CELEX: 32018M9093
Language: en
Date: 2018-12-04 00:00:00
Title: Commission Decision of 04/12/2018 declaring a concentration to be compatible with the common market (Case No COMP/M.9093 - DP World Investments B.V. / Unifeeder A/S) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

EUROPEAN COMMISSION
                                                                Brussels, 4.12.2018
                                                                C(2018) 8387 final
  In the published version of this decision, some
  information has been omitted pursuant to Article                  PUBLIC VERSION
  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                To the notifying party:
  omitted has been replaced by ranges of figures or a
  general description.
Dear Sir or Madam,
Subject:            Case M.9093 – DP World Investments/Unifeeder
                    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
(1)       On 26 October 2018, the European Commission received notification of a
          proposed concentration pursuant to Article 4 of the Merger Regulation, by which
          DP World Investments B.V., a Dutch company which is part of the DP World
          group ("DP World", United Arab Emirates), acquires within the meaning of
          Article 3(1)(b) of the Merger Regulation sole control of the whole of Unifeeder
          A/S ("Unifeeder", Denmark) by way of a purchase of shares ("the Transaction").
          DP World and Unifeeder are collectively referred to as the "Parties".3
1.        THE PARTIES
(2)       DP World is the owner, operator and manager of 78 marine container terminals
          and other port infrastructure in over 40 countries, located across six continents. In
          Northern Europe and the Mediterranean, DP World operates 13 terminals.4 Its
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 402, 08.11.2018, p. 7.
4    Those terminals are located in Algeria (Algiers, and Djen-Djen), Belgium (Antwerp Gateway), Cyprus
     (Limassol), France (Marseille-Fos, and Le Havre), Germany (Germersheim), the Netherlands
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---          terminals handle general and bulk cargo, roll-on/roll-off and load-on/load-off
         vessels and passengers. However, container handling is the company's core
         business and generates more than three quarters of its revenue. DP World also
         provides cargo handling and logistics services, that is to say the discharging and
         loading of vessels and related activities such as handling of trucks/rail/barges,
         warehousing, container repair and container storage.
(3)      DP World does not participate in liner shipping services but does provide certain
         maritime logistics and peripheral services at some of its terminals. Indeed, DP
         World has barge operations at its deep-sea terminals at Antwerp and Rotterdam,
         as well as at its inland terminals in Beverdonk (Belgium), Germersheim
         (Germany), Mannheim (Germany) and Stuttgart (Germany).5 In addition, DP
         World, through its wholly-owned subsidiary P&O Maritime, also provides certain
         maritime support solutions. More specifically, it is active in the provision of
         specialist vessels servicing offshore renewables, river barging, chartering, and
         port services.6
(4)      DP World is majority-owned by the Government of Dubai, via Dubai World
         Corporation ("Dubai World").7 In line with its decisions in Case M.6060 –
         Citigroup/Public Sector Pension Investment Board/DP World/DP World
         Australia/JV and Case M.6913 – DP World/Goodman/DP World Asia, the
         Commission considers DP World as an undertaking which operates on the market
         independently from Dubai World. Therefore, the activities of entities belonging to
         the Dubai World Group – such as the services offered by P&O Ferries in the
         short-sea shipping market (namely in its load-on/load-off segment) on the
         Zeebrugge-Hull leg of trade and the freight forwarding services provided by P&O
    (Rotterdam), Romania (Constanta), Spain (Tarragona), Turkey (Yarimca), United Kingdom (London
    Gateway, and Southampton).
5   DP World considers that those services are not relevant for the purposes of the assessment of the
    Transaction, as they comprise inland transportation; therefore, volumes carried on those routes are
    outside of the geographic scope of Unifeeder's activities (Form CO, paragraph 59). In any event,
    according to DP World, those activities are de minimis and even if considered as part of the same
    geographic market as Unifeeder's activities, the total capacity of DP World's barging activities would
    amount to [0-5]% of the container transport market in Northern Europe (and [0-5]% of the inland
    transportation market in Northern Europe, in which Unifeeder is not active). As a consequence, DP
    World's barge operations will not be further considered for the purposes of assessing the Transaction.
6   DP World considers that the maritime support solutions (e.g. tugging and harbour services) provided
    by P&O Maritime are fundamentally different activities and services to those of Unifeeder and hence
    do not give rise to a horizontal overlap. Furthermore, most of P&O Maritime's operations are outside
    of the EEA (Form CO, paragraph 59). There is nevertheless a (marginal) vertical link between the
    Parties' activities, since P&O Maritime supplies pilotage and tug services in Cyprus to shipping
    companies (including to Unifeeder, which represents [0-5]% of P&O Maritime's revenue in Cyprus).
    Considering that the maritime support solutions provided by P&O Maritime are add-ons meant to
    complement and enhance DP World's container terminal services and that the effects of the vertical
    link resulting from the Transaction between the upstream market for contained terminal services (in
    which DP World is active) and the downstream market for short-sea shipping services (in which
    Unifeeder is active) will be assessed in detail in section 5 of this Decision, P&O Maritime's operations
    will not be further considered for the purposes of assessing the Transaction.
7   DP World Limited, of which DP World Investments B.V. is an indirect wholly owned subsidiary, is
    80.45% indirectly held by the Government of Dubai, via Dubai World. The remaining 19.55% of DP
    World Limited's shareholding is listed on NASDAQ Dubai.
                                                           2
 ---pagebreak---          Ferrymasters – are not taken into account for the purposes of assessing the
         Transaction.8
(5)      Unifeeder is active in the provision of maritime transportation services for
         containerised goods. Unifeeder primarily provides feeder services, that is to say
         the transport of cargo between hub ports and (smaller) outports. However,
         Unifeeder also provides short-sea services, that is to say the transport of cargo
         from point to point, both on a port-to-port and door-to-door basis. Unifeeder
         operates primarily in Northern Europe with feeder and short-sea services and in
         the Mediterranean with feeder services only.9 It has a fleet of approximately 50-
         60 chartered vessels.
2.       THE OPERATION
(6)      Pursuant to a share purchase agreement signed on 6 August 2018, DP World will
         purchase the entire issued share capital of Holdingselskabet af 10. januar 2013 II
         A/S, Unifeeder's sole indirect shareholder. As a consequence, post-Transaction
         DP World will acquire sole control over Unifeeder.
(7)      Therefore, the Transaction constitutes a concentration within the meaning of
         Article 3(1)(b) of the Merger Regulation.
3.       UNION DIMENSION
(8)      The undertakings concerned have a combined aggregate world-wide turnover of
         more than EUR 5 000 million10 (DP World: EUR […] million; Unifeeder: EUR
         […] million). Each of them has an EU-wide turnover in excess of EUR 250
         million (DP World: EUR […] million; Unifeeder: EUR […] million), but they do
         not achieve more than two-thirds of their aggregate EU-wide turnover within one
         and the same Member State.
(9)      The Transaction therefore has a Union dimension pursuant to Article 1(2) of the
         Merger Regulation.
4.       MARKET DEFINITION
(10)     DP World provides container terminal services (also called stevedoring services),
         which are inputs to container transport services, in particular container liner
         shipping services, provided by operators like Unifeeder.
8   In any event, even if DP World, P&O Ferries and P&O Ferrymasters were considered as constituting a
    single economic unit, combining the activities of P&O Ferries and P&O Ferrymasters with the
    activities of DP World would not give rise to any additional affected market. As a consequence, the
    Transaction would not raise serious doubts even if P&O Ferries and P&O Ferrymasters were
    considered as belonging to the same group as DP World.
9   Northern Europe represents approximately [80-90]% of Unifeeder's activities in the EEA. The
    Mediterranean represents approximately [10-20]% of Unifeeder's activities in the EEA.
10  Turnover calculated in accordance with Article 5 of the Merger Regulation.
                                                        3
 ---pagebreak---  4.1. Container terminal services
4.1.1. Relevant product market
(11)    The provision of container terminal services by terminal operators involves the
        loading, unloading, storage, and land-side handling for inland transportation of
        containerised cargo.11
(12)    In its prior decision practice, the Commission has defined a separate market for
        the provision of container terminal services.12 The Commission has considered
        segmenting container terminal services by traffic flows to (i) hinterland traffic,
        that is to say containers transported directly onto/from a container vessel from/to
        the hinterland via barge, truck or train, and (ii) transhipment traffic, that is to say
        containers destined for onward transportation to other ports or other vessels.
        Transhipment traffic involves both feeder movements, where containers are
        shipped to an adjacent market, and relay movements, where containers are moved
        from one ocean-going vessel to another ocean-going vessel to onward movement
        to another more distant market.13
(13)    DP World considers that the Commission does not need to reach a view on the
        exact scope of the relevant product market, as in any event the Transaction does
        not give rise to competition concerns.14
(14)    In any case, for the purposes of this Decision, the question of whether the market
        for container terminal services should be segmented between hinterland and
        transhipment traffic can be left open, as the Transaction would not raise serious
        doubts as to its compatibility with the internal market under any plausible product
        market definition.
