CURIERO SPEDITION SRL

Transcription

1 Decision no. 65 from related to the economic concentration realized by SC RTC Holding BV through achieving the sole control over SC CURIERO SA and over the undertakings controlled by the latter, respectively S.C. CURIERO EXPRESS SRL and S.C. CURIERO SPEDITION SRL THE COMPETITION COUNCIL On the basis of: 1. The Competition Law no. 21/1996, republished in the Official Journal of Romania, Part I, no. 742/ (hereinafter referred to as Law); 2. The Decree no. 830/ regarding the appointment of the Competition Council s President, published in the Official Journal of Romania, no. 619/ ; 3. The Decree no. 1089/ regarding the appointment of a Vice-President of the Competition Council s Plenum, published in the Official Journal of Romania, Part I, no. 767/ ; 4. The Decree no. 1087/ regarding the appointment of a member of the Competition Council s Plenum, published in the Official Journal of Romania, Part I, no. 767/ ; 5. The Decree no. 57/ regarding the appointment of the members of the Competition Council s Plenum, published in the Official Journal of Romania, Part I, no.143/ ; 6. The Regulation concerning the authorization of economic concentrations, published in the Official Journal of Romania, Part I, no. 280/ , with subsequent amendment and completions ((hereinafter referred to as Regulation); 7. The Regulation on organization, functioning and procedure of the Competition Council, published in the Official Journal of Romania, Part I, no. 288 of April 01, 2004, with subsequent amendments and completions; 8. Guidelines on calculation of turnover in the cases of anti-competitive practice provided for under the art. 5(1) of the Competition Law no. 21/1996 and in the economic concentrations cases, published in the Official Journal of Romania, Part I, no. 440/ ; 9. Guidelines on relevant market definition with a view to determining the significant market share published in the Official Journal of Romania, Part I, no. 288/ ; 10. Guidelines on the application of the provisions of art of the Competition Law no. 21/1996 regarding calculation of the authorization fee for economic concentrations, published in the Official Journal of Romania, Part I, no. 288/ ; 11. The notification of the economic concentration submitted by SC RTC Holding BV, registered at the Competition Council under no RS 48/ that became effective on ; 12. The Note of the Commission responsible with mergers and antitrust (Gh.O 846/ ). Taking into account that: 1. Through the address registered at the Competition Council under RS 48/ , SC RTC Holding BV 2 (hereinafter referred to as RTC), was submitted the notification 1 Art. 33 became art. 32 by republishing the Competition Law no. 21/1996; 1

2 regarding the economic concentration realized by achieving the sole control over SC Curiero SA 3 (hereinafter referred to as Curiero). The notification became effective at RTC does not have any commercial activities in Romania, it only owes shares in undertakings. RTC is owned (...)% by Radu Octavian Claudiu, through. Foliteck Ltd. Cipru as well as RTC, does not have any commercial activities in Romania, it only owes shares in undertakings. Among the undertakings in which RTC owes shares only S.C TCE LOGISTICA SRL (undertaking in which RTC owes % shares) has as a main object of activity freight road transport and courier. 3. CURIERO has as a main object of activity Other postal activities and courier. Curiero owes shares (...) in S.C. CURIERO EXPRESS SRL having as a main object of activity other courier activities (other then those of national post) and S.C. CURIERO SPEDITION SRL having as a main object of activity freight road transport. 4. The notified economic concentration is realized by RTC through achieving the sole control over Curiero by acquiring ( ) from the joint stock and vote rights from the shareholder Marchesa Ltd. which remains with a minor position of ( ) in Curiero. In was concluded the Agreement of selling-buying of shares in Curiero SA (hereinafter referred as the Agreement) between Marchesa LTD, George Cosmin Coman, as sellers and RTC Holding BV, as buyer. At closing the dale, according to the Agreement provisions, SC Curiero Spedition SRL would be owed (...) by SC Curiero SA. SC Curiero Express SRL shareholders would remain the same. 5. The acquiring of the sole control directly over Curiero by RTC is an economic concentration in the meaning of Art. 10 (2) b) from the Law and in the meaning of the Regulation; 6. According to the art. 1 from the Regulation (EC) no. 139/2004 from 20 January 2004 regarding the control of economic concentration between undertakings, this economic concentration doesn t have community dimension, unfulfilled the threshold conditions in order to be notified at the European Commission. 7. This economic concentration operation fulfilled the thresholds condition stipulated in art. 14 of the Law, in order to be submitted to The Competition Council s control; Total turnovers were calculated taking into account the official exchange rate of National Bank of Romania for the last working day from the year previous to the accomplishment of the operation, respectively year The relevant markets of product/service on which the economic concentration are realized are the markets on which the acquired undertaking and the undertakings that are controlled by that develop activities, in Romania. 9. As it regards the relevant markets on which the economic concentration takes place, taking into account both the assessment realized in this case and the community practice, the followings are considered as relevant markets: - The relevant market of deferred services of postal deliveries of envelopes, lettereds and parcels 4 having an weight up to 50 kg and which are not enframe in express category; 2 RTC is a Dutch undertaking, constituted according to the Dutch laws, Registered office: (...address...); 3 Registered office: (...address...); 4 See Case no. IV/M.1649 GEFCO/KN ELAN; Case no. IV/M.3971 DEUTSCHE POST / EXEL, Decision from 24 November 2005; Case no. COMP-M.3155 Deutsche Post/Securicor, Decision from 19 June 2003; Case no. IV-M.102 TNT/Canada Post, DBP Postdienst, La Poste, PTT Post and Sweden Post, Decision from ; 2

