CELEX: 32018M9046
Language: en
Date: 2018-10-16 00:00:00
Title: Commission Decision of 16/10/2018 declaring a concentration to be compatible with the common market (Case No COMP/M.9046 - Taiyo Nippon Sanso Corporation / MCHC / Praxair EEA Business) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

EUROPEAN COMMISSION
                                                                Brussels, 16.10.2018
                                                                C(2018) 6886 final
  In the published version of this decision, some
  information has been omitted pursuant to Article                      PUBLIC VERSION
  17(2) of Council Regulation (EC) No 139/2004
  concerning non-disclosure of business secrets and
  other confidential information. The omissions are             To the notifying party:
  shown thus […]. Where possible the information
  omitted has been replaced by ranges of figures or a
  general description.
Subject:            Case M.9046 - Taiyo Nippon Sanso/Praxair EEA Business
                    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 11 September 2018, the European Commission received notification of a
          proposed concentration pursuant to Article 4 of the Merger Regulation by which
          Taiyo Nippon Sanso Corporation ("TNSC") (of Japan) would acquire sole control
          of the whole of Praxair EEA Business, by way of purchase of shares ("the
          Transaction").3 Praxair EEA Business is part of Praxair Inc. ("Praxair"). TNSC is
          directly and solely controlled by Mitsubishi Chemical Holdings Corporation
          ("MCHC") (of Japan). MCHC, including TNSC, is designated hereinafter as the
          "Notifying Party" and, together with Praxair EEA Business, the "Parties".
1.        THE PARTIES
(2)       TNSC is a manufacturer and supplier of gases used in a variety of industries
          (including the steel, chemical, healthcare, food, and electronics industries). TNSC
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 329, 18.9.2018, p. 3-4.
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---       is based in Japan and is primarily active in Asia and North America,4 with
      virtually no operations in the EEA.
(3)   MCHC is based in Japan and is the controlling parent of TNSC. MCHC has four
      core operating businesses: (i) Mitsubishi Chemical, (ii) Mitsubishi Tanabe
      Pharma, (iii) Life Science Institute, and (iv) TNSC. Through these companies,
      MCHC provides a wide range of products and services, including industrial
      chemicals and gases, pharmaceutical research and development, and chemistry-
      based solutions for environmental applications.
(4)   Praxair EEA Business (the "Target") consists of the majority of Praxair’s
      industrial gas businesses in the EEA, as well as Praxair’s European engineering
      capabilities. The Target is divested as part of the commitments submitted in Case
      M.8480 – Praxair/Linde.5
2.    THE OPERATION
(5)   On 5 July 2018, TNSC and Praxair entered into an agreement, pursuant to which
      TNSC will acquire 100% of the shares in each of the companies that together
      constitute Praxair EEA Business. Following the Transaction, Praxair EEA
      Business will be solely controlled by TNSC.
(6)   The Transaction therefore constitutes a concentration within the meaning of
      Article 3(1)(b) of the Merger Regulation.
3.    EU DIMENSION
(7)   The undertakings concerned have a combined aggregate world-wide turnover of
      more than EUR 5 000 million6 (MCHC (including TNSC): EUR […] million;
      Praxair EEA Business: EUR […] million). Each of them has an EU-wide turnover
      in excess of EUR 250 million (MCHC (including TNSC): EUR […] million;
      Praxair EEA Business: EUR […] million), but they do not achieve more than
      two-thirds of their aggregate EU-wide turnover within one and the same Member
      State.
(8)   The notified operation therefore has an EU dimension pursuant to Article 1(2) of
      the Merger Regulation.
4.    RELEVANT MARKETS
(9)   The Parties' activities only overlap with respect to the supply of the following
      types of gases: (i) industrial gases, (ii) specialty gases, and (ii) helium.
4   TNSC’s operating entity in North America is Matheson, a wholly owned subsidiary.
5   See the Commitments annexed to the Commission decision of 20 August 2018 in case M.8480 –
    Praxair/Linde. In addition to the divestment of Praxair EEA Business, the Commitments also
    provide for the divestment of (i) Praxair's controlling shareholding in SIAD to the joint venture
    partner Flow Fin S.p.A. (of Italy), and (ii) helium sourcing contracts and related assets to one or
    more buyers to be agreed with competition authorities other than the European Commission (in
    particular the US Federal Trade Commission and the Chinese State Administration for Market
    Regulation).
