CELEX: 32015M7649
Language: en
Date: 2015-08-21 00:00:00
Title: Commission Decision of 21/08/2015 declaring a concentration to be compatible with the common market (Case No COMP/M.7649 - VARO / ARGOS DSE / VITOL / CARLYLE / REGGEBORGH) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

|[pic]                             |EUROPEAN COMMISSION                                                                                      |

Brussels, 21.8.2015
C(2015) 6003 final

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                                        To the notifying parties:

Dear Sir/Madam,

Subject:    Case M.7649 - VARO / ARGOS DSE / VITOL / CARLYLE / REGGEBORGH
Commission decision pursuant to Article 6(1)(b) of Council Regulation No 139/2004[1] and Article 57 of the Agreement  on  the  European  Economic
Area[2]

    1) On 22 July 2015, the European Commission received a notification of a proposed concentration pursuant to Article 4 of  Council  Regulation
       (EC) No 139/2004 by which Vitol Refining Group B.V ("Vitol"), The Carlyle Group ("Carlyle") and Reggeborgh Invest B.V. ("Reggeborgh") will
       acquire joint control over Varo Energy B.V ("Varo") which will be merged with  Argos  Downstream  Europe  B.V  ("Argos  DSE")[3].  (Vitol,
       Carlyle, Reggeborgh, Varo and Argos DSE are collectively referred to as "Parties".)

       THE PARTIES AND THE OPERATION

    2) Varo is an undertaking active in the downstream oil sector with a geographical focus on Germany and Switzerland. Its  activities  comprise
       the refining, storing, distribution of and the trade in mineral oils, biofuels and other mineral oil products. Varo is  currently  jointly
       controlled by Vitol and Carlyle on a 50-50 basis.

    3) Vitol is an undertaking active in the trading of various commodities and financial instruments relating, in particular, to the oil and gas
       sector. Its trading portfolio includes crude oil, oil products, liquefied petroleum gas (“LPG”),  natural  gas,  coal,  power  and  carbon
       emissions.

    4) In addition, and to support its trading business, Vitol has also a stake in VTTI B.V., a 50:50 joint venture between Vitol and MISC Berhad
       of Malaysia, which owns and operates storage terminals for refined petroleum products in the EEA, including the Amsterdam,  Rotterdam  and
       Antwerp (“ARA”) region, and Latvia. Further, Vitol owns, through its VTTI participation, a refinery in  Antwerp.  Vitol  also  holds  some
       small scale exploration and production licenses in Ghana, Cameroon, Kazakhstan, Russia, Ukraine, Ivory Coast and Azerbaijan.

    5) Carlyle is a global alternative asset manager, which manages funds that invest globally  across  four  investment  disciplines:  Corporate
       Private Equity (buyout and growth capital), Real Assets (real estate, infrastructure and energy and renewable  resources),  Global  Market
       Strategies (distressed and corporate opportunities, corporate mezzanine, energy mezzanine, structured  credit,  hedge  funds,  and  middle
       market debt) and Solutions (private equity fund of funds program and related co-investment and secondary activities). […]

    6) Argos is an undertaking active on the markets for trading in and the supply of  petroleum  products.  The  activities  of  Argos  and  its
       subsidiaries include (i) the international trading of petroleum products and derivatives; (ii) the storage of  petroleum  products;  (iii)
       the non-retail sales of petroleum products and LPG; (iv) the retail sales of petroleum products and LPG; and  (v)  and  the  bunkering  of
       marine fuels.

    7) As a preliminary step to the proposed Transaction, Argos has transferred all of its downstream oil business activities to a newly  created
       subsidiary, Argos DSE, except for the sea side bunkering business and the LPG related  business,  which  remains  with  Argos’  subsidiary
       Nefco. In the light of such reorganisation, Argos DSE's activities include:

     • Trading of refined petroleum products;

     • Wholesale/non-retail sale of refined petroleum products (i.e., diesel, gasoline, light heating oil) in Belgium,  the  Netherlands,  France
       and Germany;

     • Retail sale of refined petroleum products in the Netherlands and Germany;

     • Inland bunkering/sale of marine gasoil;

     • Provision of storage capacity in smaller coastal and inland hub depots;

     • Captive use of storage in import hub depots linked to means of bulk transports in the ARA region; and

     • Trade of bio tickets in the Netherlands.

