The TNT/UPS merger case main issues and the follow-up of the case until the judgment of the General Court on 7 March 2017

In 2013, the merger project between TNT and UPS has been rejected by the Commission on the ground that the entity that would have resulted from the merger would have reduce competition on the market of small package delivery in the EU. The decision has been taken according to article 8(3) of the merger regulation 139/2004.¹

Remedies proposed by TNT and UPS were considered as not sufficient by the Commission. Amongst these remedies, TNT and UPS proposed to cede the subsidiaries of TNT in 15 Member States of the European Union.²
In particular the schemes of transportation for international package delivery require a transportation organization by airplane and by road which may prevent potentital competitors to enter into the market of express deliveries in the absence of a sufficient flow of package deliveries.³

This case presents an interest for five main reasons : (i) The low rate of merger refusals by the Commission (ii) the significant size of the merger hypothezised, (iii) the legal issues and commitments involved by the facts of the case, (iv) the due process issue of the case (v) some companies conducting an activity on the market of express package delivery in the Economic European Area (EEA) have eventually recently merged.

(i) The low rate of merger refusals by the Commission

On a total of 6493 cases examined by the Commission from 1990 to 2017, 136 cases were withdrew during the phase I of examination and 41 during the phase II of the processing.⁴
Only 25 mergers have been refused on the basis of article 8.3 of the regulation and 4 decisions have been taken on the basis of article 8.4 in order to ensure the restoration of competition on the market after a merger.⁵

Even in the case of the acceptation of a merger subject to the respect of commitments taken in accordance with article 6.1(b), which has occured in 275 cases, only 10 fining decisions in application of article 14 have been taken and only 1 decision of revokation in application of article 6.3 has been issued by the Commission.⁶

A large majority of mergers are not prevented by the Commission. In consequence, the few cases of merger refusals are particularly interesting in order to understand the application of the criteria by the Commission under regulation 139/2004.

(ii) The significant size of the merger hypothezised

The sector of parcelling, shipping, and package transportation was at the time of the considered merger composed of 4 operators, called the integrators : TNT, UPS, Fedex and DHL.⁷

The so-called integrators are companies that control a comprehensive air and road small package delivery network and are capable of offering a broad portfolio of reliable delivery services⁸
The project of merger involved two major companies in the sector of express package shipping.

The Commission proceeded to an analysis of the market impacted by the proposed merger⁹.
The Commission concluded that the cargo market would not be impeded by the merger, mainly for the reason that the main barrier to access the market is the capacity to own a flying network, while the road cargo represents around 99 % of the transportation of cargo. Therefore, in the overall cargo market, the market share of TNT and UPS is not able to impede competition after the merger.¹⁰

Conerning air freight transportation, both companies, taken together, do not own more than 10 to 20 % of market shares within the Member States in which the companies are conducting their activities¹¹ On this ground, the Commission considered that the competition would not be impeded on the market of air freight transportation¹²

Concerning contract logistics services, both companies taken together do not own more than 10 to 20 % of market shares within the EEA¹³. Therefore, the Commission considered that the competition would not be impeded on the market of contract logistics services¹⁴.

Amongst the express delivery services, which must be distinguished from the deferred delivery services, the integrators UPS, TNT, DHL and Fedex own between 90 and 95 % of the market shares, while other competitors own a much smaller market share. The companies DPD and GLS own only 0 to 5 %, national postal operators 0 to 5 % and other companies own 0 to 5 % of the market shares.
An actor owning between 0 and 5 % of market shares cannot be assumed to exercise any constraint on competition.¹⁵

In regard to the shares of revenues of the integrators, the most important company is DHL with a market share of 40 to 50 %, followed by TNT that owns a market share of 10 to 20 %, then by UPS that owns a market share of 20 to 30 % (40 to 50 % combined) and eventually by Fedex that owns a market share comprised between 5 and 10 %.¹⁶
The post-merger repartition of revenues would therefore be :
DHL : 40-50%
TNT/UPS : 40-50 %
Fedex : 5-10 %
Fedex is thus by far the smallest company operating on the relevant market and the two main companies share 90 to 95 % of the whole market¹⁷.

The following table resume market shares of each company in each Member States of the European Union.

Table 6: Integrators’ 2011 revenue share in International intra-EEA small package delivery by country¹⁸

See the table on :
http://ec.europa.eu/competition/mergers/statistics.pdf

The Commission estimated that the merger would result in an average price increase between 0 and 20 % depending the country concerned.
The merging parties have estimated that the average price decrease would be comprised between 0 and 20 % depending the Member States in which the companies are conducting their activities¹⁹.

(iii) The legal issues and commitments of the case

Commitments were proposed on 29 November 2012 by UPS/TNT in order to remedy to the assessment of risks of restricting competition on the relevant markets as following :
– The sale of TNT subsidiaries in 5 Member States, on a total of subsidiaries in 15 Member States to another operator.
– An access remedy to the air network of UPS.²⁰

The Commission considered that the commitments were not sufficient, in particular in regard to the cost for competitors to establish the air network required to be able to compete on the market²¹.

