because UPL is not active downstream in that country).
(115) Furthermore, these shares relate to the less relevant aggregations at crop level or
       even aggregations of crops rather than an individual crop/pest combination (for
       instance herbicides for other crops in Belgium).31 The information available to the
       Commission did not reveal that there would be any affected market or any likely
       effect on competition in individual crops.32
(116) In light of these relatively modest market shares, the Commission considers it
       unlikely that the merged entity could successfully engage in an input foreclosure
       strategy.
(117) Moreover, only very few market players appear to sell products based on
       chlorpropham in the relevant downstream markets, and therefore to be potentially
       relying on UPL as a source of chlorpropham.
(118) In particular, Certis – the main alternative seller of downstream products based on
       chlorpropham in the EEA – […]. Instead, it appears to be sourcing its chlorpropham
       from a Chinese supplier.
29 Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of
   concentrations between undertakings, OJ C 265, 18.10.2008, p. 7.
30 See Form CO, paragraph 10.
31 See Form CO, Annex Chlorpropham, Table 7.
32 See Form CO, Annex Chlorpropham, paragraphs 94-95, 113-115, 121-122, 124-125, 127-128
   and 130-131.
                                                      22
 ---pagebreak--- (119) Regarding other players, in the relevant downstream herbicide markets, the only
      player aside from Certis and the Parties to sell products containing chlorpropham
      products is Sipcam. However, its sales in the relevant downstream market
      (herbicides for other vegetables in France) is very modest ([5-10]%), and in all
      likelihood only partly attributable to products based on chlorpropham since Sipcam
      appears to sell products based on a number of AIs in this market.
(120) Similarly, in the relevant downstream potato PGR markets, only few players aside
      from Certis and the Parties sell products containing chlorpropham: Frowein in
      Germany, Aceto in the United Kingdom and BASF in Spain. In all cases, as can be
      seen in Section 5.3, the market share of each player is modest.
(121) Moreover, while UPL's upstream market share in the EEA is significant ([30-40]%),
      it continues to face two Chinese competitors in the supply of chlorpropham, each
      with a similar market share and with a significantly higher share combined. The
      Commission thus considers that, in the hypothetical case where the merged entity
      would attempt to foreclose access to the chlorpropham AI to some of its downstream
      competitors, these would likely be able to defeat such a strategy by finding
      alternative suppliers.
(122) The Transaction would therefore in all likelihood not change the competitive
      dynamics of the supply of chlorpropham in the EEA.
(123) Regarding possible customer foreclosure, already today […]. The contractual
      arrangements […] would remain unaffected by the Transaction. The Commission
      therefore considers that there is no scope for customer foreclosure, whereby […].
(124) In addition to the other elements detailed in this assessment, on the basis of which
      the Commission considers that the Transaction does not raise serious doubts as to its
      compatibility with the internal market and with the EEA Agreement with respect to
      vertically affected markets in the EEA on the basis of products containing
      chlorpropham, as detailed in Section 5.3.5, chlorpropham at this stage appears
      unlikely to have its approval renewed in the EEA in the coming months. Any
      hypothetical effect from the Transaction at this stage thus appears likely to disappear
      in the very short term.
(125) Accordingly, the Transaction would likely not result in a significant impediment to
      effective competition in the upstream market for chlorpropham or in any of the
      vertically affected downstream markets in which Arysta sells formulated products
      incorporating chlorpropham.
(126) Based on the above, the Commission considers that the Transaction does not raise
      serious doubts as to its compatibility with the internal market and with the EEA
      Agreement with respect to vertically affected markets in the EEA on the basis of
      products containing chlorpropham.
                                                23
 ---pagebreak--- 6.    CONCLUSION
(127) For the above reasons, the European Commission has decided not to oppose the
      notified operation and to declare it compatible with the internal market and with the
      EEA Agreement. This decision is adopted in application of Article 6(1)(b) of the
      Merger Regulation and Article 57 of the EEA Agreement.
                                                    For the Commission
                                                    (Signed)
                                                    Margrethe VESTAGER
                                                    Member of the Commission
                                               24