CELEX: 32021M10255
Language: en
Date: 2021-08-03 00:00:00
Title: Commission Decision of 03/08/2021 declaring a concentration to be compatible with the common market (Case No COMP/M.10255 - TRITON / BERGMAN CLINICS) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

EUROPEAN COMMISSION
                                                                 Brussels, 3.8.2021
                                                                 C(2021) 5907 final
                                                                                  PUBLIC VERSION
                                                                  In the published version of this decision,
                                                                  some information has been omitted
                                                                  pursuant to Article 17(2) of Council
                                                                  Regulation (EC) No 139/2004 concerning
                                                                  non-disclosure of business secrets and other
                                                                  confidential information. The omissions are
                                                                  shown thus […]. Where possible the
                                                                  information omitted has been replaced by
                                                                  ranges of figures or a general description.
                                                                 Triton Fund V L.P.
                                                                 c/o Triton Investment Management Limited
                                                                 5/6 Esplanade, 1st Floor St Helier
                                                                 JE2 3QA – Jersey
                                                                 Channel Islands
Subject:             Case M.10255 – TRITON / BERGMAN CLINICS
                     Commission decision pursuant to Article 6(1)(b) of Council Regulation
                     No 139/20041 and Article 57 of the Agreement on the European Economic
                     Area2
Dear Sir or Madam,
(1)       On 28 June 2021, the European Commission received notification of a proposed
          concentration pursuant to Article 4 of the Merger Regulation by which Triton group
          (“Triton”, Jersey) intends to acquire by way of purchase of shares sole control of the
          whole of Bergman Healthcare Clinics B.V. (“Bergman Clinics”, the Netherlands),
          within the meaning of Article 3(1)(b) of the Merger Regulation (hereinafter, the
          “Transaction”).3 Triton is designated hereinafter as the “Notifying Party” and
          together with Bergman Clinics as the “Parties”.
1         OJ L 24, 29.1.2004, p. 1 (the ’Merger Regulation’). With effect from 1 December 2009, the Treaty on
          the Functioning of the European Union (‘TFEU’) has introduced certain changes, such as the
          replacement of ‘Community’ by ‘Union’ and ‘common market’ by ‘internal market’. The terminology
          of the TFEU will be used throughout this decision.
2         OJ L 1, 3.1.1994, p. 3 (the ‘EEA Agreement’).
3         Publication in the Official Journal of the European Union No C 262, 5.7.2021, p. 21.
Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE
Europese Commissie, DG COMP MERGER REGISTRY, 1049 Brussel, BELGIË
Tel: +32 229-91111. Fax: +32 229-64301. E-mail: COMP-MERGER-REGISTRY@ec.europa.eu.
 ---pagebreak--- 1.  THE PARTIES
(2) Triton is a private equity fund investing primarily in medium-sized businesses
    headquartered in Central and Northern Europe with a particular focus on four core
    sectors, namely Business Services, Industrials, Consumer and Health. One of
    Triton’s portfolio companies, Aleris Group AB, is active in the provision of
    ophthalmological services in both Sweden and Norway.
(3) Bergman Clinics operates focus clinics throughout the Netherlands, Sweden,
    Denmark, Norway and Germany offering medical care in the fields of orthopaedics,
    ophthalmology, gynaecology, aesthetic medicine, cardiology, gastroenterology,
    dermatology and vascular medicine. One of Bergman Clinics' portfolio companies,
    Memira AB, is active in the provision of ophthalmological services across the
    Nordic countries.
2.  THE CONCENTRATION
(4) Triton, 4 through BNS Bidco B.V. (“BNS”),5 an investment vehicle incorporated for
    the purpose of the Transaction, intends to acquire a majority of shares in Hippocrates
    Capital B.V., which is the holding company of Bergman Clinics and its subsidiaries,
    from its current owners Malenstein Holding B.V. (“Malenstein”), NPM Capital N.V.
    (“NPM”) and Stichting Administratiekantoor Hippocrates Capital, collectively
    referred to as the “Sellers”.
(5) The Sellers initiated a sale of the shares in Hippocrates Capital B.V. through a
    controlled auction process and Triton was selected as the purchaser.
(6) The Transaction will be implemented through the signing of a Share Purchase
    Agreement (“SPA”). Each of the Parties obtained all necessary corporate and other
    internal approvals to agree on a draft SPA. The Parties recorded this agreement by
    entering into a Signing Protocol executed on 8 March 2021.
(7) Triton will acquire, indirectly through BNS and two holding companies currently
    wholly owned by Triton, LuxCo 53 and LuxCo 54, a majority of the share capital in
    Bergman Clinics.
(8) BNS will acquire full ownership of Bergman Clinics, through the purchase of 100%
    of the share capital of its holding company, Hippocrates Capital B.V.
(9) NPM, Malenstein and Triton have negotiated a Co-Investment Term-sheet outlining
    the main terms of their future shareholding in Hippocrates Capital B.V. It is
    contemplated that shortly following the acquisition by Triton, the Sellers will
    reinvest a part of the purchase price that will not be paid in cash by subscribing for
    shares issued by LuxCo 53.
4   Triton will acquire Bergman Clinics via its private equity fund, Triton V.
5   BNS Bidco B.V. is solely controlled by Triton indirectly through a series of wholly owned holding
    companies, one of which is Triton V LuxCo 53 S.à.r.l (“LuxCo 53”). LuxCo 53 is solely owned and
    controlled by Triton through the holding company Triton V LuxCo 54 S.à r.l (“LuxCo 54”).