4.1.2. Relevant geographic market
(15)    In its prior decisional practice, the Commission has considered that the broadest
        possible geographic scope of the market for the provision of container terminal
        services is a region, such as Northern Europe (for transhipment traffic), and its
        narrowest possible scope is the catchment area of the ports in a certain range,
        such as Hamburg-Antwerp (for hinterland traffic) or possibly even narrower,
        comprising the ports of a single Member State only.15
11  See for example Cases M.7523 – CMA CGM/OPDR, paragraph 63; M.5398 – Hutchison/Evergreen,
    paragraph 9.
12  See for example Cases M.7523 – CMA CGM/OPDR, paragraph 63; M.5398 – Hutchison/Evergreen,
    paragraph 9.
13  This possible segmentation mainly concerned deep-sea container ships (see for example Cases M.8330
    – Maersk Line/HSDG, paragraph 29; M.8120 – Hapag-Lloyd/United Arab Shipping Company,
    paragraphs 21 and 24; M.7908 – CMA CGM/NOL, paragraph 17; M.5450 – Kühne/HGV/TUI/Hapag-
    Lloyd, paragraph 16; and M.5398 – Hutchison/Evergreen, paragraphs 9 and 10).
14  Form CO, paragraph 94.
15  This possible geographic definition mainly concerned deep-sea ports (see for example Cases M.8330 –
    Maersk Line/HSDG, paragraph 32; M.8120 – Hapag-Lloyd/United Arab Shipping Company,
    paragraphs 22-24; M.7908 – CMA CGM/NOL, paragraph 18; M.7523 – CMA CGM/OPDR, paragraph
                                                       4
 ---pagebreak--- (16)    DP World considers that it is not necessary to consider the market more narrowly
        than on a regional basis (that is, for the purpose of the Transaction, Northern
        Europe, the Mediterranean and Eastern Mediterranean, and Black Sea).16
(17)    With regard to the ports of Constanta (Romania), Marseille-Fos and Le Havre
        (France), in which DP World operates terminals, the market investigation has not
        produced sufficient evidence to conclude on the geographic scope of the market
        for the provision of container terminal services.17
(18)    In any case, for the purposes of this Decision, the question of whether the market
        for container terminal services encompasses ports of a region, of a catchment
        area, or of one Member State can be left open, as the Transaction would not raise
        serious doubts as to its compatibility with the internal market under any plausible
        geographic market definition.
4.1.3. Conclusion
(19)    For the purposes of this Decision, it is not necessary to conclude on the exact
        product and geographic definition of the market for the provision of container
        terminal services, as the Transaction would not raise serious doubts as to its
        compatibility with the internal market under any plausible market definition.
(20)    The Commission will therefore assess the effects of the Transaction on the
        following markets:
        (a)      Product markets: (i) container terminal services (overall); (ii) container
                 terminal services for hinterland traffic; and (iii) container terminal services
                 for transhipment traffic;
        (b)      Geographic markets: (i) regions (such as Northern Europe or the
                 Mediterranean), (ii) catchment areas comprising the ports in a certain
                 range (such as Le Havre-Hamburg), and (iii) the ports of a single Member
                 State (such as Romania or France).
 4.2. Door-to-door multimodal transport services
4.2.1. Relevant product market
(21)    Door-to-door multimodal transport services consist in taking up cargo at an
        agreed point and delivering it to another agreed point. Customers decide where
        the point of loading and point of delivery are situated and transport services
        providers adapt to this. As the cargo is containerised, it can travel on vessels,
        trucks, trains and barges.18
(22)    In a prior decision, the Commission noted that sea vessel operators, truck, rail and
        barge companies offering door-to-door transport ultimately compete on the
    65; M.5450 – Kühne/HGV/TUI/Hapag-Lloyd, paragraph 16; M.5066 – Eurogate/APMM, paragraphs
    15-23).
16  Form CO, paragraph 98.
17  Replies to Q1 – Questionnaire to market participants, questions 3 and 4.
18  Case M.7523 – CMA CGM/OPDR, paragraph 24.
                                                        5
 ---pagebreak---         provision of multimodal transport services, as transport operators often need to
        combine different modes of transport in order to provide a full door-to-door
        service. Therefore, the Commission concluded that there is a market for door-to-
        door transport services, including all modes of transportation.19
(23)    DP World submits that the relevant market in which Unifeeder is active is the
        market for the provision of intra-European door-to-door multimodal transport
        services. According to DP World, different modes of transport for intra-European
        volumes are highly substitutable from the perspective of end customers; therefore
        shipping services should be regarded as part of the intra-European door-to-door
        multimodal transport services market, which encompasses all modes of transport
        by sea, rail and road.20
(24)    In any case, for the purposes of this Decision, the question of whether there is a
        market for intra-European door-to-door multimodal transport services can be left
        open, as the Transaction would not raise serious doubts as to its compatibility
        with the internal market under any plausible product market definition.
4.2.2. Relevant geographic market
(25)    In a prior decision, the Commission considered that the market for door-to-door
        multimodal transport services could be defined either on a trade basis,
        aggregating country pairs (such as Iberia to Northern Europe), or on a country
        pair basis (e.g. Spain to Germany). Ultimately, the Commission left the
        geographic market definition open.21
(26)    DP World considers that geographic market for the transport of containers should
        be defined regionally (that is to say, in this case, Northern Europe and the
        Mediterranean).22
(27)    In any case, for the purposes of this Decision, the question of whether the market
        for door-to-door multimodal transport services should be defined on a trade or
        country pair basis can be left open, as the Transaction would not raise serious
        doubts as to its compatibility with the internal market under any plausible
        geographic market definition.
4.2.3. Conclusion
(28)    For the purposes of this Decision, it is not necessary to conclude on whether there
        is an overall market for the provision of door-to-door multimodal transport
        services and on its exact geographic definition, as the Transaction would not raise
        serious doubts as to its compatibility with the internal market under any plausible
        market definition.
(29)    The Commission will therefore assess the effects of the Transaction on the market
        for door-to-door multimodal transport services, defined on the basis of the
19  Case M.7523 – CMA CGM/OPDR, paragraph 31.
20  Form CO, paragraphs 101-106.
21  Case M.7523 – CMA CGM/OPDR, paragraphs 35 and 36.
22  Form CO, paragraphs 116-118.
                                                  6
 ---pagebreak---          following geographic scopes: (i) trades (such as between countries within the
         Mediterranean), and (ii) country pairs.
 4.3. Short-sea shipping services
4.3.1. Relevant product market
(30)     Short-sea container liner shipping involves the provision of regular, scheduled
         intra-continental (usually, costal trade) services for the carriage of cargo by
         container liner shipping companies.
(31)     In its prior decisional practice, the Commission has left open whether shipping
         services should be part of a broader door-to-door multimodal transport services
         market.23 Should a separate market for exist, the Commission has concluded that
         (i) container shipping is distinct from bulk shipping (i.e. non-containerised
         shipping);24 (ii) short-sea container shipping is distinct from long-sea container
         shipping (i.e. deep-sea shipping);25 and (iii) non-liner shipping services are not
         part of the short-sea container shipping market.26
(32)     The Commission has also considered, while ultimately leaving open, the
         following further possible distinctions within the market for short-sea container
         liner shipping services: (i) between reefer (that is to say refrigerated) and dry (or
         non-reefer, that is to say not refrigerated) services;27 and (ii) between roll-on/roll-
         off ("Ro-Ro") and lift-on/lift-off ("Lo-Lo") services.28 The Commission has not
         examined the possible existence of a separate market for feeder services.
(33)     DP World considers that shipping services should be regarded as part of a broader
         market for door-to-door multimodal transport services, encompassing all modes
         of transport by sea, rail and road.29 If a market for short-sea container liner
         shipping services were to exist, DP World submits that: (i) the distinction
         between reefer and dry transport is not of relevance for the Transaction;30 (ii) Ro-
23  Cases M.8330 – Maersk Line/HSDG, paragraph 19; M.7523 – CMA CGM/OPDR, paragraph 48.
24  Case M.7523 – CMA CGM/OPDR, paragraph 49.
25  See for example Cases M.8330 – Maersk Line/HSDG, paragraph 19; M.7523 – CMA CGM/OPDR,
    paragraphs 49 and 51.
26  See for example Cases M.8330 – Maersk Line/HSDG, paragraph 19; M.8120 – Hapag-Lloyd/United
    Arab Shipping Company, paragraph 10; M.7523 – CMA CGM/OPDR, paragraph 49. Non-linear
    shipping, such as charter, tramp and specialised transport, distinguishes itself from linear shipping
    because of the regularity and frequency of the service.
27  See for example Cases M.8330 – Maersk Line/HSDG, paragraph 19; M.7523 – CMA CGM/OPDR,
    paragraph 48; M.7268 – CSAV/HGV/Kühne Maritime/Hapag-Lloyd AG, paragraphs 18-20; M.3973 –
    CMA CGM/Delmas, paragraphs 6-7; M.3829 – Maersk/PONL, paragraphs 7-12. If reefer and non-
    reefer services constitute one single market, the Commission has considered whether reefer containers
    and bulk reefer vessels should be included (see for example Cases M.7523 – CMA CGM/OPDR,
    paragraphs 50-52; M.7268 – CSAV/HGV/Kühne Maritime/Hapag-Lloyd AG, paragraph 20).