3 The same logistic, infrastructure, procedings and handling, sorting, warehousing standardized parcels no matter the content is used until reaching the threshold of cargo services (freight transport). Hereby, the market analyse reveled that both for the envelops and lettereds as wel as for parcels it is used the same network - ecquipments and tehnics/tehnologies, handling infrastructure other than those used for cargo delivery. Therewith, taking into consideration that neither the European Commission adopts a clear position which would justify the framing of an sending unit as parcel or freight, that part of the parties competitiors sustain that, in their cases, logistic, infrastructure, procedings and handling, sorting, warehousing tehnics are being changed in the case of the sendings over 70 kg and considering also that the standard assignation of certain, clear marking between parcels and freight does not affect the competitional environment, the issue of setting out the relevant market of the product considering a clear, certain marking can be left open. Taking into account the reasons presented, it is considered, in this case, in the purpose of the present analyze of economic concentration, that the delivery of parcels and documents having an weight up to 50 kg per piece must be considered as being part of the segment of delivery parcels and documents, as well as the delivery of parcels or documents having the individual weight over 50 kg are being part of the segment of freight transport. - The relevant market of Express 5 services which include postal sending of envelops up to 2 kg, parcels up to 50 kg and which present additional characteristic comparing the services included in the the relevant market of deffered services, as: - fast delivery terms 12 h in the same locality, 24 h between county cities and 36 h between other localities in the country; - the possibility of certifing the hour and the date of droping; - the delivery of sending personal to the addressee or to a person authorized to receive the sending; - the possibility of following the sending; - The relevant market of freight delivery (cargo services) through which goods over 50 kg/per piece are transported or individual or as pallets if the whole weight of the packetes is over 250 kg (in this form is receptioned from the client), or are being transport as consolidated packetes at the same destination when the consolidation (the pallets) is realized by the one that render the services; - The relevant market of renting cars; - The relevant market of operating and warehousing services. Curiero, through SC Curiero Spedition SRL registered turnover from the renting cars activity and operating and warehousing services. Considering the turnover, insignificant taking into account that obtained by the undertaking on the other markets mentioned above, it is not necessary a detailed analyse, the competition conditions do not be significant alter by this economic concentration. 10. The geographic markets related to the identified relevant product/service markets, are national. Inside the relevant market of Express delivery service, shall be noticed an ultra express delivery service, destined in the same city, under a very short time of delivery (treated as a local geographical market). 5 See Case COMP/M 3971 Deutsche Post / Excel ( ) in which Commisssion underlines the additional characteristics which make the differences between the deffered and express services, differences that are relived without mentioned differential services (cash on delivery and receiving confirmation) and in Case COMP/M 3155 Deutsche Post/ Securicor ( ) or Case COMP/M 102 TNT/Canada Post; Commission Decision 90/16/CEE (JO L 10, , p. 47) and Commission Decision 90/456/CEE (JO L 233, , p. 19) text from the Commission Communication on applying the competition rules in the postal area and on assesment certain state measures on postal services reassumed in the Decision COMP M.3971; 3