                                                      2
 ---pagebreak--- (10) In parallel, certain managers of Bergman Clinics and other selected individuals
     closely connected with Triton and/or Bergman Clinics will have the opportunity to
     subscribe for shares in LuxCo 53 via a pooling vehicle to be incorporated in the form
     of a Luxembourg law société en commandité par actions (“SCA”).
(11) As a result, following the Transaction, the ownership structure of LuxCo 53 will
     change, without leading to a change in control of LuxCo 53. Triton will continue to
     own the controlling majority of shares in LuxCo 53 through LuxCo 54. It is
     currently envisaged that […]% of the ordinary share capital in LuxCo 53 will be held
     by LuxCo 54, […]% by Malenstein and […]% by NPM, such percentages to be
     reduced pro rata by the shares to be allocated to the SCA, which shall range in the
     range of […]% to […]% of the ordinary share capital.
(12) As a result of the Transaction, Triton will acquire sole control of Bergman Clinics,
     since none of Bergman Clinics’ minority shareholders will acquire control, via
     LuxCo 53, over Bergman Clinics.
(13) Decisions in LuxCo 53 will be taken through both the general meeting of LuxCo 53,
     in which Triton holds the majority of the voting rights, and a supervisory board
     implemented at the level of BNS, whose members appointed by Triton will hold the
     majority of the voting rights. Malenstein will be allowed only to appoint [minority
     appointment rights to the supervisory board of BNS of Malenstein] and NPM
     [minority appointment rights to the supervisory board of BNS of NPM].
(14) Therefore, all strategic decisions (including the adoption of annual budget, business
     plan, appointment of senior management) can be adopted by Triton through a simple
     majority vote in BNS’ supervisory board.
(15) The sole control held by Triton is not affected by the fact that, pursuant to the Co-
     Investment Term-sheet, certain decisions will require the positive vote of NPM and
     Malenstein and, for some of them, of the SCA. Those decisions concern investment
     protection rights which do not qualify as strategic in nature. They concern inter alia
     amendments to the articles of association of LuxCo 53 that would be
     disproportionately detrimental to Malenstein and NPM compared to Triton or
     entering into related party agreements.
(16) The proposed Transaction therefore constitutes a concentration pursuant to
     Article 3(1)(b) of the Merger Regulation by which Triton acquires sole control over
     Bergman Clinics.
3.   UNION DIMENSION
(17) The undertakings concerned have a combined aggregate worldwide turnover of more
     than EUR 5 000 million 6 (Triton:7 EUR 17 526 million, Bergman Clinics:8 EUR 368
     million). Each of them have an EU-wide turnover in excess of EUR 250 million
     (Triton: EUR […] million, Bergman Clinics: EUR […] million), but they do not
6    Turnover calculated in accordance with Article 5 of the Merger Regulation and the Commission
     Consolidated Jurisdictional Notice (OJ C 95, 16.4.2008, p. 1).
7    Triton’s turnover was provided for financial year 2019.
8    Bergman Clinics’ turnover was provided for financial year 2020.
                                                       3
 ---pagebreak---      achieve more than two-thirds of their aggregate Union-wide turnover within one and
     the same Member State.
(18) The notified operation therefore has a Union dimension pursuant to Article 1(2) of
     the Merger Regulation.
4.   MARKET DEFINITION
4.1. Introduction
(19) Triton, through its existing portfolio company Aleris, and Bergman Clinics, through
     Memira, are both active in the provision of ophthalmology services in Sweden and
     Norway. More specifically, both Parties provide various eye surgery and lens
     exchange procedures, each with a distinct focus on a different eye condition.9
(20) Generally, the Parties’ activities mainly overlap with respect to:10 (i) refractive laser
     surgery in Norway; (ii) refractive lens exchange surgery in Sweden; and (iii)
     refractive lens exchange surgery in Norway. 11
4.2. Relevant product markets
(21) The Parties’ activities overlap in relation to the provision of refractive laser surgery
     and refractive lens exchange (“RLE surgery”).
(22) Refractive laser surgery procedures such as LASEK 12 and LASIK13 can be used to
     correct astigmatisms, short-sightedness or long-sightedness by reshaping the inner
     eye, specifically the cornea.
9    Form CO, paragraph 79 and Table 4.
10   Form CO, paragraphs 166-171: in addition, the Parties’ activities also generate a hypothetical overlap
     in relation to ambulatory hospital services in Germany. As the Notifying Party explains, Triton owns
     Klinik Schöneberg, a clinic that operates out of a single location in Berlin, Germany. It offers services
     in approximately 25 different specialty areas. Bergman Clinics entered the German market in
     September 2020 when it acquired Capio clinics (previously part of the Ramsay Santé group). Capio
     has 6 clinics that specialize in vascular surgery and eye care. There are therefore only overlaps
     between Klinik Schöneberg and Capio clinics in 4 areas, namely: aesthetic surgery, ear nose and
     throat (ENT), vascular treatments and orthopaedics. However, the position of Klinik Schöneberg is
     extremely small with only […] outpatient and […] inpatient guests annually (the total German market
     for inpatient and outpatient visits is estimated roughly at 18 million and 820 million visits per year
     respectively). In addition, most of Capio clinics are located in the middle of Germany with one in the
     south. All locations are more than 5 hours’ drive from Klinik Schöneberg in Berlin. Bergman Clinics
     also recently acquired a single clinic in Stuttgart under the brand Medical One which performs plastic
     and aesthetical treatments. This location is over 600 km away from Berlin. Given the very limited and
     altogether hypothetical nature of any overlap between the activities of Triton and Bergman Clinics in
     Germany, the Commission will not discuss further the provision of ambulatory hospital services in
     Germany.