28  See for example Cases M.7523 – CMA CGM/OPDR, paragraph 50; M.6305 – DFDS/C.RO
    Ports/Älvsborg, paragraphs 19-21. Roll-on/roll-off ("Ro-Ro") shipping corresponds to the transport of
    wheeled cargo (lorries, cars, etc.) on ships. Ro-Ro vessels have built-in ramps for the "rolling-on" and
    "rolling-off" of the cargo. In Lo-Lo shipping, dock mounted cranes lift and stack containers on vessels.
29  Form CO, paragraph 106.
30  Form Co, paragraph 109.
                                                         7
 ---pagebreak---         Ro ferry and LoLo short-sea services should be considered separately;31 and (iii)
        it is not necessary to consider feeder services as a separate market.32
(34)    The Commission notes that there is no need, for the purposes of assessing the
        Transaction, to distinguish between reefer and non-reefer services, considering
        that the Transaction does not give rise to horizontal effects and that Unifeeder,
        like other short sea shippers, is equally able to transport either type of container.
(35)    As to the other plausible markets, the questions of whether there is a market for
        short-sea container liner shipping services and, if so, whether RoRo ferry
        services, LoLo short-sea services and feeder services should constitute separate
        markets can be left open, as the Transaction would not raise serious doubts as to
        its compatibility with the internal market under any plausible product market
        definition.
4.3.2. Relevant geographic market
(36)    In its prior decision practice, the Commission has considered that the relevant
        geographic market for short-sea container liner shipping services should be
        defined on the basis of (i) either single trades or corridors, defined by the range of
        ports which are served at both ends of the service;33 (ii) or single legs of trade.34
(37)    DP World submits that the geographic scope of the market should be considered
        as regional in the context of Unifeeder's services (that is to say Northern Europe
        and the Mediterranean).35
(38)    In any case, for the purposes of this Decision, the question of whether the market
        for short-sea container liner shipping services should be defined on a trade or leg
        of trade basis can be left open, as the Transaction would not raise serious doubts
        as to its compatibility with the internal market under any plausible geographic
        market definition.
4.3.3. Conclusion
(39)    For the purposes of this Decision, it is not necessary to conclude on whether there
        is a market for the provision of short-sea container liner shipping services or
        whether it forms part of the overall market for the provision of door-to-door
        multimodal transport services, and on its exact product and geographic definition,
        as the Transaction would not raise serious doubts as to its compatibility with the
        internal market under any plausible market definition.
(40)    The Commission will therefore assess the effects of the Transaction on the
        following markets:
31  Form CO, paragraph 111.
32  Form CO, paragraph 115.
33  Cases M.8330 – Maersk Line/HSDG, paragraph 20; M.7523 – CMA CGM/OPDR, paragraph 59.
34  Cases M.8330 – Maersk Line/HSDG, paragraph 20; M.7523 – CMA CGM/OPDR, paragraph 60.
35  Form CO, paragraph 119.
                                                   8
 ---pagebreak---          (a)      Product markets: door-to-door multimodal transport services (see
                  paragraph (29) above) and, in the absence of any horizontal overlap
                  between the Parties' activities, on the narrowest plausible product markets
                  in which Unifeeder is active,36 that is to say: (i) LoLo short-sea services,
                  and (ii) feeder services;
         (b)      Geographic markets: in the absence of any horizontal overlap between the
                  Parties' activities, on the narrowest plausible geographic markets in which
                  Unifeeder is active,37 that is to say legs of trade. In line with the
                  geographic markets for door-to-door multimodal transport services (see
                  paragraph (29) above), the legs of trade will be defined on the basis of the
                  following geographic delineations: (i) trades (such as between countries
                  within the Mediterranean), and (ii) country pairs.
5.       COMPETITIVE ASSESSMENT
(41)     DP World is active in the market for container terminal services, while Unifeeder
         is active in the market for container liner services. In this context, the Parties'
         activities do not overlap. However, the Parties' activities are vertically related,38
         with DP World being active in the upstream market for container terminal
         services and Unifeeder being active in the downstream market defined as the
         provision of (i) door-to-door multimodal transport services, (ii) LoLo short-sea
         shipping services; or (iii) feeder services.39
 5.1. Legal framework
(42)     According to the Non-Horizontal Merger Guidelines,40 foreclosure occurs when
         actual or potential rivals' access to markets is hampered, thereby reducing those
36  Those narrowest plausible product markets are indeed the ones in which Unifeeder's market share
    would be highest and Unifeeder's market position would be strongest. In the absence of serious doubts
    with the compatibility of the Transaction in relation to those markets, the Commission can reasonably
    conclude on the absence of serious doubts in relation to broader markets.
37  Those narrowest plausible geographic markets are indeed the ones in which Unifeeder's market share
    would be highest and Unifeeder's market position would be strongest. In the absence of serious doubts
    with the compatibility of the Transaction in relation to those markets, the Commission can reasonably
    conclude on the absence of serious doubts in relation to broader markets.
38  In its prior decision practice, the Commission has consistently considered container terminal services
    as an upstream market to the provision of container liner shipping services (see for example M.8594 –
    COSCO SHIPPING/OOIL, paragraph 52; M.8459 – TIL/PSA/PSA DGD, section 4.2.; M. 7523 – CMA
    CGM/OPDR, paragraph 150; M.7248 – CSAV/HGV/Kühne Maritime/Hapag-Lloyd AG, paragraph 198
    and following).
39  The Commission has not identified any significant conglomerate effect in the present case. According
    to DP World, (i) the broadening of DP World’s product offering will not provide any meaningful
    competitive advantage; (ii) DP World would not have any meaningful possibility of tying or bundling
    its services with those of Unifeeder; (iii) even if DP World were technically able to bundle/tie its
    services with those of Unifeeder, DP World would have no ability to engage in a tying/bundling
    foreclosure strategy; (iv) DP World would, in any case, not have an incentive to engage in
    tying/bundling strategies; and (v) any hypothetical bundling/tying foreclosure strategy would have no
    anticompetitive effects (major shipping lines, such as Maersk and CMA CGM, are heavily vertically
    integrated with interests in liner, feeder and port operations) (Form CO, paragraphs (198)-(202)).
40  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.
                                                           9
 ---pagebreak---          companies' ability and/or incentive to compete.41 Such foreclosure can take two
         forms: (i) input foreclosure, when access of downstream rivals to supplies is
         hampered;42 and (ii) customer foreclosure, when access of upstream rivals to a
         sufficient customer base is hampered.43
(43)     For input or customer foreclosure to be a concern, three conditions need to be met
         post-transaction: (i) the merged entity needs to have the ability to foreclose its
         rivals; (ii) the merged entity needs to have the incentive to foreclose its rivals; and
         (iii) the foreclosure strategy needs to have a significant detrimental effect on
         competition on the downstream market (input foreclosure) or on customers
         (customer foreclosure).44 In practice, these factors are often examined together
         since they are closely intertwined.
 5.2. Overview of the vertically affected markets
(44)     Related markets in which DP World holds a market share of at least 30% in the
         upstream market and/or Unifeeder holds a market share of at least 30% in the
         downstream market are considered to be vertically affected by the Transaction.
(45)     As regards the upstream market for container terminal services, within the EEA,
         DP World operates terminals at the following 10 ports: (i) Antwerp Gateway
         (Belgium), (ii) Limassol (Cyprus), (iii) Marseille-Fos (France), (iv) Le Havre
         (France), (v) Germersheim (Germany),45 (vi) Rotterdam (the Netherlands), (vii)
         Constanta (Romania), (viii) Tarragona (Spain), (ix) London Gateway (the United
         Kingdom), and (x) Southampton (the United Kingdom).
(46)     DP World's market share would exceed 30% only if the geographic scope of the
         market for container terminal services is defined narrowly as comprising the ports
         of a single Member State. In such a case, DP World's market share exceeds 30%
         in Romania (overall: [80-90]%; transhipment traffic: [90-100]%; hinterland
         traffic: [70-80]%) and France (overall: [40-50]%; transhipment traffic: [40-50]%;
         hinterland traffic: [40-50]%).46
(47)     The table below provides Unifeeder's share of the downstream markets related to
         France and Romania, where DP World's share of the upstream market exceeds
         30%.
41  Non-Horizontal Merger Guidelines, paragraphs 20-29.
42  Non-Horizontal Merger Guidelines, paragraph 31.
43  Non-Horizontal Merger Guidelines, paragraph 58.
44  Non-Horizontal Merger Guidelines, paragraphs 32 and 59.
45  Germersheim is an inland terminal, which therefore does not interact with Unifeeder's activities.
46  DP World submits that the total market data that it has been able to gather is not a comprehensive list
    of all terminal capacity/volume in the relevant countries and, as a result, the market shares provided
    likely overstate the position of DP World. Form CO, paragraph 127.
