CELEX: 32013M6924
Language: en
Date: 2013-10-04 00:00:00
Title: Commission Decision of 04/10/2013 declaring a concentration to be compatible with the common market (Case No COMP/M.6924 - REFRESCO GROUP / PRIDE FOODS) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

|[pic]                             |EUROPEAN COMMISSION                                                                                      |

Brussels, 04/10/2013
C(2013) 6633

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Dear Sir/Madam,

Subject:    Case No COMP/M.6924 - Refresco Group/ Pride Foods
Commission decision pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/2004[1]

 1) On 16 August 2013, the European Commission received notification of a proposed concentration pursuant to Article 4 of the Merger  Regulation
    by which the undertaking Refresco Group B.V. ("Refresco", the Netherlands) acquires within the meaning of  Article  3(1)(b)  of  the  Merger
    Regulation sole control of the whole of Pride Foods Ltd ("Pride Foods", UK), which trades under the name "Gerber Emig", by way  of  purchase
    of shares.[2] Pride Foods is hereinafter referred to as "the Target" or "Gerber Emig", Refresco and the Target are hereinafter  referred  to
    as "the Parties", and Refresco is hereinafter referred to as "the Notifying Party".

The Parties

 2) Refresco is a Dutch company with production facilities in the Netherlands, Belgium, Finland, France, Germany, Italy, Poland, Spain  and  the
    UK. It produces and bottles private label non-alcoholic beverages ("NABs") for retailers and contract manufactures NABs  for  brand  owners.
    Refresco's range of NABs includes carbonated soft drinks ("CSDs"), fruit and vegetable juices, fruit drinks, sports  drinks,  sparkling  and
    still mineral water, ready-to-drink ("RTD") teas, and energy drinks. Refresco also owns the children's drink brand  "Wicky"  as  well  as  a
    number of private label equivalent brands.

 3) Pride Foods is a UK company with production facilities in the UK, Germany, France and Poland. Pride Foods trades under the name Gerber Emig.
    It produces and bottles private label non-carbonated soft drinks ("NCSDs") for retailers and contract manufactures NCSDs for  brand  owners,
    mainly fruit juices and still drinks, flavoured water and RTD teas. Pride Foods also has limited activities in the production  and  sale  of
    own brand juices and juice drinks.

The OperatIon AND THE CONCENTRATION

 4) On 15 April 2013, the Parties signed a merger agreement according to which Refresco will acquire the entire issued share  capital  of  Pride
    Foods. In consideration for the Pride Food shares, Tamoa Ltd ("Tamoa"), the current 100% parent company of Pride  Foods,  will  receive  new
    shares in Refresco. Refresco will also issue new shares to its current majority shareholder Ferskur Holding 1 B.V. ("Ferskur").

 5) Refresco is currently owned by the Icelandic consortium Ferskur, private equity house 3i and current and former management.  Ferskur  has  a
    shareholding of […]*%, 3i has a shareholding of […]*% and the management holds […]*%. […]*, Ferskur has sole control  over  Refresco.  […]*.
    According to the Parties, Ferskur is controlled by Stodir Hf. ("Stodir") via its shareholding of […]*% in Ferskur. The other shareholders in
    Ferskur comprise Kaupthing Bank Hf. ([…]*%) and EAB 1 EHF ([…]*%). […]*.[3]

 6) Post transaction, Refresco's shareholding structure will change following the  issuance  of  the  new  shares.  The  voting  rights  of  the
    shareholders will be as follows: Ferskur […]*%, 3i[4] […]*%, management […]*% (comprising Okil Holding B.V. […]*% and Godetia II B.V. […]*%)
    and Tamoa […]*%. According to the Parties, Ferskur will continue to have sole control over Refresco for the following reasons: […]*.[5][…]*.
    The Commission considers that given these facts, Ferskur will continue to solely control Refresco post-merger.

 7) The notified operation therefore constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation.

EU DIMENSION

 8) The Parties' combined worldwide turnover in 2012 was EUR 2.37 billion. Therefore the thresholds of Article 1 of the EU Merger Regulation are
    not met since the Parties' combined worldwide turnover does not exceed EUR 2,500 million.

 9) However, on 22 May 2013, the Notifying Party informed the Commission in a reasoned submission that the concentration was  capable  of  being
    reviewed under the national competition laws of five Member States (France, Germany, the Netherlands, Poland and  the  United  Kingdom)  and
    requested the Commission to examine the transaction. None of the Member States that were competent to examine  the  concentration  indicated
    its disagreement with the request for referral within the period laid down by the Merger Regulation. The notified operation therefore has an
    EU dimension pursuant to Article 4(5) of the EC Merger Regulation.

RELEVANT MARKETS

1 Introduction

10) The proposed transaction primarily concerns the production and bottling of NCSDs, such as  fruit  juices,  juice  drinks  &  nectars,  still
    drinks, ready-to-drink (RTD) teas and water. The Parties produce and bottle these NCSDs both for retailers (private label products) and  for
    brand owners through contract manufacturing (branded products). As such, the Parties are active at the intermediary level,  between  on  the
    one hand the drink ingredient suppliers and on the other hand retailers and brand owners (e.g.  […]*).  There  is  no  Commission  precedent
    assessing the bottling of NCSDs for third parties. Precedents exist only for the  upstream  markets  of  juice  concentrates  and  packaging
    materials/equipment or the supply of branded NABs by brand owners to retailers.

11) NABs can be broadly divided into CSDs and NCSDs. NCSDs include (i) 100% fruit juices  ("fruit  juices"),  including  both  from  concentrate
    ("FC") and not from concentrate ("NFC") fruit juices, (ii) juice drinks and nectars, having a juice content of at least 25% ("juice drinks &
    nectars"), (iii) still drinks, which are non-carbonated RTD products with fruit or non-fruit flavour (in case of fruit flavour, with a fruit
    content of less than 25%), (iv) non-carbonated RTD teas, (v) packaged water and (vi)  "others",  including  energy  drinks,  sports  drinks,
    squashes and syrups, where the activities of the Parties do not overlap.

12) The market investigation focused on the differentiation between: (i) CSDs and NCSDs; (ii) production and bottling of private label NCSDs and
    contract manufacturing branded NCSDs; (iii) types of packaging, in particular carton and aseptic PET; and (iv) types of NCSDs, in particular
    whether a separate market exists for water and RTD tea. Other factors which may affect market definitions such as  the  differences  between
    aseptic and non-aseptic or ambient and chilled production process or the sizes of packaging were also investigated.

2 Product market definitions

1 Carbonated soft drinks (CSDs) vs. non-carbonated soft drinks (NCSDs)

13) The Commission has previously considered a distinction between the supply to retailers of CSDs and NCSDs.[6] The Commission  indicated  that
    NCSDs could be segmented into mineral waters, fruit juices, RTD teas and energy and sports drinks,  although  ultimately  left  it  open,[7]
    apart from the distinction between water and other NABs.[8] CSDs are not relevant in the present case, as Gerber Emig is not active in  this
    segment.

14) The market investigation confirms that CSDs and NCSDs belong to separate markets, both from a demand (differences in prices,  taste,  target
    groups and end-use)[9] and a supply-side perspective (CSDs tend to be produced non-aseptically; they are not bottled in carton and  tend  to
    use different bottling lines from juices)[10].

15) In view of the above and for the purpose of this Decision, CSDs and NCSDs are considered as belonging to separate markets.

2 Types of NCSDs

16) The Commission, in previous decisions, indicated that NCSDs could be segmented into mineral waters, fruit juices, RTD teas  and  energy  and
    sports drinks, although ultimately left it open,[11] apart from the distinction between water and other NABs.[12]

17) The market investigation focused on assessing the relevance of defining separate markets for some or all of the categories  of  NCSDs  where
    the Parties' activities overlap (NFC/FC fruit juices, juice drinks and nectars, still drinks, RTD teas and water).

18) The Parties submit that a segmentation based on different types of NCSDs, including NFC and FC is not appropriate. The  Parties  also  argue
    that RTD teas can be produced by the numerous bottlers of water on their non-aseptic PET lines if preservatives are added.  Consumers  would
    not see a sufficiently significant distinction between RTD tea with preservatives in non-aseptic PET and RTD tea  without  preservatives  in
    aseptic PET for there to be a significant difference in price at consumer and at wholesale level. Therefore, a market for RTD tea would need
    to comprise water producers with non-aseptic PET lines.

19) As regards different types of NCSDs, the market investigation strongly suggests that water and RTD teas belong to separate markets.[13] From
    a supply-side perspective, water is generally bottled on different lines than other NCSDs (with a smaller cap size similar to CSDs) and,  as
    some competitors explained, "a producer of RTD tea in aseptic PET can bottle fruit juices but only with an  important  investment  in  juice
    treatment machinery/blend units". Fruit related products require different raw materials, know-how and special tanks.[14]

20) Regarding the precise market definition for RTD tea, an overwhelming majority of retailers consider RTD tea as different products from other
    NCSDs (different prices, consumption habits, targeted consumer groups)[15]. With regards to supply-side substitutability […]*, it should  be
    noted that RTD tea requires aseptic filling while water requires non-aseptic filling. The Parties argue that RTD teas can be produced by the
    numerous bottlers of water on their non-aseptic PET lines if preservatives are added. However, based on the capacity data of the Parties and
    the competitors, all of the volumes of RTD tea in Germany, for example, are bottled on an aseptic line. It can therefore be  concluded  that
    RTD teas and water belong to separate markets.

21) Regarding still drinks, the evidence is mixed. Retailers consider them as different products from other NCSDs[16] but it is unclear  whether
    there is supply-side substitutability with juices and nectars since this may depend on the juice content of the still drink  (which  appears
    to be a broad category). Suppliers indicated that quality and know-how may affect the ability to produce a good quality product,  especially
    for juice and juice drinks & nectars, thus making entry more difficult into these segments as opposed to still drinks.[17]

22) With respect to NFC and FC juices, most retailers indicated that these are considered potential alternatives by end-consumers since many  of
    them do not distinguish between the two categories. Furthermore, NFC and FC juices are often tendered together and there are no  significant
    differences in the production and bottling equipment.[18] That being said, the majority of retailers indicated that they would  be  unlikely
    to switch from NFC to FC following a price increase of 5-10% since retailers want to offer the whole assortment to their customers.[19]

23) In view of the above and for the purpose of this Decision, water and RTD tea are considered as belonging to separate markets.

3 Types of packaging and production processes

1 Types of packaging

24) According to the Notifying Party, NABs can be packaged in different types of packaging: plastic bottles (including PET,  PP  and  HDPE)  and
    glass bottles, cartons and cans. Although bottling lines are intended for one specific type of packaging, the Notifying Party  submits  that
    due to the fact that most bottlers offer the full range of packaging, have different bottling lines and can easily add a new production line
    to their facilities, the relevant markets should not be further divided by types of packaging.

25) Commission precedents[20] point to separate upstream markets for the procurement of carton and PET packaging, as well as for carton and  PET
    filling machines, which constitute the main elements of the respective bottling lines.[21] The Parties' activities only overlap  as  regards
    NCSDs bottled in carton and PET packaging.

26) The market investigation confirms that carton and aseptic PET belong to separate markets. From a  supply-side  perspective,  the  production
    lines for carton and aseptic PET are different and switching from one type of packaging line to another would involve cost, time  and  know-
    how. As regards demand-side substitutability, while there may be some limited demand-side substitution between carton and aseptic PET, it is
    likely to be from carton to PET rather than vice versa.[22] Moreover, retailers tend to consider that different consumers  prefer  different
    formats and therefore each packaging format has its own particular demand and  the  retailers  therefore  require  a  varied  assortment  of
    packaging formats.

27) In view of the above and for the purpose of this Decision, carton and aseptic PET are considered as belonging to separate markets.

2 Sizes of packaging

28) In respect of aseptic PET, there is clear supply-side substitutability in terms of sizes of bottles since aseptic PET  lines  can  generally
    produce many different sizes without the need to incur high switching costs or time delays (this is done by changing the bottle mould used).
    Although from a demand-side perspective there is separate demand for different sizes, given the easy supply-side substitutability, it is not
    necessary to distinguish between different aseptic PET bottle sizes.

29) As regards carton packaging, there may be some supply-side substitutability between a number of sizes  in  that  certain  carton  lines  can
    produce different sizes. Again, from a demand-side perspective there seems to be separate demand for example between  1  litre  cartons  and
    e.g. 0.25 litre cartons. However, given that different carton lines may have different size capabilities, and that most carton manufacturers
    appear to be present across all sizes, it is not necessary to differentiate between sizes for the purposes of  the  competitive  assessment.

    3 Aseptic vs. non-aseptic production processes

30) Aseptic bottling processes produce beverages by using a sterile filling process  at  ambient  temperature  (i.e.  cold-aseptic,  sterile  or
    beverage-sterile processes, including hot-filled processes), resulting in a microbiologically  sterile  product  (e.g.  pasteurized  organic
    products) with a shelf life of approximately 6-12 months (e.g. ambient juices, nectars and juice drinks, still drinks, RTD teas  and  sports
    drinks).

31) Non-aseptic bottling processes produce beverages by using a non-aseptic filling process, which may include products  with  preservatives  in
    order to ensure a longer shelf life (approximately 30-90 days), as well as carbonated products or products that do  not  contain  perishable
    contents, such as bottled water. Some non-aseptic processes sometimes involve a degree of pasteurisation.

32) The Notifying Party submits that aseptic and non-aseptic productions belong to the same market since both types of processes  use  the  same
    production and bottling lines.

33) Contrary to the Notifying Party' view, the Commission in Tetra Laval/Sidel[23] indicated that  there  is  no  supply-side  substitutability,
    since aseptic and non-aseptic machines use very different technology with aseptic machines being much  more  expensive  and  complicated  to
    operate. Commission precedents also indicate that shelf life and product taste  may  be  affected  by  the  production  process  chosen,[24]
    therefore limiting demand-side substitutability.

34) According to the market investigation, there is no supply-side substitutability between aseptic and non-aseptic  PET.  Although  non-aseptic
    NCSDs can be manufactured on an aseptic line (but not vice-versa), this is irrelevant given that the vast majority of demand is  focused  on
    aseptic PET for NCSDs other than water and some RTD teas.[25] Moreover, retailers and brand owners both confirmed that they would not switch
    their purchases from aseptic to non-aseptic NCSDs because of the shelf-life implications and use of preservatives.

35) In view of the above and for the purpose of this Decision, aseptic and non-aseptic production  processes  are  considered  as  belonging  to
    separate markets.

4 Ambient vs. chilled production processes

36) Ambient products are produced and bottled according to production processes ensuring their stability in ambient conditions  (shelf  life  of
    more than 15 days). Ambient perishable products without preservatives therefore undergo a pasteurisation process to achieve  microbiological
    sterility, and are filled/packed into aseptic finished packaging in sterile  conditions  eliminating  any  risk  of  contamination.  Ambient
    products may also include products that may be marketed as chilled by retailers but which did not go through a chilled production line.

37) Chilled products, on the other hand, are often, but not necessarily pasteurised. When they are pasteurised, the pasteurisation duration  and
    temperature is less intense such that the products are not microbiologically sterile but, if kept in chilled conditions, remain in a  usable
    condition for their shelf life. The product is transferred from the pasteuriser and packed into finished packaging in conditions that do not
    need to be fully sterile, but which require refrigeration.

38) The Notifying Part submits that chilled and ambient products are substitutable, at least from a demand-side perspective.

39) The market investigation was inconclusive as to whether ambient and chilled NCSDs could be considered as  alternatives  from  a  demand-side
    perspective.[26] However, supply-side substitutability appears to be minimal. First, although it is possible to bottle ambient products on a
    chilled production line, this would entail investing in aseptic filling. Second, chilled products tend to be more  expensive  and  there  is
    therefore a clear lack of incentives for those having chilled production lines to start producing ambient products  on  them.  Finally,  the
    management of a chilled supply chain requires specific know-how and entails significant costs.[27]

40) In view of the above and for the purpose of this Decision, ambient and chilled NCSDs are to be considered as belonging to separate markets.

4 Production and bottling of private label NCSDs vs. contract manufacturing of branded NCSDs

41) The Notifying Party submits that the relevant market consists of the supply of all NABs (branded and private label) to retailers  (including
    supply by captive bottlers owned by the retailers and brand owners themselves).[28] According to the Notifying Party, this is in  particular
    due to the fact that private label and branded products exert competitive pressure on each other both in terms of price[29] and shelf space.

42) The Notifying Party submits that an alternative possible market definition would encompass the bottling  of  NABs  by  independent  bottlers
    (i.e. excluding captive bottling by brand owners and retailers), comprising both (i) the bottling of private label NABs  for  retailers  and
    (ii) the bottling of NABs for brand owners (contract manufacturing or co-packing). The Notifying Party submits  that  these  two  activities
    should be considered as part of the same market, due to the fact that the production and packing processes are the same.

43) The market investigation indicates that although from a supply-side perspective the same machines can produce and bottle both private  label
    and branded NCSDs[30], there is separate demand for the production and bottling of private label NCSDs from that of  contract  manufacturing
    branded NCSDs. Retailers require both on their shelves, but the two markets operate according to  different  dynamics  with  differences  in
    sharing of risks and responsibilities, length of contract, prices per litre, sales and tender process, etc.[31]

44) Moreover, captive production must be excluded since those assets are not available for use for third party customers.

45) In view of the above and for the purpose of this Decision, the production and bottling of private label NCSDs for retailers and the contract
    manufacturing of branded NCSDs for brand-owners are considered as belonging to separate markets.

5 Conclusion on the product market definition

46) On balance, therefore, the market investigation results strongly suggest the following relevant product markets: (i) independent  production
    and bottling of private label ambient NCSDs in carton excluding water and RTD teas (ii) independent production and bottling of private label
    ambient NCSDs in aseptic PET excluding water and RTD teas; (iii) contract manufacturing branded ambient NCSDs in carton excluding water  and
    RTD teas; (iv) contract manufacturing branded ambient NCSDs in aseptic PET excluding water and RTD teas.  Similarly,  separate  markets  for
    each of RTD teas and water should be identified.

3 Geographic market definitions

47) According to the Notifying Party, the geographic scope for the production and bottling of beverages is EEA-wide, or  at  least  cross-border
    regional, for the following reasons: (i) large European retailers tend  to  source  internationally  through  price  focused  tenders;  (ii)
    bottlers use their overcapacity in one country to compete in other countries; and (iii) the bottling of NABs is not significantly influenced
    by national consumer preferences or legislative requirements. The Notifying Party also notes that the importance of transport costs  differs
    according to the type of NABs and that for some beverages the distances over which they are transported could be limited to 600 km.