11   Form CO, paragraph 163: for the sake of completeness, the Notifying Party notes that Aleris had
     negligible sales in consumer vision care products in Norway (less than EUR […] in 2020), whereas
     Memira achieved revenue of only EUR […] from consumer vision care product sales in Sweden.
     According to the Notifying Party, these limited activities in different geographies do not give rise to
     an affected market.
12   Form CO, paragraphs 136-167: LASEK, or laser-assisted subepithelial keratectomy, is a form of
     corrective eye surgery that combines photorefractive keratectomy (“PRK”) and LASIK technologies.
     With LASEK, the outer layer of the cornea is loosened by using an ethanol, or diluted alcohol,
                                                         4
 ---pagebreak--- (23)   The implantation of intraocular lenses involve similar procedures but are
       microsurgical rather than laser based refractive eye surgery, and can be used to treat
       cataracts, short-sightedness or long-sightedness. In particular, RLE surgery, also
       called lens replacement surgery or clear lens extraction, is a type of corrective eye
       surgery that is materially similar to cataracts procedure,14 generally suitable for
       patients over 50 years old who suffer from presbyopia.
4.2.1. Refractive laser surgery
(24)   The Commission has previously defined a retail market for optical products, services
       and eyewear as a whole, without further segmentation based on the sales channel,
       price or any other factor.15 Conversely, the Commission also considered that contact
       lenses, ophthalmic lenses and refractive laser surgery are all alternative solutions for
       correcting visual impairments but that contact lenses do not fall in the same relevant
       product market as ophthalmic lenses. 16
(25)   The Commission has analysed the market for the provision of hospital services by
       distinguishing between inpatient (acute) hospital procedures conducted in hospitals
       and outpatient (ambulatory) procedures conducted in hospitals. 17 The Commission
       has also examined whether a distinction between different specialist medical
       departments should be made, ultimately leaving open the exact market definition.18
       solution. The procedure uses a computer to map the eye’s surface and calculate how much tissue to
       remove. The tissue is then brushed away, and the laser is used to reshape the stroma underneath. The
       same laser and technology are used in both LASEK and LASIK procedures, but during the former,
       the outer tissue of the cornea is often discarded instead of folded back and reattached. After the
       epithelial, or top layer, of the cornea is mostly removed, it is then replaced and repositioned after the
       ablation of the cornea during LASEK. The outer layer of the cornea will regenerate quickly, typically
       within three to five days. In the meantime, a special medicated contact lens bandage is used to protect
       the eye during healing.
13     Form CO, paragraphs 136-138: LASIK, or laser in-situ keratomileusis, is a procedure that reshapes
       the cornea to enable it to refract light properly. During the procedure, the surgeon uses a femtosecond
       laser to cut away the top flap of the cornea and fold it back to access the stromal tissue at its core. The
       femtosecond laser creates gas bubbles to separate the corneal flap with precise and focused pulses. An
       excimer laser is then used to reshape the stroma through a process called photoablation. The flap is
       then replaced and typically will seal itself without the need for further medical intervention (like
       stitches) within approximately a day.
14     Form CO, paragraph 151: cataract surgery is performed under local anesthesia using a microscope
       and micro-surgical instruments and can be performed manually or laser-assisted. The latter involves
       the use of a femtosecond cataract laser. The focusing power of the eye is restored by replacing the
       cataract with a permanent intraocular lens implant.
15     Commission decision of 1 March 2018 in Case M.8394 – Essilor/Luxottica, paragraph 135.
16     Commission decision of 1 March 2018 in Case M.8394 – Essilor/Luxottica, paragraph 141.
17     Commission decision of 15 November 2016 in Case M.8146 – Carlyle/Schön Family/Schön Klinik,
       paragraphs 9 and 15; Commission decision of 4 December 2018 in Case M.9044 – CVC /
       RECORDATI, paragraph 21.
18     Commission decision of 4 August 2014 in Case M.7309 – Bridepoint / EdRCP, paragraph 24;
       Commission decision of 16 October 2018 in Case M.9128 – Vivalto Santé / Groupe Capio France,
       paragraph 16.
                                                           5
 ---pagebreak--- Notifying Party’s views
(26)   The Notifying Party submits that to the best of its knowledge, the Commission has
       not previously defined relevant markets in relation to ophthalmological eye
       surgeries, including refractive laser surgery.19
(27)   The Notifying Party indicates that the Competition and Markets Authority in the UK
       (“CMA”) has investigated the UK market for corrective eye surgery. The CMA
       considered that different treatments are unlikely to be substitutable from a patient’s
       perspective given that a particular treatment will be required – or preferred –
       depending on the suitability of the patient and their needs. The CMA has identified a
       relevant product market for refractive laser surgery.20
(28)   The Notifying Party submits that eye surgery constitutes a product market on its own
       due to distinct demand and supply side characteristics. Whether this market would
       form part of the broader optical retail market or the ambulatory surgical care market
       has not been determined by the Notifying Party in the absence of previous
       Commission precedents.21 Ultimately, the Notifying Party believes that the product
       market definition can be left open since even on the narrowest basis, no competitive
       concerns arise as a result of the Transaction.22
Commission’s assessment
(29)   The Parties’ activities overlap in the provision of ophthalmological treatments and
       services, and more specifically in the provision of refractive laser surgery and RLE
       surgery. These overlaps stem from the activities of two specialist ophthalmological
       clinics, namely Aleris on the one hand, controlled by Triton, and Memira on the
       other hand, controlled by Bergman Clinics.