    8) Reggeborgh is an investment company having minority and majority stakes in undertakings  in  various  sectors  such  as  (i)  construction
       services, (ii) the design and provision of access to (glass fibre) telecom networks, (iii) real estate  services  (including  real  estate
       development and real estate management (as an investor)), (iv) the production and sale of aggregates (e.g. sand, gravel and pebble stone),
       (v) waste incineration, (vi) the lease of a concrete factory and (vii) the operation of onshore wind farms in Germany.

    9) Amongst other investments, Reggeborgh has sole control over Argos[4] and the newly created entity North Sea Holding B.V. ("NSH").

       THE CONCENTRATION

   10) The proposed Transaction consists of the creation of a joint venture by means of two transactions:

   11) The first transaction consists in an increase in the registered share capital of Varo. At closing, Argos  will  subscribe  for  the  newly
       issued shares and transfer these shares to NSH. In addition, NSH will acquire additional shares in Varo directly, for cash  consideration.
       As a result, post-transaction, each of the Vitol, Carlyle and Reggeborgh/NSH will hold equal percentages of 33% of the shares in Varo  and
       veto rights regarding issues such [specific veto rights].

   12) The second transaction consists in the merger of Varo and Argos DSE. The transfer of all shares in Argos DSE by Argos to Varo  constitutes
       a contribution in kind as consideration for acquiring the abovementioned newly issued shares in Varo.

   13) The two above transactions constitute a single concentration because:

   14) The two transactions are unitary in nature as they are de jure linked: not  only  are  the  two  transactions  contemplated  in  the  same
       contractual document, but also the second transaction represents part of the price of the first.  This  is  expressly  stipulated  in  the
       Merger Agreement (recital 4 (b) and clause 4.4.(f)). Further to this, clause 12.1(d) of the Merger Agreement provides for the right of the
       Parties to terminate the agreement itself if either of them fails to comply with any of  the  obligations  provided  for  by  article  4.4
       thereof. In light of the above, the Commission takes the view that the two transactions are mutually de jure interlinked; and,

   15) Control is ultimately acquired by the same undertakings. In fact, Vitol, Carlyle and Reggeborgh will ultimately jointly  control  Varo  in
       which Argos DSE will be merged.

       EU DIMENSION

   16) The undertakings concerned have a combined aggregate world-wide turnover of more than EUR 5 000 million[5] (in 2014: Varo EUR […] million,
       Vitol EUR […] million, Carlyle EUR […] million, Argos DSE EUR […] million, Reggeborgh EUR […]  million).  Each  of  them  has  an  EU-wide
       turnover in excess of EUR 250 million (in 2014: Varo EUR […] million, Vitol EUR […] million, Carlyle EUR […] million, Argos  DSE  EUR  […]
       million, Reggeborgh EUR […] million), but they do not achieve more than two-thirds of their aggregate EU-wide turnover within one and  the
       same Member State. The notified operation therefore has an EU dimension.

       COMPETITIVE ASSESSMENT

   17) The proposed Transaction concerns various markets for the distribution of refined oil products.

   18) There are no horizontally affected markets. The Parties' activities horizontally overlap without reaching a combined market share  of  20%
       on the following markets which the Commission has considered in previous decisions: (i) trading of refined oil products, (ii)  trading  in
       derivatives of refined oil products, (iii) non-retail sales of diesel, gasoline and light heating oil in Germany, (iv) non-retail sales of
       gasoline in Belgium, (v) non-retail sales of diesel and gasoline in the Netherlands. (vi) non-retail sales of gasoline and  light  heating
       oil in France, and (vii) the provision of storage services for refined oil products, particularly in the north of Germany.[6]

   19) There are only three vertically affected markets:

    a. The upstream market for the ex-refinery sales of (automotive) LPG;

    b. The downstream market for the non-retail sales of (automotive) LPG in Belgium; and,

    c. The downstream market for the non-retail sales of (automotive) LPG in the Netherlands.

