Case No COMP/M NESTLE / NOVARTIS (Medical Nutrition Business) REGULATION (EC) No 139/2004 MERGER PROCEDURE

Transcription

1 EN Case No COMP/M NESTLE / NOVARTIS (Medical Nutrition Business) Only the English text is available and authentic. REGULATION (EC) No 139/2004 MERGER PROCEDURE Article 6(2) NON-OPPOSITION Date: 29/06/2007 In electronic form on the EUR-Lex website under document number 32007M4540 Office for Official Publications of the European Communities L-2985 Luxembourg

2 COMMISSION OF THE EUROPEAN COMMUNITIES Brussels, 29/06/2007 SG-Greffe(2007) D/ 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 Where possible the information omitted has been replaced by ranges of figures or a general description. PUBLIC VERSION MERGER PROCEDURE ARTICLE 6(2) DECISION To the notifying party: Dear Sir/Madam, Subject: Case No COMP/M.4540-NESTLE/ NOVARTIS (Medical nutrition business) Notification of 07/05/2007 pursuant to Article 4 of Council Regulation No 139/ On , the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 ("The Merger Regulation") by which the undertaking Nestlé S.A. (hereinafter referred to as "Nestlé") acquires within the meaning of Article 3(1)(b) of the Merger Regulation control of Novartis Medical Nutrition business (hereinafter referred to as NMN ) from Novartis AG (hereinafter referred to as Novartis ) by way of purchase of shares and assets. I. THE PARTIES 2. Nestlé is a Swiss company active worldwide in the production, marketing and sale of a large variety of food and beverage products. As regards special nutrition, Nestlé is active in four major areas: infant nutrition, healthcare nutrition, weight loss coaching centres and performance nutrition. Nestlé's brands in healthcare nutrition are Clinutren, Sondalis, Peptamen, Crucial and Modulen. Nestlé's worldwide sales in 2006 amounted to 62.5 billion. Its healthcare nutrition business generated worldwide sales of [ ], out of which [ ] were achieved in the EEA and [ ] in France. 1 OJ L 24, p. 1. Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2)

3 3. NMN is part of the consumer health division of the Swiss company Novartis and is active worldwide in the development, manufacture, marketing, distribution and sale of healthcare nutrition products and related medical devices (tubes, pumps, etc.). NMN' main brands in healthcare nutrition are Isosource, Novasource, Resource and Impact NMN achieved in 2006 a global turnover of 771 million, out of which [ ] were achieved in the EEA. II. THE OPERATION AND THE CONCENTRATION 4. Pursuant to a Sale and Purchase Agreement signed on 14 December 2006, Nestlé will acquire the entire global healthcare nutrition business from Novartis. The proposed operation involves the acquisition of all NMN subsidiaries and all other NMN assets. 5. The notified operation will confer on Nestlé sole control over NMN. It therefore constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation. III. COMMUNITY DIMENSION 6. The combined aggregate worldwide turnover of the undertakings concerned exceeds 2.5 billion (Nestlé: 62 billion, NMN: 771 million). The Community-wide turnover of each undertaking concerned is more than 100 million (Nestlé: [ ], NMN: [ ]. The combined turnover of the two undertakings concerned is more than 100 million in [ ], where each undertaking achieves a turnover of more than 25 million. Neither Nestlé nor NMN achieves more than two thirds of its turnover in one and the same Member State. Therefore, the notified operation has a Community dimension within the meaning of Article 1(3) of the EC Merger Regulation. IV. RELEVANT MARKETS 7. The proposed transaction concerns the production and sale of healthcare nutrition products, in particular enteral nutrition products (for the distinction between enteral and parenteral see below). NMN is the second leading European supplier of enteral healthcare nutrition products in the EEA, with a strong presence in Spain, Germany and France, whereas Nestlé ranks as number five. The concentration will lead to horizontal overlaps as well as one vertical overlap in France, where, in addition to the parties' activities in the supply of healthcare nutrition products, Nestlé provides healthcare nutrition services to patients at home. A. Relevant product markets 1. Healthcare nutrition products 8. Healthcare nutrition products are used as a supplement to or substitution for regular diets for individual of all ages with special nutritional needs. 9. Healthcare nutrition products are composed of macronutrients, which are substances needed for energy, growth and metabolism in the human body. Macronutrients are carbohydrates (including fibre), protein and fat. To meet complete nutritional requirements, some micronutrients (vitamins and minerals) are also added. For oral products taste may be important and flavour substances are used (for the distinction between tube and oral products see below). 2

4 Parenteral and enteral nutrition products 10. There are two routes to deliver healthcare nutrition products to the patient: parenteral nutrition products are delivered directly into the blood thereby by-passing the absorption system; enteral nutrition products are delivered via the intestinal tract, either orally if the patient is able to drink (sip-feeding) or directly into the gastric tract through the stomach via tubes and pumps (tube-feeding). In previous Commission decisions 2, the market for healthcare nutrition products was considered, but ultimately the Commission left open in those decisions whether parenteral and enteral nutrition products belong to one healthcare nutrition market or are to be considered as different product markets. 11. The notifying party submits that parenteral and enteral nutrition products belong to the same product market. Firstly, the notifying party argues that parenteral and enteral nutrition products contain the same basic nutrients and fulfil the same basic purpose in that they cover the patient's nutrition requirements. Second, Nestlé points out that there are relatively few medical conditions where enteral nutrition is clearly contraindicated (obstructed gastrointestinal tract) and it estimates that this is the case for approximately 30% of all patients who are fed parenterally. Last of all, according to Nestlé, the same is true in relation to parenteral nutrition which is contraindicated in only a very limited number of cases (10%). 12. The notifying party does not contest that within the medical community, the general guidelines are to use enteral nutrition when the gastrointestinal tract is functional 3. However, it submits that the determination whether this is the case is not always simple and that medical staff will take their decisions on other, more practical, considerations, which would speak in favour of parenteral nutrition (comfort of the patient, easier use of parenteral for medical staff, nurses better trained for intravenous provision than for placement of enteral tubes). Based on the above arguments, the notifying party view parenteral and enteral products as fully interchangeable and therefore belonging to the same product market. 13. The market investigation did not confirm the notifying party's views as regards the scope of the product market. 14. Regarding demand-side substitutability, it follows from the information provided by the notifying party that a group of patients, who do not have a functioning gastro-intestinal tract, are dependent on parenteral nutrition products and are not in a position to switch to enteral nutrition products. As to patients for which both types of products could be used without risks to the patients' health, the market investigation confirmed that, due to medical customs and practical considerations, some practitioners may have a preference for parenteral products compared to tube-feeding in certain situations despite the fact that the gastrointestinal tract is functional. However, this is only true for tube-fed patients, whereas sip-feed patients would not be given parenteral products. 2 In cases IV/M. 058 Nestlé/Baxter/Salvia where the Commission states that "the clinical nutrition market is composed of at least two submarkets, the enteral nutrition market i.e. foods products taken orally or by tube, and the parenteral nutrition market i.e. pharmaceutical preparations delivered directly into the blood" and COMP/M.4010 Fresenius/Helios. 3 See Guidelines of the American Society for Parenteral and Enteral Nutrition (ASPEN). 3