48) The Commission, in previous decisions,[32] has considered that the geographic scope of the supply of  beverages  to  retailers  is  probably
    national in scope, but ultimately left it open. In  Cadburry  Schweppes/Pernod  Ricard,[33]  the  Commission  indicated  that  the  relevant
    geographic market for NABs supplied to retailers is national i.e. on the basis of licensing and distribution  agreements  covering  national
    territories as a rule, different consumer preferences, price differentials and high transport costs. The Notifying Party submits that  these
    precedents do not relate to the bottling of NABs, but rather […]* to the downstream markets (wholesale or retail of NABs).

49) According to the market investigation, NCSDs production and bottling markets are not EEA-wide but  rather  national,  although  imports  may
    constitute a competitive constraint (the level of this constraint  varies  country-by-country).  When  defining  the  limits  of  geographic
    markets, both demand and supply-side considerations were taken into account. The key findings are summarised below.

        i) Transport costs are an important barrier to intra-EEA exports.[34] Competition takes place on the basis  of  euro  cents  per  litre,
           therefore suppliers with a local footprint have price advantages. Furthermore, most competitors confirmed that they supply within the
           country of production or within 500km from the plant;[35]

       ii) Tenders usually cover national territories;[36] although a bottler from Germany or Spain  might  participate  in  a  tender  covering
           France, the fact remains that this cross-border participation in tenders is limited to a few players, is not systematic and  most  of
           the time the local bottlers win since they are not encumbered with high transport cost. In fact, it is worth  noting  that  there  is
           also an advantage in having multiple production plants within one Member State  since  this  will  enable  the  bottler  to  save  on
           transport costs even within that one Member State;

      iii) Only a handful of independent bottlers have substantial cross-border activities, the most important ones being the Parties  and  even
           the Parties still achieve the vast majority of their sales in the country of manufacture[37];

       iv) While some retailers/buying groups may be active across Europe, most retailers only operate within one or two countries;

        v) Prices, market shares, margins and levels of spare bottling capacity appear to vary significantly across Member States;[38]

       vi) Consumer preferences differ significantly per country;[39] for example, while aseptic PET is becoming the main format for  juices  in
           Germany and France, carton dominates in the Netherlands[40]; and

      vii) Even contract manufacturing arrangements for multinational brand owners are normally negotiated to cover the brand owner's needs on a
           national basis.[41]

50) In view of the foregoing and for the purpose of this Decision, the Commission concludes that the geographic scope for the bottling of  NCSDs
    is national, with imports exerting a competitive constraint. This constraint is taken into account in the competitive assessment.

COMPETITIVE ASSESMENT

1 Introduction

51) The proposed transaction leads to affected markets in a certain number of Member States in the following markets: (i) private label  ambient
    NCSDs bottled in aseptic PET excluding water and RTD teas; (ii) private label ambient RTD teas bottled in  aseptic  PET  in  Germany;  (iii)
    private label ambient NCSDs bottled in carton excluding water and RTD teas; (iv) contract manufacturing of ambient NCSDs  for  brand  owners
    bottled in aseptic PET excluding water and RTD teas; and (v) contract manufacturing of ambient NCSDs for  brand  owners  bottled  in  carton
    excluding water and RTD teas.

52) The proposed transaction raises serious doubts as to the compatibility with the internal market in respect of  the  following  markets:  (i)
    private label ambient NCSDs bottled in aseptic PET excluding water and RTD teas in France, Germany  and  Belgium;  and  (ii)  private  label
    ambient RTD teas bottled in aseptic PET in Germany.

2 General arguments of the Notifying Party

1 Market shares

53) The Notifying Party submits that the proposed transaction does not raise competition concerns since market shares should not be equated with
    market power. This is due to the fact that the Parties operate in a highly competitive tender market where losing or winning a small  number
    of contracts can have a significant impact on the market shares.

2 Competitors are not capacity constrained

54) According to the Notifying Party, the market for the production and bottling of NCSDs is  characterised  by  significant  overcapacity  with
    competitors willing to bid opportunistically for volume business across Europe, looking at whether incremental revenues cover marginal costs
    rather than being concerned as to whether or not fully allocated costs are covered. The Notifying Party further argues that it is very  easy
    for competitors to switch capacity between the production of different NABs and therefore competitors are able to react quickly  to  changes
    in demand.

3 The Parties are not close competitors

55) The Notifying Party submits that, based on a detailed analysis of tenders in a selection of Member States (Germany, France, the UK  and  the
    Benelux, together representing approximately […]* of the sales of Gerber  Emig),  Refresco  and  Gerber  Emig  are  not  particularly  close
    competitors and that in all bids in which they face each other they also face a significant number  of  other  bottlers.  According  to  the
    Notifying Party, the tender data would show in all the above mentioned Member States that the number of instances where Refresco  or  Gerber
    Emig bid unsuccessfully in tenders won by third parties is greater than the number of instances where they bid unsuccessfully in tenders won
    by the other Party. Thus the tender analysis would indicate that other third party bottlers are more important competitors  to  the  Parties
    than the Parties are to each other, and that sufficient competition would remain post-merger.

4 Customers and suppliers have significant market power

56) The Notifying Party notes that large retailers […]* account for […]* of the sales of Refresco and Gerber Emig and in  many  instances  these
    customers either operate on a pan-European basis or, at the very least, have operations in  a  number  of  Member  States.  As  such,  these
    retailers respond to any attempt to increase prices by either switching to another supplier  and/or  encouraging  an  existing  supplier  to
    expand into a different geography or into the production of a different type of product.

57) Suppliers of raw materials (e.g. […]*) or packaging or packaging machinery (e.g. […]*) also exert a competitive  constraint  on  independent
    bottlers. The competitive dynamics of the upstream and downstream market put permanent pressure on bottling companies to pursue economies of
    scale which, according to the Notifying Party, is one of the primary drivers for the proposed transaction.

3 Preliminary findings of the Commission

58) The Commission's Horizontal Guidelines[42] state that "market shares and concentration levels provide useful first indications of the market
    structure and of the competitive importance of both the merging parties and their  competitors."  With  regard  to  the  Parties'  arguments
    regarding market shares, the Commission points out that the Parties' market share levels were relatively stable during the last three years.
    Regarding market power of customers and suppliers, the Commission points out that for example [reference to the gross margin levels  of  the
    Parties]*.[43] In addition, as regards the argument that customers have buyer power, even customers which are present  across  a  number  of
    Member States depend on the suppliers available in each Member State given the national geographic scope of  these  markets.  The  remaining
    arguments concerning capacity and closeness of competition are addressed in the sections dealing with each national market.

4 France

1 Introduction

59) In France, the proposed transaction leads to affected markets in the supply of private label ambient NCSDs (excluding  RTD  tea  and  water)
    both in carton and aseptic PET.[44] While in this Member State Gerber Emig only has carton packaging lines, Refresco's  bottling  lines  are
    all in aseptic PET. However, Gerber Emig supplies private label ambient NCSDs in aseptic PET in France […]*.

2 Market structure

60) In this Member State the Parties achieved combined sales of EUR […]* million[45] in 2012.

61) The retail market for private label ambient NCSDs (excluding RTD tea and water) bottled in aseptic  PET  is  estimated  to  amount  to  […]*
    million litres.[46] According to IRI data, the merged entity would have a strong presence in the market with a  market  share  of  [50-60]*%
    (Refresco: [40-50]*%; Gerber Emig: [10-20]*%).[47] The Commission's market reconstruction suggests that the combined market share  would  be
    higher, in the range of [70-80]*%. The main discrepancies between IRI data and the market reconstruction data may be explained by  the  fact
    that the latter does not take into account the volumes relating to Antartic and Niederrhein-Gold. Antartic is owned by the  French  retailer
    Intermarché and is reserved almost exclusively for that retailer, while it is of public knowledge that Niederrhein-Gold's volumes are mainly
    dedicated to Lidl.[48] For these reasons, these suppliers cannot be viewed as posing a competitive constraint to the merged  entity  in  the
    supply of private label ambient NCSDs to retailers.

62) According to the market reconstruction, post transaction the second supplier would be the French bottler LSDH, followed  by  another  French
    company, Roxane. Orangina/Schweppes and the German bottler Stute have a much smaller presence, while  other  bottlers,  most  of  them  with
    plants located outside France, have only minimal volumes.

63) Regarding the carton segment, the retail market is estimated to amount to […]* million litres.[49] The market investigation  indicates  that
    in France the demand for aseptic PET is increasing at the expense of carton due to consumer tastes and a switch from carton to  aseptic  PET
    by brand owners which is then followed by retailers for the private label segment.[50] IRI data for 2012 indicates that the  Parties  had  a
    relatively small combined market share of [20-30]*% (Refresco: [0-5]*%; Gerber Emig: [10-20]*%),[51]  which  is  in  line  with  the  market
    reconstruction data. According to the latter, the Parties' main competitors  are  French-based  bottlers  LSDH  and  Britvic.  In  addition,
    bottlers from outside of France such as Stute and Casalasco have a smaller presence, while others have only minimal sales.[52]

64) The table below shows the estimates of the Parties' market shares in the supply of private label ambient NCSDs (excluding RTD tea and water)
    to retailers in France, for both the carton and aseptic PET segments.

   Table 1 – Parties' combined market shares in the supply of private label ambient NCSDs (excluding RTD tea and water) to retailers in France
                                                                     in 2012

|                                |Carton              |Aseptic PET         |
|Refresco                        |[0-5]*%             |[40-50]*%           |
|Gerber Emig                     |[10-20]*%           |[10-20]*%           |
|Combined                        |[20-30]*%           |[50-60]*%           |

               Source: IRI data

3 Concerns raised during the market investigation

65) During the market investigation none of the competitors or  customers  raised  substantiated  concerns  specifically  regarding  the  carton
    segment, which is consistent with the Parties' modest combined market share and the existence of suppliers with higher  and  similar  market
    volumes.

66) On the other hand, the vast majority of the respondents to the market investigation raised strong  concerns  relating  to  the  aseptic  PET
    segment.

67) Almost all customers raised concerns and most of them identified the Parties as  close  competitors.[53]  In  particular,  the  majority  of
    customers stated that the proposed transaction would result in a reduction of competition and price increase. As explained by one  customer,
    the transaction "reinforces Refresco's leading position in the market."[54] Customers also pointed out that the proposed transaction  merges
    two large competitors for juices, where there are already few competitors.  Another  customer  also  mentioned  that  Gerber  Emig  recently
    withdrew from a tender after the proposed transaction was announced invoking a situation of industrial reorganization. In this context,  the
    fact that competitors confirmed that the aseptic PET segment is very concentrated[55] supports the concerns raised by the customers.

4 The Notifying Party's arguments

68) The Notifying Party claims that the merged entity would face competition from four significant suppliers located in France,  notably  Eckes-
    Granini, Roxane, Européenne d’embouteillage and LSDH. It estimates that Européenne d’embouteillage (which is part of the  Orangina/Schweppes
    group) may have approximately […]* spare capacity while LSDH's recent aseptic PET lines would represent additional capacity of […]*  litres.
    [Reference to Notifying Party's understanding of LSDH's business strategy]*.

69) Furthermore, the Notifying Party argues that Antartic is exerting competitive pressure on  other  bottlers  in  France  since  it  would  be
    supplying Leclerc and Netto (two retailers that are part of the same buying group as Intermarché) and would have participated in tenders for
    retailers outside the buying group, such as Metro and Casino. Moreover, the Notifying Party  understands  that  Antartic  would  be  in  the
    process of recruiting individuals to enable participation in other tenders. This would indicate that Antartic has enough spare  capacity  to
    supply retailers other than Intermarché.

70) In addition to suppliers located in France, the merged entity would be constrained by imports  from  German  producers  such  as  Stute  and
    Wesergold, as well as Conserve Italia (Italy) and Garcia Carrión (Spain),  who  would  already  be  supplying  aseptic  PET  in  France.  In
    particular, the Notifying Party argues that Gerber Emig does not have a superior ability to supply aseptic PET into France compared to Stute
    and Wesergold since the difference in distance to France between Gerber Emig's plants and Stute's and Wesergold's plants is not sufficiently
    significant to give Pride Foods any competitive advantage in relation to the supply of aseptic PET into France.[56]  In  addition  to  these
    suppliers, the new aseptic PET plant being built by Spanish bottler AMC in the Netherlands would become operational in  2014  and  would  be
    able to supply the French market.

71) According to the Notifying Party, the analysis of the Parties' tender data would show that the  Parties  are  not  close  competitors  since
    […]*[57]. […]*.

72) Finally, the Notifying Party argues that Gerber Emig's major aseptic customer in France, […]* (which represented […]* of Gerber Emig's sales
    volume in 2012), is capable of comparing prices and sourcing products across Europe.

5 Lack of sufficient alternative competitors with available spare capacity

73) The Notifying Party indicated that the merged entity would be constrained by a number of competitors located both  in  and  outside  France.
    However, the market investigation strongly indicates that the proposed transaction would in fact reduce from three  to  two  the  number  of
    available suppliers of aseptic PET for the French market.

74) According to the market reconstruction data, in terms of volumes supplied to retailers, the only credible competitors in aseptic  PET  post-
    transaction would be LSDH and Roxane. However, the market investigation indicates that the competitive constraint brought by Roxane would be
    limited since this bottler is focused mainly on water. According to the market investigation, this is well-known  to  both  competitors  and
    customers.[58]

75) The Notifying Party also mentioned Eckes-Granini and Orangina/Schweppes as alternative competitors. However, Eckes-Granini only bottles  its
    own brands and therefore it is not a competitor in the private label segment. Similarly, Orangina/Schweppes' activities in the private label
    segment are very small and in any event cannot be viewed as a strong competitor in private label since  it  predominantly  bottles  its  own
    brands. This is also acknowledged  by  Refresco  in  one  internal  document,  […]*."[59]  In  addition,  customers  also  do  not  perceive
    Orangina/Schweppes as a potential supplier for fruit juice and juice drinks & nectars.[60]

76) As regards competitors with plants located outside France, the market investigation indicates that such competitors would not  constitute  a
    sufficient competitive constraint to the merged entity. This is recognized by Refresco in an internal document […]*.[61] […]*.  Furthermore,
    Gerber Emig is the only supplier with an aseptic PET plant outside France which has a sizeable market share in the French market, since  the
    presence of the other suppliers indicated by the Notifying  Party  is  minimal.  In  addition,  the  replies  to  the  market  investigation
    questionnaire by both suppliers and customers confirm that mainly suppliers based in France could be viewed as  alternative  competitors  to
    the Parties.[62]

77) Regarding the fact that […]* represents more than […]* of Gerber Emig's aseptic PET volumes in France, and the Notifying  Parties'  argument
    that […]* would have the capability of comparing prices and sourcing across Europe, the fact  remains  that  such  ability  would  still  be
    limited by transport costs. None of the competitors located outside France has been able to win a share of the French  market  as  large  as
    Gerber Emig's, which indicates that they would be unlikely to be able to replace the  competitive  constraint  brought  by  Gerber  Emig  in
    France.

78) In terms of capacity, the results of the market investigation indicate that the existent spare capacity in aseptic  PET  in  France  is  not
    sufficient to constrain the Parties post transaction. The proposed transaction brings together an increment volume  of  […]*  which  is  far
    above the existing levels of spare capacity. Notably, this is true for example regarding the spare capacity made available by LSDH's  recent
    aseptic PET lines, as well as for the future plant of AMC in the Netherlands. Antartic  has  also  recently  invested  in  new  aseptic  PET
    capacity but such capacity is mainly reserved for Intermarché.

79) It should be further noted that [reference to the margin levels in France]*. Against this background, it is unlikely  that  post-transaction
    any remaining competitor would have an incentive to compete on prices and utilise any of the limited existing spare capacity.

6 Barriers to entry and expansion

80) It is also significant that there are a number of barriers to entry and expansion in the market for the  supply  of  private  label  ambient
    NCSDs in aseptic PET. Investing in new aseptic PET capacity is very costly since a new line involves  an  investment  of  around  EUR  10-15
    million, while installation takes around 6-12 months.[63]

81) Given the significant costs, this type of investment therefore requires careful consideration and a solid business case over 4-6 years given
    that capacity utilisation is crucial in order to recoup the capital expenditure. This is reflected for example in the […]* Refresco internal
    document […]*.

82) The fact that a strong business case constitutes a barrier to entry and expansion is all the more evident taking into account the fact that,
    for the private label segment, tenders usually cover only one year and retailers are unwilling to guarantee volumes for longer periods.[64]

83) Furthermore, transportation costs, established  commercial  relationships,  regulatory  rules  and  experienced  personnel  have  also  been
    identified as barriers to entry.[65]

7 Closeness of competition

84) The arguments of the Notifying Party concerning closeness of competition are mainly based on the Parties'  tender  data.  As  a  preliminary
    point, the Commission considers that there are a number of factors which weaken the value of the tender data for France. Notably,  […]*;[66]
    […]*. In addition, the Commission notes that, in general, information concerning other tender participants and tender winners does not  have
    the same level of reliability of the information strictly concerning the identification of the tenders in which the Parties participated  or
    which were won by one of the Parties.

85) Furthermore, while the number of tenders in which the Parties are identified as bidders suggests that the Parties might not be  the  closest
    competitors since […]*[67] […]* indicate that the Parties are much closer competitors than indicated  by  the  number  of  tenders  lost  to
    various competitors.[68] This is also consistent with the replies to the market investigation, given that a majority of the French customers
    have considered that the Parties are close competitors, even though they are aware that Gerber Emig imports from Germany.[69]

8  Conclusion regarding France

86) As regards the supply of private label ambient NCSDs (excluding RTD tea and  water)  in  carton  to  retailers  in  France,  the  Commission
    considers that given that the Parties' combined market share remains modest at  around  [20-30]*%  and  there  remain  a  number  of  active
    competitors, the proposed transaction does not raise serious doubts regarding this market.

87) As regards the supply of private label ambient NCSDs (excluding RTD tea and water) in aseptic PET to retailers  in  France,  the  Commission
    considers that the Parties' high combined market share, the fact that the Parties are close competitors, the limited competitive  constraint
    imposed by alternative competitors, their limited available spare capacity and the existing of barriers to entry and expansion raise serious
    doubts as to the compatibility of the transaction with the internal market in relation to this market.

5 Germany

1 Introduction

88) In Germany, the proposed transaction leads to affected markets in the supply of private label ambient NCSDs (excluding RTD  tea  and  water)
    both in carton and aseptic PET, as well as in the supply of private label RTD tea bottled in aseptic PET.[70] However, while in  carton  the
    market is characterised by significant overcapacity and the combined market share of the merged entity would be below  [40-50]*%,  the  same
    overcapacity is not present in aseptic PET and the transaction would strengthen Gerber Emig's leadership in the supply of  NCSDs  (excluding
    RTD tea and water) as well as its leadership in RTD teas in aseptic PET.