1 Definition of the Relevant Markets

1 Ex-Refinery sales of LPG

1 Product market definition

   20) The Commission has previously established that crude oil refining and ex-refinery sales constitute a separate relevant  product  market[7]
       which can be further segmented into markets for the refining and ex-refinery sales of (i) fuel, and (ii) non-fuel products.[8] Ex-refinery
       sales constitutes a primary level of distribution with large volume sales by refiners directly at  the  refinery  gate  and  delivered  by
       primary transport (i.e. generally by rail, pipeline, ship or barge) to clients’ terminals  (storage  facilities)  inland  or  abroad.  The
       customers are wholesalers, traders or an internal wholesale arm of the refiners which usually own or rent large storage facilities.

   21) The Parties agree with the Commission's view in previous cases that ex-refinery sales  of  refined  oil  products  constitute  a  distinct
       product market, however they do not agree on the further segmentation by product. With regard to the ex-refinery supply of LPG they submit
       that a further distinction between the different formats in which LPG is supplied, i.e. in bulk,  as  autogas  or  in  cylinders,  is  not
       appropriate.[9]

   22) The market investigation in the present case confirmed the Commission's previous findings.

   23) All responding market participants, active both at ex-refinery and non-retail level, indicated  that,  with  regard  to  Belgium  and  the
       Netherlands, ex-refinery sales, non-retail sales and retail sales constitute three different  activities.  According  to  one  respondent,
       "propane and Butane are by products of the refineries which are sold in large quantities (boats,  barges,  train)  which  are  distributed
       afterwards  through non retail market on smaller quantities (trucks, rail tanks) in the distribution chain"[10]

   24) As to a possible segmentation of the product market according to fuel type, the Commission has found in previous cases  that  at  the  ex-
       refinery level, it is not possible to aggregate the different types of fuels into one category. Therefore, sales at this level are further
       subdivided into sales of gasoline, diesel, fuel oil, aviation fuel and LPG.[11]

   25) With regard to the supply of LPG at the ex-refinery level, in previous cases the Commission did not consider  a  distinction  between  the
       different formats in which LPG is supplied, i.e. in bulk, as autogas or in cylinders.

   26) The Parties submit that LPG autogas consists of a mixture of propane and butane. In order to mix LPG autogas a so called  blending  system
       is necessary. Blending takes place either at the refinery – in which case at the ex-refinery level LPG autogas differs from  LPG  sold  in
       other formats – or at the wholesale level – in which case at the ex-refinery level LPG autogas does not differ  from  LPG  sold  in  other
       formats. Packaging of LPG in either format (e.g. bottling) is done at the wholesale/non-retail level.[12]

   27) The market investigation gave some indication that LPG autogas may not be substitutable with LPG in other formats.

   28) In fact, all respondents to the market investigation confirmed that LPG for bottling and  heating  and  autogas  are  partially  different
       substances: LPG for bottling and heating, usually consists of propane while autogas consists of a mixture of butane and propane.

   29) Also, the respondents to the market investigation indicated that the mixing of propane and butane for LPG autogas usually takes  place  at
       refineries and only very rarely at depots. For that purpose butane and propane are loaded subsequently onto the same truck. Alternatively,
       the gases can be mixed in a specially equipped loading arm and be simultaneously loaded onto the truck. The exact  proportion  of  propane
       and butane are defined by the customer and provided by the refinery on the customer's request.