5 15. As regards prices, parenteral nutrition products are much more expensive than enteral nutrition products. For a caloric intake of 1500 kcal, which is the average nutrition required to feed a patient for 24 hours, data submitted by Nestlé show that prices for parenteral nutrition products range from 24.5 in Czech Republic to 98.8 in the UK whereas for enteral tube-feeding products, prices range from 6.2 in Hungary to 16.9 in Italy 4. Prices for enteral sip-feeding products are even lower. 16. The market investigation confirmed that the costs incurred by a hospital to feed a patient are much higher for parenteral products than for enteral products. Although these costs differ from country to country, the overall picture is the same in the EEA. French hospitals which have responded to the market investigation indicated that total costs 5 vary from 10 to 125 in enteral nutrition according to the length of the treatment whereas for parenteral nutrition they vary from 90 to 1,000. These costs are only diet-related and do not take into account the costs related to these services (medical devices, nursing and medical staff); if those costs were taken into account, the differences between enteral and parenteral products would be even more pronounced. 17. The notifying party argues that the price of healthcare nutrition play a minor role in comparison to the total costs incurred by a patient in an intensive care unit ( 3,000 per day), where many patients first receive healthcare nutrition products. Therefore, the decision of what type of nutrition to give to patients in an intensive care unit is very rarely made for economic reasons. 18. The Commission acknowledges that in hospitals, medical habits may lead practitioners to use parenteral nutrition even if general guidelines recommend enteral nutrition when the intestinal tract is functioning. It may also be true that doctors in hospitals consider prices of healthcare nutrition of secondary importance. A small but significant price increase of enteral or parenteral nutrition respectively would therefore not influence such decisions In any event, costs incurred by hospitals are only a part of the total costs incurred by the healthcare system overall in relation to patients that require healthcare nutrition products. The outpatient market represents a significant proportion of the enteral nutrition market Regarding supply-side substitutability, it appears that although parenteral and enteral products may contain the same basic nutrients, the chemical composition is different. For enteral nutrition products, as the patient may at least use parts of the digestive system, proteins and carbohydrate sources can be of polymeric nature (whole proteins and maltodextrins) similar to those found in normal food. Parenteral products must be in a chemical composition that the body can readily utilize as the digestive track is circumvented when the nutrients enter directly the blood stream. As a consequence, 4 Spain is the only country where prices for enteral nutrition products are in the same range as prices for parenteral products reflecting, according to the parties, the importance that has been historically been attributed to nutritional considerations by Spanish health authorities 5 For a caloric intake of 1500 kcal per day 6 However, hospitals budgets are under increased pressure and the intensive care units could be the extreme example in which nutrition costs may not play any role for decisions about resource use. 7 In the EEA, [20-30]% of parenteral products and [60-70]% of enteral products are sold to the "outpatient channel" (homecare providers and pharmacies). See Form CO annex

6 parenteral products do not contain whole proteins but amino acids 8, carbohydrates are molecules of glucose (and not complex molecules as in enteral nutrition) and lipids must be emulsified to be infused in a watery environment like blood. 21. Moreover, there are significant differences between enteral and parenteral products as regards the regulatory environment. Parenteral products are regulated as pharmaceutical products 9. They cannot be marketed without a market authorization from health agencies. Enteral nutrition products are regulated as "Dietary Foods For Special Medical Purposes" pursuant to Commission Directive 1999/21/EC of 25 March 1999 on Dietary Foods for Special Medical Purposes 10 (hereinafter "the FSMP Directive"). FSMP rules are significantly less demanding than regulations covering pharmaceuticals. To launch a product, the supplier is only required to notify the competent authority of the Member State where the product is being marketed by forwarding to it a model of the label used for the product 11. Once the authorities have been notified in accordance with the FSMP regulations, the sale and marketing of the product is legally allowed and there is no need to wait for an authorization from the national authority. 22. The main suppliers of enteral nutrition products in the EEA (Nestlé, NMN, Numico and Abbott) are specialised in enteral nutrition whilst other market players such as Baxter and Aguettant only supply parenteral nutrition products. Fresenius and B. Braun, which are active in both enteral and parenteral nutrition, confirmed that the technologies used in production are quite different and that they manufacture these products in dedicated production facilities. Respondents to the market investigation indicated that a switch from enteral to parenteral nutrition manufacturing would require significant investments as regards production and packaging capabilities, as well as product and technical knowledge. 23. In view of the lack of demand and supply-side substitutability, the Commission considers that enteral nutrition products and parenteral nutrition products are distinct product markets. The parties' activities only overlap on the market for enteral nutrition. Tube-feeding and sip-feeding (oral) products 24. As mentioned above, enteral nutrition products can be delivered either orally if the patient is able to drink (sip-feeding) or directly into the gastric tract through the stomach via tubes and pumps (tube-feeding). Both types of enteral products are available in liquid or powder form although packaging may differ. Packaging includes plastic bottles and pouches for tube-feeding, plastic cups, plastic and glass bottles, cans, tetra packs and sachets for sip-feeding. 8 The digestive process breaks down proteins into amino acids (the building blocks of the proteins), which are then absorbed by the intestine and used by the body for its vital functions. 9 ATC code B05BA "Solutions for parenteral nutrition". 10 The FSMP Directive defines these products as "a category of food for particular nutritional uses specially processed or formulated and intended for the dietary management of patients with a limited, impaired or disturbed capacity to take, digest, absorb, metabolize or excrete ordinary foodstuffs or certain nutrients contained therein ( ) whose dietary management cannot be achieved only by modification of the normal diet, by other foods for particular nutritional uses, or a combination of the two" 11 See article 5 of the FSMP directive. 5