                                                        10
 ---pagebreak---                                  Table 1 – Vertically affected markets
                            (DP World's market shares exceeding 30%)
                                               Unifeeder's share of the downstream affected market
                             DP World's
          Upstream           share of the        Door-to-door     LoLo short-sea      Feeder services
       affected market         upstream           multimodal          shipping
                           affected market         transport          services
                                                    services
          Container          Overall: [80-      Mediterranean:      Not active47      Mediterranean:
           terminal              90]%                [0-5]%                              [10-20]%
          services in      Transhipment:          Georgia to                             Georgia to
           Romania            [90-100]%        Romania: <10%                          Romania: <10%
                           Hinterland: [70-        Greece to                             Greece to
                                 80]%          Romania: <10%                          Romania: <10%
                                                    Malta to                              Malta to
                                               Romania: <10%                          Romania: <10%
                                                  Romania to                            Romania to
                                                Bulgaria: <10%                        Bulgaria: <10%
                                                  Romania to                            Romania to
                                                Turkey: <10%                           Turkey: <10%
                                                    Russia to                            Russia to
                                               Romania: <10%                          Romania: <10%
                                                   Turkey to                             Turkey to
                                               Romania: <10%                          Romania: <10%
                                                  Ukraine to                             Ukraine to
                                               Romania: <10%                          Romania: <10%
          Container          Overall: [40-      Mediterranean:      Not active48      Mediterranean:
           terminal              50]%                [0-5]%                              [10-20]%
          services in      Transhipment:       France to Spain:                       France to Spain:
            France             [40-50]%               <10%                                 <10%
                           Hinterland: [40-    Spain to France:                       Spain to France:
                                 50]%                 <10%                                 <10%
       Source: Form CO, Annex 9
(48)   As regards the downstream market, Unifeeder's market share would not exceed
       30% if the market is defined as door-to-door multimodal transport services, under
       any plausible geographic market definition. It would nevertheless exceed 30% in
       relation to LoLo short-sea shipping services and feeder services.
(49)   Unifeeder's market share would exceed 30% if the geographic scope of the market
       for LoLo short-sea shipping services is defined narrowly on the basis of country
       pair legs of trade. In such a case, Unifeeder's market share exceeds 30% in the
       following legs of trade: (i) from Germany to the United Kingdom ([70-80]%); (ii)
       from the United Kingdom to Germany ([60-70]%); (iii) from Poland to the United
       Kingdom ([40-50]%); and (iv) from the United Kingdom to Poland ([40-50]%).
(50)   The table below provides DP World's share of the upstream markets related to the
       legs of trade, where Unifeeder's share of the downstream market exceeds 30%.
47 As indicated in paragraph (5) of this Decision, Unifeeder does not provide short-sea services in the
   Mediterranean.
48 As indicated in paragraph (5) of this Decision, Unifeeder does not provide short-sea services in the
   Mediterranean.
                                                       11
 ---pagebreak---                                 Table 2 – Vertically affected markets
                            (Unifeeder's market shares exceeding 30%)
                                                 DP World's share of the upstream affected market
                             Unifeeder's
        Downstream           share of the           Overall          Transhipment          Hinterland
       affected market       downstream           container               traffic             traffic
                           affected market         terminal
                                                   services
       LoLo short-sea         Multimodal      Northern Europe:     Northern Europe:     Northern Europe:
           shipping        transport: <10%        [10-20]%               [5-10]%            [10-20]%
        services from      Short-sea: [70-        Le Havre-            Le Havre-            Le Havre-
       Germany to the           80]%            Hamburg: [10-        Hamburg: [5-        Hamburg: [10-
              UK            Feeder: <10%             20]%                  10]%                20]%
                                               UK and Ireland:      UK and Ireland:      UK and Ireland:
                                                  [20-30]%              [20-30]%            [20-30]%
                                                UK: [20-30]%         UK: [20-30]%         UK: [20-30]%
                                                Germany: Not         Germany: Not         Germany: Not
                                                    active49             active50            active51
       LoLo short-sea         Multimodal      Northern Europe:     Northern Europe:     Northern Europe:
           shipping        transport: <10%        [10-20]%               [5-10]%            [10-20]%
        services from      Short-sea: [60-        Le Havre-            Le Havre-            Le Havre-
          the UK to             70]%            Hamburg: [10-        Hamburg: [5-        Hamburg: [10-
          Germany          Feeder: 10-30%            20]%                  10]%                20]%
                                                UK: [20-30]%         UK: [20-30]%         UK: [20-30]%
                                                Germany: Not         Germany: Not         Germany: Not
                                                    active52             active53            active54
       LoLo short-sea         Multimodal      Northern Europe:     Northern Europe:     Northern Europe:
           shipping        transport: <10%        [10-20]%               [5-10]%            [10-20]%
        services from      Short-sea: [40-     UK and Ireland:      UK and Ireland:      UK and Ireland:
        Poland to the           50]%              [20-30]%              [20-30]%            [20-30]%
              UK            Feeder: <10%        UK: [20-30]%         UK: [20-30]%         UK: [20-30]%
                                                 Poland: Not          Poland: Not          Poland: Not
                                                     active               active              active
       LoLo short-sea         Multimodal      Northern Europe:     Northern Europe:     Northern Europe:
           shipping        transport: <10%        [10-20]%               [5-10]%            [10-20]%
        services from      Short-sea: [40-      UK: [20-30]%           Le Havre-            Le Havre-
          the UK to             50]%             Poland: Not         Hamburg: [5-        Hamburg: [10-
            Poland          Feeder: <10%             active                10]%                20]%
                                                                     UK: [20-30]%         UK: [20-30]%
                                                                      Poland: Not          Poland: Not
                                                                          active              active
      Source: Form CO, Annex 9
49 Germersheim is an inland terminal, which therefore does not interact with Unifeeder's activities.
50 Germersheim is an inland terminal, which therefore does not interact with Unifeeder's activities.
51 Germersheim is an inland terminal, which therefore does not interact with Unifeeder's activities.
52 Germersheim is an inland terminal, which therefore does not interact with Unifeeder's activities.
53 Germersheim is an inland terminal, which therefore does not interact with Unifeeder's activities.
54 Germersheim is an inland terminal, which therefore does not interact with Unifeeder's activities.
                                                      12
 ---pagebreak--- (51)  Unifeeder's market shares would exceed 30% if the geographic scope of the
      market for feeder services with respect is defined narrowly on the basis of legs of
      trade defined as: (i) country to region, or (ii) country to country. In such cases,
      Unifeeder's market share exceeds 30% in the following legs of trade: (i) from
      Denmark to Northern European hub ports and vice versa ([30-40]% on the
      trade),55 (ii) from Sweden to Northern European hub ports and vice versa ([30-
      40]% on the trade),56 (iii) from the Netherlands to Norway ([30-40]%); (iv) from
      Norway to the Netherlands ([30-40]%); (v) from the Netherlands to Latvia ([40-
      50]%); (vi) from Latvia to the Netherlands ([40-50]%); (vii) from the Netherlands
      to Lithuania ([40-50]%); (viii) from Lithuania to the Netherlands ([40-50]%); (ix)
      from Cyprus to Egypt ([60-70]%); and (x) from Egypt to Cyprus ([70-80]%).
                                Table 3 – Vertically affected markets
                            (Unifeeder's market shares exceeding 30%)
                                                 DP World's share of the upstream affected market
                              Unifeeder's
        Downstream           share of the            Overall         Transhipment        Hinterland
      affected market        downstream            container             traffic            traffic
                           affected market          terminal
                                                    services
       Feeder services        Multimodal        Northern Europe:    Northern Europe:  Northern Europe:
          between           transport: [10-        [10-20]%             [5-10]%           [10-20]%
        Denmark and              20]%              Le Havre-           Le-Havre-         Le Havre-
         hub ports           Short-sea: [0-      Hamburg: [10-        Hamburg: [5-     Hamburg: [10-
                                  5]%                  20%                10]%               20]%
                             Feeder: [30-        Belgium: [20-        Belgium: [5-     Belgium: [20-
                                40]%                  30]%                10]%               30]%
                                                Netherlands: [10-   Netherlands: [10- Netherlands: [10-
                                                      20]%                20]%               20]%
                                                 Denmark: Not        Denmark: Not      Denmark: Not
                                                      active             active             active
       Feeder services        Multimodal        Northern Europe:    Northern Europe:  Northern Europe:
          between           transport: [10-        [10-20]%             [5-10]%           [10-20]%
           Sweden                20]%              Le Havre-           Le Havre-         Le Havre-
       and hub ports         Short-sea: [0-      Hamburg: [10-        Hamburg: [5-     Hamburg: [10-
                                  5]%                 20]%                10]%               20]%
                             Feeder: [30-        Belgium: [20-        Belgium: [5-     Belgium: [20-
                                40]%                  30]%                10]%               30]%
                                                Netherlands: [10-   Netherlands: [10- Netherlands: [10-
                                                      20]%                20]%               20]%
                                                 Denmark: Not        Denmark: Not      Denmark: Not
                                                      active             active             active
       Feeder services        Multimodal        Northern Europe:    Northern Europe:  Northern Europe:
          from the         transport: <10%         [10-20]%             [5-10]%           [10-20]%
       Netherlands to       Short-sea: 10-         Le Havre-           Le Havre-         Le Havre-
          Norway                 30%               Hamburg:            Hamburg:        Hamburg: [10-