   30) However, the outcome of the market investigation also gave some indications that there might be a degree of supply  side  substitutability
       between LPG autogas and LPG for other purposes. Refineries usually produce both propane and butane[13], and are  therefore  able  to  sell
       autogas and other LPG for other purposes interchangeably. However, only "[i]n some refineries, butane is not available for sale because it
       is sometimes used for internal purposes by the refinery or only sold to manufacturers  of  chemical  products"[14]  Furthermore,  all  the
       respondent to the market investigation indicated that offering autogas at the refinery does not require  special  technical  equipment  so
       that switching between selling autogas and other forms of LPG is possible instantly and without additional costs.

   31) In any event, for the assessment of the proposed transaction it can be left open whether the market for ex-refinery sales of LPG is to  be
       further segmented as the proposed transaction would not lead to a significant impediment of effective competition in the  internal  market
       under any plausible market definition.

2 Geographic market definition

   32) As to the geographic scope of the market, in previous cases the Commission considered the relevant geographic market for ex-refinery sales
       of refined fuel products to be EEA-wide or Western Europe-wide.[15]

   33) The Parties claim that this market should be regarded as at least EEA-wide in scope.

   34) The market investigation gave indication that the geographic scope of the market for ex-refinery sales of LPG is likely EEA wide.

   35) In fact, all respondents stated that they purchase LPG ex-refinery in  Belgium  and  the  Netherlands  as  well  as  from  western  German
       refineries. Larger cargos can also be sold from more distant refineries in the EEA, as e.g. from Denmark or Norway. Moreover, large cargos
       can be traded even worldwide. None of the responding market participants indicated that the cross-border ex-refinery trade of LPG would be
       restricted by regulatory barriers.

   36) For the assessment of the proposed transaction it can be left open whether the market is EEA-wide or Western Europe-wide in scope  as  the
       proposed transaction will not lead to a significant impediment of effective competition in the internal market under any plausible  market
       definition.

2 Non-retail sales of LPG

1 Product market definition

   37) In previous decisions, the Commission has stated that the non-retail sale of LPG constitutes a distinct relevant product market.[16]

   38) In addition[17], the Commission has considered a further segmentation of the market for the non-retail sales of LPG  into  three  distinct
       market segments[18]: (i) LPG sold in bulk, (ii) LPG sold in cylinders, and (iii)  autogas  (automotive  LPG).  The  Commission  left  open
       whether the markets for LPG in bulk and in cylinders should be further segmented with regard to the size of the customer.

   39) The Parties agree with the above market definition.

   40) The market investigation in the present case supports the Commission's finding in previous cases.

   41) First, the respondents to the market investigation indicated that non-retail sales of LPG can be regarded as  a  separate  product  market
       from the ex-refinery sales of LPG.[19]

   42) Second, all the respondents to the market investigation indicated that LPG autogas differs from other forms of LPG with respect to the gas
       composition.

   43) Also, as opposed to the ex-refinery level discussed above, at non-retail level the supply of LPG autogas and other LPG formats differ with
       respect to logistics: in fact, autogas is transported in larger tank vehicles to retail fuel stations. These  tank  vehicles  must  comply
       with specific safety standards to prevent trucks from exploding on retail sites during unloading. LPG for heating is  usually  transported
       in smaller truck to private households. Bottled LPG is transported on trucks that  allow  for  the  loading  and  safe  transport  of  gas
       cylinders.[20]

   44) In light of the above, it is likely that at non-retail level LPG autogas is not substitutable with LPG in other formats.

   45) In any event, for the assessment of the proposed transaction it can be left open whether the market for ex-refinery sales of LPG is to  be
       further segmented into markets for the non-retail sale of LPG autogas and LPG in other formats as the proposed transaction will  not  lead
       to a significant impediment of effective competition in the internal market under any plausible market definition.