4 This ultra express delivery service is performed only by Curiero and only within 3 (three) cities: Bucharest, Constanta and Cluj-Napoca. 11. For the year 2007, the market share of the involved undertakings are: - On the relevant market of Envelope, parcel and document standard (deferred) delivery service - national level, the market share will remain unchanged, because only Curiero acts on this relevant market. The market share will be: (...); - The market share on the Express delivery service national level, will be: (...) 6 ; - The relevant market of Ultra-express delivery service local level, will remain unchanged in terms of market share levels, because only one actor among undertakings acts on this particular market Curiero. The market shares are: (...) for Bucharest, (...) for Cluj-Napoca and (...) for Constanta. - The market shares on relevant market Cargo services national level, will be: (...) The identified relevant markets are increasing ones, and very dynamics, with low level of barriers on the market entry that allow a smooth entering for new players on the market. 13. Taking into account the above mentioned facts, the trend of Postal and Parcel Delivery Industry, as well as the prognosis for next few years, it may be concluded that the notified economic concentration s effects does not significantly impede effective competition on the market. 14. The ancillary restrictions problems a) Art. 11 from the Agreement foreseen that: ( ). b) According to point 97 of the Regulation, the clauses that limit the sellers right to buy or to own shares/social parts in an undertaking which competes with the transferred undertaking are considered being directly tide and necessary for the economic concentration, in the same conditions as for the non-compete clauses. It represents an exception the case in which the sellers are deterred to acquire or to own shares/social parts without these confer to them, directly or indirectly, administer functions or a determinant influence in a competing undertaking. Consequently the limitation of the right to buy or to own shares/social parts in an undertaking which competes with the transferred undertaking must be according to later possibility to exert, directly or indirectly, administer functions or a determinant influence in a competing undertaking. c) Accordingly the above described limitation exceeds the admissible legal limits on these restrictions, being necessary to modify this provision, according to the Regulation provisions. d) By the Additional Act 8 at the Agreement from 30 th of July 2008 the provision was modified to eliminate the restrictions as following: the limiting paragraph in article no.11 was replaced by ( ). To conclude, it was assured the accordance of the ancillary restrictions foreseen in the Agreement with the Regulation provisions. 15. The notified economic concentration does not lead to the restriction, prevention or significant distortion of competition on the above identified relevant markets or on any part of those. 6 As for 2007, the undertakings have the following marketshares: Curiero (...), Curiero Spedition (...), TCE (...); 7 As for 2007, the undertakings have the following marketshares: Curiero (...), Curiero Spedition (...), TCE (...); 8 By the same Additional Act at the Agreement was modified also the Competition Council s Decision definition specifing that the authorisation concerns only the economic concentration realized by SC RTC Holding BV through achieving the sole control over SC Curiero SA. The initial definition was (...); 4

5 Pursuant to art.21 para.2 of the Competition Law no. 21/1996, as republished, and to art. 8 para. 10 lett. b of the Regulation for the organization, operation and procedure of the Competition Council, as subsequently amended and supplemented, DECIDES Art.1 Pursuant the provisions of the Art. 46 (1) b) of the Law, and the Regulation regarding the authorization of the economic concentrations, Competition Council authorizes the economic concentration realized by SC RTC Holding BV through achieving the sole control over SC Curiero SA, and implicitly over the S.C. CURIERO EXPRESS SRL and S.C. CURIERO SPEDITION SRL controlled by SC Curiero SA, observing that although the notified economic concentration operation falls within the scope of the Law, there are no serious doubts as regards the compatibility with normal competitive environment. Art.2 Pursuant the provisions of the Art.32 par.(1) of the Law, SC RTC Holding BV shall pay the authorization fee of the notified economic concentration. Art.3 The authorization fee, according to the provisions of the Guidelines on application of the provisions of art. 33 of the Competition Law no. 21/1996, with subsequent modifications and completions, regarding the calculation of the authorization fee for economic concentrations, calculated based on the turnover submitted through the address which was registered at the Competition Council under the no. RG 4271/ is amounted at (...) lei. Art.4 The amount of the authorization fee shall be paid by SC RTC Holding BV within a term of maximum 30 days from the communication of the present Decision, to the State budget, through a treasury payment order, with the mention: for the authorization of the economic concentration. A copy of the payment order shall be sent without delay to the Competition Council. Art.5 The Competition Council s Decision can be challenged, according to the provisions of the Art. 47 (4) of the Law, within 30 days of its acknowledgement, at the Appeal Court of Bucharest, to the administrative section. Art.6 The present decision enters into force at the date of its remittance. Art.7 The Service Directorate and the General Secretariat of the Competition Council shall supervise the enforcement of the present Decision. Art.8 The present Decision will be communicated by the General Secretariat of the Competition Council to SC RTC Holding BV, through its legal representative: (...). President, Gheorghe Oprescu 9 The mentioned address was issued to corect the turnover as initialy submitted by the address registered to Competition Council under the no. RG 4219/