7 25. The notifying party submits that tube-feeding and sip-feeding products belong to the same product market. Nestlé points out that there are many situations where a patient can consume either tube-feeding or sip-feeding products and a number of the products of Nestlé and NMN are used as both sip-feeding and tube-feeding nutrition ("dual-use products"). After surgery, a patient may start by receiving an enteral nutrition product by tube feed. Once this patient is able to consume again via the oral route, he will continue to use exactly the same product, drinking it orally. This is possible since these dual-use products are liquid products, flavoured and packet in bottles, which allow a convenient oral use. Furthermore, according to the parties, a manufacturer of sipfeeding products can easily and with no additional costs switch to tube feeding products. 26. Respondents to the market investigation confirmed that many enteral nutrition products sold by the parties and their competitors can be used both for tube-feeding and sip-feeding purposes. Although the general guidelines within the medical community are to give oral products if the patient is able to swallow, the combined usage of tube and sip appears to be rather widespread 12. There are some patients for whom the use of sip-feeding products cannot be viewed as an equivalent substitute (obstructive tumour of the upper gastro-intestinal tract, swallowing disorders like dysphagia) but in the majority of cases, tube-feeding and sip-feeding products could be used in parallel. 27. The market investigation also indicated that supply-side substitutability plays an important role. Competitors of Nestlé and NMN indicate that tube-feeding and sipfeeding products are manufactured on the same product lines and using same equipment and production processes, although there may be some differences which are linked to the choice of packaging by some competitors (tetra-paks for sip-feeding products which require aseptically filling instead of terminal sterilisation). 28. In any case, the question of a further distinction within enteral nutrition between sipfeeding and tube-feeding (oral) products can be left open since it would not materially change the competitive assessment. Standard and speciality products 29. A further distinction within enteral nutrition products could be drawn between standard speciality products. Standard products contain the regular combination of macronutrients and micronutrients and are primarily designed to provide the essential nutrition intake for people suffering from malnutrition. Speciality products address nutritional needs of patients with specific diseases or specific medical conditions. Suppliers of these products differentiate them by adding different ingredients which are believed to be particularly beneficial for a specific condition such as diabetes, cancer, wound to heal, pulmonary problems or Crohn disease The notifying party submits that a further distinction between standard and speciality products should not be made. They argue that both standard and speciality products provide complete nutrition and more than 70% of the patients suffering from a specific 12 For example a malnourished patient can absorb sip-feeding in the day whereas tube-feeding is given during the night to ensure a minimal nutritional intake. 13 Crohn disease is an inflammatory condition of the gastro-intestinal tract. 6

8 disease are fed with standard products. They also argue supply-side substitutability, as both types of products are composed of similar ingredients and are manufactured on the same production lines. 31. The market investigation was not conclusive as regards a possible distinction between standard and speciality products. On the one hand, customers of the parties indicated that standard and speciality products contain the same basic nutrients in the same composition. For the majority of patients standard products will provide acceptable nutritional support and a large proportion of patients suffering from a specific disease (between 40 and 90%, depending on the medical condition) are, indeed, fed with standard products. This is all the more true since in many EEA countries, there are few or even no disease-specific products available. 32. On the other hand, some respondents underline that speciality products have been developed to more closely meet the nutritional needs of patients with specific diseases and that from a medical benefit perspective, they cannot be substituted. As mentioned above, speciality products contain specific ingredients designed for patients with a specific illness or condition. Furthermore, patients suffering from certain specific conditions such as chronic renal failure, hepatitis or diabetes would not be fed with standard products, which could be dangerous for them. The rather low penetration of speciality products reflects the fact that these products have been introduced only recently and practitioners are not fully aware of their benefits for the patients. The percentage of patients suffering from a specific disease and treated with standard products will gradually decrease in the near future, due to the strong innovation in this field and the increasing familiarity of the medical community with healthcare nutrition products. 33. As regards supply-side substitutability, it should be noted that specialty products are the area of healthcare nutrition where patents play a significant role. According to the parties, only [ ]% of all Nestlé and NMN products contain nutrients which are (or have been) covered by patents 14. However, the majority of these products are speciality products for wound healing, diabetes or gastro-intestinal disorders. 34. Based on the above, although all enteral nutrition products appear to be substitutable for a majority of patients, the growing awareness of practitioners and the dynamics of innovation in speciality products speak in favour of segmentation between standard and speciality products. For the purpose of the present case, this question can ultimately be left open as it would not materially change the competitive assessment. Distribution channels 35. Enteral nutrition products are distributed through two main channels : the inpatient channel which comprises hospitals and long term institutions (e.g. nursing homes) and the outpatient channel which encompasses pharmacies and homecare providers of medical services (including nutrition) to patients at home The conditions of competition between these distribution channels differ significantly. Hospitals often source their enteral nutrition products by putting the supply contract out to tender. In France and in Spain, the national markets that are the focus of this investigation, 14 Form CO, page There are no homecare providers in Spain. 7

