Turkey: The Board approved the transaction regarding the acquisition of sole control over Migros by Anadolu Endüstri

Last Updated: 18 January 2016
Practice Guide by ELIG, Attorneys-at-Law

The Board approved the transaction regarding the acquisition of sole control over Migros by Anadolu Endüstri (09.07.2015, 15-29/420-117)

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control over Migros by Anadolu Endüstri Holding (“Anadolu”), through the acquisition of majority shares of MH Perakendecilik, controlled by Moonlight Capital SA.

Anadolu is a holding company under the Anadolu Group which operates in the beer, beverage, automotive, retail, finance, informatics, energy, nutrition, real estate and health sectors. Migros operates with a wide product range within the retail sector for fast moving consumer goods such as nutrition, hygiene and personal care as well as stationery, glassware, domestic appliances, books and ready-made clothes, online sales and wholesales through its stores with the brands Migros, Tansaş, Macrocenter, Ramstore, Migros Sanal Market and Migros Toptan.

With respect to the structure of the transaction, the Board stated that even though Migros will be jointly controlled by Moonlight and Anadolu during the first phase, the final purpose of the parties is to establish Anadolu’s sole control over Migros. In the light of the above, as well as the previous decisions of the Board and the European Commission, the Board decided that the transaction is characterized as Anadolu’s acquisition of sole control over Migros.

The Board reasoned that the transaction mainly includes a vertical integration as Migros and Anadolu are active within different levels of the supply chain. However, the Board also made an assessment with regards to the horizontal dimension of the transaction, as Anadolu is also active within the retail sector through the system Ekonomini, established for the purpose of enabling Anadolu to design a retail chain by franchise agreements. In its assessment, the Board found that the combined market share of Migros and Anadolu within the retail market is relatively low and, in light of the structure of the market and the other retailers, the Board concluded that Anadolu will not be in a dominant position within the retail market under any scenario.

Afterwards, the Board analyzed the vertical dimension of the transaction.

With regards to input foreclosure, the Board made an assessment concerning potential supply restrictions or reductions of Anadolu’s products to Migros’s competitors within the organized retail market after the consummation of transaction. The Board found that Anadolu is unlikely to have such a motive. In this respect, the Board reasoned that the possibility of input foreclosure does not seem realistic in light of the conditions of the beer market where Anadolu is in a dominant position, and any other relevant markets where Anadolu has a large market share. The Board also took note of the fact that the retail market has a competitive structure and conditions that are open to improvement and expansion.

With regards to customer foreclosure, the Board made an assessment concerning whether the ability of the competitors of Anadolu within the upstream markets to access the customers will be affected. In this respect, the Board assessed three matters; (i) whether the merged entity will have the ability to foreclose the market to its competitors in the upstream markets through reducing purchases (ii) whether the merged entity will have the motive reduce purchases from its competitors in the upstream markets and (iii) the potential negative impacts of such market foreclosure on the consumers within the downstream market. In this context the Board carried out a separate analysis for each relevant market, and found that the merged entity will not be in a dominant position or will not strengthen its existent dominant position within the majority of  the relevant markets. However, with regards to the beer market, where Anadolu is in a dominant position with its subsidiary Anadolu Efes, and Tuborg is deemed as the only significant competitor, the Board noted that the merged entity would be able to exclude Tuborg from Migros without suffering any loss of profit. The Board further observed that Migros was Tuborg’s (and Anadolu Efes’) largest customer with a crucial importance. The opinion obtained from the Competition Authority’s economic analysis unit further supported the conclusion that the merged entity may have the motive to exclude Tuborg products from Migros. The relevant opinion stated that exclusion from Migros and the resulting loss of sales will eventually result in operational cost increases, and ultimately price increases, for Tuborg, crippling its ability to compete with Anadolu Efes. Therefore, the Board concluded that the analysis of the effects on the beer market demonstrate that the transaction should not be approved without commitments.

With regards to coordinated, the Board noted that the risk that Migros may provide commercially sensitive information about the sales of Anadolu’s  competitors in the upstream markets to Anadolu, whereas Anadolu may provide Migros with commercially sensitive information obtained from retailers. The Board reasoned that such exchanges of information could result in significant increases of transparency, and therefore risk of coordination, in both the retail markets and the respective upstream markets where Anadolu is active. Therefore, the Board underlined the importance of the establishment of a mechanism that will prevent the exchange of such commercially sensitive information between Anadolu and Migros.

Finally, the Board assessed the commitment package offered by Anadolu and found that the relevant commitments are adequate to eliminate competition concerns constituted by the transaction with regards to the beer market. The package includes, inter alia, (i) Migros’s commitments to establish and carry on its existent commercial relationships with Anadolu’s competitors based on objective commercial parameters (ii) Migros’ commitment not to obstruct the sales of competing beer products and not diminishing the shelf and display space available to them except where based on objective reasons, and (iii) Anadolu’s commitments not to intervene in the commercial relationships between Migros and the competitors in the beer market for a duration of three years after the consummation of the transaction, as long as Anadolu controls Migros and Anadolu Efes.

The package also includes commitments concerning information sharing between Migros and Anadolu. The relevant commitments include an arrangement whereby (i) the operational and organization structure of Migros will be kept separate from Anadolu, (ii) Migros operational managers will not hold similar positions within Anadolu or its subsidiaries.  Anadolu further committed that, inter alia, (i) Migros will refrain from sharing with Anadolu any commercially sensitive information it obtains regarding Anadolu’s competitors; (ii) Anadolu will refrain from sharing with Migros any commercially sensitive information it obtains regarding competing retailers, and (iii) for the beer market, Migros will refrain from sharing with Anadolu any commercially sensitive CRM information regarding the competitors of Anadolu Efes or the consumers who prefer Anadolu Efes’ competitors’ products, limiting the exchanged information to those which concern Anadolu Efes alone.

In light of the above, the Board granted a conditional approval to the acquisition of sole control over Migros by Anadolu Endüstri

This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

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