2 Geographic market definition

   46) In past decisions the Commission has regarded the market for non-retail sales of (automotive) LPG to be  likely  (at  least)  national  in
       scope (e.g. for the United Kingdom, the Netherlands, Poland, Lithuania, Greece, Spain,  Portugal,  Poland  and  the  Czech  Republic).[21]
       However, the Commission has considered whether the scope could both be wider (it was in fact decided to be  Scandinavia-wide  for  Sweden,
       Finland, Denmark and Norway[22]) as well as – exceptionally – narrower (macro-regional for Italy[23] (for  bottled  LPG)  and  the  border
       region of Poland and the Czech Republic[24]) – depending on the Member State concerned.

   47) The Parties consider that the geographic scope of the market is at least national.

   48) The market investigation in the present case, focusing on the Netherlands and Belgium,  supports  the  Commission's  finding  in  previous
       cases. In fact, all the respondents to the market investigation indicated that on the non-retail level they usually sell  LPG  only  on  a
       national level as transport over longer distances would be too expensive.[25] Some respondents indicated  that  at  the  non-retail  level
       cross-border activity cannot be excluded in some regions, however this is usually exceptional.[26]

   49) For the purpose of the assessment of the proposed transaction it can be left open whether the geographic market is national or wider  than
       national as the proposed transaction will not lead to a significant impediment of effective competition in the internal market  under  any
       plausible market definition.

2 Competitive Assessment

   50) The transaction will generate horizontal overlaps in a number of different markets. However on none of these markets the  combined  market
       share of the Parties will be in excess of 20% and on most of them the market shares increments brought about by the  transaction  will  be
       minimal.[27]

   51) The transaction will also generate a number of vertical relationships not giving rise to affected markets. In fact, neither of the Parties
       have market shares in excess of 15% neither on the upstream nor on the downstream markets.

   52) The transaction will generate two vertical relationships giving rise to affected markets. Particularly, Argos holds a  significant  market
       share on the market for the non-retail sales of LPG autogas in Belgium and the Netherlands. Varo, on the other hand, is active in the  ex-
       refinery sales of LPG in the EEA.

   53) On the upstream market for the ex-refinery sales of LPG in the EEA Varo has a very limited presence: the market  share  estimated  by  the
       Parties is [0-5]% in 2014 ([0-5]% in 2012, [0-5]% in 2013); focusing on Western Europe-wide market, the market shares  are  only  slightly
       higher. Argos is not active on this market. Therefore, the proposed transaction creates the two vertical relationship described above.

   54) On the downstream market for the non-retail sales of LPG autogas in the Netherlands Argos holds a significant market share of [40-50]%  in
       2014. Argos' market share in the Netherlands has remained constant in the last three years. In Belgium Argos enjoys an even larger  market
       share, estimated at [40-50]% in 2014. Argos' market share in Belgium has remained constant in the last three years.

   55) Considering a downstream market for the non-retail sales of LPG  autogas  as  well  as  LPG  in  other  formats,  Argos  market  share  is
       significantly lower with [0-5]% in the Netherlands and [0-5]% in Belgium.

   56) Notwithstanding the large market share of Argos on the putative downstream markets for  the  non-retail  supply  of  LPG  autogas  in  the
       Netherlands and Belgium, the Commission considers that the proposed transaction does  neither  give  rise  to  input  foreclosure  nor  to
       customer foreclosure.

1 Input foreclosure

   57) The Parties submit that input foreclosure is unlikely. They claim that Varo holds only a very low market share on the upstream market  for
       ex-refinery/cargo sales of LPG and therefore the merged entity does not have the ability to foreclose access to inputs. Also, the Parties'
       claim that there should be no distinction between the different forms in which LPG is supplied at the ex-refinery level. According to  the
       Parties, in fact, with regards to this relationship it does not make any difference in which form LPG is supplied. This is because LPG  is
       a flexible fuel used in various industries and for many purposes, e.g. in the petrochemical sector and  for  home  heating.  Due  to  this
       flexibility ex-refinery sellers which supply non-retailers of e.g. autogas at the downstream level  compete  with  undertakings  of  other
       industries. According to the Parties, the distinction between the different forms becomes relevant at the subsequent  step  of  the  value
       chain (i.e. sales from non-retailers to retailers).