2 Market structure

89) The Parties were unable to provide the Commission with granular data (similar for example to the IRI data provided for France)  relating  to
    the relevant product market of private label ambient NCSDs (excluding RTD tea and water). According to Canadean data,[71] the Parties  would
    for example have a combined market share of [10-20]*% in the supply of private label NCSDs in Germany (Refresco: [10-20]*%; Gerber Emig: [5-
    10]*%) including all types of NCSDs and all packaging types (carton, PET, glass and cans). However, this data  does  not  provide  estimates
    according to the relevant permutations which correspond to the relevant product market (e.g. private label,  ambient,  NCSDs  excluding  RTD
    teas and a split per packaging type). In light of this, the Commission has relied  in  its  assessment  more  significantly  on  the  market
    reconstruction, which includes data from the large majority of the suppliers.[72] As explained in the section concerning the French markets,
    the market reconstruction data does not take into account the volumes relating to Niederrhein-Gold since these are mainly dedicated to  Lidl
    and therefore this supplier cannot be viewed as bringing a competitive constraint to the merged  entity  in  the  supply  of  private  label
    ambient NCSDs to other retailers. Similarly, Elro and MEG are suppliers which are vertically integrated with retailer groups  and  therefore
    the Commission does not view them as a competitive constraint to the merged entity.

90) According to the market reconstruction data, the Parties' combined market share for 2012 in  the  supply  of  private  label  ambient  NCSDs
    (excluding RTD tea and water) in aseptic PET would be around [40-50]*% (Refresco: [10-20]*%; Gerber Emig: [30-40]*%).  The  combined  entity
    would have a much higher market share than any of its competitors.

91) Post-transaction the main competitors of the merged entity in relation to aseptic PET would be Stute and Hansa-Heemann. Competitors such  as
    Hochwald Sprüdel, Valensina and Wesergold would have significantly lower market shares, while others have only a minimal presence.

92) In Germany, as in France, demand for aseptic PET has increased and is expected to continue increasing at  the  expense  of  carton.[73]  The
    market reconstruction indicates that in 2012 the Parties' combined market share would be below [40-50]*% (Refresco: [20-30]*%; Gerber  Emig:
    [10-20]*%).

93) Post-transaction the Parties' would be constrained by Stute, Wesergold, Pfanner,  Rauch  and  Valensina,  while  others  have  much  smaller
    volumes.

94) With respect to the supply of private label RTD tea bottled in aseptic PET, a market which would amount to around […]* million  litres,  the
    market reconstruction shows that the Parties' combined market share would be similar to the NCSD market in aseptic PET (Refresco: [20-30]*%;
    Gerber Emig: [20-30]*%). However, the number of competitors appears to be smaller, with Stute as the second competitor, followed by Pfanner,
    Wesergold and to a smaller extent Rauch.

95) The tables below show the estimates of the Parties' market shares in Germany for the supply of private label ambient  NCSDs  (excluding  RTD
    tea and water) in both the carton and aseptic PET segments, as well as in the supply to retailers of private label ambient RTD  tea  bottled
    in aseptic PET.

   Table 2 – Parties' combined market shares in the supply of private label ambient NCSDs (excluding RTD tea and water) to retailers in Germany
                                                                     in 2012

|                                |Carton              |Aseptic PET         |
|Refresco                        |[10-20]*%           |[10-20]*%           |
|Gerber Emig                     |[20-30]*%           |[30-40]*            |
|Combined                        |[30-40]*%           |[40-50]*%           |

               Source: market investigation

     Table 3 – Parties' combined market shares in the supply to retailers of private label ambient RTD tea in aseptic PET in Germany in 2012

|                                |Aseptic PET         |
|Refresco                        |[20-30]*%           |
|Gerber Emig                     |[20-30]*%           |
|Combined                        |[40-50]*%           |

                     Source: market investigation

3 Concerns raised during the market investigation

96) Overall, both retailers and competitors indicated that the proposed transaction raises concerns in Germany for both carton and  aseptic  PET
    and for all types of NCSDs (except for water).[74]

97) The vast majority of customers indicated that the transaction would have a negative impact on competition and on prices since there would be
    very few alternatives to the Parties for large volume orders and therefore the merged entity would have the ability and incentive  to  raise
    prices.[75]

98) For example, according to one customer this transaction leads to a concentration in the market for all product categories and all  types  of
    packaging, with Refresco expanding its strong market position.[76]

99) Another customer argued that post-transaction "there will be less competition in the segments fruit juices, nectars and fruit  juice  drinks
    which could lead to higher buying prices and higher selling prices to the consumer."[77] In essence, in Germany "[g]enerally there is a lack
    of big suppliers in the NCSD´s private label business. There are only few suppliers who can supply […] the full range of  either  categories
    or packaging types/formats. Refresco and Gerber Emig are among the strongest suppliers, if they merge together we assume that prices will go
    up."[78]

100) Most competitors also raised concerns that the proposed transaction would lead to an increase in prices in the long term.  Some  competitors
    also argued that the market power of the merged entity would result from advantages in the purchasing of raw materials.[79]

4 The Notifying Party's arguments

101) The Notifying Party submits that no substantial concerns should arise regarding Germany since the market is  competitive  and  there  are  a
    number of alternative current and potential competitors. Furthermore, according to the Notifying Party the Parties' tender data  would  show
    that the Parties are not each other's closest competitors.

102) In addition, the Notifying Party submits that there is available spare capacity which would be sufficient  to  constrain  the  Parties  post
    transaction. In particular, at a late stage of the market investigation the Notifying Party argued that […]*.[80]  [Reference  to  Notifying
    Party's understanding regarding capacity expansion of a competitor]*.[81]

5 The Commission's assessment

1 NCSDs (excluding RTD tea and water) bottled in aseptic PET

1 Closeness of competition

103) Contrary to the Notifying Party's assertion, the market investigation indicates that the Parties are close competitors  in  the  market  for
    the supply of private label ambient NCSDs (excluding RTD tea and water) in aseptic PET to retailers in Germany.

104) First, all retailers who replied to the market investigation saw the Parties as close  competitors  for  all  private  label  ambient  NCSDs
    (apart from water) bottled in aseptic PET in Germany.[82] Second, the tender data provided by the Parties and  analysed  by  the  Commission
    also indicates that in Germany the Parties can be viewed as close competitors for the supply  of  private  label  ambient  NCSDs  (excluding
    water) in aseptic PET. In particular, the Gerber Emig database[83] suggests that […]*.[84] […]*.[85]

2 Lack of sufficient alternative competitors with available spare capacity

105) The Notifying Party also indicated that in Germany the merged entity would be constrained by a  number  of  competitors.  According  to  the
    market reconstruction, the merged entity's main competitors for the supply of private label ambient NCSDs (excluding RTD tea and  water)  in
    aseptic PET would be Stute and Hansa-Heemann, followed by Hochwald Sprüdel, Valensina  and  Wesergold.  However,  the  market  investigation
    indicates that post-transaction the merged entity would be the leading supplier in  Germany  with  a  much  higher  market  share  than  its
    competitors, which would not have sufficient spare capacity in order to significantly constrain the merged entity.

106) Indeed, according to the market reconstruction and further data provided by competitors, the constraint to  the  merged  entity  imposed  by
    competitors' spare capacity for aseptic PET bottling in Germany is limited by a number of factors.

107) First, the use of the spare capacity volume would also be further limited by the need of other competitors to reserve  some  spare  capacity
    to satisfy the companies' current customers during demand peaks.[86]

108) Second, the profile of some competitors indicates that they focus more on contract manufacturing for brand owners rather than private  label
    and therefore any spare capacity of such suppliers would be constrained by this factor. Furthermore, some of the spare capacity may also  be
    used for CSDs. In addition, the market investigation indicates that the competitive constraint brought by  Hansa-Heemann  would  be  limited
    since this bottler is focused mainly on low juice content drinks such as still drinks. The company divested its  juice  business  (Emig)  to
    Gerber (leading to the creation of Gerber Emig) while keeping the still drinks and CSDs business.  While  afterwards  Hansa-Heemann  started
    developing its activities in the juice drinks & nectars category, it is not its core business.

109) Third, the market investigation shows that customers and competitors expect aseptic PET demand to grow in  the  future  at  the  expense  of
    carton, thus any current spare capacity levels (which are already limited in volume) would be further eroded.[87]

110) Overall therefore, while there may be some spare capacity in the market for the relevant NCSDs, the Commission considers  that  the  current
    available capacity volume would not be sufficient to discipline the merged entity.

111) As regards potential capacity expansion, the considerations supporting the existence  of  a  number  of  barriers  to  entry  and  expansion
    regarding the French market are also valid for the German market. Competitors in Germany have stressed that it  is  difficult  to  implement
    aggressive expansion strategies even in the context of growing demand given the competitors' financial constraints and the  high  investment
    required for new aseptic PET lines.[88] The market investigation also indicates that in the last three years only one large  juice  bottling
    supplier (Elro) entered the market for private label ambient NCSDs in Germany. However, Elro is part of the retailing group Edeka,  so  this
    supplier was brought in by a retailer for the purpose of manufacturing the retailer's own brands. Against  this  background,  customers  and
    competitors do not expect any entry or expansion in Germany during the next 2 years.[89]

112) Regarding the alleged capacity expansion of […]*, despite this fact appearing at a very late stage of the proceedings,  the  Commission  was
    able to verify that the Parties' understanding of this capacity expansion was inaccurate. First, […]* is  not  increasing  its  aseptic  PET
    capacity nor has any plans to do so. Whilst it is true that […]* is increasing its capacity in non-aseptic PET lines and moving some volumes
    of "apfelsaftschorle" (carbonated apple juice) production to these non-aseptic PET lines from the aseptic  PET  lines,  the  capacity  which
    would be freed up on the aseptic PET lines is not of the magnitude indicated by the Notifying Party. Moreover, […]* has confirmed  that  (i)
    this freed up capacity on the aseptic PET lines will be used for the bottling of water, aromatised water, RTD teas and a few other products;
    and (ii) the volumes dedicated to RTD teas (which is a relevant product for this case) are relatively limited. Finally, according  to  […]*,
    it is not able, at any of its facilities, to produce juices or juice drinks & nectars. It is  only  able  to  produce  carbonated  "schorle"
    drinks with low juice content.[90] Overall therefore, […]*'s capacity expansion does not affect the Commission's competitive assessment in a
    way that would allow it to dispel concerns. It should also be noted that according to public information, Lidl itself is expanding its chain
    of supermarkets in Germany and abroad as well as its NCSD product range[91], which means  that  despite  potentially  moving  some  RTD  tea
    volumes to captive production, its overall market demand for the relevant NCSDs is unlikely to reduce.

113) Finally, regarding the constraint potentially brought  by  competitors  with  plants  located  outside  Germany,  the  market  investigation
    indicates that such competitors would not constitute a significant competitive constraint to the  merged  entity.  Competitors  with  plants
    located outside Germany have a very limited presence in the German market, they are not perceived by customers as having the same ability as
    German suppliers to serve this market and would not be capable  of  supplying  the  required  volumes  in  order  to  constrain  the  merged
    entity.[92]

2 RTD tea bottled in aseptic PET

114) As regards closeness of substitution, the market investigation indicates that the Parties are  close  competitors  in  the  market  for  the
    supply of private label ambient RTD tea in aseptic PET to retailers in Germany. First, all retailers who replied to the market investigation
    saw the Parties as close competitors for RTD tea bottled in aseptic PET in Germany.[93] Second, the tender  data  provided  by  the  Parties
    supports this conclusion. In particular, […]* the tendered volumes indicate that Gerber Emig lost most volumes […]* to Refresco  […]*.  This
    is also consistent with the Parties' combined market share, which is relatively high.

115) As regards the constraint faced by the Parties post transaction, while the overall volumes of the RTD tea  market  are  smaller  than  those
    involved in the market for NCSDs (excluding RTD tea and water), the  assessment  whether  the  existing  spare  capacity  is  sufficient  to
    constrain the merger entity needs to take into account the fact that this spare capacity  may  be  used  for  other  NCSDs.  The  Commission
    considers therefore that the RTD tea market cannot be considered in isolation and that post-transaction the available spare capacity volumes
    are not sufficient to offset the merged entity's market power in the supply of RTD tea in aseptic PET for the same  reasoning  presented  in
    section V.5.5.1.

3 NCSDs (excluding RTD tea and water) packaged in carton

116) The Commission considers that despite the Parties' overlap in the supply to retailers of private label ambient NCSDs (excluding RTD tea  and
    water) in carton, as well as some concerns voiced during the market investigation, the proposed  transaction  would  be  unlikely  to  raise
    competition concerns in this market.

117) First, the Parties' combined market share in this market is below [40-50]*%. Second, the market investigation  has  shown  that  in  Germany
    there is significant overcapacity in carton, which is not limited to a particular type of carton packaging.[94] This is the result from  the
    shift in demand from carton to aseptic PET. Suppliers would thus have the ability to  expand  their  output  to  defeat  a  potential  price
    increase by the merged entity. The significant existing mothballed carton capacity further strengthens this  argument  and  means  that  any
    capacity expansion would entail relatively modest costs and delays. Third, the trend of decreasing carton consumption in Germany is expected
    to continue in the future[95] and therefore existing carton capacity will likely remain at a low level of utilization.

6 Conclusion

118) Overall, the Commission considers that in light of  the  Parties'  high  combined  market  share,  the  fact  that  the  Parties  are  close
    competitors, the limited competitive constraint imposed by alternative competitors, their insufficient  available  spare  capacity  for  the
    relevant NCSDs and the existence of barriers to entry and expansion, the proposed transaction raises serious doubts as to its  compatibility
    with the internal market in relation to the supply of private label ambient NCSDs (excluding RTD tea and water) in aseptic PET to  retailers
    in Germany, as well as the supply of private label ambient RTD tea in aseptic PET to retailers in Germany.

119) Furthermore, the Commission considers that the proposed transaction does not raise serious doubts as to its compatibility with the  internal
    market in relation to the supply of private label ambient NCSDs (excluding RTD tea and water) in carton to retailers in Germany.

6 Belgium

1 Introduction

120) In Belgium, the proposed transaction leads to affected markets in the supply of private label ambient NCSDs (excluding RTD  tea  and  water)
    both in carton and aseptic PET. The merged entity would achieve high market shares in both segments. […]*. Gerber Emig supplies the  Belgian
    market from its French and German plants located close to the border.

2 Market structure

121) According to Nielsen data, the Parties would have a combined market share of [40-50]*% (Refresco: [20-30]*%; Gerber Emig: [10-20]*%) in  the
    supply of private label ambient NCSDs (excluding RTD tea and water) in Belgium for all packaging  types  (carton,  aseptic  PET,  glass  and
    cans). The market size according to this database would be around […]*  million  litres  (again  comprising  all  types  of  packaging).[96]
    However, since this data does not provide separate estimates for carton and aseptic PET, the Commission has relied in  its  assessment  more
    significantly on the market reconstruction, which includes data from the large majority of the suppliers.[97] As explained in  the  sections
    concerning the French and German markets, the market reconstruction data does not take into account the volumes relating to Niederrhein-Gold
    since these are mainly dedicated to Lidl and therefore this supplier cannot be viewed as bringing a competitive  constraint  to  the  merged
    entity in the supply of private label ambient NCSDs to other retailers.

122) The market for the supply of private label ambient NCSDs (excluding RTD tea and water) bottled in aseptic PET to retailers is  estimated  to
    be around 45 million litres.[98]

123) According to the market reconstruction data, the Parties' combined market share for 2012 in  the  supply  of  private  label  ambient  NCSDs
    (excluding RTD tea and water) in aseptic PET would be around [50-60]% (Refresco: [40-50]*%; Gerber Emig:  [10-20]*%).  The  combined  entity
    would have a much higher market share than any of its competitors.

124) Post-transaction the main competitors of the merged entity in relation to aseptic PET would be Roxane and Stute. Competitors such  as  LSDH,
    Sunnyland and Valensina would have significantly lower market shares, while others have only a minimal presence.

125) Regarding the supply of private label ambient NCSDs (excluding RTD tea and water) in  carton,  the  total  volume  is  estimated  around  67
    million litres.[99]

126) The market reconstruction indicates that in 2012 the Parties' combined market share would be around [50-60]*% (Refresco:  [30-40]*%;  Gerber
    Emig: [20-30]*%).

127) Post-transaction the Parties' would face competition from Stute, Valensina  and  LSDH,  while  Wesergold,  Rauch,  Casalasco,  Antartic  and
    Sunnyland have a smaller market presence.

128) The table below shows the estimates of the Parties' market shares in the supply of private  label  ambient  NCSDs  (excluding  RTD  tea  and
    water) to retailers in Belgium.

   Table 4 – Parties' combined market shares in the supply of private label ambient NCSDs (excluding RTD tea and water) to retailers in Belgium
                                                                     in 2012

|                                |Carton              |Aseptic PET         |
|Refresco                        |[30-40]*%           |[40-50]*%           |
|Gerber Emig                     |[20-30]*%           |[10-20]*%           |
|Combined                        |[50-60]*%           |[50-60]*%           |

                Source: market investigation

3 Concerns raised during the market investigation

129) Three out of the four Belgian retailers who replied have raised concerns regarding the merger.[100]According to one retailer,  Refresco  and
    Gerber Emig are important suppliers of NCSDs. Another retailer points to the fact that the merger would lead to one less available  supplier
    on the market that could offer the same quality and price as the Parties currently provide.[101]

4 The Commission's assessment

1 NCSDs (excluding RTD tea and water) bottled in aseptic PET

130) The market investigation and the analysis of the tender data provided by the Parties are inconclusive  with  respect  to  the  closeness  of
    competition between Refresco and Gerber Emig.[102] One of the four Belgian retailers however notices  that  "Refresco  and  Emig  are  close
    competitors in terms of service and price positioning. The prices and overall sales conditions are  similar,  and  sometimes  they  are  the
    closest amongst all suppliers."[103]

131) The Notifying Party indicated that the merged entity would be constrained by a number of competitors located both in  and  outside  Belgium.
    According to the market reconstruction, the Parties' main competitors are Stute and Roxane, while other competitors have a smaller presence.
    However, as explained in the assessment of the French market, Roxane is a supplier mainly focusing on water. As regards LSDH,  its  business
    in Belgium is simply derived from its supply relationship with its French customer based.

132) In terms of available spare capacity, as explained in the assessment regarding the German market the  market  investigation  indicates  that
    there is limited spare capacity for aseptic PET and overcapacity for carton.[104]  Therefore,  the  Commission  considers  that  the  German
    suppliers' available aseptic PET capacity would first be allocated to the German market.

133) As regards potential capacity expansion, the considerations supporting the existence  of  a  number  of  barriers  to  entry  and  expansion
    regarding the French and German markets are also valid for the Belgian market. In addition,  transportation  costs,  established  commercial
    relationships, regulatory rules and experienced personnel have also been identified as  barriers  to  entry.[105]  Furthermore,  the  market
    investigation also indicates that in the last three years no new supplier has entered the market for private label ambient NCSDs in  Belgium
    and that no competitor is expected to enter in the next two years.[106]

2 NCSDs (excluding RTD tea and water) packaged in carton

134) The Commission considers that in spite of the merged entity's relatively high market share, the proposed transaction would  be  unlikely  to
    raise competition concerns in the market for the supply of private label ambient NCSDs in carton packaging to retailers in Belgium.