9 all major hospitals (General and University hospitals) source their products through tenders whereas smaller hospitals still often negotiate directly the sales with the manufacturer. Contracts are awarded for an average of two years and the tender is often split into "lots" (one or several lots for one product) in order for the contracting authority to source products from different suppliers should it wishes to do so. 37. The sourcing pattern in the outpatient channel is very different. Doctors prescribe the healthcare nutrition product which is delivered to the patient by pharmacies or homecare providers. The notifying party contends that the sourcing patterns and competition conditions of the hospital sector also affect the outpatient market. This would be because patients will often use the same enteral nutrition products at home, once they have been discharged from the hospital. However, the information gathered for France and Spain (see below) shows that such a "spill-over effect" is limited as a large part of the outpatient market consists of patients that have not been hospitalised. 38. A significant difference between competition conditions in the hospital channel and the outpatient channel results from the way national health care systems operate. In the hospital channel, the prices are negotiated between the supplier and the hospital or result from tenders and national health authorities do not decide on the publicly subsidised prices of individual products. In the outpatient channel, reimbursement prices decided by health authorities play a key role. They serve as the starting point for the pricing as the supplier will normally assume that a customer will not pay more for the product than what is reimbursed. This also affects pricing at "wholesale level". From the "reimbursement price," the supplier will deduct various discounts according to the customer group and the services they provide downstream (homecare provider or wholesalers/pharmacists). These discounts constitute their operating margin. On average, the price for the same product is lower in the hospital channel than in the outpatient channel. 39. In the light of the above, the Commission considers that sales of enteral products to the hospital channel and sales of enteral products to the outpatient channel constitute distinct product markets. 2. Medical devices 40. Medical devices facilitate the delivery of enteral nutrition products to the patients who are fed by tube. They form a mechanical system including pumps and feeding tubes inserted nasally in order to allow the enteral nutrition to reach the gastro-intestinal tract. 41. The notifying party submits that medical devices for enteral nutrition form a separate product market. The market investigation has confirmed this product market definition. B. Relevant geographic markets 1. Healthcare nutrition products 42. In its earlier decisions 16 the Commission has left open the exact geographic scope of healthcare nutrition markets and assessed the markets both on a national and an EEA wide basis. 16 COMP/M.4010 Fresenius/Helios 8

10 43. In its notification, the notifying party submits that the markets for healthcare nutrition products have an EEA dimension. The following grounds would support this view: producers supply their customers from only one or two manufacturing sites in Europe, transport costs do not play a significant role, there are no barriers to trade and it is not necessary to have an authorization to sell a product on a national market (only notification to authorities is required). The notifying party also argues that similar ranges of products are sold in the different Member States and local tastes or brands do not play a significant role. 44. However, the Commission has found that market conditions are not homogenous in the EEA and several elements rather point to markets that are national in scope. 45. First, there are significant unexplained price differences among Member States. 17 Despite such price differences, the market investigation has not given any indications that parallel trade would have developed in these markets. 46. Second, the market presence of the parties and their competitors differ considerably from Member State to Member State. Market shares data submitted by the notifying party in the notification shows for example that Nestlé holds a strong position in France in enteral healthcare nutrition ([30-40]% in 2006) but, with the exception of Belgium ([10-20]%), has a market share below [0-10]% in all other Member States. Fresenius, a German producer, is the leading supplier in Germany with [30-40]% market share but achieves minimal sales in Italy and is absent in Spain. Local players which do not compete outside a national territory are active in national markets, such as Vegenat and Grifols, two Spanish suppliers of enteral nutrition products in Spain. Third, brand differentiation is found between national markets. The existence of national brands is acknowledged by the notifying party which submits, as regards its brand Crucial that, "Crucial is a French brand generating only minor sales outside France" Fourth, consumption growth shows different stages of market development. While globally the market for enteral nutrition products is growing rapidly, the growth is not expected to be in the same ranges in all Member States. The French market is estimated to grow by [5-10]% in the years 2006 to 2011 compared to a growth rate of [10-15]% in Spain and [5-10]% on average in the EEA Fifth, enteral nutrition distribution channels differ between Member States. While e.g. the homecare segment represents [10-20]% of the total sales of enteral nutrition products in France, there are no homecare customers in Spain. In line with this, the parties, as well as their competitors, have organised their marketing and sales on a national basis, either through their own subsidiaries or through local distributors. 49. Finally, the reimbursement systems are national. The competent authority of each Member State will decide on the basis of its own rules and following its own procedures whether or not a product may be reimbursed. While reimbursement is not a condition for introducing an enteral product on the market, reimbursement systems 17 The notifying party provides in the notification information about the average prices of enteral products in each EEA Member State. This shows that prices vary from approximately 7 in Austria, Denmark, Finland and Germany, to 11 in France, Belgium and UK, 17 in Italy and 20 in Spain. 18 See "Explanatory note supporting the commitments under art.6(2) of the ECMR" submitted by the notifying party on See Form CO, page