Further commitments were submitted on 16 December 2012 providing an access to the air network of UPS/TNT for 5 years and providing the sale of the subsidiaries of TNT in 15 countries, instead of the subsidiaries in 5 countries as provided by the commitments submitted the 29th November 2012)²².

The commitments were considered by the Commission as not sufficient, even if the proposal represents an improvement in comparison with the commitments submitted the 29th November 2012.²³
In particular, the purchaser of the subsidiaries of TNT must have a presence in both local and receiving countries to carry out the activity. Only Fedex and La Poste in combination with DPD are interested in the purchase of some subsidiaries of TNT and are in capacity to proceed to such purchases.²⁴
However, UPS was not able to submit a viable plan to demonstrate every points of the possible purchase of the subsidiaries of TNT by La Poste/DPD. ²⁵
The Commission stated that without a fix-it-first or an up-front buyer plan, the commitments would not be sufficient to respond to the risks of impediment of the competition.²⁶

To respond to the statement of the Commission regarding the weaknesses of the first commitments, UPS submitted the 3rd January 2013 new commitments.²⁷
These commitments provided only one potential purchaser of the subsidiaries of TNT in 15 countries, in La Poste/DHL.²⁸
The Commission refused to market test the 3rd commitments set because of the very few improvments brought by the commitments and the timelimit fixed by the merger regulation. The expiry date was supposed to be on the day 65, and the Commission allowed the submission of new commitments on the day 83.²⁹
However, the Commission adressed two requests of information to La Poste/DPD. After the examination of the responses, the Commission considered the plans, in particular the business plan established by La Poste/DPD as still unsatisfactory.³⁰

Following the proposal of commitments by UPS, the Commission concluded that the merger would be only possible in the event of the actual sale of the subsidiaries of TNT in 15 countries.³¹

However, according to the merger regulation, the Commission can only accept the merger plan if the commitments provide sufficient certainty in the capacity for the purchaser to have the ability and the willingness to continue the operations of the divested subsidiaries in the EEA.³²

The purchase of the subsidiaries of TNT by an integrator, DHL or fedex, that already conducts a strong activity of international package delivery, would limit the risks.³³
In particular, non-integrators risk to use the subsidiaries after the acquisition for domestic markets or for international deferred services only and not for their basic purpose of international expresse deliveries.³⁴

Moreover, the international operations of the TNT divested susbsidiaries are not viable on their own and the activity rely on the domestic activities, which implies that the TNT international subsidiaries require the support of the overall network of the company.³⁵
UPS submitted a temporary solution in providing access to its air network for a period of 5 years. After this period however, the purchaser of the divested subisidiaries shall have established its own suitable solution or find an alternative suitable solution.³⁶
The possibility for an operator to provide a suitable air solution is unlikely because of the cost of establishing such a solution at the expiry of the period of 5 years and the lack of incentives for the integrator to provide access to its own air network to a direct competitor.³⁷
An access for a period of 10 years to the air network of UPS should be required to allow competitors to establish their own air network.³⁸

An alternative involving a partnership to grant access to the network was proposed by UPS. However, by the most active competitors in the international package delivery sector, DHL, FedEx, La Poste and Royal Mail were opposed to the proposal.³⁹

Besides, some companies stated that national networks were not intended to support efficiently the international express deliveries.⁴⁰

Finally, neither Fedex nor DHL expressed willingness to acquire the divested subsidiaries, while they were the only two other integrators conducting an activity present on the market of express shipping delivery at the time of the proposed merger.⁴¹
Some non-integrator companies have expressed willingness to acquire the divested subsidiaries, however their capacity to establish an air network at the expiry of the 5 year period of access to the network of UPS is unlikely.⁴²
Furthermore, according to the Commission  « the divested countries of the subsidiaries are mostly low volume, high cost markets, largely on the periphery of Europe. »⁴³

La Poste is the only company which has expressed interest and has the capacity to sustain an air transportation solution after the expiry of the period of 5 years.⁴⁴
UPS indicated the 3rd January 2013 that the agreements of purchase of the divested subsidiaries and of access to its air network (ATSA) with La Poste/DPD were in negotiation.⁴⁵

The Commission considered that at the time of the decision, and regarding the delay-related issues discussed previously, in the absence of a definitive comprehensive agreement between La Poste/DPD and UPS concerning both the purchase of the subsidiaries and the access to the air network (ATSA) and in the absence of enough credible alternatives, the commitments submitted by UPS were not sufficient.⁴⁶
The lack of legally-binding agreement, at the deadline set for the decision, the 5th February 2013 ensuring that the divesture with La Poste or any other company would actually take place, and the great uncertainty that this absence was casting on the future capacity to continue the activity of the TNT divested subsidiaries after the 5 year-period access allowed by UPS, is the key element of the opposition of the Commission to the merger.⁴⁷

La Poste issued responses to the two demands of information delivered by the Commission, including a business plan for the intended activity of the divested subsidiaries after the acquisition. The two answers contained figures regarding the additional international outbound deliveries necessary to justify the adaptation of the domestic network and the technical measures required to adapt the network of La Poste / DPD⁴⁸.