135) First, the market investigation has shown that German-based suppliers are already today seen as alternatives to Refresco and Gerber Emig  by
    retailers.[107]

136) Second, these German-based suppliers have significant overcapacity on their carton production lines. This  capacity  is  not  limited  to  a
    particular type of carton packaging.[108] Furthermore, capacity utilisation is a key driver for profitability, which means that  competitors
    have the incentive to utilise spare capacity. The Commission therefore considers that German-based suppliers  would  have  the  ability  and
    incentive to expand their output in Belgium to defeat a potential price increase by the merged entity.

137) Third, the competitors' ability and incentive to counter possible price increases by the merged entity will likely increase  in  the  future
    since the trend of decreasing carton consumption in Germany is expected to continue,[109] implying that the existing carton  spare  capacity
    in Germany will likely remain.

3 Conclusion

138) Overall, the Commission considers that the Parties' high combined market share, the limited competitive constraint  imposed  by  alternative
    competitors, their limited available spare capacity of aseptic  PET  and  the  existing  barriers  to  entry  and  expansion,  the  proposed
    transaction raise serious doubts as to its compatibility with the internal market in relation to the supply of private label  ambient  NCSDs
    (excluding RTD tea and water) in aseptic PET to retailers in Belgium.

139) Furthermore, the Commission considers that the proposed transaction does not raise serious doubts as to its compatibility with the  internal
    market in relation to the supply of private label ambient NCSDs (excluding RTD tea and water) in carton to retailers in Belgium.

7 Netherlands

1 Introduction

140) In the Netherlands, the proposed transaction leads to affected markets in the supply of private label ambient NCSDs (excluding RTD  tea  and
    water) both in carton packaging and in aseptic PET.[110] Refresco is the only Party with a production facility in  the  Netherlands.  Gerber
    Emig thus supplies its Dutch retailer customers from its German facilities.[111] In addition, the Notifying Parties do not have any  aseptic
    PET production line in this Member State.

2 Market structure

141) The market for private label ambient NCSDs (excluding RTD tea and water) bottled in aseptic PET is estimated to have a total volume of  […]*
    million litres.[112] According to IRI data, the combined market share of the Parties for 2012 would be [30-40]*% (Refresco: [5-10]*%; Gerber
    Emig: [30-40]*%).[113] The market reconstruction suggests that the combined market share would  be  higher,  in  the  range  of  70-80%.  As
    discussed in the section concerning the French markets, the main discrepancies between IRI data and the market reconstruction  data  may  be
    explained by the fact that the latter does not take into account the volumes of Niederrhein-Gold.

142) Regarding the carton segment, the Dutch retail market is estimated to be worth around EUR 275  million[114]  for  a  total  volume  of  […]*
    million litres.[115] IRI data for 2012 indicates that the Parties had a large combined  market  share  of  [70-80]*%  (Refresco:  [60-70]*%;
    Gerber Emig: [5-10]*%).[116] The market reconstruction data points at  higher  combined  market  shares,  stemming  from  the  exclusion  of
    Niederrhein-Gold.[117] Remaining competitors include German-based Stute, Valensina, Riha Wesergold, as well as Casalasco.

143) The table below shows the estimates of the Parties' market shares in the supply of private  label  ambient  NCSDs  (excluding  RTD  tea  and
    water) to retailers in the Netherlands, for both the carton and aseptic PET segments.

     Table 5 – Parties' combined market shares in the supply of private label ambient NCSDs (excluding RTD tea and water) to retailers in the
                                                               Netherlands in 2012

|                                |Carton              |Aseptic PET         |
|Refresco                        |[60-70]*%           |[0-5]*%             |
|Gerber Emig                     |[5-10]*%            |[30-40]*%           |
|Combined                        |[70-80]*%           |[30-40]*%           |

               Source: IRI data

3 Concerns raised during the market investigation

144) During the course of the market investigation, some customers  stated  that  the  proposed  transaction  would  result  in  a  reduction  of
    competition and that the proposed transaction would have an effect on prices.[118]

4 The Notifying Party's arguments

145) The Parties argue that the majority of Refresco's sales of private label carton in the Netherlands are to three large retailers  capable  of
    comparing prices and sourcing products on a pan-European level: […]* ([…]* of total sales), […]* ([…]*%) and […]*  ([…]*%).  Similarly,  the
    majority of Gerber Emig' sales of private label carton in the Netherlands are to […]* ([…]*% of total  sales).  Other  large  private  label
    customers of Gerber Emig are […]*, each representing […]* respectively of Gerber Emig's total private label carton sales in the Netherlands.

146) The Notifying Party claims that the merged entity would face competition from three significant suppliers of private label NCSDs  in  carton
    packaging located in the Netherlands, namely Vrumona, Spa and  United  Soft  Drinks.  Additionally,  the  new  plant  of  Antonio  Munoz  in
    Vlissingen, the Netherlands will supply NCSDs in both carton and aseptic PET packaging and will become operational as of 2014. Imports  from
    German (Stute, RIHA Wesergold, Niederrhein-Gold) and Belgian producers (Sunnyland and Dr Siemer/Sportfit) would  also  exert  a  competitive
    constraint on the merged entity.

147) According to the Notifying Party, the analysis of the Parties' tender data would show that the  Parties  are  not  close  competitors  since
    […]*.[119]

5 The Commission's assessment

1 Aseptic PET

148) As regards the supply of private label ambient NCSDs excluding water and RTD tea in aseptic PET to retailers in the  Netherlands,  according
    to IRI data submitted by the Parties, the combined market share of the Parties in 2012 was [30-40]*%, with a [5-10]*% increment by Refresco.
    Even discounting the volumes attributed to suppliers which cannot be viewed as posing a competitive constraint to the merged entity  in  the
    supply of private label NCSDs to retailers such as Antartic and Niederrhein-Gold,[120] the parties' combined market share  would  amount  to
    less than [40-50]*%.

149) The market reconstruction shows that the combined entity would continue to face  competition  from  other  strong  players,  such  as  Hansa
    Heemann and Sunnyland, which already enjoy substantial market positions in the Netherlands. Moreover, the Commission notes that  inside  the
    relevant market, Refresco is only active in the still drinks segment, where the main competitor to the Parties after the transaction,  Hansa
    Heemann, is particularly active[121] and enjoys a strong market position.

150) In addition, all Dutch retailers have indicated that they also source from neighbouring countries.[122]  Considering  that  all  substantial
    market participants, including the Parties, import their aseptic PET volumes delivered to the Dutch market from neighbouring countries,  the
    Commission concludes that the competitive importance of imports is, in the particular case of the Dutch market for NCSDs bottled in  aseptic
    PET, particularly strong.

151) Finally, the Commission notes that the overall market size is minimal, with only […]* million litres sold at retail level in 2012.[123]  The
    Commission's market investigation has indeed revealed that  consumer  preferences  are  heavily  skewed  towards  carton  packaging  in  the
    Netherlands.[124] Against this backdrop, the Commission notes that the increment of Refresco to Gerber Emig's existing  position  represents
    […]* million litres, which is less than […]* of the annual output of an aseptic PET production line ([…]* million litres).[125]

152) In light of the above, the Commission concludes that the proposed transaction does not raise serious doubts as  to  its  compatibility  with
    the internal market with respect to the supply of private label ambient NCSDs in aseptic PET to retailers in the Netherlands.

2 Carton packaging

153) The Commission considers that in spite of Refresco's strong  existing  position,  the  proposed  transaction  would  be  unlikely  to  raise
    competition concerns in the market for the supply of private label ambient NCSDs in carton packaging to retailers in the Netherlands.

154) First, the competitive constraint from imports is, in the particular case of the  Dutch  market  for  NCSDs  bottled  in  carton  packaging,
    particularly strong. Indeed, as discussed above, all Dutch retailers have indicated that they source from neighbouring  countries,[126]  and
    the market investigation has shown that several German suppliers such as Stute, Valensina and Riha Wesergold are  already  present  in  this
    market.

155) Second, the Commission considers that German-based suppliers would have the ability and incentive to expand their output in the  Netherlands
    to defeat a potential price increase by the merged entity.

156) Indeed, as discussed in paragraph 118 above, the market investigation has shown that German-based suppliers  have  significant  overcapacity
    on their carton production lines. This capacity is not limited to a particular type of carton packaging.[127] German suppliers thus have the
    ability to expand their output to defeat a potential price increase by the merged entity.

157) Given that capacity utilisation is a key driver for profitability in light of the fixed costs of maintaining and amortizing packaging  lines
    and production facilities,[128] the Commission considers that German-based suppliers would also have the incentive to expand their output in
    the Netherlands to defeat a potential price increase by the merged entity. In this respect, the market investigation has  shown  that  while
    Gerber Emig supplies the Netherlands from its plants in Waibstadt (above […]* of volumes) and Calvörde, and that other  German  competitors,
    such as Stute, have production facilities with carton packaging lines closer to the Dutch market than Gerber Emig's Waibstadt  and  Calvörde
    plants.

158) Third, the Commission notes that the ability and incentive of competitors to counter possible price increases  by  the  merged  entity  will
    likely increase in the future.

159) Indeed, the trend of decreasing carton consumption in Germany is expected to continue in the future.[129] This trend  will  imply  that  the
    existing carton packaging capacity for ambient NCSDs will likely remain at a low level of utilization in Germany, thus  preserving  existing
    incentives to counter any price increase by the merged entity in the Netherlands. In this respect, the  Commission  also  notes  that  while
    Antonio Munoz' new plant in Vlissingen, the Netherlands, will be mostly dedicated to chilled products, it will also supply ambient NCSDs  in
    carton packaging, thus contributing to the global overcapacity observed in this market.

160) In addition, the market investigation has also confirmed the presence of significant mothballed carton capacity at  most  German  production
    facilities. The Commission therefore notes that any capacity expansion in the future would entail relatively modest costs and delays.[130]

161) Fourth, the market investigation has also shown that German suppliers are already today seen as alternatives to Refresco and Gerber Emig  by
    retailers. […]* has for instance stated that "Gerber participates in some of […]* tenders […]*. Other  participants  in  these  tenders  are
    Refresco, Wesergold, Valensina and Sunnyland. (…) Stute (Germany) has also participated in tenders but at this stage it is not able  to  get
    any business since its prices are not competitive".[131]

162) Fifth, whilst Refresco already enjoys a strong position in the Dutch market for  the  supply  of  private  label  ambient  NCSDs  in  carton
    packaging to retailers, the market investigation has indicated that Gerber Emig is not the main competitive constraint  on  Refresco  today.
    […]* stated with respect to the Dutch market that "[m]aybe they are not the closest  competitors".  Similarly,  […]*  stated  "I  think  the
    closest competitor, for both, is Wesergold".[132] Only one of the Dutch retailers, […]*, has indicated that Gerber Emig  enjoys  a  specific
    advantage, without substantiating this claim.[133]

163) The Commission therefore considers that it is unlikely that the addition of Gerber Emig's volumes to  Refresco's  existing  strong  position
    would substantially affect the competitive dynamics in the market for the supply of private label  ambient  NCSDs  in  carton  packaging  to
    retailers in the Netherlands.

164) The Commission therefore concludes that the proposed transaction does not raise serious doubts as to its  compatibility  with  the  internal
    market with respect to the supply of private label ambient NCSDs in carton packaging to retailers in the Netherlands.

6 Conclusion

165) In light of the above, the Commission concludes that the proposed transaction does not raise serious doubts as  to  its  compatibility  with
    the internal market with respect to the supply to retailers of private label ambient NCSDs in carton packaging and in  aseptic  PET  in  the
    Netherlands.

8 United Kingdom

1 Introduction

166) The UK is the only Member State where chilled markets for juices have a significant size (almost as large as ambient markets). It should  be
    noted in this respect that Refresco does not have any chilled production lines in the UK, therefore there is no overlap  in  the  supply  of
    chilled juices. Therefore, the UK section will analyse only the ambient markets. In addition, juices are predominantly bottled in carton.

167) In the UK, the proposed transaction leads to affected markets in the supply of private label ambient NCSDs (excluding  RTD  tea  and  water)
    both in carton and aseptic PET and to affected markets in the supply of contract manufacturing ambient NCSDs (excluding RTD tea  and  water)
    both in carton and aseptic PET.[134]

168) In the supply of private label ambient NCSDs (excluding RTD tea and water) in aseptic PET  the  increment  brought  by  Gerber  Emig  is  de
    minimis, therefore the proposed transaction does not raise serious doubts regarding the supply of private label ambient NCSDs (excluding RTD
    tea and water) in aseptic PET in the UK.

2 Market structure

169) The retail market value for private label ambient NCSDs (excluding RTD tea and water) bottled in carton is  estimated  to  amount  for  […]*
    million litres.[135] According to IRI data,[136] the merged entity would have a strong presence in the market for carton with a market share
    of [70-80]*% (Refresco: [10-20]*%; Gerber Emig: [50-60]*%). The market reconstruction suggests that  the  combined  market  share  would  be
    significantly lower, in the range of [50-60]*%. According to the market reconstruction,  post  transaction  the  second  supplier  would  be
    Princes, followed by Mulrines and Casalasco, while other bottlers have only minimal volumes.

170) Regarding the contact manufacturing markets, IRI data did not provide any information. According to the market reconstruction,  the  Parties
    had a combined market share of [60-70]*% in carton, and [30-40]*% in aseptic PET. The Parties' main competitors for  contract  manufacturing
    in carton are UK-based bottlers Framptons and Princes. In addition, bottlers from outside of the UK, such as Wesergold  and  Mulrines,  have
    some sales. The Parties' main competitor for contract manufacturing in aseptic PET is UK-based bottler  Cott.  In  addition,  bottlers  from
    outside of the UK, such as Stute, Mulrines and Wesergold have a smaller presence.

171) The table below shows the Parties' market shares (according to IRI) in the supply of private label ambient  FC,  NFC  and  still  drinks  to
    retailers in the UK for carton.

    Table 6 – Parties' combined market shares in the supply of private label ambient FC, NFC and still drinks carton to retailers in the UK in
                                                                       2012

|                                |Carton              |
|Refresco                        |[10-20]*%           |
|Gerber Emig                     |[50-60]*%           |
|Combined                        |[70-80]*%           |

                       Source: IRI data

3 Concerns raised during the market investigation

172) During the market investigation almost none of the competitors and customers[137] raised  substantiated  concerns  regarding  private  label
    ambient NCSDs bottled in carton. Regarding the private label market, the vast majority of the customers who replied stated that the proposed
    transaction would not result in a reduction of competition and that the proposed transaction would not lead to price increases.[138]

173) A few competitors raised concerns regarding the contract manufacturing markets. Some customers stated that the  proposed  transaction  would
    result in a reduction of competition and that the proposed transaction would have an effect on prices.[139]

4 The Notifying Party's arguments

174) The Notifying Party claims that the merged entity would face significant competition from Princes, Mulrines, Garcia Carrion, Antonio  Munoz,
    Framptons, and Fruitapeel, with the majority of suppliers having spare capacity in carton, totalling over […]* million litres  according  to
    the Parties' estimates (excluding the Parties' own spare capacity).[140]

175) The Notifying Party claims that the combined market share of the merged entity in private label ambient NCSDs  bottled  in  carton  is  [50-
    60]*%.[141]

176) The Notifying Party also argues that the majority of Refresco's private label carton sales in the UK are […]*.

177) According to the Notifying Party, the tender analysis also shows that the Parties are not particularly close competitors, and  that  in  all
    bids in which they face each other they also face a significant number of other strong players.

178) For contract manufacturing markets the Notifying Party claims that the combined entity will never lack an incentive to contract  manufacture
    for other brand owners. This is illustrated by the fact that Gerber Emig currently contract manufacturers for brands owners  alongside  some
    of its own brands. Brand owners' products manufactured by Gerber Emig fill a particular gap on the retail  shelf  or  out  of  home  product
    offer.

5 The Commission's assessment

179) The Notifying Party indicated that the merged entity would be constrained by a number of competitors located both in  and  outside  the  UK.
    The market investigation confirmed that the merged entity for private label ambient NCSDs (excluding RTD tea and water)  bottled  in  carton
    would face competition from Princes, Mulrines, Garcia Carrion, Antonio Munoz and Casalasco.

180) In terms of volumes supplied to retailers,  the  market  investigation  confirmed  that  post-transaction  Princes  and  Mulrines  would  be
    particularly strong competitors. In addition, the market investigation indicates that the competitive constraint brought by  Garcia  Carrion
    and Antonio Munoz is increasing due to the fact that these Spanish bottlers (already significantly  present  in  the  chilled  markets)  are
    expected to also enter the ambient markets, especially in some high-value product categories.

181) In addition, almost all UK retailers have indicated that  they  also  source  some  volumes  from  continental  Europe.[142]  Therefore  the
    Commission concludes that the competitive constraint imposed by imports is, in the particular case of  the  UK  market  for  the  supply  of
    private label ambient NCSDs (excluding RTD tea and water) bottled in carton, particularly strong.

182) In terms of volumes supplied for contract manufacturing the market investigation confirmed  that  the  strong  competitors  post-transaction
    would be Framptons for carton and Cott for aseptic PET. In addition, Mulrines and Wesergold would be able to contract  manufacture  both  in
    carton and in aseptic PET.

183) In terms of capacity, the results of the market investigation indicate that the existing spare  capacity  in  the  UK  in  carton  for  both
    private label and contract manufacturing and in aseptic PET for  contract  manufacturing  is  sufficient  to  constrain  the  Parties  post-
    transaction. The proposed transaction brings together an increment volume which is below the existing  levels  of  spare  capacity  both  in
    carton and aseptic PET.

184) It is also significant that the barriers to entry and expansion in the market for the supply of private label ambient NCSDs  in  carton  are
    relatively low compared to aseptic PET. According to the Notifying Party, a high speed carton line costs […]*  (speed  12,000-24,000  carton
    per hour) compared to […]* for aseptic PET line (speed 20,000-40,000 bottles per hour). According to market participants, investing in a new
    aseptic PET line costs around EUR 10-15 million.[143]

185) In addition, the market investigation confirmed the arguments of the Notifying Party  concerning  closeness  of  competition  based  on  the
    Parties' tender data. In particular, […]*.

186) Regarding tenders lost to competitors, the Refresco data indicates that Refresco lost most often […]*. [144]

6 Conclusion

187) In view of the above, the Commission concludes that the proposed transaction does not raise serious doubts as to its compatibility with  the
    internal market in the UK with respect to the supply of private label ambient NCSDs (excluding RTD tea  and  water)  to  retailers  or  with
    respect to contract manufacturing ambient NCSDs (excluding RTD tea and water) both in carton and aseptic PET.