   58) The Commission considers that the limited market share of Varo on the upstream market makes input foreclosure  unlikely.  In  fact  it  is
       unlikely that Varo will have the ability to foreclose access to LPG to Argos' competitors on the non-retail market both in Belgium and  in
       the Netherlands.

   59) According to the Guidelines on the assessment of non-horizontal mergers under Council Regulation on the control of  concentration  between
       undertakings[28] ("Non-Horizontal Merger Guidelines"), for input foreclosure to be a concern the merged entity  must  have  a  significant
       degree of market power on the upstream market (paragraph 33). Also, the merged entity  could  have  the  ability  to  foreclose  if  could
       negatively affect the availability of inputs for the downstream market (paragraph 34).

   60) In the case at hand, Varo has a marginal market share of below [0-5]% on an EEA-wide market and only slightly higher on a possible Western
       Europe-wide market. Therefore it cannot be regarded as having a significant degree of market power. Moreover, Varo did not make any  sales
       of LPG in Belgium and the Netherlands. Therefore, Varo will not have the ability to foreclose access to inputs.

   61) The market investigation in the present case gave strong indication that Varo is not an important supplier of LPG to non-retail  customers
       in Belgium and the Netherlands. This is because:

   62) First, none of the respondents to the market investigation sourced LPG from Varo refineries.  In  fact,  all  respondents  to  the  market
       investigation active on the non-retail level indicated that they source LPG from refineries that are located in Belgium or the Netherlands
       in the ARA area which are either owned by themselves or third parties unrelated to the Parties; and,

   63) Second, none of the respondents to the market investigation was aware of  any  ex-refinery  sales  made  by  Varo  into  Belgium  and  the
       Netherlands.

   64) Thus the merged entity's importance as a supplier of LPG to non-retail customers in Belgium and the Netherlands appears  to  be  marginal.
       Furthermore, in the event of a small but significant and non-transitory increase in prices,  non-retailers  (i.e.  customers  on  the  ex-
       refinery market) active in Belgium and the Netherlands could switch their purchasing to other suppliers located in the EEA.

   65) Against that background the Commission considers it unlikely that post-transaction the merged entity will have the  ability  to  foreclose
       its downstream competitors from ex-refinery supplies of LPG.

2 Customer foreclosure

   66) The Parties submit that customer foreclosure is unlikely. They claim that ex-refinery sales of LPG are made at EEA level while at the non-
       retail level Argos holds a significant market position only in Belgium and the Netherlands. Suppliers competing with Varo  at  ex-refinery
       level therefore will thus still have access to a sufficiently large pool of customers in other MS.

   67) The Commission considers it unlikely that post-merger the Parties will have the ability and the incentive to foreclose customers.

   68) According to the Non-Horizontal Merger Guidelines, for customer foreclosure to be a  concern  the  merged  entity  must  be  an  important
       customer with a significant degree of market power on the downstream market (paragraph 61).

   69) In the case at hand, Argos' market shares in the non-retail supply of LPG autogas exceed 40% in the Netherlands and Belgium.  Nevertheless
       the Commission considers that Argos as an important non-retail supplier of LPG autogas does  not  have  significant  market  power  (as  a
       customer) towards ex-refinery suppliers of LPG autogas. This is because ex-refinery suppliers serve customers in a number of Member States
       and therefore a client with a significant market power in one Member State does not necessarily hold a significant  market  power  at  EEA
       level. In fact, ex-refinery suppliers have a sufficiently large customer base besides the merged entity and Argos  does  not  represent  a
       significant share of demand addressed to these refineries.

   70) The market investigation in the present case gave strong indication that the merged entity is not  an  important  non-retail  customer  to
       competing ex-refinery suppliers.