In the response to the Commission’s demands, La Poste asserted that with the additional flow of international shipping deliveries, the company will be able to set up its own air network in allowing La Poste to negotiate agreements at favorable conditions.⁴⁹
La Poste stated that it would need between 3000 to 5000 additional international daily package deliveries. However, the figure given by La Poste tend to show that the additional deliveries package necessary to ensure profitability of the activity of the divested subsidiaries would not be reached.⁵⁰

However, La Poste did provide only very few internal documents to support its explanations.
Moreover, even after the acquisition of the divested subsidiaries by La Poste/DPD, La Poste would still have a smaller international shipping activity than Fedex.

The Commission considered that the evidence given did not provide enough guarantees to ensure the enforcement of the commitments, in particular regarding the continuity of the activity of the divested subsidiaries of TNT at the expiry of the 5-year period of access to the air network of UPS.

(iv) Due process issue of the case

The decision of the Commission has been appealed before the General Court. The General Court rendered its judgment the 7th March 2017 in which the General Court annuled the decision of the Commission.⁵¹
The legal basis of the judgement was the infringement of the rights of defence and in particular the right of UPS of being heard.

According to UPS, the analysis of the merger in terms of prices in the final decision is different in its substance from the previous versions that UPS was able to consult during the administrative procedure.⁵²

The Commission considered that its approach regarding the rights the defence is in accordance with the case-law.
The final decision need not be a copy of the statement of obligations, therefore the Commission is entitled to revise or supplement the elements of facts in support of its objections as long as the objectives of the statements are the same as the objectives of the final decision, which is the case here.⁵³

The Commission argued furthermore that the econometric approaches used in the statement of objections and in the final decision are not substantially different.⁵⁴
UPS however argued that the econometric method used in the final decision differs from the method used in the statement of objections. In consequence, UPS has not been able to exercice fully its rights of defence and in particular its rights of being heard, because UPS was not in a position to contest the econometric method of calculation of the merger in terms of price. Indeed, the method has not been notified to UPS prior the final decision.
According to UPS, the shift in the choice of the economectric method used by the Commission is very important because the economectric method used by the Commission for its decision was intended to counterweight the positive effects of the merger, in particular the benefits for the efficiency gains and the Fedex’s expansion plan to the Commission⁵⁵.
The Court ruled « that the right to a fair hearing, which forms part of the rights of the defence, requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim »(see judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C-413/06 P, EU:C:2008:392, paragraph 61 and the case-law cited).⁵⁶
In the case, the Commission adopted the final version of the economectric model on 21 November 2012, more than two months prior to the adoption of the final decision, which has been adopted on 30 January 2013 as evidenced by the documents submitted by the Commission.⁵⁷
According to the Court, the final version of the economectric model has not been communicated to the claimant since, according to the Commission, it was unnecessary to make such a communication because the numerous exchanges between the Commission and the claimant during the administrative procedure were clear enough.⁵⁸
The Commission argued that the final economectric method differs only marginally from the methods discussed during the administrative procedure.⁵⁹
The Court found that the Commission hold at the estimation stage a discrete variable method while the Commission hold at the prediction stage a continuous variable.⁶⁰
According to the Court, the Commission brought no evidence that the continuous variable has not been discussed by the parties before the release of the final decision of merger refusal.
The Court ruled that the notification of the claimant in due time could have allowed it to submit different results on the effects of the merger on prices, which might have altered the information taken into consideration by the Commission and accordingly would may have lead to a reduction of the territories concerned by the merger.⁶¹
The Court found moreover that the Commission acknowledged, according to written evidence submitted by the Commission that the economectric analysis was very stable on 20 Novembre 2012, two months before the final decision, on 30 January 2013. Moreover, the Commission was free, at the very least, to communicate the essential elements of the econometric method chosen after the statement of objections.⁶²
The Court ruled eventually that the Commission infringed the applicant’s rights of defence by failing to communicate the final version of its economectric model to the applicant.⁶³

(iv) Post UPS-TNT case

The merger between UPS and TNT was eventually not carried out.
The 8th January 2016, the Commission approved however the acquisition of the company TNT Express by Fedex.⁶⁴
The Commission opened an in-depth investigation in July 2015 because the Commission had serious concerns regarding the risk to lessen competition on the market of international small package express deliveries in regard to the two last remaining competitors DHL and UPS.⁶⁵
The Commission concluded that both companies are not particularly close competitors and that in any case, the merged entity will face sufficient competition from its rivals on the market.
Thus, the Commission considered such a merger as not impeding competition on the market of package shipping and could even brings some benefits for the consumer with the reduction of the costs because of the mutualisation of some facilities and eventually reduce prices for the final consumer.⁶⁶

The Commission concluded that the merger would not impede significantly competition on the relevant market and therefore authorized the merger between UPS and TNT to be implemented.