6   Turnover calculated in accordance with Article 5 of the Merger Regulation.
                                                      2
 ---pagebreak---   4.1. Product Markets
4.1.1. Industrial gases
(10)    Industrial gases are obtained from the air, mainly through cryogenic air separation
        technology (oxygen, nitrogen and argon) or from synthetic processes or natural
        sources (hydrogen, acetylene, carbon monoxide, carbon dioxide and nitrous
        oxide).7 Gas companies typically build the plants, produce and distribute the
        gases to their clients. Industrial gases are used by a very wide variety of industries
        (metallurgy, chemical, paper, glass, electronics, food, fish farming, etc.). In
        previous decisions,8 the Commission considered each individual industrial gas as
        a separate product market.
(11)    In its decisional practice,9 the Commission also considered that the various modes
        of distribution (tonnage, small onsite-plant, bulk, and cylinder) give rise to
        distinct product markets. Tonnage supply is defined as sales of large quantities of
        gas through pipelines or large on-site plants. Supply through small on-site plants
        is defined as the supply of smaller volumes of gas in gaseous form via
        "standardised" gas plants of limited capacity built on the customer's production
        site. Bulk supply refers to the supply of smaller volumes of gas in liquid form,
        delivered by road or rail tankers and cylinder supply refers to the supply of very
        small volumes of gas, in gaseous form, in cylinders.
(12)    For certain gases, the Commission distinguished between standard and high
        purity grades. For other industrial gases, the Commission left open whether a
        distinction based on purity level would be appropriate.
(13)    The Notifying Party agrees with the previous assessment of the Commission,
        which is also in line with the results of the in-depth investigation recently carried
        out by the Commission in case M.8480 – Praxair/Linde.10
(14)    For the purpose of the present Decision, since the Transaction does not lead to
        affected markets under any plausible market definitions, the exact scope of the
        product markets concerned can be left open.
4.1.2. Specialty gases
(15)    Specialty gases include a large variety of gases with the common characteristic of
        being higher value products sold in smaller quantities than industrial gases.
        Frequently, the production of specialty gases involves the use of industrial gases
        with higher purity grades and/or the mixing of gases with other components.
7     These gases are mainly by-products of chemical processes and are often sourced from chemical
      companies and then only purified and distributed by the gas suppliers.
8     Commission's decision of 9 February 2000 in Case M.1641 - Linde/AGA, Commission's decision of
      18 January 2000 in Case M.1630 – Air Liquide/BOC, Commission's decision of 15 March 2004 in
      Case M.3314 – Air Liquide/Messer Targets and Commission's decision of 6 June 2006 in Case
      M.4141 – Linde/BOC.
9     Commission's decision of 20 August 2018 in case M.8480 – Praxair/Linde, Commission's decision
      of 9 February 2000 in Case M.1641 - Linde/AGA, Commission's decision of 18 January 2000 in
      Case M.1630 – Air Liquide/BOC, Commission's decision of 15 March 2004 in Case M.3314 – Air
      Liquide/Messer Targets and Commission's decision of 6 June 2006 in Case M.4141 – Linde/BOC.
10    Commission's decision of 20 August 2018 in case M.8480 – Praxair/Linde.
                                                       3
 ---pagebreak--- (16)   In previous decisions,11 the Commission identified five groups of specialty gases:
       (i) noble gases, used either in pure form or in mixtures, in the lighting and
       electronics industries, (ii) electronic specialty gases ("ESGs"), mostly used in
       the semiconductor industry, (iii) refrigerants, used as cooling agents, (iv)
       chemical gases, used in the chemical, biochemical and manufacturing industries,
       and (v) calibration and other gas mixtures, used for the calibration of
       instruments and other specialty applications. With the exception of noble gases,
       which are extracted from the air, specialty gases are typically not produced in-
       house, but sourced from chemical companies, and then purified, blended and
       distributed to end-customers by gas suppliers.
(17)   While the above segmentation was introduced in order to facilitate the
       competition analysis, it does not correspond to the respective relevant product
       markets defined by the Commission in previous decisions.12 As regards ESGs,
       chemical gases and refrigerants, the Commission took the view that each type of
       gas within these groups constitutes a separate relevant product market. As regards
       noble gases, the Commission identified the following relevant product markets:
       (i) krypton, (ii) neon, (iii) xenon, (iv) inert noble gas mixtures, (v) brominated
       compound gas mixtures, (vi) fluorine noble gas mixtures, and (vii) hydrogen
       chloride noble gas mixtures. As regards calibration and other gas mixtures, the
       Commission identified three relevant product markets: (i) environmental mixtures,
       (ii) special application mixtures, and (iii) other calibration mixtures.