                             Feeder: [30-          [10-20]%             [5-10]%              20]%
                                40]%            Netherlands: [10-   Netherlands: [10- Netherlands: [10-
                                                      20]%                20]%               20]%
                                                  Norway: Not         Norway: Not       Norway: Not
                                                      active             active             active
55 DP World does not offer terminal services at outports in Northern Europe (Form CO, paragraph 162).
56 DP World does not offer terminal services at outports in Northern Europe (Form CO, paragraph 162).
                                                       13
 ---pagebreak---  Feeder services     Multimodal    Northern Europe:  Northern Europe:  Northern Europe:
from Norway to    transport: <10%      [10-20]%          [5-10]%           [10-20]%
the Netherlands    Short-sea: 10-     Le Havre-         Le Havre-         Le Havre-
                        30%           Hamburg:          Hamburg:        Hamburg: [10-
                    Feeder: [30-       [10-20]%          [5-10]%              20]%
                       40]%        Netherlands: [10- Netherlands: [10- Netherlands: [10-
                                          20]%             20]%               20]%
                                     Norway: Not       Norway: Not       Norway: Not
                                         active            active            active
 Feeder services     Multimodal    Northern Europe:  Northern Europe:  Northern Europe:
    from the      transport: <10%      [10-20]%          [5-10]%           [10-20]%
 Netherlands to   Short-sea: <10%     Le Havre-         Le Havre-         Le Havre-
     Latvia         Feeder: [40-      Hamburg:          Hamburg:        Hamburg: [10-
                       50]%            [10-20]%          [5-10]%              20]%
                                   Netherlands: [10- Netherlands: [10- Netherlands: [10-
                                          20]%             20]%               20]%
                                     Latvia: Not       Latvia: Not       Latvia: Not
                                         active            active            active
 Feeder services     Multimodal    Northern Europe:  Northern Europe:  Northern Europe:
 from Latvia to   transport: <10%      [10-20]%          [5-10]%           [10-20]%
the Netherlands   Short-sea: <10%     Le-Havre-         Le Havre-         Le Havre-
                    Feeder: [40-      Hamburg:          Hamburg:        Hamburg: [10-
                       50]%            [10-20]%          [5-10]%              20]%
                                   Netherlands: [10- Netherlands: [10- Netherlands: [10-
                                          20]%             20]%               20]%
                                     Latvia: Not       Latvia: Not       Latvia: Not
                                         active            active            active
 Feeder services     Multimodal    Northern Europe:  Northern Europe:  Northern Europe:
    from the      transport: <10%      [10-20]%          [5-10]%           [10-20]%
 Netherlands to   Short-sea: <10%     Le Havre-         Le Havre-         Le Havre-
   Lithuania        Feeder: [40-      Hamburg:          Hamburg:        Hamburg: [10-
                       50]%            [10-20]%          [5-10]%              20]%
                                   Netherlands: [10- Netherlands: [5-  Netherlands: [10-
                                          20]%             10]%               20]%
                                    Lithuania: Not    Lithuania: Not    Lithuania: Not
                                         active            active            active
 Feeder services     Multimodal    Northern Europe:  Northern Europe:  Northern Europe:
from Lithuania    transport: <10%      [10-20]%          [5-10]%           [10-20]%
      to the      Short-sea: <10%     Le Havre-         Le Havre-         Le Havre-
  Netherlands       Feeder: [40-      Hamburg:          Hamburg:        Hamburg: [10-
                       50]%            [10-20]%          [5-10]%              20]%
                                   Netherlands: [10- Netherlands: [10- Netherlands: [10-
                                          20]%             20]%               20]%
                                    Lithuania: Not    Lithuania: Not    Lithuania: Not
                                         active            active            active
 Feeder services     Multimodal           East              East              East
from Cyprus to    transport: <10%   Mediterranean:    Mediterranean:    Mediterranean:
      Egypt        Short-sea: 0%        [5-10]%           [0-5]%            [5-10]%
                    Feeder: [60-    Cyprus: [0-5]%     Cyprus: Not      Cyprus: [0-5]%
                       70]%           Egypt: Not           active         Egypt: Not
                                         active         Egypt: Not           active
                                                           active
 Feeder services     Multimodal           East              East              East
 from Egypt to    transport: <10%   Mediterranean:    Mediterranean:    Mediterranean:
     Cyprus         Short-sea: [0-      [5-10]%           [0-5]%            [5-10]%
                        5]%         Cyprus: [0-5]%     Cyprus: Not      Cyprus: [0-5]%
                    Feeder: 70%       Egypt: Not           active         Egypt: Not
                                         active         Egypt: Not           active
                                                           active
Source: Form CO, paragraph 121 and Annex 9
                                           14
 ---pagebreak---  5.3. Assessment of the vertically affected markets in relation to container
         terminal services in Romania and in France
(52)     The Commission will assess in this section whether the Transaction could lead to
         (i) input foreclosure, pursuant to which DP World would foreclose Unifeeder's
         competitors by restricting access to or deteriorating the quality of the container
         terminal services that it provides to Unifeeder's competitors in Romania or in
         France; or (ii) customer foreclosure, pursuant to which Unifeeder would foreclose
         DP World's competitors by sourcing its container terminal services requirements
         in Romania or in France mostly or exclusively from DP World.
5.3.1. Input foreclosure
5.3.1.1.     DP World's views
(53)     DP World submits that, despite DP World's relatively high share in respect of
         Romanian and French ports, the Transaction does not give rise to any input
         foreclosure concerns.57
5.3.1.2.     The Commission's assessment
         Ability to foreclose
(54)     For input foreclosure to be a concern, the vertically integrated firm resulting from
         the merger must have a significant degree of power in the upstream market and
         thus, possibly, on prices and supply conditions in the downstream market.58
(55)     The Commission notes that DP World's operations at Constanta lead to very high
         shares of the market for container terminal services in Romania ([80-90]%
         overall; [90-100]% for transhipment traffic; [70-80]% for hinterland traffic),59
         despite a competing terminal at Constanta with spare capacity.60
(56)     DP World's operations at Marseille-Fos and Le Havre also lead to significant
         market shares in France ([40-50]% overall; [40-50]% for transhipment traffic;
57  Form CO, Annex 9, paragraphs (6)(a) and (7)(a).
58  Non-Horizontal Merger Guidelines, paragraph 35.
59  Nevertheless, DP World's market shares on the basis of the catchment area comprising ports within a
    certain range drop significantly. For example, in the Piraeus-Odessa range, they would be: [5-10]%
    overall; [0-5]% for transhipment traffic and [10-20]% for hinterland traffic (Form CO, paragraph (127)
    and Annex 9, paragraph (6)).
60  According to DP World, the Socep terminal at Constanta is expected to have approximately [70-80]%
    spare capacity in 2018 (Form CO, Annex 9, paragraph (6)).
                                                        15
 ---pagebreak---         [40-50]% for hinterland traffic),61 although DP World is in direct competition
        with a number of operators of other terminals.62
(57)    In addition, a number of respondents to the market investigation point to the
        advantages that DP World could grant to Unifeeder at the ports where both
        operate, such as preferred berthing and operational priority.63
(58)    Nevertheless, two elements may question the ability of DP World's to foreclose
        Unifeeder's competitors.
(59)    First, the majority of transhipment traffic takes place at hub ports. 64 At hub ports,
        in most cases, feeder providers do not have a direct contractual relationship with
        terminal owners and operators. Typically terminal operators negotiate directly
        with deep-sea liners both the volume of transhipment cargo handled by them and
        the cost of the services provided. Hence, when terminal operators agree with
        deep-sea liners on the price for the provision of transhipment services at a given
        port, they are not aware of the identity of the feeder provider that will transport
        cargo from/to hub ports.65 It is therefore unlikely that the merged entity will be in
        the position to discriminate against competing feeder providers and refuse or
        deteriorate the services offered to them.
(60)    Second, according to DP World, DP World operates as a common user terminal
        and based on the open access regulations, it must provide services to main liners
        and feeder operators on a non-discriminatory basis.66
(61)    In light of the above, the Commission considers that, on balance, it cannot be
        excluded that DP World has the ability to engage in an input foreclosure strategy
        in Romania and in France post-Transaction.
        Incentive to foreclose
(62)    The incentive to foreclose depends on the degree to which foreclosure would be
        profitable. The vertically integrated firm will take into account how its supplies of
        inputs to competitors downstream will affect not only the profits of its upstream
        activities, but also of its downstream activities. Essentially, the merged entity
        faces a trade-off between the profit lost in the upstream market due to a reduction
        of input sales to (actual or potential) rivals and the profit gain, in the short or
        longer term, from expanding sales downstream or, as the case may be, being able
        to raise prices to consumers. The incentive for the integrated firm to raise rivals'
61 Nevertheless, DP World's market shares on the basis of the catchment area comprising ports within a
   certain range drop significantly. For example, in the Hamburg-Le Havre range, they would be: [5-
   10]% for transhipment traffic and [10-20]% for hinterland traffic; in the Marseille-Livorno range, they
   would be: [10-20]% for transhipment traffic and [10-20]% for hinterland traffic (Form CO, paragraph
   (127)).
62 Those competing terminals include: Terminal Normandie MSC (Le Havre), MED Europe Terminal
   (Marseille-Fos), Fos 2XL (Marseille-Fos), APM Terminals France SAS (Marseille-Fos).