9 Other affected Member States

1 Introduction

188) The market share estimates provided by the Notifying Party for other Member States are based on Canadean data. This data is not as  granular
    as IRI or Nielsen data, but in these Member States the Parties' overlap is not as significant as for example in France or  the  Netherlands.
    The data set includes not only retailers but also the out-of-home ("OOH") channel, and while the Notifying Party was able to estimate market
    shares splitting ambient private label/ambient contract manufacturing and carton/PET, it was not able to provide a  combination  of  neither
    these permutations nor separate data for ambient NCSDs.

189) Based on the available data, the other Member States where the proposed transaction leads to affected markets in the  supply  of  NCSDs  are
    Finland, Ireland, Italy, Poland and Sweden.

2 Market structure

190) The tables below show the estimates of the Parties' market shares in the supply of  NCSDs  in  the  relevant  Member  States,  either  split
    according to the packaging type or between the private label and contract manufacturing segments.

           Table 7 - Parties' combined market shares in the market for the supply of ambient NCSDs split per type of packaging in 2012

|Member State       |PET                                                 |Carton                                                |
|                   |Refresco                                             |Gerber Emig                                          |

    |Refresco |Gerber Emig |Combined |Refresco |Gerber Emig |Combined | |Finland |[70-80]*% |[0-5]*% |[70-80]*% |NA |NA |NA | |Ireland |[0-5]*%
  |[10-20]*% |[10-20]*% |[0-5]*% |[10-20]*% |[10-20]*% | |Italy |[30-40]*% |[0-5]*% |[30-40]*% |NA |NA |NA | |Poland |[10-20]*% |[5-10]*% |[10-
    20]*% |NA |NA |NA | |Source: Canadean data and Notifying Party's estimates

191) As can be seen from the tables above, the increments are relatively small (less than [0-5]*%) for the supply of  NCSDs  split  per  type  of
    packaging (carton and PET), with the exception of Sweden ([5-10]*%), though in this case the combined market share is just above  [10-20]*%.
    Similarly, the increments for the supply of NCSDs split by the private label and contract manufacturing segments are less than [0-5]*%, with
    the exception of Poland ([5-10]*%), though also in this case the combined market share is just above [10-20]*%.

3 The Commission's assessment

1 Finland

192) The Commission notes that although the Parties have a relatively high combined market share ([70-80]*% in private  label  and  [80-90]*%  in
    carton), the increment resulting from the addition of Gerber Emig's market position is relatively small (less than [0-5]*%).  As  such,  the
    proposed transaction will not bring about a significant change in the structure of the market for the  bottling  of  private  label  ambient
    NCSDs by third parties in carton and PET in Finland.

193) Furthermore, the Notifying Party points out that the total market size estimated for Finland by Canadean is smaller  than  Refresco's  sales
    figure in this Member State and therefore these estimates, even if attenuated by the Parties' own estimates, likely overstate  the  Parties'
    combined market share.[145] In any event, the total volume of NCSDs sold by Gerber Emig in Finland is extremely small ([…]*  million  litres
    in 2012) and […]* accounts for […]* of these volumes.

194) The Parties have not been able to provide competitors' market shares for the supply of NCSDs to retailers split by type of packaging  or  by
    the private label and branded segments. However, the market investigation indicated that there are a number of other competitors present  in
    the supply of private label ambient NCSDs for both PET and  carton  in  Finland,  including  Swed-jam,  Finnspring,  Scandicfood,  Eircfood,
    Valensina, Eckes Grannini and Wesergold.[146]

195) Finally, during the market investigation none of the competitors or customers raised substantiated concerns with regard to  effects  of  the
    proposed transaction in Finland.[147]

2 Ireland

196) The Commission notes that although the Parties have a relatively high  combined  market  share  ([50-60]*%  in  ambient  carton  NCSDs)  the
    increment resulting from the addition of Refresco's  market  position  is  relatively  small  ([0-5]*%).  For  private  label  and  contract
    manufacturing, the combined market shares are even smaller ([10-20]*% and [10-20]*% respectively) with very small increments of [0-5]*%  and
    [0-5]*% respectively. As such, the proposed transaction will not bring about a significant  change  in  the  structure  of  the  markets  in
    Ireland.

197) According to the Notifying Party, there are a number of other suppliers in Ireland such as Mulrines, Gleeson Group, Clada Group,  J  Donohoe
    and Glenpatrick. In addition, there are also a number of other suppliers present, such as Rauch, Sokpol and Casalasco.

198) No substantiated concerns were raised during the market investigation with regard to effects of the proposed transaction in Ireland.[148]

3 Italy

199) The Commission notes that the Parties' combined market shares are below [30-40]*% (either for PET  or  private  label)  and  the  increments
    resulting from the addition of Gerber Emig's market position is negligible (less than [0-5]*%). Gerber Emig does not have  a  plant  in,  or
    close to, Italy. As such, the proposed transaction will not bring about a significant change in the structure of the bottling  of  NCSDs  by
    third parties in Italy for private label on one hand and PET on the other hand.

200) The Notifying Party submits that in Italy, […]* of Gerber Emig' sales of NCSDs were to […]* ([…]* of […]* million litres). It further  notes
    that new private label suppliers with aseptic line capabilities (e.g. Fonte Ilaria, NORDA and Fonte Paradiso) are emerging in Italy.

201) In addition, according to the market investigation there are a number of other  active  competitors  in  private  label  ambient  NCSDs  for
    aseptic PET in Italy, such as Casalasco, Conserve Italia, La Doria, San Benedetto and Rauch.[149]

202) During the market investigation none of the customers raised substantiated concerns with regard to effects of the  proposed  transaction  in
    Italy.[150]

4 Poland

203) The Commission notes that the Parties have a combined market share of [10-20]*% for the supply of NCSDs bottled in  PET  and  [10-20]*%  for
    the supply of private label NCSDs. While the increment resulting from Gerber Emig's market position for ambient  NCSDs  bottled  in  PET  is
    negligible ([0-5]*%), the increment is slightly higher ([5-10]*%) for private label NCSDs. Both Refresco and  Gerber  Emig  have  plants  in
    Poland.

204) Respondents to the market investigation indicated Maspex, Agros, Zbyszko, Bewa, Hoop and Sokpol as alternative competitors  for  the  supply
    of private label NCSDs to retailers. Furthermore, the Parties' internal documents indicate that there might be some available spare capacity
    in aseptic PET in Poland.[151]

205) During the market investigation none of the competitors or customers raised substantiated concerns with regard to effects  of  the  proposed
    transaction in Poland.[152]

5 Sweden

206) In Sweden, the Parties' combined market share for the supply of  ambient  NCSDs  for  carton  is  relatively  small  ([10-20]*%)  while  the
    increment resulting from Refresco's market position is [5-10]*%. According to the market investigation, there are a  number  of  alternative
    competitors in the market for the supply of private label NCSDs to retailers in Sweden, such as Glockengold, Guttsta Kalla, Kivik,  Rynkeby,
    Swedjam, Kildevand, and Harboe.[153]

207) During the market investigation none of the competitors and customers raised substantiated concerns with regard to effects of  the  proposed
    transaction in Sweden.[154]

4 Conclusion

208) In light of the limited increment in market share, the presence of alternative suppliers, the limited combined footprint of the  Parties  in
    these Member States and in the absence of substantiated concerns voiced during the market investigation, the Commission concludes  that  the
    proposed transaction does not raise serious doubts as to its compatibility with the internal market with respect to the supply of  NCSDs  or
    any of its potential segments in Finland, Ireland, Italy, Poland and Sweden.

       PROPOSED commitments

1 Procedure

209) Where a concentration raises serious doubts which could lead to a  significant  impediment  to  effective  competition,  the  Parties  to  a
    transaction may seek to modify the concentration so as to address the serious doubts identified by the Commission with a view to having  the
    merger cleared.

210) In order to address the concerns identified  following  the  first  phase  market  investigation  and  therefore  render  the  concentration
    compatible with the internal market, the Notifying Party submitted commitments pursuant to Article 6(2)  of  the  Merger  Regulation  on  13
    September 2013 (the "13 September 2013 Commitments").

211) Following the Commission's preliminary assessment of the 13 September 2013 Commitments, the Notifying Party  submitted  revised  commitments
    on 16 September 2013 (the "16 September 2013 Commitments"). The Commission launched a market test of this set of commitments on 17 September
    2013 to gather the views of relevant market participants on their effectiveness and their ability to restore effective  competition  in  the
    markets where competition concerns were identified (the "market test").

212) In light of the results of the market test, the Notifying Party submitted a revised set of commitments on  26  September  2013  (the  "Final
    Commitments").

213) The Commission assessed these commitments and their ability to eliminate the competition concerns  in  line  with  its  Notice  on  remedies
    acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004 (the "Remedies Notice").[155]

2 Description of the 13 September 2013 Commitments

214) On 13 September 2013 the Notifying Party submitted a first commitment package offering two alternative remedies, namely divestment  of:  (i)
    Refresco's Grünsfeld plant in Germany; or (ii) Gerber Emig's Waibstadt plant in Germany. The Grünsfeld remedy was not market tested  because
    the Commission considered that it fell short of remedying the competition concerns.

215) The reasons the Commission considered Grünsfeld not to be suitable to remove competition concerns for aseptic PET  in  France,  Germany  and
    Belgium can be summarised as follows:

      i) Capacity: the aseptic PET capacity in Grünsfeld is not sufficient to cover the overlap (increment) resulting from the merger in  aseptic
         PET in Germany, France and Belgium. The plant would roughly cover (a) at most [60-70]*% of the overlap according to the capacity figures
         that the Parties provided on Thursday 12 September (assuming that the plant would produce at full capacity after  the  divestment),  and
         (b) [70-80]*% of the overlap according to the capacity figures they provided in the commitments. It should be noted that the latter  was
         the third set of capacity figures that the Parties have provided for Grünsfeld. Moreover, Grünsfeld's actual 2012 sales in  aseptic  PET
         to France, Belgium and Germany amounted to […]* million litres whereas the combined increment for the three countries amounted  to  […]*
         million litres thus representing only [20-30]*% of the increment.

     ii) Efficiency: [comparison of production costs]*.

    iii) [Reference to incentives to sell to France]*.

216) On the other hand, the Commission considered that, subject to the results of the market test, the divestiture of the Waibstadt  plant  could
    prima facie remove the serious doubts in all the markets concerned for the following reasons:

 i) Capacity: Waibstadt's capacity in aseptic PET […]* seems to be sufficient to allow any purchaser to replicate the volume increment resulting
    from the proposed transaction in France, Germany and Belgium.

ii) Current supply from Waibstadt: Waibstadt is the plant from which Gerber Emig currently supplies […]* of its aseptic PET sales to France  and
    […]* of its aseptic PET sales to Belgium, in addition to supplying the German market;

iii) Incentive to sell to France: the margins on Waibstadt's sales to France are currently higher than the  margins  on  sales  to  Germany  thus
    incentivising sales to France;

iv) Efficiency: the aseptic PET production costs at Waibstadt are lower than the equivalent production costs […]*.

217) Accordingly, on 16 September 2013 the Notifying Party submitted a new  commitment  text  which  included  only  the  Waibstadt  remedy.  The
    Notifying Party considers that the proposed divestment would remove any significant impediment to effective competition.

3 Description of the 16 September 2013 Commitments

218) Refresco committed to divest Gerber Emig's Waibstadt plant located in Waibstadt, near  Heidelberg  in  Southwest  Germany  (the  "Divestment
    Business"). This plant has […]* aseptic PET production lines and […]* carton lines […]*. The total  production  capacity  of  the  plant  is
    around […]* million litres per year, of which […]* million litres is aseptic PET and […]* million litres is carton.

219) The Divestment Business consists of:

 i) All tangible assets which contribute to the current operation or are necessary to ensure the viability of the Divestment Business, including
    the aseptic PET and carton production lines, a site area of […]* square meters, a  total  plant  floor  area  (production  and  warehousing)
    comprising […]* square meters and a total warehousing capacity on site comprising […]* Euro pallets;

ii) All licences, permits and authorisations issued by any governmental organization exclusively for the benefit of the Divestment  Business  as
    well as other plant certificates;

iii) The […]* contract, the […]* contracts […]*, the contracts with customers (with the exception of any contract  manufacturing  contracts  with
    brand owners) to the extent […]*;

iv) All personnel currently employed by the Divestment Business, including the personnel deemed key by Refresco for  maintaining  the  viability
    and competitiveness of the Divestment Business, staff seconded to the Divestment Business and shared personnel; and

 v) The arrangement for the supply with the following products or services by Refresco for a transitional period of up to  […]*  after  Closing:
    purchasing, R&D, master planning, purchasing, sales and financial accounting and IT support.

220) The Divestment Business does not include:

 i) […]*;

ii) IT, R&D, master planning, purchasing, sales and financial accounting support after the […]* period post-closing; and

iii) The contract manufacturing contracts as well as the private label contracts in which […]*.

221) In addition, the undertakings concerned have entered into related  commitments,  inter  alia   regarding  the  separation  of  the  divested
    businesses from their retained businesses, the preservation of the viability, marketability and competitiveness of the divested  businesses,
    including the appointment of a monitoring trustee and, if necessary, a divestiture trustee.

4 The results of the market test

222) The response rate to the market test was relatively good. The customers and competitors noted certain shortcomings, which  could  negatively
    impact the viability of the Divestment Business to compete effectively on a lasting basis.

223) With respect to customer contracts, the majority of respondents to the market test stressed that it is  essential  that  customer  contracts
    and relationships are transferred to the purchaser of the divested plant.[156] This will enable the purchaser to operate the capacity of the
    plant and therefore increase chances to win tenders. In addition, it is important that Refresco commits its  best  efforts  to  ensure  that
    customers stay with the purchaser at Waibstadt to build customer relationships.

224) With respect to purchaser criteria, the vast majority of respondents stressed that it is important that […]*.[157]

225) As regards other concerns raised during the market test, these are not related to the competition concerns identified by the Commission  and
    which the Divestment Business is designed to remedy, i.e. reduction of competition in private label ambient NCSDs in aseptic PET in  France,
    Germany and Belgium and the concern that Refresco would have the ability to raise prices post-merger in these markets where  the  number  of
    competitors able to supply large orders is limited and capacity constraints make switching more difficult.

226)  However, many market participants recognize that Waibstadt is a good plant.

227) On the basis of the market test and based on its own analysis, the Commission found the following shortcomings in  the  Divestment  Business
    of 16 September 2013:

 i) Customer records related to the customer contracts of the Divested Business were excluded from the commitments;

ii) Private label contracts in which […]* were excluded from the commitments;

iii) Purchaser criteria were not enough to ensure that the buyer will be able to operate as a viable competitor able to put competitive  pressure
    on the Parties;

iv) The duration of the non-solicitation clause for the Key Personnel for […]* was not sufficient.

228) Based on the above, the Commission considered that the commitments of 16 September 2013 needed to be improved in order to  ensure  that  the
    Divestment Business will remove the competition concerns in private label aseptic PET in France, Germany and  Belgium.  The  assessment  was
    communicated to the Notifying Party.

5 Final Commitments

229) The Commission informed the Notifying Party of the results of the market test and of its own views on 23  September  2013.  To  address  the
    shortcomings identified by the Commission, the Notifying Party offered a revised set of commitments on 26 September 2013.

230) The main amended features of the Final Commitments include the following:

 i) Refresco will use best efforts (subject to the customer's consent) to transfer private label  contracts  where  […]*  to  the  purchaser  of
    Waibstadt;

ii) […]*;

iii) Additional restrictions in relation to purchaser criteria have been added in order to ensure that the Divestment  Business  will  attract  a
    suitable purchaser and as such will effectively compete on a lasting basis with the merged entity;

iv) Customer orders have been added to the commitments and the non-solicitation clause for the Key Personnel has been changed from […]* to […]*;

 v) Transitional services are now provided up to […]*.

6 Commission's assessment of the Final Commitments

1 Legal test for acceptability of commitments offered in Phase I

231) Under the Merger Regulation, the Commission has the power to accept commitments that are  deemed  capable  of  rendering  the  concentration
    compatible with the common market so that they will prevent a significant impediment of effective competition.

232) As indicated in point 9 of the Remedies Notice,[158] the commitments have to eliminate the competition concerns  entirely  and  have  to  be
    comprehensive and effective from all points of view. The Commission considers, inter alia, the type, scale and  scope  of  the  remedies  by
    reference to the structure and the particular characteristics of the market in which these serious doubts arise.

233) In merger cases, divestment commitments having a structural  effect  on  the  market  are  typically  preferable.[159]  In  the  case  of  a
    divestment, it is important that the divested activities consist of a viable business which,  if  operated  by  a  suitable  purchaser,  can
    compete effectively with the merged entity on a lasting basis.

234) In Phase I, commitments must clearly dispel all serious doubts.[160] It is also settled case law that  in  assessing  whether  the  remedies
    constitute a direct and sufficient response capable of dispelling serious doubts, the Commission enjoys  a  broad  discretion.[161]  In  its
    analysis the Commission relies on responses to the market test of remedies, submission of the Parties as well as additional evidence on  the
    file.

2 Suitability of the proposed commitments to remedy serious doubts in this case

235) In the present case, the Commission considers that the Final Commitments are suitable to remove the serious  doubts  raised  in  respect  of
    private label ambient NCSDs (excluding water and RTD teas) in aseptic PET in France, Germany and Belgium as well as in relation  to  private
    label ambient RTD teas in aseptic PET in Germany.

236) The Final Commitments would remove the entire overlap arising from the proposed transaction in  relation  to  private  label  ambient  NCSDs
    (excluding water and RTD teas) in aseptic PET in France and Belgium given the Divestment Business  is  the  plant  from  where  Gerber  Emig
    currently serves France and Belgium with aseptic PET. Although it does not directly remove the entire overlap in relation to  private  label
    ambient NCSDs (excluding water and RTD teas) in aseptic PET and to private label ambient RTD teas in aseptic PET in  Germany  (since  Gerber
    Emig also supplies some volumes of these products in Germany from other plants), the Divestment Business has the capacity to do so. Thus the
    scale and scope of the Final Commitments will be sufficient to remove the serious doubts.

237) As regards the viability of the Divestment Business and its ability to compete effectively with the merged entity on a  lasting  basis,  the
    Commission considers that, given the current capacity supply margins, volumes and efficiency, the Divestment Business is viable if  acquired
    by a suitable purchaser.

238) For the reasons outlined above, the revised commitments entered into by the undertakings concerned are sufficient to eliminate  the  serious
    doubts as to the compatibility of the transaction with the internal market.

3 Purchaser criteria

239) As regards the purchaser criteria, the market test indicated that it was important for the purchaser to have experience […]*.

240) The Final Commitments address this point in that they highlight that […]*.

241) Any purchaser complying with this more specific requirement will in addition have to comply with the general requirements, such  as  (i)  to
    be independent from the merged entity, (ii) to have the financial resources, proven expertise and incentive  to  maintain  and  develop  the
    Divestment Business as a viable and active competitive force in competition with the merged entity and other competitors, and (iii)  neither
    to be likely to create prima facie competition concerns nor to give rise to a risk that  the  implementation  of  the  Commitments  will  be
    delayed, and it must, in particular, reasonably be expected to obtain all necessary approvals from the relevant regulatory  authorities  for
    the acquisition of the Divestment Business.