(30)   The Commission has so far not defined or considered relevant product markets
       neither for ophthalmological treatments and services, nor more specifically for
       refractive laser surgery and RLE surgery. However, the Commission has considered
       in previous decisions a distinction between different specialist medical
       departments.23
(31)   As the Commission Notice on the definition of relevant market indicates, market
       definition is a tool to identify and define the boundaries of competition between
       firms and its main purpose is to identify the competitive constraints that the
19     For completeness, it should be noted that in the view of the Notifying Party, the areas of their
       activities that give rise to overlaps as a result of the Transaction could potentially be seen as falling
       within two different broad product markets, namely (i) the markets for (refractive or reimbursed)
       ophthalmological ambulatory surgical care services, and (ii) the market for retail optical services (see
       Form CO, paragraph 74).
20     Case ME/5898/13 – Optimax Clinics Unlimited/Ultralase Limited, decision of the Office of Fair
       Trading of 29 July 2013, paragraphs 55-56.
21     Form CO, paragraph 92.
22     Form CO, paragraph 147.
23     Commission decision of 4 August 2014 in Case M.7309 – Bridepoint / EdRCP, paragraph 24;
       Commission decision of 16 October 2018 in Case M.9128 – Vivalto Santé / Groupe Capio France,
       paragraph 16.
                                                            6
 ---pagebreak---        undertakings involved face.24 In turn, undertakings are typically subject to three
       main sources of competitive constraints: demand substitutability, supply
       substitutability and potential competition, though the latter is in principle not taken
       into account when defining markets.25
(32)   From a demand side perspective, treatments for different conditions are hardly
       substitutable and substitutability between treatments for the same condition can also
       be limited, as apparent from the investigation conducted into the UK market for
       corrective eye surgery mentioned in paragraph 27 above.
(33)   From a supply side perspective, as mentioned, the overlap between the Parties’
       activities concerns ophthalmological treatments and relevant procedures and, more
       specifically, refractive laser surgery and RLE surgery. Hence, for the purposes of
       defining the boundaries of competition between the Parties, these particular
       procedures constitute a natural starting point.26
(34)   Hence, for the purposes of assessing the likely impact of the Transaction on
       competition, the Commission considers that plausible product market definitions
       include ophthalmological treatments and services and, at the narrowest level,
       treatments for specific conditions, such as refractive laser surgery, or combinations
       thereof.27
Conclusion
(35)   For the purpose of the present decision, the Commission considers that the exact
       product market definition for refractive laser surgery can be left open since the
       Transaction does not raise serious doubts as to its compatibility with the internal
       market irrespective of the alternative market definition considered.
4.2.2. RLE surgery
(36)   At the outset, the general considerations formulated in paragraphs 24 to 25 above
       apply equally to RLE surgery.
24     Commission Notice on the definition of relevant market for the purposes of Community competition
       law [1997] O.J. C 372/5, para. 2 (“Commission Notice on market definition”).
25     Commission Notice on market definition, paras. 20 and 24.
26     Commission Notice on market definition, para. 16.
27     According to the Notifying Party (see Form CO, paragraphs 124-126), both RLE and refractive laser
       surgery generally require the same operating environment, and a refractive focused service provider
       which offers one of the procedures almost always offers the other. However, since laser treatment is
       non-invasive, whereas RLE is a full surgical procedure, RLE procedures require more staff. This also
       leads to a considerable difference in the allocation of costs of each procedure, with a higher
       proportion of the costs of RLE going to the surgeon and assisting staff performing the procedure and
       a smaller proportion going to equipment, while for refractive laser surgery, the reverse is true. As to
       the investment costs to establish capabilities to perform each procedure, the investment required to
       perform refractive laser surgery (excluding facilities and furniture) is estimated at between EUR 0.5
       to 1.3 million, which notably includes the laser itself. In contrast, the investment costs required to
       perform RLE surgery is estimated to be around EUR 335,000. However, the Notifying Party submits
       that even though laser equipment are expensive, RLE facilities are more costly to operate since RLE
       surgery is a microsurgical procedure that requires a sterile environment, as well as a significant
       number of surgical and assisting staff.
                                                         7
 ---pagebreak--- Notifying Party’s view
(37)   To the best of the Notifying Party’s knowledge, the Commission has not previously
       defined relevant markets in relation to ophthalmological eye surgeries, including
       RLE surgery.28
(38)   The Notifying Party submits that the CMA previously considered that the
       implantation of intraocular lenses forms a distinct market which is separate from the
       refractive laser surgery market.29 The implantation of intraocular lenses is a
       microsurgical procedure that requires sterile operating theatres which are more
       costly to operate than the facilities used for laser-based procedures. The implantation
       of intraocular lenses is therefore provided at fewer clinics than laser-based
       procedures.
(39)   The Notifying Party also submits that eye surgery constitutes a product market on its
       own due to the distinct demand and supply side characteristics. Whether this market
       would form part of the broader optical retail market or the ambulatory surgical care
       market has not been determined by the Notifying Party in the absence of
       Commission precedents.30
(40)   The Notifying Party also submits that, in line with the previous CMA decision, 31 the
       implantation of intraocular lenses treatments such as RLE is not part of the same
       relevant market as refractive laser based surgeries. 32 According to the Notifying
       Party, in Sweden and Norway, differences on the demand side (pricing, intended use
       of the procedure based on the condition of the patient's eye, age of target patients)
       and on the supply side (type of equipment and level of investment needed) point to
       each procedure constituting a separate product market.33 Ultimately, the Notifying
       Party believes that the product market definition can be left open since even on the
       narrowest basis, no competitive concerns arise as a result of the Transaction.34
Commission’s assessment
(41)   As noted in paragraph 30 above, the Commission has not so far defined or
       considered relevant product markets for ophthalmological treatments and services, or
       more specifically for refractive laser surgery and RLE surgery. The Commission has
28     As mentioned, in the view of the Notifying Party, the areas of their activities that give rise to overlaps
       as a result of the Transaction could potentially be seen as falling within two different broad product
       markets, namely (i) the markets for (refractive or reimbursed) ophthalmological ambulatory surgical
       care services, and (ii) the market for retail optical services (see Form CO, paragraph 74).