(18)   Specialty gases are predominantly supplied in cylinders and only to a small extent
       in bulk. In the past,13 the Commission considered that these two supply modes
       give rise to separate relevant product markets.
(19)   The Notifying Party agrees with the Commission's previous decisions, which are
       also in line with the results of the in-depth investigation recently carried out by
       the Commission in case M.8480 – Praxair/Linde.14
(20)   In light of the above, the Commission considers that, for the purposes of the
       assessment in this case, there is no reason to depart from the product market
       definitions retained in previous decisions.
11   Commission's decision of 6 June 2006 in Case M.4141 – Linde/BOC, Commission's decision of 20
     September 2006 in Case M.4091 – Linde/Spectra, Commission's decision of 28 November 2007 in
     Case M.4823 – Yara/Praxair/JV.
12   Commission's decision of 20 August 2018 in case M.8480 – Praxair/Linde, Commission's decision
     of 6 June 2006 in Case M.4141 – Linde/BOC, Commission's decision of 20 September 2006 in Case
     M.4091 – Linde/Spectra, Commission's decision of 28 November 2007 in Case M.4823 –
     Yara/Praxair/JV.
13   Commission's decision of 20 August 2018 in case M.8480 – Praxair/Linde, Commission's decision
     of 6 June 2006 in Case M.4141 – Linde/BOC, Commission's decision of 20 September 2006 in Case
     M.4091 – Linde/Spectra, Commission's decision of 28 November 2007 in Case M.4823 –
     Yara/Praxair/JV.
14   Commission's decision of 20 August 2018 in case M.8480 – Praxair/Linde. In this decision, the
     Commission found that, while specialty gases are generally processed in dedicated facilities, they
     typically use the distribution network of industrial gases. In fact, gas companies tend to use their
     distribution channels for as many products as possible in order to reduce costs where practically
     feasible. In addition, customers of specialty gases, generally of large size, often purchase together
     different types of specialty gases, and/or other types of gases (notably industrial gases and helium)
     (“one-stop shop solution(s)”).
                                                        4
 ---pagebreak--- 4.1.3. Helium
(21)    Helium is a scarce and high value product, with a very specific sourcing modality.
        It is a by-product of natural gas production extracted from a very limited number
        of sources worldwide, located in the US, Qatar, Algeria, Poland, Russia, Canada,
        and Australia. Helium producers are, consequently, natural gas producers, which
        are typically not active in the commercialisation of helium but rather enter into
        long-term contracts or joint-ventures with integrated gas companies (such as the
        Notifying Party) that bring helium to the market. Helium is used in a wide range
        of industries, including the medical, research, diving, automotive, electronics,
        balloon and aerospace industries.
(22)    The helium supply chain differs from that of the other gases as helium is sourced
        globally and then supplied at wholesale and retail levels:
        i.     at wholesale level, helium is transported worldwide, from the production
               site to transfill centres located in the areas of consumption, in liquid form in
               special low temperature containers ("cryogenic portable tanks");
        ii.    at retail level, the supply of helium to end-customers is made from transfill
               centres by retailers that are either (i) vertically integrated with wholesalers
               or (ii) independent players which buy helium on the wholesale market. At a
               transfill centre, helium is removed from the cryogenic portable tanks and
               transferred into smaller containers called cryogenic dewars for deliveries of
               liquid helium to end-customers, or into high-pressure cylinders or tube
               trailers for supplies of helium in compressed gaseous form. At retail level,
               helium may also, to a much more limited extent, be delivered in cryogenic
               portable tanks to end-customers.
(23)    In previous decisions15, the Commission found that the wholesale and retail
        supply of helium constitute distinct product markets. The Commission considered
        that the market for the wholesale supply of helium also included the sourcing of
        helium. At retail level, the Commission envisaged to further segment the market
        depending on the modes of supply and also considered the existence of a distinct
        retail market for the supply of high purity helium (that is to say helium with a
        purity grade of 6.0 and above16), but ultimately left open the exact scope of the
        market in this respect.