63 Replies to Q1 – Questionnaire to market participants, question 8.1.
64 Form CO, paragraph (65).
65 Form CO, paragraphs (83)-(84).
66 Form CO, paragraph (166).
                                                      16
 ---pagebreak---        costs further depends on the extent to which downstream demand is likely to be
       diverted away from the foreclosed rivals.67
(63)   In this context, the Commission finds that, even if DP World had the ability to
       engage in an input foreclosure strategy, it would likely lack the incentive to do so.
(64)   First, the profit margins that terminal operators obtain from the provision of
       container terminal services are usually higher than those that vessel operators in
       the downstream markets derive from their (liner) shipping activities. This has
       been confirmed by the majority of the respondents to the market investigation
       who have expressed an opinion.68
(65)   Second, as indicated in paragraph (59) above, deep-sea liners, who autonomously
       choose to which operator to entrust the provision of feeder services, are DP
       World's main customers. By engaging in an input foreclosure strategy, DP World
       would therefore face the risk of jeopardising its commercial relationship with
       operators which represent its primary source of revenue.
(66)   Third, with regard to France, Unifeeder does not currently call at Le Havre and
       does not generally call at Marseille-Fos either.69 Therefore, any input foreclosure
       strategy by would be unlikely to result in increased volumes for Unifeeder.
(67)   As a result, even if post-Transaction DP World decided to engage in an input
       foreclosure strategy, this would likely be unprofitable. Any attempt by the merged
       entity to make the conditions of supply less favourable than they were pre-
       Transaction would lead to losses in the upstream market, with no possibility of
       offsetting those losses through an expansion of sales in the downstream markets.
(68)   The market investigation has confirmed the above conclusions with regard to DP
       World's lack of ability or incentive to successfully implement an input foreclosure
       strategy. The majority of the respondents who have expressed an opinion have
       either stated that DP World would not have the ability and incentive to foreclose
       Unifeeder's rivals from its container terminal services in the EEA, or specified
       that DP World's ability and incentive to foreclose Unifeeder's rivals depend on
       different factors, such as the possible negative reactions of liner shipping
       companies to any attempt to foreclose.
(69)   In that regard, liner shipping companies, being at the same time customers of
       terminal operators and of feeder providers, might indeed react badly to any
       attempt of DP World to disrupt container terminal services or to force them to
       procure feeder services from Unifeeder.
(70)   As an example, among the operators which have replied to the market
       investigation by stating that post-Transaction the Parties could and would engage
       in an input foreclosure strategy, one has pointed out that the possible benefits
       stemming from such a strategy would nonetheless have to be balanced against the
67 Non-Horizontal Merger Guidelines, paragraphs 40 and 41.
68 Replies to Q1 – Questionnaire to market participants, question 5.
69 Form CO, Annex 9, paragraph (7). Unifeeder's volumes at Marseille-Fos in 2017 represented [number
   of containers].
                                                      17
 ---pagebreak---        inability of the Parties to capture and carry all downstream volumes. Other
       shipping companies would still have "significant volumes" at their disposal.70
       This opinion underpins the conclusion that any such foreclosure strategy would
       be defeated by shifting these volumes elsewhere, in the case of Romania to the
       half empty other terminal at Constanta, in the case of France to competing
       terminals, including those at Marseille-Fos and Le Havre.
(71)   In light of the above, the Commission considers that DP World will likely not
       have an incentive to engage in an input foreclosure strategy in Romania or in
       France post-Transaction.
       Overall effect of foreclosure
(72)   In general, a merger will raise competition concerns because of input foreclosure
       when it would lead to increased prices in the downstream market thereby
       significantly impeding effective competition.71
(73)   In that respect, the Commission notes that some major global container liners
       operate their own port operations and feeder services, and are thus unlikely to be
       foreclosed.72 Even if some (non-integrated) feeder service providers were
       foreclosed post-Transaction from routes to/from Romania or France, these
       providers would remain active on other routes and could easily re-enter in the
       event of a price increase by Unifeeder, for example by calling at competing
       terminals in Romania and France or in neighbouring countries.
(74)   When asked about the possible impact of the Transaction on their business, the
       majority of the respondents to the market investigation who have expressed an
       opinion have stated that they do not foresee any negative or significant impact on
       their company.73 Moreover, none of the respondents have raised substantial
       concerns regarding the overall impact of the Transaction on the provision of
       container terminal services or container shipping services in the EEA.74
(75)   In light of the above, the Commission considers that the implementation of an
       input foreclosure strategy by DP World in Romania or in France post-Transaction
       would be unlikely to have a negative effect on competition.
       Conclusion
(76)   Based on the above considerations and all evidence available to it, the
       Commission concludes that an input foreclosure strategy post-Transaction by DP
       World in order to exclude Unifeeder's competitors purchasing container terminal
       services in Romania and France is unlikely.
70 Replies to Q1 – Questionnaire to market participants, questions 8 and 8.1.
71 Non-Horizontal Merger Guidelines, paragraph 47.
72 Form CO, paragraph (198); and Replies to Q1 – Questionnaire to market participants, questions 1 and
   10.
73 Replies to Q1 – Questionnaire to market participants, question 10.
74 Replies to Q1 – Questionnaire to market participants, question 11.
                                                      18
 ---pagebreak--- 5.3.2. Customer foreclosure
5.3.2.1.    DP World's views
(77)    DP World submits that the Transaction does not give rise to any customer
        foreclosure concern in Romania or France.75
5.3.2.2.    The Commission's assessment
(78)    Customer foreclosure may occur when a supplier integrates with an important
        customer in the downstream market. Because of this downstream presence, the
        merged entity may foreclose access to a sufficient customer base to its actual or
        potential rivals in the upstream market (the input market) and reduce their ability
        or incentive to compete. In turn, this may raise downstream rivals' costs by
        making it harder for them to obtain supplies of the input under similar prices and
        conditions as absent the merger. This may allow the merged entity profitably to
        establish higher prices on the downstream market.76
(79)    The Commission notes that Unifeeder's volumes account for a minimal proportion
        of the cargo handled on all legs of trade involving Romania and France
        (Unifeeder's shares of door-to-door multimodal transport services and feeder
        services are below 10% on all legs of trade).77 More generally, Unifeeder's
        volumes loaded and discharged in Romania in 2017 accounted for less than [0-
        5]% of the total volume for container terminal services in Romania. 78 In France,
        Unifeeder's volumes account for close to [0-5]% of the total business of terminal
        service operators.79
(80)    Based on the above considerations and all evidence available to it, the
        Commission concludes that a customer foreclosure strategy post-Transaction by
        Unifeeder in order to reduce the ability or incentive of DP World's rivals to
        compete on the market for container terminal services in Romania and France is
        unlikely.
 5.4. Assessment of the vertically affected markets in relation to LoLo short-sea
        shipping services between Germany and the United Kingdom, and between
        Poland and the United Kingdom
(81)    The Commission will assess in this section whether the Transaction could lead to
        (i) input foreclosure, pursuant to which DP World would foreclose Unifeeder's
        competitors by restricting access to or deteriorating the quality of the container
        terminal services that it provides to Unifeeder's competitors in Germany, Poland
        or the United Kingdom; or (ii) customer foreclosure, pursuant to which Unifeeder
        would foreclose DP World's competitors by sourcing its container terminal
        services requirements in Germany, Poland or the United Kingdom mostly or
        exclusively from DP World.
75  Form CO, Annex 9, paragraphs (6)(b) and (7)(b).
76  Non-Horizontal Merger Guidelines, paragraph 58.
77  See Table 1 above.
78  Form CO, Annex 9, paragraph (6)(b) .
79  Form CO, Annex 9, paragraph (7)(b) .
                                                    19
 ---pagebreak--- 5.4.1. Input foreclosure
5.4.1.1.   DP World's views
(82)    DP World submits that the merged entity does not have the ability or incentive to
        attempt to restrict or deteriorate services to Unifeeder's short-sea rivals at its
        United Kingdom ports.80
5.4.1.2.   The Commission's assessment
(83)    First, DP World does not own or operate container terminals in Poland or
        Germany.81 It would therefore be impossible for the merged entity to foreclose
        access of Unifeeder's rivals to container terminal services in those countries.
(84)    In the United Kingdom (the narrowest plausible geographic scope), where DP
        World operates the London Gateway London and Southampton terminals, DP
        World holds a share for the market for container terminal services of no more
        than [20-30]%, under any plausible product market definition. Therefore, DP
        World likely lacks market power on the upstream market and would thus likely be
        unable to engage in an input foreclosure strategy post-Transaction.
(85)    In addition, according to DP World, short-sea liners rarely call at London
        Gateway and Southampton, which are large transhipment hub ports, due to
        [information relating to DP World’s ports].82
(86)    As a consequence, if DP World were to put in place an input foreclosure strategy,
        Unifeeder's short-sea shipping rivals could and would start calling at alternative
        ports in the United Kingdom, such as Felixstowe, Hull, Teesport, Immingham, or
        Grangemouth.
(87)    Based on the above considerations and all evidence available to it, the
        Commission concludes that an input foreclosure strategy post-Transaction by DP
        World in order to exclude Unifeeder's competitors purchasing container terminal
        services in Germany, Poland or the United Kingdom is unlikely.