242) Furthermore, if a purchaser has a significant captive use the Commission may consider that the transfer of the Divestment Business  to  such
    a purchaser may not ensure the immediate restoration of effective competition because this might limit  the  quantities  available  for  the
    private label retail market and therefore the competitive force of the purchaser.

       CONDITIONS AND OBLIGATIONS

243) Under the first sentence of the second subparagraph of Article 6(2) of the Merger Regulation, the Commission  may  attach  to  its  decision
    conditions and obligations intended to ensure that the undertakings concerned comply with the commitments they have entered  into  vis-à-vis
    the Commission with a view to rendering the concentration compatible with the internal market.

244) The fulfilment of the measure that gives rise to the structural change of the market is a condition, whereas the  implementing  steps  which
    are necessary to achieve this result are generally obligations on the parties. Where a condition is not fulfilled, the Commission’s decision
    declaring the concentration compatible with the internal market and the EEA Agreement no longer stands.  Where  the  undertakings  concerned
    commit a breach of an obligation, the Commission may revoke the clearance  decision  in  accordance  with  Article  8(6)(b)  of  the  Merger
    Regulation. The undertakings concerned may also be subject to fines and periodic penalty payments under Articles  14(2)  and  15(1)  of  the
    Merger Regulation.

245) In accordance with the basic distinction between conditions and obligations, the decision in this case is  conditional  on  full  compliance
    with the requirements set out in Section B of the Final Commitments, which constitute conditions, whereas Sections  C  to  F  of  the  Final
    Commitments constitute obligations on the Notifying Party.

246) The full text of the Final Commitments is annexed to this Decision as Annex I and forms an integral part thereof.

       CONCLUSION

247) For the above reasons, the Commission has decided not to oppose the notified operation as modified by the  commitments  and  to  declare  it
    compatible with the internal market and with the functioning of the EEA Agreement, subject to full compliance with the conditions in section
    B of the commitments annexed to the present Decision and with the obligations contained in the other sections of the said commitments.  This
    Decision is adopted in application of Article 6(1)(b) in conjunction with Article 6(2) of the Merger Regulation.

For the Commission
(signed)
Joaquín ALMUNIA
Vice-President

By email and by fax: 00 32 2 296 4301
European Commission
DG Competition
1, Place Madou
B-1000 BRUSSELS

                                                 Case M.COMP/M.6924 – Refresco Group/Pride Foods

                                                      COMMITMENTS TO THE EUROPEAN COMMISSION

Pursuant to Article 6(2) of Council Regulation (EC) No. 139/2004 as amended (the  Merger  Regulation),  Refresco  Group  B.V.  (Refresco)  hereby
provides the following Commitments (the Commitments) in order to enable the European Commission (the Commission) to declare  the  acquisition  of
sole control by Refresco Group B.V. (Refresco) of Pride Foods Limited (Pride Foods, together with Refresco,  the  Parties)  compatible  with  the
common market and the EEA Agreement by its decision pursuant to Article 6(1)(b) of the Merger Regulation (the Decision).

The Commitments shall take effect upon the date of adoption of the Decision.

This text shall be interpreted in the light of the Decision to the extent that the Commitments are attached as  conditions  and  obligations,  in
the general framework of Community law, in particular in the light of the Merger Regulation,  and  by  reference  to  the  Commission  Notice  on
remedies acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004.

Definitions

For the purpose of the Commitments, the following terms shall have the following meaning:

Affiliated Undertakings: undertakings controlled by the Parties and/or by the ultimate parents of the Parties,  whereby  the  notion  of  control
shall be interpreted pursuant to Article 3 Merger Regulation and in the light of the Commission Consolidated Jurisdictional Notice under  Council
Regulation (EEC) No 139/2004.

Closing: the transfer of the legal title of the Divestment Business to the Purchaser.

Divestiture Trustee: one or more natural or legal person(s), independent from the Parties, who is approved by the  Commission  and  appointed  by
Refresco and who has received from Refresco the exclusive Trustee Mandate to sell the Divestment Business to a Purchaser at no minimum price.

Divestment Business: the business or businesses as defined in Section B and the Schedule that the Parties commit to divest.

Effective Date: the date of adoption of the Decision.

First Divestiture Period: the period of […]* from the Effective Date.

Hold Separate Manager: the person appointed by Refresco for the Divestment Business to manage the day-to-day business under  the  supervision  of
the Monitoring Trustee.

Key Personnel: all personnel necessary to maintain the viability and competitiveness of the Divestment Business, as listed in the Schedule.

Monitoring Trustee: one or more natural or legal person(s), independent from the Parties, who is approved by  the  Commission  and  appointed  by
Refresco, and who has the duty to monitor Refresco's compliance with the conditions and obligations attached to the Decision.

Personnel: all personnel currently employed by the Divestment Business, including Key Personnel,  staff  seconded  to  the  Divestment  Business,
shared personnel and the additional personnel listed in the Schedule.

Purchaser: the entity approved by the Commission as acquirer of the Divestment Business in accordance with the criteria set out in Section D.

Trustee(s): the Monitoring Trustee and the Divestiture Trustee.

Trustee Divestiture Period: the period of […]* from the end of the First Divestiture Period.

The Divestment Business

      Commitment to divest

   1. In order to restore effective competition, Refresco commits to divest, or procure the divestiture of the Divestment Business by the end  of
      the Trustee Divestiture Period as a going concern to a purchaser and on terms of sale approved by the Commission  in  accordance  with  the
      procedure described in paragraph 14. To carry out the divestiture, Refresco commits to find a purchaser and to enter into a  final  binding
      sale and purchase agreement for the sale of the Divestment Business within the First Divestiture Period. If Refresco has not  entered  into
      such an agreement at the end of the First Divestiture Period, Refresco shall grant the Divestiture Trustee an exclusive mandate to sell the
      Divestment Business in accordance with the procedure described in paragraph 23 in the Trustee Divestiture Period.

   2. Refresco shall be deemed to have complied with this commitment if, by the end of the Trustee Divestiture Period, Refresco has entered  into
      a final binding sale and purchase agreement, if the Commission approves the Purchaser and  the  terms  in  accordance  with  the  procedure
      described in paragraph 14 and if the closing of the sale of the Divestment Business takes place within a period not exceeding three  months
      after the approval of the purchaser and the terms of sale by the Commission.

   3. In order to maintain the structural effect of the Commitments, Refresco shall, for a period of 10  years  after  the  Effective  Date,  not
      acquire direct or indirect influence over the whole or part of the Divestment Business, unless the Commission has previously found that the
      structure of the market has changed to such an extent that the absence of influence over the Divestment Business is no longer necessary  to
      render the proposed concentration compatible with the common market.

      Structure and definition of the Divestment Business

   4. The Divestment Business consists of the production plant of Pride Foods in Waibstadt, Germany. The Divestment Business, which is  described
      in more detail in  Schedule 1, includes:

        a) all tangible assets which contribute to the current operation or are necessary to ensure the viability  and  competitiveness  of  the
           Divestment Business;

        b) all licences, permits and authorisations issued by any governmental organisation for the benefit of the Divestment Business;

        c) the contracts, leases and other rights and commitments and all records of the Divestment Business  described  in  Schedule  1  (items
           referred to under (a) to (c) hereinafter collectively referred to as Assets); and

        d) the Personnel.

Related commitments

      Preservation of Viability, Marketability and Competitiveness

   5. From the Effective Date until Closing, Refresco shall preserve the economic viability, marketability and competitiveness of the  Divestment
      Business, in accordance with good business practice, and shall minimise as far as possible any risk of loss of competitive potential of the
      Divestment Business. In particular Refresco undertakes:

        a) not to carry out any act upon its own  authority  that  might  have  a  significant  adverse  impact  on  the  value,  management  or
           competitiveness of the Divestment Business or that might alter the nature and scope of activity,  or  the  industrial  or  commercial
           strategy or the investment policy of the Divestment Business;

        b) to make available sufficient resources for the development of the Divestment Business, on the basis and continuation of the  existing
           business plans; and

        c) to take all reasonable steps, including appropriate incentive schemes (based on industry practice), to encourage all Key Personnel to
           remain with the Divestment Business.

      Hold-separate obligations of Parties

   6. Refresco commits, from the Effective Date until Closing, to keep the Divestment Business separate from the businesses it is  retaining  and
      to ensure that Key Personnel of the Divestment Business – including the Hold Separate  Manager  –  have  no  involvement  in  any  business
      retained and vice versa unless this is necessary for the operation of  the  Divestment  Business  and  the  preservation  of  its  economic
      viability, marketability and competitiveness. Refresco shall also ensure that the Personnel does not report to any individual  outside  the
      Divestment Business.

   7. Until Closing, Refresco shall assist the Monitoring Trustee in ensuring that the Divestment Business is managed as a distinct and  saleable
      entity separate from the businesses retained by the Parties. Refresco shall appoint a Hold Separate Manager who shall  be  responsible  for
      the management of the Divestment Business, under the supervision of the Monitoring Trustee. The Hold  Separate  Manager  shall  manage  the
      Divestment Business independently and in the best interest of the business with a  view  to  ensuring  its  continued  economic  viability,
      marketability and competitiveness and its independence from the businesses retained by the Parties.

      Ring-fencing

   8. Refresco shall implement all necessary measures to ensure that it does not after the Effective Date obtain any business secrets,  know-how,
      commercial information, or any other information of a confidential or proprietary nature relating to the Divestment Business unless this is
      necessary for the operation of the Divestment Business and the preservation of its economic viability, marketability  and  competitiveness.
      In particular, the participation of the Divestment Business in a central information technology network shall  be  severed  to  the  extent
      possible, without compromising the viability of the Divestment Business.  Refresco  may  obtain  information  relating  to  the  Divestment
      Business which is reasonably necessary for the divestiture of the Divestment Business or whose disclosure to Refresco is required by law.

      Non-solicitation clause

   9. Refresco undertakes, subject to customary limitations, not to solicit, and to procure that Affiliated Undertakings do not solicit, the  Key
      Personnel transferred with the Divestment Business for a period of three years after Closing.

      Due Diligence

  10. In order to enable potential purchasers to carry out a reasonable due diligence of the Divestment  Business,  Refresco  shall,  subject  to
      customary confidentiality assurances and dependent on the stage of the divestiture process:

        a) provide to potential purchasers sufficient information as regards the Divestment Business; and

        b) provide to potential purchasers sufficient information relating to the Personnel and allow them reasonable access to the Personnel.

      Reporting

  11. Refresco shall submit written reports in English on potential purchasers of the Divestment Business and developments  in  the  negotiations
      with such potential purchasers to the Commission and the Monitoring Trustee no later than 10 days after the end of  every  month  following
      the Effective Date (or otherwise at the Commission's request).

  12. Refresco shall inform the Commission and the Monitoring Trustee on the preparation of the data room documentation  and  the  due  diligence
      procedure and shall submit a copy of an information memorandum to the Commission and the Monitoring Trustee before sending  the  memorandum
      out to potential purchasers.

The Purchaser

  13. In order to ensure the immediate restoration of effective competition, the Purchaser, in order to be approved by the Commission, must:

        a) be independent of and unconnected to the Parties;

        b) have the financial resources, proven expertise and incentive to maintain and develop the Divestment Business as a viable  and  active
           competitive force in competition with the Parties and other competitors; […]*;

        c) neither be likely to create, in the light of the information available to the Commission, prima facie competition concerns  nor  give
           rise to a risk that the implementation of the Commitments will be delayed, and must, in particular, reasonably be expected to  obtain
           all necessary approvals from the relevant regulatory authorities for the acquisition of the Divestment Business (the before-mentioned
           criteria for the purchaser hereafter the Purchaser Requirements).

  14. The final binding sale and purchase agreement shall be conditional on the Commission's approval.  When Refresco has  reached  an  agreement
      with a purchaser, it shall submit a fully documented and reasoned proposal, including a copy of the final agreement(s), to  the  Commission
      and the Monitoring Trustee. Refresco must be able to demonstrate to the Commission that the purchaser meets the Purchaser Requirements  and
      that the Divestment Business is being sold in a manner consistent with the Commitments.  For the approval, the Commission shall verify that
      the purchaser fulfils the Purchaser Requirements and that  the  Divestment  Business  is  being  sold  in  a  manner  consistent  with  the
      Commitments.  The Commission may approve the sale of the Divestment Business without one or more Assets or parts of the Personnel, if  this
      does not affect the viability and competitiveness of the Divestment Business after the sale, taking account of the proposed purchaser.

Trustee

        I. Appointment Procedure

  15. Refresco shall appoint a Monitoring Trustee to carry out the functions specified in the Commitments for a Monitoring Trustee.  If  Refresco
      has not entered into a binding sales and purchase agreement one month before the end of the First Divestiture Period or if  the  Commission
      has rejected a purchaser proposed by Refresco at that time or thereafter, Refresco shall appoint a Divestiture Trustee  to  carry  out  the
      functions specified in the Commitments for a Divestiture Trustee.  The appointment of the Divestiture Trustee shall take  effect  upon  the
      commencement of the Extended Divestment Period.

  16. The Trustee shall be independent of the Parties, possess the necessary  qualifications  to  carry  out  its  mandate,  for  example  as  an
      investment bank or consultant or auditor, and shall neither have nor become exposed to a  conflict  of  interest.   The  Trustee  shall  be
      remunerated by Refresco in a way that does not impede the independent and effective fulfilment of its mandate.  In  particular,  where  the
      remuneration package of a Divestiture Trustee includes a success premium linked to the final sale value of the Divestment Business, the fee
      shall also be linked to a divestiture within the Trustee Divestiture Period.

      Proposal by the Parties

  17. No later than one week after the Effective Date, Refresco shall submit a list of one or more persons whom Refresco proposes to  appoint  as
      the Monitoring Trustee to the Commission for approval. No later than one month before the end of the  First  Divestiture  Period,  Refresco
      shall submit a list of one or more persons whom Refresco proposes to appoint as Divestiture Trustee to the  Commission  for  approval.  The
      proposal shall contain sufficient information for the Commission to verify that the proposed Trustee fulfils the requirements  set  out  in
      paragraph 16 and shall include:

        a) the full terms of the proposed mandate, which shall include all provisions necessary to enable the Trustee to fulfil its duties under
           these Commitments;

        b) the outline of a work plan which describes how the Trustee intends to carry out its assigned tasks; and

        c) an indication whether the proposed Trustee is to act as both Monitoring Trustee and Divestiture Trustee or whether different trustees
           are proposed for the two functions.

      Approval or rejection by the Commission

  18. The Commission shall have the discretion to approve or reject the proposed Trustee(s) and to approve the proposed mandate  subject  to  any
      modifications it deems necessary for the Trustee to fulfil its obligations. If only one name is approved, Refresco shall appoint  or  cause
      to be appointed, the individual or institution concerned as Trustee, in accordance with the mandate approved by  the  Commission.  If  more
      than one name is approved, Refresco shall be free to choose the Trustee to be appointed from among the names approved. The Trustee shall be
      appointed within one week of the Commission's approval, in accordance with the mandate approved by the Commission.

      New proposal by the Parties

  19. If all the proposed Trustees are rejected, Refresco shall submit the names of at least two more individuals or institutions within one week
      of being informed of the rejection, in accordance with the requirements and the procedure set out in paragraphs 15 through 18.

      Trustee nominated by the Commission

  20. If all further proposed Trustees are rejected by the Commission, the Commission shall nominate a Trustee, whom Refresco shall  appoint,  or
      cause to be appointed, in accordance with a trustee mandate approved by the Commission.

       II. Functions of the Trustee

  21. The Trustee shall assume its specified duties in order to ensure  compliance  with  the  Commitments.   The  Commission  may,  on  its  own
      initiative or at the request of the Trustee or Refresco, give any orders or instructions to the Trustee in order to ensure compliance  with
      the conditions and obligations attached to the Decision.

      Duties and obligations of the Monitoring Trustee

  22. The Monitoring Trustee shall:

   i) propose in its first report to the Commission a detailed work plan describing how it intends to monitor compliance with the obligations and
      conditions attached to the Decision.

  ii) oversee the on-going management of the Divestment Business with a view to ensuring its  continued  economic  viability,  marketability  and
      competitiveness and monitor compliance by Refresco with the conditions and obligations attached to the Decision. To that end the Monitoring
      Trustee shall:

              a) monitor the preservation of the economic viability, marketability and  competitiveness  of  the  Divestment  Business,  and  the
                 keeping separate of the Divestment Business from the business retained by the Parties, in accordance with paragraphs 5 and 6  of
                 the Commitments;

              a) supervise the management of the Divestment Business as a distinct and saleable entity, in accordance with  paragraph  7  of  the
                 Commitments;

                    b)       in consultation with Refresco, determine all necessary measures to ensure that Refresco does not after the effective
                       date obtain any business secrets, knowhow,  commercial  information,  or  any  other  information  of  a  confidential  or
                       proprietary nature relating to the Divestment Business, in particular strive for the severing of the Divestment  Business'
                       participation in a central information technology network to the extent possible, without compromising  the  viability  of
                       the Divestment Business; and

                    i) decide whether such information may be disclosed to Refresco as the disclosure is reasonably necessary to  allow  Refresco
                       to carry out the divestiture or as the disclosure is required by law;

              c) monitor the splitting of assets and the allocation of Personnel between the  Divestment  Business  and  Refresco  or  Affiliated
                 Undertakings;

   i) assume the other functions assigned to the Monitoring Trustee under the conditions and obligations attached to the Decision;

   i) propose to Refresco such measures as the Monitoring Trustee considers necessary to ensure Refresco's compliance  with  the  conditions  and
      obligations attached to the Decision, in particular the maintenance of the full economic viability, marketability or competitiveness of the
      Divestment Business, the holding separate of the Divestment Business and the non-disclosure of competitively sensitive information;

  ii) review and assess potential purchasers as well as the progress of the divestiture process and verify that, dependent on the  stage  of  the
      divestiture process, (a) potential purchasers receive sufficient information relating to the  Divestment  Business  and  the  Personnel  in
      particular by reviewing, if available, the data room documentation, the information memorandum and  the  due  diligence  process,  and  (b)
      potential purchasers are granted reasonable access to the Personnel;

 iii) provide to the Commission, sending Refresco a non-confidential copy at the same time, a written report within 15  days  after  the  end  of
      every month. The report shall cover the operation and management of the Divestment Business so that the Commission can assess  whether  the
      business is held in a manner consistent with the Commitments and the progress of the divestiture process as well as  potential  purchasers.
      In addition to these reports, the Monitoring Trustee shall  promptly  report  in  writing  to  the  Commission,  sending  Refresco  a  non-
      confidential copy at the same time, if it concludes on reasonable grounds that Refresco is failing to comply with these Commitments;

  iv) within one week after receipt of the documented proposal referred to in paragraph 14, submit to the Commission a reasoned opinion as to the
      suitability and independence of the proposed purchaser and the viability of the Divestment Business after the Sale and as  to  whether  the
      Divestment Business is sold in a manner consistent with the conditions  and  obligations  attached  to  the  Decision,  in  particular,  if
      relevant, whether the Sale of the Divestment Business without one or more Assets or not all of the Personnel affects the viability  of  the
      Divestment Business after the sale, taking account of the proposed purchaser.