29     Case ME/5898/13 – Optimax Clinics Unlimited/Ultralase Limited, decision of the Office of Fair
       Trading of 29 July 2013, paragraphs 55-56.
30     Form CO, paragraph 92.
31     Case ME/5898/13 – Optimax Clinics Unlimited/Ultralase Limited, decision of the Office of Fair
       Trading of 29 July 2013, paragraphs 55-56.
32     Form CO, paragraph 145.
33     Form CO, paragraph 145: the Notifying Party also explained that the Parties typically internally
       monitor each of refractive laser surgeries and RLE procedures separately.
34     Form CO, paragraph 147.
                                                            8
 ---pagebreak---       considered in previous decisions a distinction between different specialist medical
      departments.35
(42)  For the same reasons as those set forth in paragraphs 29 to 33 above, the
      Commission considers that plausible product market definitions for the purpose of
      assessing the likely impact of the Transaction on competition include
      ophthalmological treatments and services and, at the narrowest level, treatments for
      specific conditions, such as RLE surgery, or combinations thereof.
Conclusion
(43)  For the purpose of the present decision, the Commission considers that the exact
      product market definition for RLE surgery can be left open since the Transaction
      does not raise serious doubts as to its compatibility with the internal market
      irrespective of the alternative market definition considered.
(44)  Hence, the Commission has carried out its assessment based on a product market
      defined at the level of each of refractive laser surgery and RLE surgery, as well as a
      combination of both (referred to as the market for ophthalmological treatments).
      Likewise, as regards the RLE surgery segment, the Commission will also assess the
      competitive impact of the Transaction on a potentially broader market covering
      different treatment procedures similar to RLE for the implantation of intraocular
      lenses (i.e. including, apart from RLE, also cataract surgery and cataract top-up
      surgery).
4.3.  Relevant geographic markets
(45)  In previous decisions dealing with the overall retail optical market, the Commission
      considered the geographic market to be national in scope but eventually left the
      relevant market definition open.36
(46)  The Commission has previously considered that the market for private hospitals was
      not broader than national in scope but left the precise scope of the geographic market
      open.37 In previous decisions relating to acute hospital services, the Commission has
      left open whether the market was national or narrower in scope.38
(47)  In previous decisions concerning the provision of diagnostic and hospital care
      services, the Commission considered a local scope for the provision of hospital care
      services extending over a radius of a 30-minute car drive around the institution
      considered, but had ultimately left open the geographical scope.39
35    Commission decision of 4 August 2014 in Case M.7309 – Bridepoint / EdRCP, paragraph 24;
      Commission decision of 16 October 2018 in Case M.9128 – Vivalto Santé / Groupe Capio France,
      paragraph 16.
36    Commission decision of 1 March 2018 in Case M.8394 – Essilor/Luxottica, paragraph 175.
37    Commission decision of 21 August 2007 in Case M.4788 – Rozier/BHS, paragraphs 14 and 16.
38    Commission decision of 25 July 2006 in Case M.4229 – APHL / L&R / Netcare General Healthcare
      Group, paragraphs 38-39.
39    Commission decision of 14 December 2015 in Case M.7833 – CDC International Capital / Mubadala
      Development Company / Vivalto Bel / Group Vivalto Santé, paragraph 21; Commission decision of 28
      April 2014 in Case M.7221 – Bridgepoint Capital / Médi-Partenaires, paragraph 26.
                                                     9
 ---pagebreak--- Notifying Party’s view
(48)   The Notifying Party submits that, in its experience, the key drivers of supply and
       demand are national in scope. It therefore views the relevant markets as being
       national, i.e., Sweden and Norway. 40
(49)   The Notifying Party also mentions that the CMA previously assessed the overall
       retail optical market at a UK-wide level and at the level of narrower local markets.41
       For the purposes of assessing local markets, the CMA considered that the average
       distance travelled by optical retail customers ranges from 10 miles to 60 miles (i.e.
       approximately 16 km to 100 km). 42
Commission’s assessment
(50)   As part of its market investigation, the Commission inquired into the distance that
       patients are typically willing to travel in both Sweden and Norway to undergo
       refractive ophthalmological treatment and surgery.
(51)   The outcome of the market investigation consistently points to a smaller-than-
       national geographic dimension, limited to a catchment area around the Parties’
       clinics. The majority of respondents who expressed an opinion on this point
       considered that, in urban areas, patients typically consider the clinics offering at city
       level or at most within a catchment area limited to a distance of up to 100 km around
       the city in question. For example, one respondent indicated that 85% of patients
       either choose from the various clinics at city level (60%) or decide to travel locally
       up to 100 km (25%).
(52)   However, the market investigation also revealed that the size of the catchment area
       might depend on the region within Sweden or Norway. In particular, patients located
       in remote, less populated areas of both Sweden and Norway are typically willing to
       travel longer distances to reach the clinic of their choice, beyond 100 km and
       possibly up to 200 or even 300 km.
(53)   As one respondent pointed out: “patients in the major cities are used to get all kinds
       of services in their own town and are not that likely to travel for their treatment.