(24)    The Notifying Party agrees with the previous assessment of the Commission,
        which is also in line with the results of the in-depth investigation recently carried
        out by the Commission in case M.8480 – Praxair/Linde.17
(25)    In light of the above, and given that the Transaction does not give rise to
        competition concerns under any plausible market definitions, the Commission
        considers that, for the purposes of the assessment in this case, there is no reason
        to depart from the product market definitions retained in previous decisions as
15    Commission's decision of 20 August 2018 in case M.8480 – Praxair/Linde. Commission's decision
      of 6 June 2006 in Case M.4141 – Linde/BOC, and Commission's decision of 28 November 2007 in
      Case M.4823 – Yara/Praxair/JV.
16    In the gas industry, purity is expressed by two digits separated by a dot to express the percentage of
      the relevant gas in the product. The first digit indicates the number of 9s, the second the digit after
      the 9s. Purity 6.0 means 99.9999%; purity 3.5 means 99.95%.
17    Commission's decision of 20 August 2018 in case M.8480 – Praxair/Linde .
                                                          5
 ---pagebreak---        regards the helium wholesale market and that the exact scope of the helium retail
       markets can be left open.
 4.2. Geographic Markets
(26)   The in-depth investigation recently carried out by the Commission in case
       M.8480 – Praxair/Linde has largely confirmed the geographic market definitions
       retained in previous decisions.18 The latter are not contested by the Notifying
       Party and can be summarized as follows:
       i.     national scope for the bulk and cylinder supply of industrial and specialty
              gases (with the exception of noble gases and ESGs), as well as for the retail
              supply of helium (with the exception of the retail supply of helium in
              cryogenic portable tanks);
       ii.    EEA scope for the tonnage supply of industrial gases, as well as for the
              bulk and cylinder supply of noble gases and ESGs; and
       iii.   global scope for the wholesale supply of helium, as well as for the potential
              market for the retail supply of helium in cryogenic portable tanks.
(27)   In light of the above, the Commission considers that, for the purposes of the
       assessment of the Transaction, there is no reason to depart from the geographic
       market definitions retained in previous decisions.
5.     COMPETITIVE ASSESSMENT
 5.1. Introduction
(28)   Given the different geographic footprint of TNSC and Praxair EEA Business,19
       the overlaps between the Parties' activities are very limited and only give rise to
       the following affected markets:
       i. Horizontally affected markets:
             the market for the cylinder supply of hydrogen bromide (ESG) at EEA
                level;
             the market for the cylinder supply of propane (chemical gas) in the
                United Kingdom; and
             the potential market for the retail supply of helium in high purity
                cylinders in Spain;20
18   Commission's decision of 20 August 2018 in case M.8480 – Praxair/Linde, Commission's decision
     of 6 June 2006 in Case M.4141 – Linde/BOC, Commission's decision of 15 March 2004 in Case
     M.3314 – Air Liquide/Messer Targets and Commission's decision of 6 June 2006 in Case M.4141 –
     Linde/BOC, and Commission's decision of 28 November 2007 in Case M.4823 – Yara/Praxair/JV.
19   There is no horizontal or vertical overlap between the activities of MCHC (excluding TNSC) and
     Praxair EEA Business (see Form CO, paragraph 385).
20   The Parties' activities also overlap on the global market for the wholesale supply of helium. This
     market would be affected only if sales to other wholesalers are not taken into account (with a
     combined market share around [30%-40%]). However, in case M.8480 – Praxair/Linde, the
                                                       6
 ---pagebreak---         ii.    Vertically affected markets:
              the (upstream) market for the bulk supply of phosphine (ESG) and the
                 (downstream) market for the cylinder supply of phosphine, which are
                 EEA-wide markets; and
              the (upstream) global market for the wholesale supply of helium and
                 some (downstream) national markets for the retail supply of helium.
(29)    The above markets have recently been reviewed by the Commission in case
        M.8480 – Praxair/Linde.21 Consequently, the assessment of the impact of the
        Transaction in the affected markets will take into account the results of the in-
        depth investigation carried out by the Commission in Praxair/Linde.
 5.2. Horizontal overlaps
5.2.1. Cylinder supply of hydrogen bromide (ESG) in the EEA
(30)    In the EEA market for the cylinder supply of hydrogen bromide, in 2017, the
        Parties had a combined value market share of [40-50%] ([40-50%] in volume),
        with a [5-10%] increment brought by TNSC's activities. TNSC's sales of
        hydrogen bromide cylinders in the EEA are limited(EUR […] in 2017; EUR […]
        in 2016). The totality of TNSC’s sales is achieved with a single customer in one
        EEA country and results from a global commercial relationship established with
        the customer in the US. The high combined market shares of the Parties appear to
        reflect the small size of the total market in the EEA (EUR […]) and to be volatile
        (which is illustrated by the fact that TNSC's sales have more than doubled
        between 2016 and 2017). Moreover, at least three other players supply hydrogen
        bromide in cylinders in the EEA, including Linde/Praxair, Air Liquide, and
        Versum, each of them having market shares larger than TNSC. Therefore, the
        Transaction is unlikely to lead to any meaningful increase in market power.
