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PAGE 34 EC COMPETITION POLICY NEWSLETTER Vol. 1, N° 2, Summer 1994

The second case of particular interest involved Procter &

Gamble GmbH (P&G), a wholly owned subsidiary of Procter

& Gamble company, and Vereinigte

Papierwerke

Schickedanz AG (VPS), a wholly-owned subsidiary of

Gustav and Grete Schickedanz Holding KG (GGS).

The merger agreement provided for the acquisition by P&G

of the entire share capital of VPS from GGS.

The Commission did not consider that the merger raised any

competition concerns in the household tissue, cotton

products, adult incontinence products, pantliners and

cosmetics sectors, while P&G, itself, recognising the

competition problems its acquisition of VPS could cause in

the market for baby nappies, included an undertaking to

divest VPS' nappy business in the notified agreements.

In respect of sanitary towels, the Commission considered that

the combination of P&G's brand Always and the VPS brand

Camelia, would give rise to competition problems on the

German and Spanish markets.

P&G would have acquired about two-thirds by value of the

German market, while slightly increasing its already

dominant share in Spain.

The Commission decided to carry out an in depth

investigation, and consulted outside experts to assist in the

assessment of the complex and sometimes contradictory

evidence submitted to it. As a result, the Commission

concluded that there were separate markets for tampons and

towels. Consumer behaviour being significantly influenced

by factors other than price, such as performance and brand

familiarity. Consumer preferences seem to be based on

complex cultural, psychological and physical influences and

motivations. As for geographic markets, the Commission

considered Germany and Spain as national markets.

These markets for towels display high barriers to entry.

Furthermore, P&G's existing dominant position would have

been reinforced because of the loss of the brand Camelia as

a potential vehicle for entering the Spanish market. The

concentration as notified would thus create a dominant

position for P&G on the German market for sanitary towels

and would strengthen its position on the Spanish market. The

Commission considered that in the light of the characteristics

of the market, P&G's position was unlikely to be constrained

either by customers or competitors.

At a very late stage in the procedure, P&G offered to divest

the Camelia-branded feminine hygiene business of VPS.

The Commission agreed with P&G that this undertaking

would be carried out within a limited period after the

acquisition of VPS and that an independent trustee would be

appointed to supervise the sale, ensure that Camelia's

management remains independent and safeguard the

continued viability and market value of the business.

This allowed the Commission to declare the deal compatible

with the common market and the functioning of the EEA

agreement.

The last case which is interesting to follow (the merger was

notified on 6 June 1994), concerns Bertelsmann

AG,

Deutsche Bundespost Telekom (Telekom) and Taurus

Beteilingungs GmbH (Taurus), a company of the Kirch-

group (Kirch). They propose to

create a joint venture called MSG Media Service GmbH

(MSG).

The concentration affects the market for technical and

administrative services for pay-TV and other TV services

financed through subscription or payment by viewers.

This case is presently under investigation by the Merger

Task Force and it is therefore premature to enter into its

merits or to give any details.

What is interesting at this stage, is the fact that a public

telecommunications operator, holding a monopoly for

telephone network services and owning nearly the totality of

TV-cable networks in a Member State would combine its

future activities in the JV's market with those of the leading

pay TV suppliers.

We will come back to this case in one of the next issues of

this Newsletter.

II. Follow-up to 1993 Report on application of the

Merger Regulation

The Commission has launched a wide-ranging public

consultation procedure (see OJ C181/7 2.7.94) on certain

draft legislative and interpretive texts relating to the

implementation of the Merger Regulation. These measures

follow on from last year's Commission Report to the Council

on this subject in which the Commission promised a series

of measures designed to increase the efficiency and

transparency of the Merger Regulation in advance of any

formal revision of the Regulation itself.

In particular, the Commission undertook in this report to

lighten the notification requirements for joint ventures with

a minor impact inside the Community. Responding to this

commitment, therefore, the Commission proposes to

incorporate provision for a short-form notification

requirement in a new Form CO

annexed to the Implementing

Regulation (Commission Regulation (EEC) No 2367/90).

The new form also proposes certain other changes which are

designed to meet the working requirements and procedures

applied by the Commission without significantly increasing

the reporting burden on notifying parties.

At the same time certain revisions are proposed to the

Implementing Regulation

itself in order to clarify ambiguities

in the current text and to improve procedures generally.

A second commitment undertaken by the Commission in its

report was to carry out a revision

of the notice on the

distinction between cooperative and concentrative joint

ventures. The Commission's practice on this difficult

jurisdictional issue has developed considerably since the

Merger Regulation came into effect. The purpose of the

proposed new notice is threefold: to take account of the

Commission's case-law; to clarify the principles the

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