       Patients from other parts of Sweden are more willing to travel to undergo refractive
       surgery”.43 Another respondent provided similar indications as regards Norway,
       distinguishing between city centres and “inhabitants in the northern part of the
       country”.44
Conclusion
(54)   For the purpose of this decision, the exact geographic market definition can be left
       open since the Transaction does not raise serious doubts as to its compatibility with
40     Form CO, paragraphs 164 and 180: with very few exceptions that have a more localised elements.
41     Case ME/5898/13 – Optimax Clinics Unlimited/Ultralase Limited, decision of the Office of Fair
       Trading of 29 July 2013, paragraphs 72-75, 79 and 83.
42     Case ME/5898/13 – Optimax Clinics Unlimited/Ultralase Limited, decision of the Office of Fair
       Trading of 29 July 2013, paragraph 79.
43     Non-confidential reply of a customer to request for information dated 2 July 2021, question 2.
44     Non-confidential reply of a customer to request for information dated 2 July 2021, question 2.
                                                        10
 ---pagebreak---        the internal market irrespective of the alternative geographic definitions
       considered.45
(55)   Hence, the Commission has carried out its competitive assessment at national level
       in the two countries where the Parties’ activities overlap, namely Sweden and
       Norway. In addition, the Commission will provide its analysis on a potentially
       narrower relevant market limited to city level, as well as a catchment area of 100 km.
5.     COMPETITIVE ASSESSMENT
(56)   In view of the above, the following horizontal overlaps arising from the Transaction
       would result in affected markets both at national and local level:
       -    refractive laser surgery in Norway,
       -    RLE surgery in Norway, and
       -    RLE surgery in Sweden.
5.1.   Refractive laser surgery in Norway46
Notifying Party’s view
(57)   In 2020, Memira performed […] refractive laser surgeries in Norway, which
       generated a total turnover of EUR […] million. According to the Notifying Party,
       Memira’s 2020 market share by value was [50-60]%. 47 Aleris is a considerably
       smaller player in Norway as it performed only […] refractive laser surgeries in 2020,
       which generated a total revenue of EUR […].48
(58)   Therefore, even though the combined market share of the Parties post-Transaction
       would amount to [50-60]%, the increment added by the market share of Aleris by
       value would be extremely limited, namely only [0-5]%. 49
(59)   The Notifying Party indicates that, in its view, given the very limited presence of
       Aleris as regards refractive laser surgery in Norway, it can in fact be hardly
       considered as a credible competitor to Memira.50
(60)   In addition, according to the Notifying Party, post-Transaction there will remain a
       number of competitors offering similar services in Norway, including Argus
       Syn/Volvat/Capio, Volvat ORBITA / Capio, ABC Synskirurgi, Oslo Øyelegesenter,
       Optera Bergen and others.
45     See section 5.
46     Form CO, paragraph 193 and Tables 17, 18 and 19: the Notifying Party submits that Aleris (Triton) is
       not active in this segment in Sweden (and has not been active in 2018 and 2019), therefore there is no
       overlap in this segment in Sweden.
47     Form CO, Table 20.
48     Form CO, Table 20.
49     Form CO, Table 20.
50     Form CO, paragraph 195.
                                                       11
 ---pagebreak--- (61) When considering a broader product market including refractive laser surgery and
     RLE surgery in Norway, based on the 2020 market share data by value provided by
     the Notifying Party, the Parties’ combined position would be [50-60]% with a de
     minimis increment of only [0-5]%.51 Indeed, Aleris performed only […] surgeries in
     2020, which generated a total revenue of EUR […].52
(62) The Notifying Party’s view is that the Transaction is therefore also unlikely to give
     rise to concerns on a broader product market including refractive laser surgery and
     RLE surgery in Norway.
(63) Finally, the Notifying Party argues that no competition concerns can be expected to
     arise even when considering narrower local markets within Norway. 53 Indeed, even
     at the level of a catchment area covering Oslo city only or a 100 km radius around
     Oslo, the Parties would hold a combined share of [50-60]% and [40-50]%,
     respectively, but Aleris would only add a de minimis increment of [0-5]% as it
     operates a single clinic in the area generating a very limited turnover in the market
     for ophthalmological treatments.54 Furthermore, the Notifying Party argues that there
     will continue to be a number of other clinics providing refractive eye surgery
     services in and around Oslo. 55
Commission’s assessment
(64) In line with the market shares and revenue figures submitted by the Notifying Party,
     the Commission understands that Aleris has indeed a limited presence in Norway
     with only one single clinic located in Oslo city.
(65) In addition, the vast majority of respondents to the market investigation confirmed
     that, post-Transaction, patients would still have sufficient alternatives left in Norway
     in general and in Oslo specifically, for refractive laser surgery on its own or in
     combination with RLE surgery, and that the Transaction would not materially affect
     the market conditions or lead to increased prices or reduced capacity.
(66) One respondent indicated that the Transaction “will only be a name shift and no real
     change in the competitive situation”56 will arise post-Transaction. This respondent
     also pointed that “although Aleris and Memira [have] some overlapping activities,
     the main bulk of (…) refractive laser surgeries has so far been performed by
     Memira” which excludes any “danger of reduced capacity as a result of this
51   Form CO, Table 12.
52   Form CO, Table 12.
53   Form CO, paragraphs 229-230: in order to determine the catchment area of each location, the
     Notifying Party identified the catchment area as the area from which a large majority (approximately
     80%) of their customers reside. The Parties indicated a maximum radial range of 100 km around each
     location as the likely maximum distance a patient would travel to access ophthalmological services.
     That said, according to the Notifying Party, patients residing in more urban areas where sufficient
     choice for ophthalmological services exists in a narrower geographic area, may be more predisposed
     to seeking out providers closer to their residence, leading to catchment areas that would be less
     than 100 km.