(31)    Additionally, in the context of the in-depth investigation in Praxair/Linde, the
        Commission found that the suppliers' strength on ESGs markets is closely linked
        with the ability to provide a wide range of gases within this category, as well as
        other types of gases.22 In this respect, pre-Transaction, TNSC enjoys significant
        market shares in the EEA only in relation to one specific type of ESGs, and is,
        therefore, pre-Transaction not a close competitor of the main ESG suppliers,
        including Praxair EEA Business, which have a strong presence in Europe on
        different gas markets (ESGs as well as other gases). In fact, in the context of the
        in-depth investigation conducted in case M.8480 – Praxair/Linde,23 the
        Commission did not find TNSC to be a meaningful supplier of ESGs in the EEA.
(32)    In light of the above, the Commission considers that the Transaction is unlikely to
        remove any significant competitive constraint on this market, and thus, it will not
        lead to any competition concerns.
      Commission found that excluding sales to other wholesalers when computing market shares is not
      appropriate given that it would not fully reflect the competitive dynamics in the wholesale market.
      Considering market share data including sales to other wholesalers, the Parties' combined share is
      below 20%.
21    Commission's decision of 20 August 2018 in case M.8480 – Praxair/Linde.
22    See footnote 13.
23    Commission's decision of 20 August 2018 in case M.8480 – Praxair/Linde.
                                                         7
 ---pagebreak--- 5.2.2. Cylinder supply of propane (chemical gas) in the United Kingdom
(33)    In the market for the cylinder supply of propane in the United Kingdom, the
        Parties' combined value market share is moderate and amounts to about [20-30%]
        (in value and volume), with a de minimis increment of less than [0-5%] brought
        about by TNSC. In addition, Tier 1 players such as Air Liquide, Linde/Praxair,
        and Air Products will remain active on the market, together with other local
        players. In the context of the in-depth investigation conducted in case M.8480 –
        Praxair/Linde,24 the Commission did not find TNSC to be a meaningful supplier
        of chemical gases (including propane) in the UK.
(34)    In light of the above, the Commission considers that the Transaction is unlikely to
        remove any significant competitive constraint on this market and thus, it will not
        lead to any competition concerns.
5.2.3. Retail supply of helium in high purity cylinders in Spain
(35)    In the potential market for the retail supply of helium in high purity cylinders in
        Spain, the Parties have a combined market share of about [30-40%] (both in value
        and volume), with a de minimis increment of [0-5%], brought about by TNSC,
        which is moreover likely to be overestimated.25 There are other players active on
        the market, including Tier 1 players Linde/Praxair, Air Liquide and Air Products,
        as well as regional players like Messer. In the context of the in-depth
        investigation conducted in case M.8480 – Praxair/Linde,26 the Commission did
        not find that TNSC is a meaningful supplier on the market for retail helium in
        Spain.
(36)    In light of the above, the Commission considers that the Transaction is unlikely to
        remove any significant competitive constraint on this market and thus, it will not
        lead to any competition concerns.
5.2.4. Conclusion
(37)    In light of the above, the Commission concludes that the Transaction does not
        raise serious doubts as to its compatibility with the internal market as to the
        horizontal overlap created by the Transaction in relation to (i) the market for the
        cylinder supply of hydrogen bromide in the EEA, (ii) the market for the cylinder
        supply of propane in the United Kingdom, and (iii) the potential market for the
        retail supply of helium in high purity cylinders in Spain.
 5.3. Vertical links
5.3.1. Bulk and cylinder supply of phosphine in the EEA
(38)    TNSC is active on the upstream market for the bulk supply of phosphine, with a
        [30-40%] market share (both in value and volume) in 2017 at EEA level, whereas
        the Target is active on the downstream market for the cylinder supply of
        phosphine, with a [30-40%] market share (both in value and volume) in 2017 in
24    Commission's decision of 20 August 2018 in case M.8480 – Praxair/Linde.
25    The above estimates rely on the market share data provided in case M.8480 by Linde and Praxair,
      which overestimated their position for the supply of high purity helium (see Commission's decision
      of 20 August 2018 in case M.8480 – Praxair/Linde, paragraph 1226).