11 play an important role in this industry. The notifying party submits that [ ] 20. Indeed, a vast majority of the products sold to the out patient segment are reimbursed The findings of the market investigation detailed below confirm the relevance of the above-mentioned aspects that differentiate national markets and show that competition essentially takes place at national level. Indeed, customers unanimously confirmed during the market investigation that they have never purchased enteral nutrition products from a supplier that is not locally established. 51. In the market investigation, competitors confirmed that they view the markets for enteral nutrition products as national in scope. Competitors explained that a national organization of the sales of enteral nutrition products is a pre-requisite to become a significant competitor on a market. They have established country-dedicated sales forces, marketing personnel and local distribution networks and adapt their products to national consumer tastes or preferences (type of packaging, flavour of the products, preferences for the use of specialty products, etc.). They set different prices per country, primarily depending on the national reimbursement schemes and by distribution channel (in patients/out patients). 52. The time and costs associated with setting up a distribution network and defining a specific marketing policy, and the presence of national price regulations and registrations, constitute barriers to entry for a supplier not established in a national market. A new entrant will not only have to face competition from well established competitors but is also confronted with relatively conservative customers. This is not only true when practitioners with relatively little knowledge of healthcare nutrition decide on prescriptions but hospitals also tend to favour established suppliers. The notifying party submits 22 that "NHC s contract renewal rate in France was approximately [60-70]% in 2006" which shows that there is a high loyalty of hospitals vis-à-vis their suppliers of enteral nutrition products. 53. Existence of high barriers to entry and to expansion in national markets is also reflected in the planning of the notifying party as regards its entry into the Spanish market. Internal documents show that Nestlé [ ] 23 The high barriers to entry are further evidenced by the absence, as pointed out by customers and competitors, of any new recent significant entrant in the enteral nutrition markets in Spain and France. 54. On the basis of the above considerations, the Commission has come to the conclusion that the market for enteral nutrition products has a national geographic dimension. 2. Medical devices 55. As regards medical devices for enteral healthcare nutrition, the notifying party submits that it is a worldwide market. The market investigation did not contradict this view. However, it is not necessary to conclude definitively on this for the purpose of the 20 See Form CO, page The notifying party submits that approximately [80-90]% of the products sold by Nestlé and NMN are reimbursed. (Form CO, page 115). 22 Form CO, page See [ ]. 10

12 present decision as it does not change the conclusions of the competitive assessment under any possible geographic market definition. V. COMPETITIVE ASSESSMENT 56. The Commission has carefully assessed the effects of the transaction in light of the information gathered during its investigation, as well as in light of the arguments put forward by the parties and the concerns expressed by customers and market players. 57. The vast majority of Nestlé's sales of enteral nutrition products within the EEA ([60-80]%) are realised in France and Spain, where the transaction would bring together two of the main suppliers and create the clear market leader. In addition to France and Spain, the transaction will also give rise to affected markets in some other Member States. 58. However, in a number of these markets the transaction will only marginally increase the pre-existing market position of NMN. This is the case for Austria (Nestlé, [0-5]%; NMN, [30-40]%) 24, Finland (Nestlé, [0-5]%; NMN, [10-20]%) 25, Italy (Nestlé, [0-5]%; NMN, [30-40]%) 26, Sweden (Nestlé, [0-5]%; NMN, [40-50]%) 27 and Norway (Nestlé, [0-5]%; NMN, [10-20]%) In some other markets, the increment is higher but the combined entity will not gain a significant position and will face competition of several actors with higher market shares. This is the situation in Germany, where the combined entity will have a market share of [20-30]% (Nestlé, [5-10]%; NMN, [10-20]%) 29, behind Fresenius ([30-40]%) and close to Numico ([20-30]%) and Greece with a combined market share of [20-30]% (Nestlé, [5-10]%; NMN, [10-20]%) 30, the market leader being Numico ([30-40]%) and other actors include Fresenius ([20-30]%) and Abbott ([10-20]%). 60. Although some customers expressed more general concerns that the concentration may have detrimental effects on competition in the enteral nutrition products in the EEA markets, the Commission cannot conclude that the planned transaction would raise serious doubts as to its compatibility with the Common Market outside the French and Spanish markets. Accordingly, the rest of the decision will focus of the French and Spanish markets of enteral nutrition products. 24 On the hospitals market (Nestlé, [0-5]%; NMN, [30-40]%); on the outpatient market (Nestlé, [0-5]%; NMN, [40-50]%). 25 On the hospitals market (Nestlé, [0-5]%; NMN, [30-40]%); on the outpatient market (Nestlé, [0-5]%; NMN, [10-20]%). 26 On the hospitals market (Nestlé,[0-5]%; NMN, [30-40]%); on the outpatient market (Nestlé, [0-5]%; NMN,[30-40]%). 27 On the hospitals market (Nestlé, [0-5]%; NMN, [40-50]%); on the outpatient market (Nestlé, [0-5] %; NMN, [40-50]%). 28 On the hospitals market (Nestlé, [0-5]%; NMN, [10-20]%); on the outpatient market (Nestlé, [0-5]%; NMN, [10-20]%). 29 On the hospitals market (Nestlé, [0-5]%; NMN, [20-30]%); on the outpatient market (Nestlé, ]5-10]%; NMN, [10-20]%). 30 On the hospitals market (Nestlé,[0-5]%; NMN, [10-20]%); on the outpatient market (Nestlé, [10-20]%; NMN, [20-30]%). 11

13 A. French markets for enteral nutrition products 61. In France, the merger will bring together two main suppliers of enteral nutrition products and will also raise a vertical issue, as Nestlé is active in the homecare business, which provides enteral nutrition products as part of their services to patients. 1. Horizontal overlap 62. In the EEA, France is one of the main markets for the sale of enteral products in value. It has shown significant growth in the last years (10% between 2005 and 2006 and 7% between 2004 and 2005) and the parties expect the growth rate to be [5-10]% on average in the years 2006 to Three-quarters of the sales are directed to the out patient market (pharmacies and homecare companies), hospitals accounting for the remaining quarter. 63. The market shares in value over three years of the market players active in France are indicated in the following table: Total sales of enteral nutrition products to all customers Suppliers Nestlé [ ] NMN [ ] Combined [ ] K % K % K % [30-40]% [20-30]% [50-60]% [ ] [ ] [ ] [30-40]% [20-30]% [50-60]% [ ] [30-40]% [ ] [20-30]% [ ] [50-60]% Numico [ ] [20-30]% [ ] Lactalis [ ] [0-5]% [ ] Fresenius [ ] [0-5]% [ ] Abbott [ ] [0-5]% [ ] Others [ ] [0-5]% [ ] TOTAL (k ) [130- [ ] ] [20- [ ] [20-30]% 30]% [0-5]% [ ] [0-5]% [0-5]% [ ] [0-5]% [0-5]% [ ] [0-5]% [0-5]% [ ] [0-5]% [ ] Source: data submitted by the notifying party The proposed transaction would lead to the creation of the leader in the French market for enteral nutrition products with a market share of [50-60]%, far from its next competitor, Numico with [20-30]% market share. Other smaller competitors include a local market player, the French company Lactalis which achieves all its sales of enteral nutrition products in France and the German company Fresenius, both holding [0-5]% market share. The market position of Abbott has to be put into question as information received in the market investigation indicates that Abbot intends to exit the market in 2007 and therefore would no longer represent a competitive force on the French market. With this exception, the market shares submitted by the parties have broadly been confirmed by the data collected from the other market players during the market investigation. 31 Form CO, annex