   71) First, ex-refinery suppliers of LPG autogas can easily switch to supplying LPG in other formats. The vast majority of respondents  to  the
       market investigation confirmed that the ex-refinery supply of LPG autogas differs from other LPG formats only in the respect  that  it  is
       selling a mixture of propane and butane rather than only propane.  Thus,  technically  every  ex-refinery  supplier  of  LPG  autogas  can
       instantly without additional cost supply LPG in other formats. In fact, the market investigation suggests that refinery  operators  supply
       LPG regardless of the format in which it is sold on the non-retail level as they  only  sell  propane  or  propane/butane  mixtures  in  a
       composition requested by the customer.

   72) Second, supplies of LPG autogas make up only a limited fraction of total LPG sales on the ex-refinery level. Based  on  estimates  by  the
       Parties, their share of demand in Belgium and the Netherlands is below 5% of total non-retail LPG demand in  these  Member  States.  Thus,
       most ex-refinery suppliers of LPG autogas have a large base of (potential) customers they can address –  representing  more  than  95%  of
       total LPG demand in Belgium and the Netherlands. Thus, ex-refinery suppliers in Belgium and the  Netherlands  could  easily  replace  lost
       sales of LPG autogas with sales of LPG in other formats.

   73) Third, since the market for ex-refinery sales of LPG (as autogas and in other formats) is an EEA-wide or Western  Europe-wide  market  ex-
       refinery suppliers of LPG autogas in Belgium and the Netherlands could quickly and without significant cost replace lost sales in  Belgium
       and the Netherlands with LPG autogas sales to neighbouring Member States.

   74) Against that background the Commission considers it unlikely that post-merger the merged entity will have the  ability  to  foreclose  its
       upstream competitors from access to downstream non-retail customers of LPG.

3 Conclusion – Competitive Assessment

   75) In light of the above, the Commission concludes that the proposed transaction is unlikely to create competition concerns  and,  therefore,
       does not raise any serious doubts as to its compatibility with the internal market and the EEA agreement.

       CONCLUSION

   76) 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)
Miguel ARIAS CAÑETE
Member of the Commission

-----------------------
[1]   OJ L 24, 29.1.2004, p. 1 ('the Merger Regulation'). With effect from 1 December 2009, the Treaty on the Functioning of the  European  Union
('TFEU') has introduced certain changes, such as the replacement of 'Community'  by  'Union'  and  'common  market'  by  'internal  market'.  The
terminology of the TFEU will be used throughout this decision.
[2]   OJ L 1, 3.1.1994, p.3 ("the EEA Agreement").
[3]   Publication in the Official Journal of the European Union No C 253, 01.08.2015, p. 13.
[4]   COMP/M.7216 – Reggeborgh / Argos Group Holdings (2014).