      Duties and obligations of the Divestiture Trustee

  23. Within the Trustee Divestiture Period, the Divestiture Trustee shall sell at no minimum price  the  Divestment  Business  to  a  purchaser,
      provided that the Commission has approved both the purchaser and the final binding sale and  purchase  agreement  in  accordance  with  the
      procedure laid down in paragraph‎ 14. The Divestiture Trustee shall include in the sale and purchase agreement such terms and conditions  as
      it considers appropriate for an expedient sale in the Trustee Divestiture Period.  In particular, the Divestiture Trustee  may  include  in
      the sale and purchase agreement such customary representations and warranties and indemnities as are  reasonably  required  to  effect  the
      sale. The Divestiture Trustee shall protect the  legitimate  financial  interests  of  Refresco,  subject  to  the  Parties'  unconditional
      obligation to divest at no minimum price in the Trustee Divestiture Period.

  24. In the Trustee Divestiture Period (or otherwise at the Commission's request), the Divestiture Trustee shall provide the Commission  with  a
      comprehensive monthly report written in English on the progress of the divestiture process. Such reports shall be submitted within 15  days
      after the end of every month with a simultaneous copy to the Monitoring Trustee and a non-confidential copy to the Parties.

      III. Duties and obligations of Refresco

  25. Refresco shall provide and shall cause its advisors to provide the Trustee with all such co-operation, assistance and  information  as  the
      Trustee may reasonably require to perform its tasks. The Trustee shall have full and complete access to any of Refresco or  the  Divestment
      Business' books, records, documents, management or other personnel, facilities, sites and technical information  necessary  for  fulfilling
      its duties under the Commitments and Refresco and the Divestment Business shall provide  the  Trustee  upon  request  with  copies  of  any
      document. Refresco and the Divestment Business shall make available to the Trustee one or more offices  on  their  premises  and  shall  be
      available for meetings in order to provide the Trustee with all information necessary for the performance of its tasks.

  26. Refresco shall provide the Monitoring Trustee with all managerial and administrative support that it may reasonably request  on  behalf  of
      the management of the Divestment Business. This shall include all administrative support functions  relating  to  the  Divestment  Business
      which are currently carried out at headquarters level. Refresco shall provide and shall  cause  its  advisors  to  provide  the  Monitoring
      Trustee, on request, with the information submitted to potential purchasers, in particular give the Monitoring Trustee access to  the  data
      room documentation and all other information granted to potential purchasers in the due diligence  procedure.  Refresco  shall  inform  the
      Monitoring Trustee on possible purchasers, submit a list of  potential  purchasers,  and  keep  the  Monitoring  Trustee  informed  of  all
      developments in the divestiture process.

  27. Refresco shall grant or procure Affiliated Undertakings to grant comprehensive powers  of  attorney,  duly  executed,  to  the  Divestiture
      Trustee to effect the sale, the Closing and all actions and declarations which the Divestiture Trustee considers necessary  or  appropriate
      to achieve the sale and the Closing, including the appointment of  advisors  to  assist  with  the  sale  process.   Upon  request  of  the
      Divestiture Trustee, Refresco shall cause the documents required for effecting the sale and the Closing to be duly executed.

  28. Refresco shall indemnify the Trustee and its employees and agents (each an Indemnified Party) and  hold  each  Indemnified  Party  harmless
      against, and hereby agrees that an Indemnified Party shall have no liability to Refresco for any liabilities arising out of the performance
      of the Trustee's duties under the Commitments, except to the extent that such liabilities result from  the  wilful  default,  recklessness,
      gross negligence or bad faith of the Trustee, its employees, agents or advisors.

  29. At the expense of Refresco, the Trustee may appoint advisors (in particular for corporate finance or legal advice), subject  to  Refresco's
      approval (this approval not to be unreasonably withheld or delayed) if the Trustee considers the appointment of such advisors necessary  or
      appropriate for the performance of its duties and obligations under the Mandate, provided that any fees and other expenses incurred by  the
      Trustee are reasonable. Should Refresco refuse to approve the advisors proposed by the Trustee the Commission may approve  the  appointment
      of such advisors instead, after having heard Refresco.  Only the  Trustee  shall  be  entitled  to  issue  instructions  to  the  advisors.
      Paragraph 28 shall apply mutatis mutandis. In the Trustee Divestiture Period, the Divestiture Trustee may use advisors who served  Refresco
      during the Divestiture Period if the Divestiture Trustee considers this in the best interest of an expedient sale.

       IV. Replacement, discharge and reappointment of the Trustee

  30. If the Trustee ceases to perform its functions under the Commitments or for any other good cause, including the exposure of the Trustee  to
      a conflict of interest:

        a) the Commission may, after hearing the Trustee, require Refresco to replace the Trustee; or

        b) Refresco, with the prior approval of the Commission, may replace the Trustee.

  31. If the Trustee is removed according to paragraph 30, the Trustee may be required to continue in its function until  a  new  Trustee  is  in
      place to whom the Trustee has effected a full hand over of all relevant information.  The new Trustee shall be appointed in accordance with
      the procedure referred to in paragraphs 15 to 20.

  32. Beside the removal according to paragraph 30, the Trustee shall cease to act as Trustee only after the Commission has  discharged  it  from
      its duties after all the Commitments with which the Trustee has been entrusted have been implemented. However, the Commission  may  at  any
      time require the reappointment of the Monitoring Trustee if it subsequently appears that the relevant remedies might not  have  been  fully
      and properly implemented.

The Review Clause

  33. The Commission may, where appropriate, in response to a request from Refresco showing good cause and  accompanied  by  a  report  from  the
      Monitoring Trustee:

   i) Grant an extension of the time periods foreseen in the Commitments, or

  ii) Waive, modify or substitute, in exceptional circumstances, one or more of the undertakings in these Commitments.

    . Where Refresco seeks an extension of a time period, it shall submit a request to the Commission no later than one month before  the  expiry
      of that period, showing good cause.  Only in exceptional circumstances shall Refresco be entitled to request an extension within  the  last
      month of any period.

-----------------------------------------------------
[…]*
duly authorised for and on behalf of Refresco

                                                              – the waibstadt plant

   1. THE WAIBSTADT PLANT IS LOCATED AT THE FOLLOWING ADDRESS: KG WERK WAIBSTADT NEIDENSTEINER STRAßE 51 74915 WAIBSTADT.   LEGAL  TITLE  TO  THE
      PLANT IS HELD BY EMIG GMBH.

   2. Following paragraph 4 of these Commitments, the Divestment Business includes all assets, tangible and intangible, currently owned  or  used
      by Emig GmbH in relation to the Waibstadt plant (other than the Excluded Contracts), but is not limited  to  the  tangible  and  intangible
      assets, personnel and contracts identified below:

   1. Tangible Assets

      The Divestment Business includes all tangible assets owned or used by EMIG GmbH in relation to the Waibstadt plant including the  following
      main tangible assets:

   i) The freehold title to the site area of approximately […]* square meters.

  ii) The properties on the site area including the production plant and warehousing.  The total floor area of the plant including production and
      warehousing comprises […]* square metres.  The total warehousing capacity on site (measured  in  terms  of  Euro  pallets)  comprises  […]*
      pallets. ([…]*.)

 iii) […]* APET bottling lines […]*: […]*

  iv) […]* bottling carton lines ([…]*): […]*

   2. Licences, permits and authorisations

      The Divestment Business includes all licences, permits and authorisations awarded to the Waibstadt plant and necessary for the operation of
      the Divestment Business, including the following: […]*

   3. Contracts

      The Divestment Business includes the following main contracts, agreements, leases, commitments and understandings:

   v) the […]* contract;

  vi) the […]* for the […]*;

 vii) the Transfer Contracts, being customer contracts as  defined  below  (with  the  exception  of  any  co-packing  contracts  (the  "Excluded
      Contracts")):

   a) the contracts with customers to the extent […]* (the "A Contracts");

   b) […]* (the "B Contracts");

   c) the Additional Contract as set out in Annex 1 to this Schedule 1 (the "C Contract"); and

   d) any other contracts, agreements, leases, commitments and understandings that are relevant to the operation of the Waibstadt plant.

           Where the transfer of the Transfer Contracts would require the consent of the customer, Refresco will use best efforts to:

   i. In respect of the A and C Contracts, transfer the contracts to the Purchaser; or

  ii. In respect of the B Contracts, agree with the customer the establishment of a new contract between the Purchaser and the customer […]*.

           […]*.

   4. Records and Personnel

      The Divestment Business includes:

viii) the following  records: the customer records relating to the customer contracts divested in accordance with paragraph 2.3(iii) of  Schedule
      1, the production records and the quality control records;

  ix) the following Personnel: […]*.

   x) the following Key Personnel: […]*

   5. Products and Services

      The Divestment Business will include arrangements for the supply of the purchaser with the following products or services  by  Refresco  or
      Affiliated Undertakings for a transitional period of up to […]* after Closing:

  xi) IT

 xii) R&D

xiii) Master planning

 xiv) Purchasing ([…]*)

  xv) Sales

 xvi) Financial accounting

   3. The Divestment Business shall not include:

xvii) […]*.

   i) […]*.

                                                                     ANNEX 1

[…]*.

-----------------------
[1]   OJ L 24, 29.1.2004, p. 1 ("the Merger Regulation"). With effect from 1 December 2009, the Treaty on the Functioning of the  European  Union
("TFEU") has introduced certain changes, such as the replacement of "Community"  by  "Union"  and  "common  market"  by  "internal  market".  The
terminology of the TFEU will be used throughout this Decision.

[2]   Publication in the Official Journal of the European Union No C 247, 28.08.2013, p.5.

[3]   Stodir owns a non-controlling 34% stake in Tryggingamidstodin, an Icelandic insurance company as well as a  non-controlling  16%  stake  in
Geysir Green energy EHF, an Icelandic energy company.

[4]   3i comprises 3i GC Holding Ref 1 S.A.R.L. and 3i GH Holding Ref 2 S.A.R.L.

[5]   […]*.

[6]          Case   COMP/M.6522-Groupe   Lactalis/Skanemejerier,   COMP/M.2504-Cadbury   Schweppes/Pernod   Ricard,   COMP/M.2276-The   Coca-Cola
Company/Nestle/JV.

[7]         Case COMP/M.5633-Pepsico/The Pepsico Bottling Group, COMP/M.1065-Nestle/San Pellegrino.

[8]         Case COMP/M.190-Nestlé/Perrier.

[9]         Replies to questions 13 and 14 of the Commission’s request for information pursuant to Article  11  of  Council  Regulation  (EC)  No
139/2004 addressed to retailers of 19 August 2013.

[10]        Replies to question 8.1 of the Commission’s request for information pursuant to Article 11 of Council  Regulation  (EC)  No  139/2004
addressed to competitors of 16 August 2013.

[11]  Case COMP/M.5633-Pepsico/The Pepsico Bottling Group, COMP/M.1065-Nestle/San Pellegrino.

[12]  Case COMP/M.190-Nestlé/Perrier.

[13]  Replies to questions 26, 27, 29 and 30 of the Commission’s request for information pursuant to Article 11 of  Council  Regulation  (EC)  No
139/2004 addressed to retailers of 19 August 2013.

[14]  Replies to question 14 of the Commission’s request for information  pursuant  to  Article  11  of  Council   Regulation  (EC)  No  139/2004
addressed to competitors of 16 August 2013.

[15]  Replies to questions 26 and 27 of the Commission’s request for information pursuant to Article 11 of Council Regulation  (EC)  No  139/2004
addressed to retailers of 19 August 2013.

[16]  Replies to question 23 of the Commission’s request for information  pursuant  to  Article  11  of  Council   Regulation  (EC)  No  139/2004
addressed to retailers of 19 August 2013.

[17]  Replies to question 14 of the Commission’s request for information  pursuant  to  Article  11  of  Council   Regulation  (EC)  No  139/2004
addressed to competitors of 16 August 2013.

[18]  Replies to questions 13 and 15 of the Commission’s request for information pursuant to Article 11 of Council  Regulation (EC)  No  139/2004
addressed to competitors of 16 August 2013.

[19]  Replies to questions 16 and 17 of the Commission’s request for information pursuant to Article 11 of Council  Regulation (EC)  No  139/2004
addressed to retailers of 19 August 2013.

[20]        Case COMP/M.2416-Tetra Laval/Sidel.

[21]        The Commission concluded that PET and carton belonged to distinct but closely neighbouring  relevant  product  markets  because  they
were technical substitutes and "weak economic substitutes", but that one could not rule out that in the future the markets could converge  so  as
to belong to the same product market.

[22]  Replies to questions 31 and 32 of the Commission’s request for information pursuant to Article 11 of Council  Regulation (EC)  No  139/2004
addressed to competitors of 16 August 2013 and replies to questions 31 and 32 addressed to retailers of 19 August 2013.

[23]        Case COMP/M.2416-Tetra Laval/Sidel.

[24]        Case COMP/M.2416-Tetra Laval/Sidel.

[25]        Replies to questions 47, 48, 49, 55 and 56 of the Commission’s request for information pursuant to Article 11 of Council   Regulation
(EC) No 139/2004 addressed to competitors of 16 August 2013.

[26]  Replies to question 51 of the Commission’s request for information  pursuant  to  Article  11  of  Council   Regulation  (EC)  No  139/2004
addressed to retailers of 19 August 2013.

[27]  Replies to questions 63.1-66.1 of the Commission’s request for information pursuant to Article 11 of Council  Regulation (EC)  No  139/2004
addressed to competitors of 16 August 2013.

[28]        Only the retail market is relevant in the present case, since the NABs bottled  by  the  Parties  for  the  out-of-home  channel  are
different (Refresco only bottles CSDs for the out-of-home channel).

[29]        From a supply-side perspective, the Notifying Party submits that manufacturing lines  can  be  easily  switched  (and  at  low  cost)
between the production of private label and contract-manufactured branded NABs.

[30]  Replies to questions 69.1 and 70.1 of the Commission’s request for information pursuant to  Article  11  of  Council   Regulation  (EC)  No
139/2004 addressed to competitors of 16 August 2013.

[31]  Replies to questions 71.3, 71.4, 71.5, 71.6 and 71.7 of the Commission’s  request  for  information  pursuant  to  Article  11  of  Council
Regulation (EC) No 139/2004 addressed to competitors of 16 August 2013 and replies to question 54 addressed to retailers of 19 August 2013.

[32]        Case COMP/M.5633-Pepsico/The Pepsico Bottling Group, Case COMP/M.5632- PepsiCo/Pepsi Americas.

[33]  Case COMP/M.2504-Cadbury Schweppes/Pernod Ricard.

[34]  Replies to question 84 of the Commission’s request for information  pursuant  to  Article  11  of  Council   Regulation  (EC)  No  139/2004
addressed to competitors of 16 August 2013. This finding is also supported by the information on  transport  costs  submitted  by  the  Notifying
Party in Annex 82 to the Form CO. In particular, transport depends on the distance covered, e.g. for production in Germany, transport cost for  1
litre aseptic PET products amount to […]* for a shipping distance of 300km, whereas transport costs for 1 litre aseptic PET  products  amount  to
[…]* (assuming full truck load) for a distance of 1000 km. This amounts to […]* of gross margins of […]* for  aseptic  PET  products  in  Germany
(see Annex 156 to the Form CO), where […]* - Replies to question 1 of the Commission’s request for information pursuant to Article 11 of  Council
Regulation (EC) No 139/2004 addressed to competitors of 23 September 2013.

[35]  In case of Germany, the transport costs of […]* of aseptic PET products on a distance of 500 km makes up […]* of the gross margin  of  […]*
for aseptic PET products.

[36]  Replies to questions 78 and 79 of the Commission’s request for information pursuant to Article 11 of Council  Regulation (EC)  No  139/2004
addressed to competitors of 16 August 2013.

[37]  […]* of Refresco's sales and […]* of Gerber Emig's sales take place in the country of manufacture.

[38]  Replies to questions 81, 82 of the Commission’s request for information pursuant to Article 11 of  Council   Regulation  (EC)  No  139/2004
addressed to competitors of 16 August 2013.

[39]  Replies to question 80 of the Commission’s request for information pursuant  to  Article  11  of  Council    Regulation  (EC)  No  139/2004
addressed to competitors of 16 August 2013.

[40]  Replies to question 80 of the Commission’s request for information pursuant  to  Article  11  of  Council    Regulation  (EC)  No  139/2004
addressed to competitors of 16 August 2013. Replies to question 134 of the Commission’s  request  for  information  pursuant  to  Article  11  of
Council Regulation (EC) No 139/2004 addressed to retailers of 19 August 2013.

[41]  Replies to questions 84 of the Commission’s request for information pursuant to  Article  11  of  Council    Regulation  (EC)  No  139/2004
addressed to competitors of 16 August 2013.

[42]  Guidelines on the assessment of horizontal mergers under the Council Regulation on the  control  of  concentrations  between  undertakings,
paragraph 8, (OJ C31, 5.2.2004, p.5).

[43]  Annexes 55 and 56 to the Form CO.

[44]  There are no overlaps between the Parties regarding the supply of private label RTD tea or  water.  In  contract  manufacturing  for  brand
owners there is also no overlap, since Refresco is only active in aseptic PET and Gerber Emig in carton.

[45]  These sales incorporate also Refresco's sales of CSD products, an area where Gerber Emig is not active.

[46]  IRI data.

[47]  The Parties' market shares for 2012 are not significantly different from those regarding  2010  (Refresco:  [40-50]*%;  Gerber  Emig:  [10-
20]*%) and 2011 (Refresco: [40-50]*%; Gerber Emig: [10-20]*%).

[48]  Minutes of conference call with competitor of 1 July 2013.

[49]  IRI data.

[50]  Annex 93(f) of the Form CO, […]*. Replies to question 110 of the Commission’s request for information pursuant to  Article  11  of  Council
Regulation (EC) No 139/2004 addressed to retailers of 19 August 2013. Replies to  question  103  of  the  Commission’s  request  for  information
pursuant to Article 11 of Council Regulation (EC) No 139/2004 addressed to competitors of 16 August 2013.

[51]  The Parties' market shares for 2012 are not significantly different from those regarding 2010 (Refresco: [5-10]*%; Gerber Emig:  [20-30]*%)
and 2011 (Refresco: [0-5]*%; Gerber Emig: [10-20]*%).