14 65. In the table below, market shares are indicated separately for the hospital and outpatient markets respectively as well as for the segments of standard and speciality products and tube and oral products: Sales France, 2006 in Total enteral sold through all channels All enteral sales to hospitals All enteral sales to out patients Standard enteral products sales to all customers Specialty enteral products sales to all customers Tube feeding enteral products to all customers Oral enteral products to all customers K % % % % % % % Nestlé [45- [30- [20-30]% [30-40]% [30-40]% [20-30]% [30-40]% [30-40]% ] 40]% NMN [30- [20- [30-40]% [10-20]% [10-20]% [40-50]% [20-30]% [20-30]% ] 30]% Combined [85- [50- [50-60]% [50-60]% [50-60]% [60-70]% [50-60]% [50-60]% ] 60]% Numico [35- [20- [20-30]% [20-30]% [20-30]% [20-30]% [20-30]% [20-30]% ] 30]% Lactalis [ ] [0-5]% [5-10]% [0-5]% [0-5]% [5-10]% [0-5]% [5-10]% Fresenius [ ] [0-5]% [5-10]% [0-5]% [5-10]% [0-5]% [10-20]% [0-5]% Abbott [ ] [0-5]% [0-5]% [0-5]% [5-10]% [0-5]% [0-5]% [5-10]% Others [ ] [0-5]% [0-5]% [0-5]% [0-5]% [5-10]% [0-5]% [0-5]% TOTAL (k ) [ ] [ ] [ ] [ ] [ ] [ ] [ ] Source: data submitted by the notifying party The table shows that Nestlé and NMN have high market shares in all of the segments for enteral nutrition products. Market positions do not significantly differ on the basis of narrower markets for sales of enteral nutrition products to in patients (hospitals) and out patients (homecare and pharmacies). 67. In addition to the large market share of the combined entity and the significant addition brought about by the proposed transaction, the market investigation has revealed that Nestlé is a must have brand for enteral products in France. 68. In the notification, the notifying party submits that brands are of limited significance in the healthcare nutrition industry and explains that "Given that this business is relatively new, brands are still largely unknown, especially relative to the food and beverage industries." 33 However, contrary to the notifying party's views, the Commission found in the notifying party's internal documents as well as during the market investigation, that brands play a role in the enteral nutrition market and that Nestlé is considered as having the must have brand in France. 32 Form CO, annex Form CO, page

15 69. Nestlé markets three main brands in France, Clinutren, Renutryl and Sondalis which respectively represent [ ]%, [ ]% and [ ]% of its sales of enteral products. 34 Nestlé's internal documents show that one key element of its marketing strategy is branding. In one Nestlé's documents setting out its strategy for healthcare nutrition in France in 2005, [ ]. 35 The brand focus of Nestlé's marketing strategy is further evidenced by the financial investment made by Nestlé in promoting its brands. In 2003, more than [ ]% of its total marketing budget was allocated to the promotion of [ ]. 70. Furthermore, a survey cited by Nestlé in its marketing documents shows that [ ] 36 which in also acknowledged in an other Nestlé's internal document 37 where one of [ ]. Indeed [ ] is spontaneously named by approximately [60-70]% customers or prescribing doctors, far ahead from the competing brands. In addition, Nestlé is the only enteral supplier which has a second brand in the list of well-known brands. Overall, the portfolio of Nestlé brands enjoys the strongest brand awareness as shown by the results of a survey 38 conducted for Nestlé, where Nestlé is spontaneously named by [70-80]% of the respondents, while Numico and NMN rates are [40-50]% and [20-30]% respectively. 71. Not only Nestlé's internal documents but also the market investigation reveal that brand is a key factor for competition in the market for enteral nutrition products in France and Nestlé is the unavoidable supplier with must have brands in France. Indeed competitors unanimously responded that brand plays a significant role in the competitive process 39. One competitor explained that "brand is a key driver for prescriptions and is also essential for patient confidence". Another competitor pointed out that practitioners would remember a limited number of brands. 72. Customers of the outpatient market (pharmacies, pharmaceutical wholesalers and homecare companies) also unanimously confirmed 40 that brand was an important criterion for their purchases of enteral nutrition products. Indeed, as explained by a customer, the brand gives to the customer guarantees about the quality and security of the products, which will ultimately be delivered to a patient for medical reasons. Based on the answers of hospitals in the market investigation brand would not appear to be one of the criteria used to select enteral nutrition products. However, these replies have to be examined in the light that purchases made by hospitals are often organised through tenders. In public tendering brand is excluded from the criteria on the basis of which bids can be assessed. Therefore replies received from hospitals must be interpreted with caution as regards brand value in the market for enteral nutrition products. 73. In assessing the effects of the planned transaction in France, it should be stressed that customers view the merging parties as close competitors. When asked whether there is an data submitted by the notifying party in response to Commission's questions dated [ ] 36 [ ] 37 [ ] 38 [ ] 39 See replies of competitors to question 35 of questionnaire sent on See replies of customers to question 34 of questionnaire sent on