54   Form CO, paragraphs 249, 254-255 and 259.
55   Form CO, paragraphs 253, 257, Table 64 and Table 65: the Notifying Party submits that there are
     8 competitors within the Oslo (100 km) catchment area and 5 competitor locations in Oslo city alone.
56   Non-confidential reply of a competitor to request for information dated 12 July 2021, question 3.
                                                      12
 ---pagebreak---        merger”57. Another respondent confirmed that the Transaction would not “influence
       the patient’s alternative on a national basis”.58
(67)   The limited concerns that were raised as regards refractive laser surgery in Norway
       relate to Memira’s current leading market position and do not therefore appear to be
       merger-specific in nature.
(68)   In view of the above and the information obtained over the course of the market
       investigation, the Commission considers that the Transaction does not raise serious
       doubts as to its compatibility with the internal market with respect to refractive laser
       surgery in Norway, including the city of or local 100 km catchment area around
       Oslo, as well as on a broader market including both refractive laser surgery and RLE
       surgery.
5.2.   RLE surgery in Norway
Notifying Party’s view
(69)   In 2020, Memira performed […] RLE surgeries in Norway, which generated a total
       turnover of approximately EUR […] million. According to the Notifying Party,
       Memira’s 2020 market share by value was [50-60]%. 59 Aleris is a considerably
       smaller player in Norway as it performed only […] RLE surgeries in 2020, which
       generated a total revenue of EUR […]. 60
(70)   Therefore, even though the combined market share of the Parties post-Transaction
       would amount to [50-60]%, the increment added by Aleris would be extremely
       limited, namely only [0-5]%. 61
(71)   The Notifying Party indicates that, in its view, given the very limited presence of
       Aleris in the RLE surgery segment, it can in fact hardly be considered as a credible
       competitor to Memira in Norway. 62
(72)   According to the Notifying Party, post-Transaction there will remain a number of
       competitors offering similar services in Norway, including Argus Syn/Volvat/Capio,
       Volvat ORBITA / Capio, ABC Synskirurgi, Oslo Øyelegesenter, Optera Bergen and
       others.
(73)   The Parties only overlap in the broader implantation of intraocular lenses treatment
       procedures product market in Norway solely based on their activity in RLE.63
       Nonetheless, when considering a broader market including different implantation of
       intraocular lenses treatment procedures (i.e. RLE, cataract surgery and cataract top-
57     Non-confidential reply of a competitor to request for information dated 12 July 2021, question 1.
58     Non-confidential reply of a competitor to request for information dated 12 July 2021, question 1.
59     Form CO, Table 38.
60     Form CO, Table 38.
61     Form CO, Table 38.
62     Form CO, paragraph 209.
63     Form CO, paragraph 208.
                                                        13
 ---pagebreak---        up surgery), the Parties’ combined market shares in Norway would be [10-20]% in
       2020 and would not give rise to an affected market.64
(74)   The Notifying Party’s view is that the Transaction is therefore also unlikely to give
       rise to concerns on a broader market including different implantation of intraocular
       lenses treatment procedures in Norway.
(75)   Finally, the Notifying Party argues that no competition concerns can be expected to
       arise even when considering local markets within Norway. Indeed, even at the level
       of a catchment area covering Oslo city only or a 100 km radius around Oslo, the
       Parties would hold a combined share of [50-60]% and [40-50]%, respectively, but
       Aleris would only add a de minimis increment of [0-5]% as it operates a single clinic
       in the area generating a very limited turnover in the market for ophthalmological
       treatments.65 Furthermore, the Notifying Party argues that there will continue to be a
       number of other clinics providing RLE surgery services in or around Oslo. 66
Commission’s assessment
(76)   The Commission understands that Aleris has a limited presence in Norway for RLE
       surgery, with only one single clinic located in Oslo city.
(77)   In addition, the vast majority of respondents to the market investigation confirmed
       that, post-Transaction, patients would still have sufficient alternatives left in Norway
       in general and in Oslo specifically, for RLE surgery on its own or in combination
       with refractive laser surgery and that the Transaction would not materially affect the
       market conditions or lead to increased prices or reduced capacity, including on a
       broader market covering different treatment procedures for the implantation of
       intraocular lenses in Norway.
(78)   The limited concerns that were raised as regards RLE surgery in Norway relate to
       Memira’s current leading market position and therefore do not therefore appear to be
       merger-specific in nature.
(79)   In view of the above and the information obtained over the course of the market
       investigation, the Commission considers that the Transaction does not raise serious
       doubts as to its compatibility with the internal market with respect to RLE surgery in
       Norway, including the city of or local 100 km catchment area around Oslo, as well
       as on broader markets including both RLE surgery and refractive laser surgery or
       RLE surgery together with different implantation of intraocular lenses treatment
       procedures.
5.3.   RLE surgery in Sweden
Notifying Party’s view
(80)   In 2020, Memira performed […] RLE surgeries in Sweden, which generated a total
       turnover of approximately EUR […] million. According to the Notifying Party,
64     Form CO, Table 35.
65      Form CO, paragraphs 249, 254-255 and 259.
66     Form CO, paragraphs 253, 257, Table 64 and Table 65: the Notifying Party submits that there are 8
       competitors within the Oslo (100 km) catchment area and 5 competitor locations in Oslo city alone.