5.4.2. Customer foreclosure
5.4.2.1.   DP World's views
(88)    DP World submits that the merged entity does not have the ability or incentive to
        attempt to foreclose DP World's terminal services rivals by shifting Unifeeder's
        volumes to DP World's ports.83
80  Form CO, Annex 9, paragraph 10.
81  Form CO, Annex 9, paragraph 11.
82  Form CO, Annex 9, paragraph 12.
83  Form CO, Annex 9, paragraph (19).
                                                 20
 ---pagebreak--- 5.4.2.2.    The Commission's assessment
        Ability to foreclose
(89)    For customer foreclosure to be a concern, it must be the case that the vertical
        merger involves a company which is an important customer with a significant
        degree of market power in the downstream market. If, on the contrary, there is a
        sufficiently large customer base, at present or in the future, that is likely to turn to
        independent suppliers, the Commission is unlikely to raise competition concerns
        on that ground.84
(90)    The Commission notes that Unifeeder's market share for LoLo short-sea shipping
        services exceeds 30% on legs of trade from Germany to the United Kingdom
        ([70-80]%) and vice versa ([60-70]%); and from Poland to the United Kingdom
        ([40-50]%) and vice versa ([40-50]%).85 Nevertheless, Unifeeder's short-sea
        volumes at any port in the United Kingdom competing with DP World's ports are
        small.86 Even considering Unifeeder's total volumes (not only short sea volumes),
        Unifeeder accounts for [proportion] of the total volumes at any port in the United
        Kingdom.
(91)    In light of the above, the Commission considers that Unifeeder will likely not
        have the ability to engage in a customer foreclosure strategy in the United
        Kingdom post-Transaction.
        Incentive to foreclose
(92)    The incentive to foreclose depends on the degree to which it is profitable. The
        merged entity faces a trade-off between the possible costs associated with not
        procuring products from upstream rivals and the possible gains from doing so, for
        instance, because it allows the merged entity to raise price in the upstream or
        downstream markets.87
(93)    As explained in paragraph (85) above, according to DP World, [information
        relating to DP World’s ports]. It is hence unlikely that post-Transaction the
        merged entity would try to switch all of Unifeeder's volumes to DP World's
        terminals. Indeed, in doing so, the merged entity would, on the one hand, risk
        losing customers of short-sea shipping services, as the latter would be unwilling
        [information relating to DP World’s ports]. In that regard, with respect to the legs
        of trade between Germany and the United Kingdom, and between Poland and the
        United Kingdom, the majority of respondents to the market investigation have
        indicated that it is relatively easy for customers of short-sea services to switch to
84  Non-Horizontal Merger Guidelines, paragraph 61.
85  See Table 2 above.
86  Unifeeder's short-sea volumes account for [0-5]% of the total port volumes at Felixstowe (which
    primarily competes with the nearby ports where DP World operates terminals), [0-5]% at
    Grangemouth, [20-30]% at Immingham, [0-5]% at South Shields/Tyne and [5-10]% at Teesport (Form
    CO, Annex 9, paragraph 23).
87  Non-Horizontal Merger Guidelines, paragraph 68.
                                                    21
 ---pagebreak---         other short-sea providers, but also to alternative transport services, such as truck,
        and potentially rail.88
(94)    On the other hand, the merged entity would have limited benefits (such as
        increased volumes) on the upstream market, because Unifeeder's short sea
        volumes are very small.
(95)    It is therefore likely that, in pursuing a customer foreclosure strategy in the United
        Kingdom, the merged entity would incur losses on the downstream market,
        without corresponding benefit, hence profit, in the upstream market.
(96)    The market investigation has confirmed the above conclusions with regard to
        Unifeeder's lack of ability or incentive to successfully implement a customer
        foreclosure strategy. The majority of the respondents who have expressed an
        opinion stated that Unifeeder would not have the ability and the incentive to
        foreclose DP World's rivals from a sufficient customer base in the EEA, by, for
        example, sourcing all the container terminal services it needs from DP World and
        stopping or reducing its purchases of container terminal services from DP World's
        rivals.89
(97)    In light of the above, the Commission considers that Unifeeder is unlikely to have
        an incentive to engage in a customer foreclosure strategy in the United Kingdom
        post-Transaction.
        Overall effect of foreclosure
(98)    It is only when a sufficiently large fraction of upstream output is affected by the
        revenue decreases resulting from the vertical merger that the merger may
        significantly impede effective competition on the upstream market. If there
        remain a number of upstream competitors that are not affected, competition from
        those firms may be sufficient to prevent prices from rising in the upstream market
        and, consequently, in the downstream market.90
(99)    The Commission considers that, even Unifeeder's short-sea volumes were re-
        routed to DP World's terminals in the United Kingdom, this would have a limited
        impact on the level of use of the capacity of DP World's terminal rivals, hence on
        their competitiveness and on the competitiveness of short-sea shipping providers
        competing with Unifeeder.
(100) When asked about the possible impact of the Transaction on their business, the
        majority of the respondents to the market investigation who have expressed an
88 Replies to Q1 – Questionnaire to market participants, question 6.
89 Replies to Q1 – Questionnaire to market participants, question 9. One respondent nevertheless
   indicated that "access to Unifeeder's contracts with its competitors would give DP World knowledge of
   their competitor's pricing as well as commercial terms of business giving them an advantage when
   competing for contestable business not enjoyed by the competing terminal" and, as a consequence, the
   Transaction will have a negative impact (higher prices, lower quality of services, less innovation, etc.)
   on the provision of container terminal services in the EEA (reply of a market participant to Q1 –
   Questionnaire to market participants, question 9.2). The Commission considers that, on balance, access
   of DP World to confidential information held by Unifeeder will not give DP World a sufficient
   advantage to foreclose competing container terminal operators.
90 Non-Horizontal Merger Guidelines, paragraph 72.
                                                        22
 ---pagebreak---         opinion have stated that they do not foresee any negative or significant impact on
        their company.91 Moreover, none of the respondents have raised substantial
        concerns regarding the overall impact of the Transaction on the provision of
        container terminal services or container shipping services in the EEA.92
(101) In light of the above, the Commission considers that the implementation of a
        customer foreclosure strategy by Unifeeder in the United Kingdom post-
        Transaction would likely have no overall negative effect on effective competition.
        Conclusion
(102) Based on the above considerations and all evidence available to it, the
        Commission concludes that a customer foreclosure strategy post-Transaction by
        Unifeeder in order to exclude DP World's competitors selling container terminal
        services in Germany, Poland or the United Kingdom is unlikely.
 5.5. Assessment of the vertically affected markets in relation to feeder services
        between Denmark and hub ports, between Sweden and hub ports, between
        Norway and the Netherlands, between Latvia and the Netherlands, between
        Lithuania and the Netherlands, and between Egypt and Cyprus
(103) The Commission will assess in this section whether the Transaction could lead to
        (i) input foreclosure, pursuant to which DP World would foreclose Unifeeder's
        competitors by restricting access to or deteriorating the quality of the container
        terminal services that it provides to Unifeeder's competitors at Northern European
        hub ports, in Norway, Latvia, Lithuania, the Netherlands, or Cyprus; or (ii)
        customer foreclosure, pursuant to which Unifeeder would foreclose DP World's
        competitors by sourcing its container terminal services requirements at Northern
        European hub ports, in Norway, Latvia, Lithuania, the Netherlands, or Cyprus
        mostly or exclusively from DP World.
5.5.1. Input foreclosure
5.5.1.1.    DP World's views
(104) DP World submits that the merged entity does not have the ability or incentive to
        attempt to restrict or deteriorate services to Unifeeder's feeder rivals at any
        Northern European hub ports, in Norway, Latvia, Lithuania, the Netherlands, or
        Cyprus.93
91  Replies to Q1 – Questionnaire to market participants, question 10.
92  Replies to Q1 – Questionnaire to market participants, question 11.
93  Form CO, paragraph 180, and Annex 9, paragraphs 31 and 34.
                                                       23
 ---pagebreak--- 5.5.1.2.     The Commission's assessment
(105) First, DP World does not own or operate container terminals in Norway, Latvia or
         Lithuania.94 It would therefore be impossible for the merged entity to foreclose
         access of Unifeeder's rivals to container terminal services in those countries.
(106) In Northern Europe, DP World operates five terminals receiving feeder volumes:
         (i) Antwerp Gateway (Belgium), (ii) Le Havre (France), (iii) Rotterdam (the
         Netherlands), (iv) London Gateway (the United Kingdom), and (v) Southampton
         (the United Kingdom). In Cyprus, DP World operates a terminal at Limassol. In
         relation to these terminals, DP World's market shares never exceed 30% under
         any plausible product or market definition, even under the narrowest geographic
         market definition, that is to say the catchment area comprising national ports
         only.95 In that respect, for Northern Europe, DP World faces competition from a
         number of alternative terminals and ports with spare capacity in Belgium, France,
         and the Netherlands.96 For Cyprus, DP World's terminal processes [0-5]% of
         volumes going to and from Cyprus.97 Hence, if DP World decided to foreclose
         Unifeeder's rivals, the latter could and would start procuring container terminal
         services from those competing terminals.
(107) Therefore, DP World likely lacks market power on the upstream market and
         would thus likely be unable to engage in an input foreclosure strategy post-
         Transaction.
