OFT asks European Commission to investigate Procter & Gamble air freshener acquisition
28/10 17 March 2010
The OFT has requested that the European Commission investigates the UK aspects of Procter & Gamble's proposed acquisition of Sara Lee's air care business.
The proposed acquisition qualifies for investigation by a significant number of EU Member States, potentially including the UK, and therefore the OFT believes it makes sense for the European Commission to undertake a single investigation on behalf of those Member States that wish to transfer jurisdiction to it.
Such a step is procedural and does not prejudge the Commission's ability to determine, if it accepts jurisdiction, whether competition concerns do in fact arise as a result of the merger in the UK.
The OFT will publish on its website a non-confidential version of its request in due course.
- Procter & Gamble and Sara Lee both supply a range of air fresheners in the UK. Procter & Gamble's brand is Febreze while Sara Lee's is Ambi Pur.
- The OFT publicly consulted on the question of whether to transfer jurisdiction to the Commission. Given the tight deadlines in which to make a request for a transfer of jurisdiction the OFT's consultation period was 5-12 March 2010.
- The OFT is making this request pursuant to Article 22 of the EC Merger Regulation (Council Regulation 139/2004). Article 22(1) of the ECMR provides that: 'One or more Member States may request the Commission to examine any concentration […] that does not have a Community dimension […] but affects trade between Member States and threatens to significantly affect competition within the territory of the Member State or States making the request.' Article 22(2) states that 'Any other Member State shall have the right to join the initial request [made by another Member State] within a period of 15 working days of being informed by the Commission of the initial request.' The OFT is seeking under Article 22(2) to join an existing request made by Germany. However, in any event, the OFT believes that the merger meets the threshold in Article 22(1).
- The European Commission has 10 working days in which to notify the OFT whether it has accepted jurisdiction in this case.
- Guidance on the circumstances in which the OFT is likely to use Article 22 is contained in chapter 11 of the OFT's Jurisdictional and Procedural Guidance as well as the European Commission's Notice on Case Referral in respect of concentrations and the European Competition Authorities Association (ECA)'s Principles on the application, by National Competition Authorities within the ECA, of Articles 4(5) and 22 of the EC Merger Regulation.
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