                                                      14
 ---pagebreak---      Memira’s 2020 market share by value was [40-50]%. 67 Aleris is a considerably
     smaller player in Sweden as it performed only […] RLE surgeries in 2020, which
     generated a total revenue of EUR […]. 68
(81) Therefore, even though the combined market share of the Parties post-Transaction
     would be [40-50]%, the increment added by Aleris would be extremely limited,
     namely only [0-5]%. 69
(82) The Notifying Party indicated that, in its view, given the very limited presence of
     Aleris in the RLE surgery segment, it can in fact hardly be considered as a credible
     competitor to Memira in Sweden.70
(83) According to the Notifying Party, post-Transaction there will remain a number of
     competitors offering similar services in Sweden, including Capio, Varda Ögon,
     Ögonlasern, Novius Ögonklinik, Aveny Ögonklinik, Lirema, Proforma Clinic,
     Stockholms Ögonklinik and others.
(84) When considering a broader product market including both refractive laser surgery
     and RLE surgery in Sweden, based on the 2020 market share data by value provided
     by the Notifying Party, the Parties’ combined position would be [40-50]% with a de
     minimis increment of only [0-5]%. 71 Indeed, Aleris is not active in the refractive
     laser surgery segment in Sweden 72 and performed only […] RLE surgeries in 2020,
     which generated revenue of EUR […] in total.73
(85) The Notifying Party’s view is that the Transaction is therefore also unlikely to give
     rise to concerns on a broader product market including refractive laser surgery and
     RLE surgery in Sweden.
(86) In addition, when considering a broader market including different implantation of
     intraocular lenses treatment procedures (i.e. RLE, cataract surgery and cataract top-
     up surgery), 74 the Parties’ combined market shares in Sweden would be [10-20]%
     and would not give rise to an affected market.75
(87) Finally, according to the Notifying Party, no competition concerns can be expected
     to arise when considering local markets within Sweden. Indeed, even at the level of a
     catchment area covering Stockholm city only or a radius of 100 km around
     Stockholm, the Parties would only hold a combined share of [20-30]% and
     [20-30]%, respectively, on the market for ophthalmological treatments.76
67   Form CO, Table 32.
68   Form CO, Table 32.
69   Form CO, Table 32.
70   Form CO, paragraphs 206-207.
71   Form CO, Table 11.
72   Form CO, Table 20.
73   Form CO, Table 11.
74   Form CO, paragraphs 203 and 204: the Notifying Party confirmed that with respect to (i) cataract
     surgery and (ii) cataract top-up surgery in Sweden the Parties’ combined market shares would be
     below 20% and would not give rise to any affected markets.
75   Form CO, Table 23.
76   Form CO, paragraphs 240 and 244.
                                                     15
 ---pagebreak---      Furthermore, the Notifying Party argues that there will continue to be a number of
     other clinics providing RLE surgery services in or around Stockholm. 77
Commission’s assessment
(88) In line with the market shares and revenue figures submitted by the Notifying Party,
     the Commission understands that Aleris has limited RLE surgery activities in
     Sweden and overall a presence significantly more limited than Memira. Indeed,
     Aleris only operates 8 clinics throughout Sweden (as opposed to 30 for Memira),
     only one of which is active in the RLE segment in Stockholm city and to a very
     limited extent.
(89) In addition, the vast majority of respondents to the market investigation confirmed
     that, post-Transaction, patients would still have sufficient alternatives left in Sweden
     in general and in Stockholm specifically, for RLE surgery on its own or in
     combination with refractive laser surgery, and that the Transaction would not
     materially affect the market conditions or lead to increased prices or reduced
     capacity, including on a broader market covering different treatment procedures for
     the implantation of intraocular lenses in Norway.
(90) One respondent indicated that post-Transaction “there will be no difference
     compared to the current situation. Memira is the dominant player and the
     transaction will not change that”78 in terms of “prices, quality or choice for (…)
     patients. Aleris’ business in refractive surgery is currently not that large so it does
     not affect the total market to any appreciable extent”.79 Another respondent
     confirmed that “Memira already today owns the refractive market. A closer
     relationship with Aleris will not change the competition in terms of market shares”.80
     As regards the Stockholm area, another respondent confirmed that “patients in the
     greater Stockholm area will not have a problem finding other eye clinics than Aleris
     and Memira”.81
(91) The limited concerns that were raised as regards RLE surgery in Sweden relate to
     Memira’s current leading market position and do not therefore appear to be merger-
     specific in nature.
(92) In view of the above and the information obtained over the course of the market
     investigation, the Commission considers that the Transaction does not raise serious
     doubts as to its compatibility with the internal market with respect to RLE surgery in
     Sweden, including at the level of the city of or a 100 km radius around Stockholm,
     as well as on broader markets including both RLE surgery and refractive laser
     surgery or RLE surgery together with different implantation of intraocular lenses
     treatment procedures.
77   Form CO, paragraphs 237, 244, Table 57 and Table 61: the Notifying Party submits that there are 28
     competitors within the Uppsala/Stockholm area (100 km) and 14 competitor locations in Stockholm
     city alone.
78   Non-confidential reply of a customer to request for information dated 2 July 2021, question 1.
79   Non-confidential reply of a customer to request for information dated 2 July 2021, question 3.
80   Non-confidential reply of a competitor to request for information dated 2 July 2021, question 1.
81   Non-confidential reply of a competitor to request for information dated 2 July 2021, question 1.
                                                      16
 ---pagebreak--- 6.   CONCLUSION
(93) For the above reasons, the European Commission has decided not to oppose the
     notified operation and to declare it compatible with the internal market and with the
     EEA Agreement. This decision is adopted in application of Article 6(1)(b) of the
     Merger Regulation and Article 57 of the EEA Agreement.
                                                   For the Commission
                                                   (Signed)
                                                   Margrethe VESTAGER
                                                   Executive Vice-President
                                              17