26    Commission's decision of 20 August 2018 in case M.8480 – Praxair/Linde.
                                                       8
 ---pagebreak---        the EEA. While the Parties' upstream and downstream market shares are above
       the 30% threshold, their market shares appear to reflect the small size of the
       markets concerned (around […]for each of the upstream bulk market and the
       downstream cylinder market). Moreover, the data available point to high volatility
       of the Parties' market shares over the past three years (oscillating between [20-
       30%] in 2015 and [30-40%] in 2017, in value and volume).
(39)   The Commission considers that the Transaction is unlikely to result in any risk of
       input or customer foreclosure. In particular, neither of the Parties appears to hold
       a sufficiently high degree of market power at upstream or downstream level. On
       the one hand, TNSC's entire upstream market share in the EEA originates from
       sales to a single customer, namely […], which will have alternative sources of
       supply (including chemical companies that are not vertically integrated, such as
       Solvay, Cytec, Liming, and Nippon Chemical). On the other hand, competitors
       upstream would be able to sell phosphine to other (actual and potential) clients in
       the EEA, these being either other gas suppliers (for transfilling into cylinders) or
       end-customers purchasing phosphine in cylinders, which represent [60-70%] of
       the current demand.
5.3.2. Helium wholesale supply (global) and retail supply (national)
(40)   Upstream, at wholesale level, the Parties have a moderate combined sales market
       share ([10-20%]) and net capacity share ([10-20%]), well below the 30%
       threshold, while facing a number of competitors with higher sales/capacity shares
       (such as Linde/Praxair, Air Products, Air Liquide).
(41)   Downstream, the Parties' combined market shares exceed 30% in a limited
       number of national markets,27 where the increment brought about by TNSC is
       very modest. In fact, in the context of the in-depth investigation conducted in case
       M.8480 – Praxair/Linde,28 the Commission did not find TNSC to be a meaningful
       supplier of helium at retail level in any EEA countries. In those national retail
       markets, the merged entity will face a number of competitors (including vertically
       integrated players with direct access to helium sources, such as Praxair/Linde, Air
       Liquide, Air Products, and Messer). In addition, the Commission notes that
       Praxair EEA Business was already vertically integrated pre-Transaction, having
       higher sales/capacity shares than TNSC at wholesale level.
(42)   The Commission considers that Transaction is unlikely to result in any risk of
       input or customer foreclosure. On the one hand, the existence of credible
       alternative upstream (wholesale) suppliers will limit the ability of the Parties to
       foreclose access to helium to downstream rivals and thus make any input
       foreclosure unlikely. On the other hand, the Transaction does not bring any
       relevant change on the downstream retail markets since TNSC is not a meaningful
       player at retail level in the EEA and Praxair EEA Business was already vertically
       integrated pre-Transaction. Therefore, customer foreclosure is also unlikely to
       arise as a result of the Transaction.
27    While the Notifying Party was unable to provide market share estimates at downstream level, based
      on the market reconstruction data included in the Commission's decision in case M.8480 –
      Praxair/Linde, the Target's market shares on the markets for the retail supply of helium (and
      potential sub-markets) would exceed 30% in the following EEA countries: Belgium, Germany,
      Norway, Portugal, and Spain.
28    Commission's decision of 20 August 2018 in case M.8480 – Praxair/Linde.
                                                      9
 ---pagebreak--- 5.3.3. Conclusion
(43)   In light of the above, the Commission concludes that the Transaction does not
       give rise to serious doubts as to its compatibility with the internal market in
       relation to the vertical links (i) between the EEA supply of phosphine in bulk
       (upstream) and in cylinders (downstream), and (ii) between the global supply of
       helium at wholesale level (upstream) and the national supply of helium at retail
       level (downstream).
6.     CONCLUSION
(44)   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.
(45)   This decision is without prejudice to the Commission's approval of TNSC as a
       suitable purchaser of Praxair EEA Business in case M.8480 – Praxair/Linde and
       of the Commission's assessment of whether the terms of the divestiture are
       consistent with the Commission's decision and the commitments in that case.
                                                 For the Commission
                                                 (Signed)
                                                 Margrethe VESTAGER
                                                 Member of the Commission
                                               10