16 unavoidable supplier of enteral nutrition products in France, all but one customers of the outpatient market named Nestlé. In addition, Novartis was the most frequent supplier named as the first alternative to Nestlé, and Nestlé was the first alternative named by most of the customers as a replacement to Novartis. The market respondents' views therefore confirm the closeness of competition between the parties' brands and products. Numico was the supplier most frequently referred to as an alternative supplier after the parties. 74. Post-merger, Numico would remain the only significant competitor in the French market, with market share of [20-30] % on the market for enteral products sold to hospitals and [20-30]% to the outpatient customers. The notifying party argues that the new entity will continue to face competition from other competitors, in particular Fresenius and Lactalis, which despite their small market shares would exert competitive pressure. However, market shares data over the last three years shows that the market positions of the smaller competitors have remained stable and below 5%. Indeed, despite their long term presence in France, these two companies have not been able to increase their market position. During the market investigation, both companies indicated that the combination of Nestlé and NMN activities in France would furthermore increase the barriers to expansion. 75. The notifying party argues that barriers to entry in the French market for enteral nutrition products are low and that there are numerous potential competitors. However this has not been confirmed by the market investigation. Indeed customers, both hospitals and outpatients, and competitors unanimously confirmed that they neither noticed any recent entry nor foresaw any new entry in the near future. Entry is rather difficult as shown by the example of Abbott, who according to the notifying party, albeit being very strong in some other EU markets, has several times unsuccessfully tried to enter the French market without successfully establishing itself as a main supplier. The notifying party submits that entry would be easy for dairy producers which use similar raw materials and names Lactalis as a good example of recent successful entrant in the market. Within the time perspective that the Commission can consider for assessing the effects of the merger new entry by dairy producers is not likely. As to the example mentioned, it should first be noted that Lactalis has not gained significant market share and second, it has entered the market through the acquisition of a company already active in this market, Celia. 76. The absence of recent new entrants and expansion on actual competitors demonstrate that, contrary to the notifying party's views, barriers to entry and to expansion are high in the French market for enteral nutrition products. In addition to barriers linked to new entry (setting up sales organisation etc.) the Commission has found that brand recognition is a major barrier also to expansion. Customers, both hospitals and general practitioners, who are the decision makers, appear to be conservative customers 41. Therefore a new competitor would need to invest significant resources and time to establish its brand. 77. The market investigation also indicates that entry is easier for larger players 42, competitors explained that delivering a broad portfolio of products constitutes a high barrier to entry. The notifying party itself differentiates between the competition brought by large suppliers with broad portfolio and smaller suppliers only active in the supply of few enteral nutrition products and explains that while hospitals may select one or two large suppliers with a full product portfolio, "smaller competitors will continue to compete in 41 In the notification, Nestlé submits that its contract renewal rate in France with hospitals was approximately [60-70]% in See replies of competitors to question 39 of questionnaire sent on

17 such environment against the large suppliers for the lots where they have enteral healthcare nutrition products". 43 This casts doubts on the ability of smaller suppliers to act as a sufficient influence, as argued by the notifying party in the same submission. 78. Given the elements explained above; the high market shares that Nestlé would acquire with only one strong competitor remaining (who might find it profitable to follow price increases of the leading player), the closeness of competition and high barriers to entry and expansion, the Commission considers that the transaction may give rise to noncoordinated effects in the French markets for enteral nutrition products to the hospital channel and to the outpatient channel post-transaction. Therefore, the proposed transaction raises serious doubts as to its compatibility with the common market and the EEA agreement. 2. Vertical relationship 79. Nestlé and NMN supply enteral healthcare nutrition products to homecare customers and Nestlé is active downstream in the supply of homecare health nutrition services in Francewhich the notifying party submits is the relevant market for the purpose of the assessment of this case. Homecare health nutrition services consist in the provision and delivery in the patient's home of materials and nutrients required by a patient. 80. As described above, the combined entity would have a market share of [50-60]% of the upstream market for the supply of enteral healthcare nutrition products to outpatient customers. On the downstream market for the supply of homecare health nutrition services, Nestlé is the number two player with a market share of [10-20]%. The market leader is Air Liquide with a market share of [20-30]% and other competitors include SNADOM ([10-20]%), LVL Médical ([10-20]%) as well as some smaller players (Bastide, Locapharm, Caléa, Antadir). 81. The transaction will not bring about any new vertical integration as Nestlé is already active pre-merger in the supply of homecare services in France. The change brought about by the transaction is the increased market position of the combined entity in the upstream market of supply of enteral products. The competitors in the downstream market, who distribute enteral nutrition products of all suppliers to out patients, would find that a larger part of their sourcing is dependent on one of their competitors. 82. As to the incentives and ability of Nestlé to raise its rivals costs in the downstream market the particular circumstances of healthcare nutrition markets must be taken into account. In principle, downstream homecare companies which purchase enteral nutrition products could switch to alternative sources of supply and it would not be profitable for Nestlé to risk sales to third party homecare services companies which represent [80-90]% of the demand of the homecare segment. However, switching is limited by the fact that patients will have prescriptions for a specific enteral nutrition product. 83. During the market investigation, homecare companies expressed their concerns that the new entity, by increasing its share in the supply of enteral nutrition products, may decide to raise the price it charges in supplying its competitors in the homecare market. Indeed, as explained in the previous section, the increased market power of the combined entity created by the transaction may give rise to a price increase and raise rivals costs in the 43 See notifying party's submission on "France". 16