[5]   Turnover calculated in accordance with Article 5 of the Merger Regulation and the Commission Consolidated Jurisdictional Notice (OJ  C  95,
16.4.2008, p. 1).
[6]   Both Varo (trough Petrotank) and Argos are active in this market, however they focus on different  Member  States:  Petrotank  primarly  in
Germany and Argos in Belgium and the Netherlands. However, Argos has 1 storaga facility in Emmerich (DE) which gives rise to horizontal  overlaps
not exceeding a combined market share of 9%. If the Argos' storage sites in the Netherlands are taken into account, the combined market share  of
the Parties will in any event remain below 20%.
[7]   COMP/M.6801 Rosneft / TNK-BP (2013); COMP/M.6261 North Sea Group/Argos Groep /JV (2011);  COMP/M.6151  Petrochina  /  Ineos  /  JV  (2005);
COMP/M.5846 Shell / Cosan /  JV  (2011);  COMP/M.5005  Galp  Energia  /  Exxonmobil  Iberia  (2008);  COMP/M.4934  Kazmunaigaz/Rompetrol  (2007);
COMP/M.4588 Petroplus / Coryton Refinery Business (2007); COMP/M.727 BP/MOBIL (1996).
[8]   COMP/M.4934 Kazmunaigaz/Rompetrol (2007)
[9]   Form CO, paragraph 155.
[10]  Reply of a competitor, 3 August 2015.
[11]  See Cases COMP/M.1383 Exxon/Mobil (1999), COMP/M.3516 Repsol YPF/Shell Portugal (2004), COMP/M.4348 PKN/Mazeikiu (2006); COMP/M.5637  Motor
Oil (Hellas) Corinth Refineries / Shell Overseas Holdings (2010); COMP/M.3110 OMV / BP (Southern Germany Package) (2003).
[12]  Form CO, paragraph 157.
[13]  Minutes of the conference call with a competitor 29 July 2015.
[14]  Minutes of the conference call held with a competitor active on the non-retail level 24 July 2015.
[15]  COMP/M.727 BP/MOBIL (1996); COMP/M. 4934 Kazmunaigaz / Rompetrol (2007); COMP/M.5445 Mytilineos /  Motor  Oil  /  Corinthos  Power  (2009);
M.6261 North Sea Group / Argos Groep / JV (2011).
[16]  See COMP/M.3291 Preem/Skandinaviska Raffinaderi (2003); COMP/M.3375 Statoil /  SDS  (2004);  COMP/M.3543  PKN  Orlen  /  Unipetrol  (2005);
COMP/M.3516 Repsol / Shell Portugal; COMP/M.4208 Petroplus / European Petroleum Holdings (2006); COMP/M.4545 Statoil / Hydro (2007);  COMP/M.5005
Galp Energia / Exxonmobil Iberia (2008); COMP/M.5169 Galp Energia Espana / Agip Espana (2008).
[17]  COMP/M.7311- MOL/ENI CESKA/ENI ROMANIA/ENI SLOVENSKO; COMP/M.5005 – Galp Energia/Exxon Mobil Iberia; COMP/M.3664 – Repsol  Butano  /  Shell
Gas; COMP/M. 5637 – Motor Oil (Hellas) Conrinth Refineries/Shell Overseas Holdings; COMP/M.1628 TotalFina/Elf.
[18]  COMP/M.7473 Zentraleuropa Lpg Holding/ Total Hungaria; COMP/M.1628 TotalFina/Elf and COMP/M.3664 – Repsol Butano / Shell Gas.
[19]  See paragraph 23.
[20]  Minutes of the call with a competitor 24 July 2015.
[21]  COMP/M.3543 PKN Orlen / Unipetrol (2005); COMP/M.3516 Repsol / Shell Portugal; COMP/M.4208 Petroplus / European Petroleum Holdings  (2006);
COMP/M.4545 Statoil / Hydro (2007); COMP/M.5005 Galp Energia / ExxonMobil Iberia (2008); COMP/M.5846 Shell / Cosan / JV (2011).
[22]  COMP/M.3730 Lukoil / Teboil / Suomen Petrooli (2005); COMP/M.4532 Lukoil / ConocoPhillips (2007).
[23]  Although some competitors pointed out that the use of local terminals does not necessarily  prevent  the  existence  of  national  markets:
COMP/M.5781 Total Holdings Europe SAS / ERG SPA / JV (2010).
[24]  Although the markets concerned appeared to be national in scope, the Commission also  assessed  the  impact  of  the  transaction  in  this
particular border region: COMP/M.3543 PKN Orlen / Unipetrol (2005), paragraph 19.
[25]  Minutes of the conference call with a competitor 24 July 2015.
[26]  Reply to the questionnaire of a competitor (question 2) and minutes of the conference call held with a competitor, 30 July 2015.
[27]  The Commission considers competition concerns unlikely to arise in horizontal mergers where the market share post-merger of the new  entity
does not exceed 25% (Horizontal Merger Guidelines, para. 18) and in non-horizontal mergers where the market share  post-merger  in  each  of  the
markets concerned does not exceed 30% (Non-Horizontal Merger Guidelines, para. 25).

[28]  2008/C 265/07.

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

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