[52]  In addition, Antartic and Niederrhein-Gold are also active in this segment. However, as explained, Antartic  is  part  of  the  Intermarché
group and Niederrhein-Gold is mainly supplying Lidl. For these reasons, these suppliers cannot be viewed as posing a  competitive  constraint  to
the merged entity in the supply of private label ambient NCSDs to retailers.

[53]  Replies to questions 114, 166 and 167 of the Commission’s request for information pursuant to Article 11  of  Council  Regulation  (EC)  No
139/2004 addressed to retailers of 19 August 2013.

[54]  Replies to question 167 of the Commission’s request for information  pursuant  to  Article  11  of  Council  Regulation  (EC)  No  139/2004
addressed to retailers of 19 August 2013

[55]  Replies to questions 134 and 138 of the Commission’s request for information pursuant to Article 11 of Council Regulation (EC) No  139/2004
addressed to competitors of 16 August 2013.

[56]  Gerber Emig supplies aseptic PET into France from Waibstadt ([…]* litres) and Calvörde ([…]* litres) in  Germany.  Waibstadt  and  Calvörde
are respectively located approximately 572 km and 892 km from Paris, while Stute’s and Wesergold's plants are respectively located  approximately
657 km and 617 km from Paris. In addition, Wesergold's plants in Spain would make it better positioned to compete  for  the  French  market  than
Gerber Emig.

[57]  The Parties' tender data does not distinguish between aseptic and non-aseptic PET. However, as the tender data does not include  Refresco's
CSD sales, the Notifying Party argues that the vast majority of the tenders will have been for aseptic PET.

[58]  Replies to questions 111 to 113 of the Commission’s request for information pursuant to Article 11 of Council Regulation (EC)  No  139/2004
addressed to retailers of 19 August 2013.

[59]  Annex 93(f) of the Form CO, […]*.

[60]  Replies to questions 111 to 113 of the Commission’s request for information pursuant to Article 11 of Council Regulation (EC)  No  139/2004
addressed to retailers of 19 August 2013.

[61]  Annex 93(f) of the Form CO,  […]*.

[62]  Replies to questions 111 and 115 of the Commission’s request for information pursuant to Article 11 of Council Regulation (EC) No  139/2004
addressed to retailers of 19 August 2013. Replies to question 100 of the Commission’s request for information pursuant to Article 11  of  Council
Regulation (EC) No 139/2004 addressed to competitors of 16 August 2013

[63]  Replies to question 131 of the Commission’s request for information  pursuant  to  Article  11  of  Council  Regulation  (EC)  No  139/2004
addressed to competitors of 16 August 2013.

[64]  Replies to question 104 of the Commission’s request for information  pursuant  to  Article  11  of  Council  Regulation  (EC)  No  139/2004
addressed to competitors of 16 August 2013. Minutes of the conference call with customer of 6 September 2013.

[65]  Replies to question 82 of the Commission’s request for information pursuant to Article 11 of Council Regulation (EC) No 139/2004  addressed
to retailers of 19 August 2013.

[66]  This is particularly problematic because it indicates that the data submitted by the Notifying Party leaves  aside  at  least  80%  of  the
volumes they won in tenders (or supplied to retailers without a formal tender). A comprehensive analysis of closeness of competition should  also
analyse volumes sold through different channels than tendering.

[67]  […]*.

[68]  […]*.

[69]  Replies to question 114 of the Commission’s request for information  pursuant  to  Article  11  of  Council  Regulation  (EC)  No  139/2004
addressed to retailers of 19 August 2013.

[70]  The Parties also overlap in the supply of private label RTD tea packaged in carton, but Gerber Emig has a  minimal  presence  (around  […]*
litres in 2012, while for example Refresco's volume was […]* million litres in the same year). In  addition,  regarding  the  supply  of  private
label water, Refresco supplies water in non-aseptic PET bottles while Gerber Emig is only active in the supply of water bottled in  aseptic  PET.
Even if these two segments were to be assessed together, the Parties' combined market share would be below  [30-40]*%.  For  these  reasons,  the
markets for the supply of private label RTD tea in carton and water in PET are not addressed further in this  Decision.  Furthermore,  while  the
Parties overlap in contract manufacturing for brand owners both for carton and aseptic PET, their combined market shares  in  both  segments  are
significantly below [10-20]*%.

[71]  Canadean is a data provider.

[72]  Since the market reconstruction only covered one year (2012), there is no information concerning the Parties' market shares in  the  German
market for the previous years.

[73]  Replies to question 110 of the Commission’s request for information  pursuant  to  Article  11  of  Council  Regulation  (EC)  No  139/2004
addressed to retailers of 19 August 2013. Replies to question 103 of the Commission’s request for information pursuant to Article 11  of  Council
Regulation (EC) No 139/2004 addressed to competitors of 16 August 2013.

[74]  Replies to questions 168 and 169 of the Commission’s request for information pursuant to Article 11 of Council Regulation (EC) No  139/2004
addressed to retailers of 19 August 2013. Replies to questions 132 and 134 addressed to competitors of 16 August 2013

[75]  Replies to question 169 and 184 of the Commission’s request for information pursuant to Article 11 of Council Regulation (EC)  No  139/2004
addressed to retailers of 19 August 2013 and minutes of the conference call with retailer of 29 August 2013.

[76]  Replies to questions 184 of the Commission’s request for information pursuant  to  Article  11  of  Council  Regulation  (EC)  No  139/2004
addressed to retailers of 19 August 2013.

[77]  Replies to questions 168 of the Commission’s request for information pursuant  to  Article  11  of  Council  Regulation  (EC)  No  139/2004
addressed to retailers of 19 August 2013

[78]  Replies to questions 184 of the Commission’s request for information pursuant  to  Article  11  of  Council  Regulation  (EC)  No  139/2004
addressed to retailers of 19 August 2013.

[79]  Replies to questions 132 and 134of the Commission’s request for information pursuant to Article 11 of Council Regulation (EC)  No  139/2004
addressed to competitors of 16 August 2013. Minutes of conference calls with competitors of 4 September and 12 September 2013.

[80]  […]*.

[81]  The Notifying Party indicated at this late stage that contrary to what was stated in the Form CO […]*. However, the Commission was  already
aware of this fact and had taken it into account in its competitive assessment prior to the Notifying Party informing the Commission of this.

[82]  Replies to question 120 of the Commission’s request for information  pursuant  to  Article  11  of  Council  Regulation  (EC)  No  139/2004
addressed to competitors of 16 August 2013.

[83]  […]*.

[84]  Without tea drinks, the corresponding figures are: Gerber Emig submitted bids in […]*.

[85]  In case where a tender or a fraction of it was marked to be won by multiple suppliers (Refresco excluded  as   Refresco  volumes  could  be
double checked with the volumes provided in the Refresco database) with no split of the tendered volume, the Commission assumed that  the  tender
volume was split equally across suppliers. Without tea drinks, the corresponding figures are: […]*.

[86]  Minutes of the conference call with competitor of 4 September 2013.

[87]  Replies to question 184 of the Commission’s request for information pursuant  to  Article  11  of  Council   Regulation  (EC)  No  139/2004
addressed to retailers of 19 August 2013.

[88]  Minutes of the conference call with competitor of 2 September 2013.

[89]  Replies to questions 83 and 84 of the Commission’s request for information pursuant to Article 11 of Council Regulation  (EC)  No  139/2004
addressed to retailers of 19 August 2013.

[90]  Replies by […]* to the Commission's request for information pursuant to Article 11 of Council Regulation (EC)  No  139/2004  of  1  October
2013.

[91]  See for example […]* Lidl's own website http://www.lidl.de/de/Neueroeffnungen.

[92]  Replies to questions 117 and 118 of the Commission’s request for information pursuant to Article 11 of Council Regulation (EC) No  139/2004
addressed to retailers of 19 August 2013.

[93]  Replies to question 120 of the Commission’s request for information  pursuant  to  Article  11  of  Council  Regulation  (EC)  No  139/2004
addressed to competitors of 16 August 2013.

[94]  See for instance minutes of conference call with competitor of 4 September: "None of the carton lines produce old format carton (which  the
market has replaced with slim format carton)."

[95]  Replies to question 116 of the Commission’s request for information  pursuant  to  Article  11  of  Council  Regulation  (EC)  No  139/2004
addressed to retailers of 19 August 2013.

[96]  The Parties' market shares for 2012 are not significantly different from those regarding  2010  (Refresco:  [20-30]*%;  Gerber  Emig:  [10-
20]*%) and 2011 (Refresco: [30-40]*%; Gerber Emig: [10-20]*%).

[97]  Since the market reconstruction only covered one year (2012), there is no information concerning the Parties' market shares in  the  German
market for the previous years.

[98]  Market reconstruction data.

[99]  Market reconstruction data.

[100]       Replies to question 160 and 161 of the Commission’s request for information pursuant to Article 11 of  Council   Regulation  (EC)  No
139/2004 addressed to retailers of 19 August 2013. Minutes of the conference calls with retailers of 29 August  2013,  2  September  2013  and  6
September 2013.

[101]       Minutes of the conference call with retailer of 6 September 2013.

[102]       Note that the tender data has some limitations in case of Belgium. […]*.

[103]       Minutes of the conference call with a retailer of 2 September 2013.

[104]       Replies to question 115 of the Commission’s request for information pursuant to Article 11 of Council  Regulation  (EC)  No  139/2004
addressed to competitors of 16 August 2013

[105]       Replies to question 82 of the Commission’s request for information pursuant to Article 11 of  Council  Regulation  (EC)  No  139/2004
addressed to retailers of 19 August 2013.

[106]       Replies to questions 83 and 84 of the Commission’s request for information pursuant to Article  11  of  Council  Regulation  (EC)  No
139/2004 addressed to retailers of 19 August 2013.

[107]       Minutes of the conference call with a retailer of 6 September 2013.

[108]       See for instance minutes of conference call with competitor of 4 September: "None of the  carton  lines  produce  old  format  carton
(which the market has replaced with slim format carton)."

[109]       Replies to question 116 of Questionnaire Q2. For instance, Rewe stated in this respect" Packaging trends: carton generally  decreases
and Pet increases ( more convenience for consumers )."

[110]       There are no overlaps between the Parties regarding the supply of private label RTD tea or water. In contract manufacturing there  is
also no overlap, since Refresco is only active in aseptic PET and Gerber Emig in carton.

[111]       Gerber Emig also supplies its brand owner customers from the UK (less than […]* litres in 2012).

[112]       IRI data.

[113]       The Parties' market shares for 2012 are not significantly different from those regarding 2011 (Refresco: [30-40]*%; Gerber Emig:  [0-
5]*%) and 2010 (Refresco: [20-30]*%; Gerber Emig: [0-5]*%).

[114]       Commission calculations based on Canadean data submitted by the Notifying Party.

[115]       IRI data.

[116]       The Parties' market shares for 2012 are not significantly different from those regarding 2011 (Refresco: [50-60]*%; Gerber Emig:  [5-
10]*%) and 2010 (Refresco: [50-60]*%; Gerber Emig: [5-10]*%).

[117]       See paragraph 61 above.

[118]       Replies to questions 174 and 175 of the Commission’s request for information pursuant to Article 11 of  Council  Regulation  (EC)  No
139/2004 addressed retailers of 19 August 2013.

[119]       The Commission considers that one cannot draw meaningful conclusions from the tender data in  case  of  the  Nethelands  because  the
[…]*.

[120]       See paragraph 61 above.

[121]       See minutes of the conference call with Hansa Heemann: "Currently Hansa-Heemann does not produce any juice with a  fruit  concentrate
above 30%".

[122]       Replies to questions 59 and 61 of the Commission’s request for information pursuant to Article  11  of  Council  Regulation  (EC)  No
139/2004 addressed retailers of 19 August 2013.

[123]            Source: IRI data submitted by the Parties.

[124]            Replies to question 134 of the Commission’s request for information pursuant  to  Article  11  of  Council  Regulation  (EC)  No
139/2004 addressed retailers of 19 August 2013. For instance […]* declared that "carton [is] the most important packaging".

[125]       Annex 93(f) of the Form CO, […]*.

[126]       Replies to questions 59 and 61 of the Commission’s request for information pursuant to Article  11  of  Council  Regulation  (EC)  No
139/2004 addressed retailers of 19 August 2013.

[127]       See for instance minutes of conference call with competitor of 4 September: "None of the  carton  lines  produce  old  format  carton
(which the market has replaced with slim format carton)."

[128]       For example, according to Annex 144, fixed and depreciation costs account for […]* and […]*  %  of  total  production  costs  on  the
carton packaging lines of the Parties' […]*, […]* and […]* plants.

[129]       Replies to question 116 of Questionnaire Q2. For instance,  […]*  stated  in  this  respect"  Packaging  trends  :  carton  generally
decreases and Pet increases ( more convenience for consumers )."

[130]       In this respect, the Notifying Party submitted that for carton lines mothballed in situ, reactivation of a mothballed line  may  take
[…]*, with costs varying between EUR […]*depending on the maintenance status and depending on the size / type of the machine.

[131]       See minutes of conference call with […]*. The market investigation has also shown that Stute already enjoys  a  substantial  position
in the Dutch market for the supply of ambient private label NCSDs in carton packaging to retailers.

[132]       Replies to question 139 of the Commission’s request for information pursuant to Article 11 of Council  Regulation  (EC)  No  139/2004
addressed retailers of 19 August 2013. […]* listed Dr Siemer (part of Valensina) as the Parties' closest competitor.

[133]       […]* stated in this respect that "[i]t is hard for us to see [where Gerber Emig has a specific advantage], because we are  not  fully
aware of the possibilities of Emig", see reply of […]* to question 68.2 of Questionnaire Q2.

[134]       There are no overlaps between the Parties regarding the supply of private label and contract manufacturing RTD teas or water.

[135]       IRI data.

[136]       The IRI data the Commission refers to for the UK includes still drinks, NFC and FC segments (sales to […]*  have  been  estimated  by
the Notifying Party and have been submitted only for 2012).

[137]       See minutes of the conference calls with […]* (retailer) of 31 July 2013 and with […]* (retailer) of 29 August 2013.

[138]       Replies to questions 180 and 181 of the Commission’s request for information pursuant to Article 11 of  Council  Regulation  (EC)  No
139/2004 addressed to retailers of 19 August 2013.

[139]       Replies to questions 118 and 119 of the Commission’s request for information pursuant to Article 11 of  Council  Regulation  (EC)  No
139/2004 addressed to brand owners of 19 August 2013. During the course of the market investigation, one customer raised concerns in  respect  of
possible foreclosure effects in the contract manufacturing market. However, given the fact that Gerber Emig already bottles for brand owners  who
are competing with Gerber Emig' own brands, it is unlikely that the merged  entity  will  lack  the  incentive  to  contract  manufacture  for  a
competing brand owner. Furthermore, contract manufacturing for brand owners yields […]*.

[140]       See Fact Sheet Paper submitted by the Notifying Party on 5 September 2013, the estimate was the following: […]*.

[141]       See Fact Sheet Paper submitted by the Notifying Party on 5 September 2013.

[142]       Replies to question 59 of the Commission’s request for information pursuant to Article 11 of  Council  Regulation  (EC)  No  139/2004
addressed to retailers of 19 August 2013.

[143]       Replies to question 131 of the Commission’s request for information pursuant to Article 11 of Council  Regulation  (EC)  No  139/2004
addressed to competitors of 16 August 2013.

[144] The corresponding figures for private label ambient carton sales are: […]*.

[145]       According to the Notifying Party, most data sources rely on publicly available information  from  the  three  main  branded  players,
resulting in a severe underestimate of private label in general and juices in particular.

[146]       Replies to question 105.1 of the Commission’s request for information pursuant to Article 11 of Council Regulation (EC)  No  139/2004
addressed retailers of 19 August 2013.

[147]       Replies to questions 164 and 165 of the Commission’s request for information pursuant to Article 11 of  Council  Regulation  (EC)  No
139/2004 addressed retailers of 19 August 2013 and replies to questions 132 and 134 addressed retailers of 16 August 2013.

[148]       Replies to questions 170 and 171 of the Commission’s request for information pursuant to Article 11 of  Council  Regulation  (EC)  No
139/2004 addressed to retailers of 19 August 2013 and replies to questions 120 and 121 addressed to brand owners of 19 August 2013.

[149]       Replies to question 129.1 of the Commission’s request for information pursuant to Article 11 of Council Regulation (EC)  No  139/2004
addressed retailers of 19 August 2013.

[150]       Replies to questions 172 and 173 of the Commission’s request for information pursuant to Article 11 of  Council  Regulation  (EC)  No
139/2004 addressed retailers of 19 August 2013 and replies to question 132-134 addressed to competitors of 16 August 2013.

[151]       Annex 44.

[152]       Replies to questions 184 and 185 of the Commission’s request for information pursuant to Article 11 of  Council  Regulation  (EC)  No
139/2004 addressed retailers of 19 August 2013 and replies to question 132-134 addressed to competitors of 16 August 2013.

[153]       Replies to question 100 of the Commission’s request for information pursuant to Article 11 of Council  Regulation  (EC)  No  139/2004
addressed to competitors of 16 August 2013.

[154]       Replies to questions 132-136 of the Commission’s request for information pursuant  to  Article  11  of  Council  Regulation  (EC)  No
139/2004 addressed competitors of 16 August 2013 and replies to questions 178 and 179 addressed to retailers of 19 August 2013.

[155]       OJ C 267, 22.10.2008, p.1.

[156]       Replies to question 7 of  the Commission’s request for information pursuant to Article 11 of Council Regulation (EC)  No  139/2004  –
"Questionnaire market test remedies" of 17 September 2013.

[157]       Replies to questions 16- 20 of  the Commission’s request for information pursuant  to  Article  11  of  Council  Regulation  (EC)  No
139/2004 – "Questionnaire market test remedies" of 17 September 2013

[158]       OJ C 267, 22.10.2008, p.1.

[159]       Remedies Notice, paragraph 15.

[160]       Remedies Notice, paragraph 81.

[161]       Case T-177/04 easyJet v Commission [2006] ECR II-1931, paragraph 128 ff.

-----------------------
 In the published version of this decision, some information has  been  omitted  pursuant  to  Article  17(2)  of  Council  Regulation  (EC)  No
 139/2004[pic][162]",-9:;<=TUVWXYZ[\]mt…‰Š‹Œ›œ§òáÝÖÒËÄÀò¹±­±Ÿ—±Œ„€tmd\ÖXTXTXPXhöa‚hwÎh\>±hØv?h==Ñ>*[pic]hØv?h==Ñ@ˆýÿ

 h}ÌhÕy1hu¦hÕy16?mHh‰hÕy16?h¢     ›h==ÑmHsHj}:hÃ%U[pic]jhÃ%U[pic]mHnHu[pic]hÃ%jhÃ  concerning  non-disclosure  of  business  secrets  and  other
 confidential information. The omissions are shown thus […]*. Where possible the information omitted has been replaced by ranges of figures or a
 general description.

                                                                  PUBLIC VERSION

                                                                 MERGER PROCEDURE