(108) Moreover, as explained in paragraph (59) above, at hub ports, DP World does not
         have a direct relationship with feeder services providers, which limits DP World's
         ability to favour Unifeeder or to disadvantage third-party feeder operators.98
(109) Besides, as explained in paragraphs (62) to (71) above, DP World has likely no
         incentive to foreclose Unifeeder's rivals.
(110) In addition, according to DP World, a number of liners and feeder providers do
         not currently call at DP World's terminals. They would therefore not be
         disadvantaged by an input foreclosure strategy.99 As a consequence, sufficient
         competition would remain on the downstream market for feeder services to
         prevent Unifeeder from raising prices or degrading the quality of its services post-
         Transaction.
94  Form CO, Annex 9, paragraph 31. With regard to Egypt, DP World does have a port in Egypt
    (Sokhna), but it is located on the other side of the Suez Canal. Accordingly, it does not receive feeder
    volumes travelling between Cyprus and Egypt (Form CO, Annex 9, paragraph 34).
95  See Table 3 above.
96  Form CO, paragraph 160, and Annex 9, paragraph 31.
97  Form CO, Annex 9, paragraph 34.
98  With regard to the possibility for DP World to grant Unifeeder operation priority as referred to in
    paragraph (57) above, DP World notes that, among the Northern European hub ports where it operates,
    it faces congestion issues only at Rotterdam and, to a lesser extent, at Antwerp Gateway (Form CO,
    paragraph (167)).
99  Form CO, paragraph 173, and Annex 9, paragraph 34.
                                                          24
 ---pagebreak--- (111) Based on the above considerations and all evidence available to it, the
        Commission concludes that an input foreclosure strategy post-Transaction by DP
        World in order to exclude Unifeeder's competitors purchasing container terminal
        services at Northern European hub ports, in Norway, Latvia, Lithuania, the
        Netherlands, or Cyprus is unlikely.
5.5.2. Customer foreclosure
5.5.2.1.   DP World's views
(112) DP World submits that the merged entity does not have the ability or incentive to
        attempt to foreclose DP World's terminal services rivals by shifting Unifeeder's
        volumes to DP World's ports.100
5.5.2.2.   The Commission's assessment
        Ability to foreclose
(113) As indicated in paragraph (89) above, in assessing the ability to engage in a
        customer foreclosure strategy, the Commission takes into account whether there
        are sufficient operators in the downstream markets to which upstream
        undertakings could offer their services.101
(114) The Commission notes that the Unifeeder's market shares for feeder services
        remain moderate (between [30-40]% and [40-50]%) on legs of trades between
        Denmark and hub ports ([30-40]%), Sweden and hub ports ([30-40]%), Norway
        and the Netherlands ([30-40]%), Latvia and the Netherlands ([40-50]%),
        Lithuania and the Netherlands ([40-50]%). On the legs of trade from Cyprus to
        Egypt and from Egypt to Cyprus, Unifeeder's market shares are higher ([60-70]%
        and [70-80]%, respectively).102 Nevertheless, Unifeeder's feeder volumes only
        account for a very small proportion of the container terminal business of DP
        World's rivals. Based on an assessment by DP World of Unifeeder's volumes at
        competing terminals located at hub ports in Northern Europe, Unifeeder
        accounted in 2017 for [10-20]% of the total volumes at all relevant ports.103 In
        Cyprus, Unifeeder's volumes account for a small proportion of rival terminal
        capacity ([10-20]% of the total volumes at the Eurogate terminal).104
(115) In addition, as pointed out by DP World, Unifeeder does not have discretion or
        control over which terminal it calls at: the origin or destination hub port is
        determined by deep sea liners, not feeder providers, while the origin or
        destination outport is determined by the freight forwarder or the beneficial cargo
        owner.105 In that respect, one respondent to the market investigation confirmed
        that "generally the main line operator drives the feeder calls rather than the other
100 Form CO, paragraph (180), and Annex 9, paragraphs (33) and (35).
101 Non-Horizontal Merger Guidelines, paragraph 61.
102 See Table 3 above.
103 Form CO, paragraph 185.
104 Form CO, Annex 9, paragraph 35.
105 Form CO, paragraph 187.
                                                    25
 ---pagebreak---         way around". Another underlined that Unifeeder does not carry "enough volumes
        to dictate where [its] customers should go, especially the deep-sea liners carriers
        will have enough leverage."106
(116) In light of the above, the Commission considers that Unifeeder is unlikely to have
        the ability to engage in a customer foreclosure strategy in Belgium, France, the
        Netherlands, the United Kingdom, or Cyprus post-Transaction.
        Incentive to foreclose
(117) As indicated in paragraph (92) above, the incentive to foreclose depends on the
        degree to which it is profitable.107
(118) Should Unifeeder decide to procure container terminal services only from DP
        World post-Transaction, it is likely that liner shipping companies would simply
        stop procuring feeder services from Unifeeder and either bring feeder volumes in-
        house or switch to other feeder providers. This has been confirmed, overall, by
        the majority of the respondents to the market investigation who have expressed an
        opinion.108
(119) Some respondents nevertheless indicated that it would be relatively difficult for
        customers of feeder services in the EEA (liner shippers) to switch providers or to
        bring the feeder volumes in-house on the legs from Denmark to Northern
        European hub ports and from Sweden to Northern European hub ports. However,
        the Commission notes that, on the Denmark to/from hub ports trade, Unifeeder
        competes on the market for feeder services with notably MSC ([20-30]% in 2017)
        and SeaGo ([10-20]% in 2017). On the Sweden to/from hub ports trade,
        Unifeeder mainly competes with MSC ([30-40]% in 2017), and X-Press ([10-
        20]%).109 In addition, one of the respondents to the market investigation
        confirmed that post-Transaction there will be enough feeder operators to ensure
        healthy competition in the market.110
(120) It is therefore likely that, in pursuing a customer foreclosure strategy in Belgium,
        France, the Netherlands, the United Kingdom, or Cyprus, the merged entity
        would likely incur losses in the downstream market, with no prospect of
        increasing volumes and revenues in the upstream market.
(121) Moreover, as highlighted in paragraph (96) above, the majority of the respondents
        to the market investigation who have expressed an opinion stated that Unifeeder
        would not have the ability and the incentive to foreclose DP World's rivals from a
        sufficient customer base in the EEA, by, for example, sourcing all the container
106 Replies to Q1 – Questionnaire to market participants, questions 9 and 9.1.
107 Non-Horizontal Merger Guidelines, paragraph 68.
108 Replies to Q1 – Questionnaire to market participants, question 7.1.
109 Form CO, paragraph 219.
110 Reply of a market participant to Q1 – Questionnaire to market participants, question 10.
                                                       26
 ---pagebreak---          terminal services it needs from DP World and stopping or reducing its purchases
         of container terminal services from DP World's rivals.111
(122) In light of the above, the Commission considers that Unifeeder will likely not
         have an incentive to engage in a customer foreclosure strategy in Belgium,
         France, the Netherlands, the United Kingdom, or Cyprus post-Transaction.
         Overall effect of foreclosure
(123) As indicated in paragraph (98) above, if there remain a number of upstream
         competitors that are not affected, competition from those firms may be sufficient
         to prevent prices from rising in the upstream market and, consequently, in the
         downstream market.112
(124) The Commission considers that, even Unifeeder's feeder volumes were re-routed
         to DP World's terminals in Belgium, France, the Netherlands, the United
         Kingdom, or Cyprus, this would have a limited impact on the level of use of the
         capacity of DP World's terminal rivals, hence on their competitiveness and on the
         competitiveness of feeder providers competing with Unifeeder.
(125) When asked about the possible impact of the Transaction on their business, the
         majority of the respondents to the market investigation who have expressed an
         opinion have stated that they do not foresee any negative or significant impact on
         their company.113 Moreover, none of the respondents have raised substantial
         concerns regarding the overall impact of the Transaction on the provision of
         container terminal services or container shipping services in the EEA.114
(126) In light of the above, the Commission considers that the implementation of a
         customer foreclosure strategy by Unifeeder in Belgium, France, the Netherlands,
         the United Kingdom, or Cyprus post-Transaction would likely have no overall
         negative effect on effective competition.
 5.6. Conclusion
(127) Based on the above considerations and all evidence available to it, the
         Commission concludes that the Transaction does not raise serious doubts as to its
         compatibility with the internal market due to vertical effects.
111 Replies to Q1 – Questionnaire to market participants, question 9. One respondent nevertheless
    indicated that "access to Unifeeder's contracts with its competitors would give DP World knowledge of
    their competitor's pricing as well as commercial terms of business giving them an advantage when
    competing for contestable business not enjoyed by the competing terminal" and, as a consequence, the
    Transaction will have a negative impact (higher prices, lower quality of services, less innovation, etc.)
    on the provision of container terminal services in the EEA (reply of a market participant to Q1 –
    Questionnaire to market participants, question 9.2). The Commission considers that, on balance, access
    of DP World to confidential information held by Unifeeder will not give DP World a sufficient
    advantage to foreclose competing container terminal operators.
112 Non-Horizontal Merger Guidelines, paragraph 72.
113 Replies to Q1 – Questionnaire to market participants, question 10.
114 Replies to Q1 – Questionnaire to market participants, question 11.
                                                         27
 ---pagebreak--- 6.    CONCLUSION
(128) 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
                                             28