18 downstream market as switching to alternative products is difficult. Thus the Commission considers that the transaction may give rise to input foreclosure in the downstream market of homecare health nutrition services in France. Therefore, the proposed transaction raises serious doubts as to its compatibility with the common market and the EEA agreement. B. Spanish markets for enteral nutrition products 84. In the EEA, Spain is one of the fastest growing markets as regards enteral nutrition products. It has shown significant growth in the last years (9% between 2004 and 2005 and 13.5% between 2005 and 2006) and the parties expect the growth rate to be [10-15]% on average until Three quarters of the sales are directed to the out patient market (only pharmacies as the home care channel does not exist in Spain), sales to hospitals accounting fro the remaining quarter. 85. Spain is characterized by very high prices of enteral products, almost twice the average price in the EEA. In value, Spain is the third market in the EEA, behind the UK and Germany. According to Nestlé, the higher prices in Spain are explained by the acceptance of the Spanish health authorities to reimburse high prices for enteral nutrition products. It is also argued that costs of supply are high due to marketing and sales force costs required to reach a large number of customers since the out patient market is significant. The notifying party contends that prices in Spain will decrease, in the near future, towards the European average, in the light of the new regulations adopted by Spanish authorities as regards the reimbursement system for enteral nutrition products (see below). Position of Nestlé, NMN and their competitors 86. During the market investigation, the Commission found that the market shares of the merging parties were underestimated. Three of the competitors identified by the notifying party on the Spanish market for enteral nutrition products informed the Commission that they do not sell enteral nutrition products in Spain. These companies are Madaus ([5-10]% market share according to the notifying party's estimate), Merck ([0-5]% market share) and Arkochim ([0-5]% market share). 87. It should also be noted, that in internal documents submitted by NMN in the course of the investigation, it appears that NMN estimates its market share in Spain significantly higher in 2003 and 2005 than the shares provided in the notification 44. In the notification, Nestlé indicated that the market share of NMN for enteral nutrition products in Spain was [30-40]% in 2004, 2005 and 2006 compared to [40-50] % in the internal documents of NMN. In the internal business plans of NMN for Spain, only Abbott, Numico, Nestlé and Vegenat are mentioned by NMN as competitors. 44 See "Financial Figures target 2006 Iberia September " and "Pre-target 2004 Medical Nutrition Iberia September " submitted by Novartis in response to Commission's questions dated No data for 2004 are available in Novartis' internal documents 17

19 88. The notifying party explains the different estimates by its interpretation of the scope of healthcare nutrition products. In the notification it has included in the Spanish enteral nutrition market anti-obesity nutrition products sold by Arkochim, Vegenat and Merck which allegedly compete directly with anti-obesity products supplied by NMN in Spain: Optisource, Optifast Bars and Optifast Powder As regards Madaus, this company provides fibre supplementation products "Plantaben" and Cenat which would compete directly with NMN product Resource Benefiber Powder. It is common ground that neither Arkochim nor Madaus or Merck compete in other segments of healthcare nutrition (tube-feeding products or specialty products). As regards the internal market share in the plan, the notifying party explained that NMN use global business plans templates which focus on key areas of the business. Obesity and fibre supplementation products are not a global priority of NMN and this is the reason why they are not included in NMN business plans. 89. As a preliminary remark, it can be noted that the business plans provided by NMN are specifically drawn up for the Spanish market, which is considered by NMN as a [ ]. NMN submitted that in Spain, anti-obesity and fibre supplementation products are well-established segments in which NMN actively competes. However, if these categories are important to assess the business prospects and competition in Spain in the enteral nutrition market, it is surprising that they are not mentioned in NMN own business plans for Spain and these explanations are far from convincing. 90. During the market investigation, the Commission has sought to verify whether antiobesity products sold by Merck, Arkochim and Vegenat and fibre supplementation products supplied by Madaus are considered as "Dietary Foods for Special Medical Purposes" and therefore have to comply with the labelling requirements and regulations foreseen by the FSMP directive. As regards anti-obesity products, only Vegefast Complete sold by Vegenat is a FSMP product. In thefibre supplementation area, Madaus' products are regulated as pharmaceuticals and are not considered as FSMP products. 91. In the light of the above, the Commission considers that Madaus, Merck and Arkochim do not compete with the parties in the market for enteral nutrition products (with the possible exception of Vegefast complete). Therefore, the Commission has calculated market shares of the parties and their competitors as set in the grey columns in the table below. 18

20 Sales Spain, 2006 in Total enteral sold through all channels (parties' estimates) Market reconstructio n Total enteral sold through hospitals Market reconstruction Total enteral sold through pharmacies Market Reconstruction Total enteral sold through all channels K % % % K Nestlé [5- [0-5]% [5-10]% [5-10]% [5-10]% ] NMN [ ] [30-40]% [35-45]% [35-45]% [35-45]% Combined [ ] Vegenat [ ] Grifols [ ] [40-50]% Numico [ ] Abbott [ ] [10-20]% [10-20]% [45-55]% [50-60]% [45-55]% [15-25]% [15-25]% [15-25]% [15-25]% [20-30]% [20-30]% [0-5]% [5-10]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% Fresenius [0-5]% 0% 0% Madaus [ ] Merck [ ] Arkochim [ ] Others [ ] [5-10]% 0% 0% 0% [0-5]% 0% 0% 0% [0-5]% 0% 0% 0% [5-10]% 0% 0% 0% TOTAL(k ) [ ] Competitive assessment 92. All channels considered, prior to the merger, NMN was the clear market leader for enteral nutrition in Spain, with a market twice as high as its nearest competitors Abbott and Numico. Nestle is number four with a [5-10]% market shares. Other players in the market include local companies Vegenat and Grifols, which achieve most of their sales in the hospital channel. Although very present in the EEA as a whole and in neighbouring countries (number two in Portugal with an estimated market share of [20-30]%), the German company Fresenius is virtually non active in Spain. 93. The transaction will reinforce the market position of NMN and post-merger the new entity will reach combined shares of [45-55]% all channels considered. This market share will be slightly higher in the outpatient (pharmacies) channel, which represent in Spain three quarters of the sales. 94. The notifying party argues that this increment can be considered as insignificant, that Nestlé is only one of a number of the smaller suppliers that are active in Spain and that the transaction will not eliminate a competitive constraint in the market place. Although the 19