Commission Decision of 25/10/2010 declaring a concentration to be compatible with the common market (Case No COMP/M.5953 - RECKITT BENCKISER / SSL) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

• Published date: 25 October 2010
• Subject Matter: Competition,Concentrations between undertakings

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Commission Decision of 25/10/2010 declaring a concentration to be compatible with the common market (Case No COMP/M.5953 - RECKITT BENCKISER / SSL) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

(.PICT.) |EUROPEAN COMMISSION |

Brussels , 25.10.2010

SG-Greffe(2010) D/16763 C(2010) 7498

PUBLIC VERSION

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 Where possible the information omitted has been replaced by ranges of figures or a general description.

MERGER PROCEDURE ARTICLE 6(1)(b) DECISION in combination with ARTICLE 6(2)

To the Notifying Party:

Dear Sir/Madam,

Subject: Case No COMP/M.5953 - RECKITT BENCKISER/ SSL Notification of 6 September 2010 pursuant to Article 4 of Council Regulation No 139/2004 [1]

1. On 6 September 2010, the European Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 by which the undertaking Reckitt Benckiser plc, belonging to the Reckitt Benckiser Group plc ("Reckitt Benckiser", UK) acquires, within the meaning of Article 3(1)(b) of the Merger Regulation, control of the whole of the undertaking SSL International plc ("SSL", UK) by way of a public bid announced on 18 August 2010.

I. THE PARTIES

2. Reckitt Benckiser, based in the UK, is active worldwide in the manufacture and sale of branded products for household cleaning, health and personal care products, food and pharmaceutical products, including over the counter pharmaceutical products. It has sales in around 180 countries worldwide.

3. SSL, also based in the UK, is active in the personal care sector with Durex products, Scholl footcare and footwear, over the counter pharmaceutical products and other personal care products. It has sales in over 100 countries worldwide.

II. CONCENTRATION

4. The proposed transaction relates to the acquisition by Reckitt Benckiser of sole control over SSL by way of a public offer published on 18 August 2010 for the entire issued and to be issued capital of SSL. All terms and conditions of the Offer (including merger clearance) must be satisfied by 7 November 2010, after which the offer becomes unconditional in all respects.

5. The proposed transaction therefore constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation.

III. EU DIMENSION

6. The undertakings concerned have a combined aggregate world-wide turnover of more than EUR 5 000 million [2] (Reckitt Benckiser: EUR 8 706 million, SSL: EUR 906 million). Each of them has an EU-wide turnover in excess of EUR 250 million (Reckitt Benckiser: EUR […] million, SSL: EUR […]), but they do not achieve more than two-thirds of their aggregate EU-wide turnover within one and the same Member State.

7. The notified operation therefore has an EU dimension within the meaning of Article 1(2) of the Merger Regulation.

IV. RELEVANT MARKETS

8. The Parties are both active in the development, manufacturing and marketing of a number of over-the-counter pharmaceutical products in the UK and Ireland, as well as of skincare products in the UK.

9. The Parties also conduct limited contract manufacturing of over-the-counter pharmaceutical products for third companies on an EEA scale. This gives rise to a vertical relationship, as SSL and Reckitt Benckiser are active in contract manufacturing some products that the other Party sells on downstream markets.

IV.1. INTRODUCTORY REMARKS

IV.1.1. Analysis based on the ATC classification

10. The Commission has analysed markets for pharmaceutical products in previous decisions. [3] The Commission has taken as a basis for market definition purposes the Anatomical Therapeutic Chemical ("ATC") division of medicines by therapeutic use devised by the European Pharmaceutical Marketing Research Association ("EphMRA") and maintained by EphMRA and Intercontinental Medical Statistics ("IMS") [4] . This classification, which is regularly updated, is developed and maintained for commercial use and provides ready access to statistics. It is based on finished dose pharmaceutical products and their approved indications in various countries, which may in many cases vary from one country to another.

11. The EphMRA classification has 16 categories (A, B, C, D, etc.), each subdivided in four levels. The first level (ATC1) is the most general and the fourth level (ATC4) the most detailed. The third level (ATC3) allows medicines to be grouped in most cases according to their therapeutic indications, i.e. their intended use, and has generally been taken as the starting point for market definition in the Commission's competition analyses. However, it may be appropriate to carry out analyses at other levels, for example at the fourth ATC level (ATC4), or at the molecule (or active pharmaceutical ingredient, API) level, or across ATC classes, if specific circumstances indicate that the ATC3 level is not the most appropriate for the purposes of market definition. The ATC4 level may be based on therapeutic or, more frequently, pharmacological criteria such as molecule class, formulation or mode of action. [5] Sometimes the ATC4 level consists of a single molecule, in which case the analyses at the ATC4 level and the molecule level become identical.

12. In this case, both the ATC3 and ATC4 levels as well as the molecule level have been considered as possible product market definitions. At the molecule level, no overlap occurs between the Parties' products on the markets for throat preparations, upper gastrointestinal products and antipruritics. With regard to analgesics and mouth pain relief products, possible product market definitions at the molecule level were examined but, in view of the results of the market investigation, the definitions were closed on the basis of the ATC classification. [6]

IV.1.2. Prescription pharmaceuticals and over-the-counter ("OTC") pharmaceuticals

13. In previous cases the Commission has defined separate relevant product markets within the same ATC3 category for pharmaceuticals available without prescription (over-the-counter or "OTC" pharmaceuticals) and pharmaceuticals available only on prescription, because medical indications (including possible side-effects), the legal framework, marketing and distribution all tend to differ between the two categories of medicines, even when the active ingredients are identical. [7]

14. Doctors do not directly play a role in the purchase of OTC pharmaceuticals and in most cases consumers bear the full cost. Prescription pharmaceuticals are prescribed by a doctor and part of the patient's purchase price is reimbursed by the public health-care system. Whilst the marketing of prescription pharmaceuticals is targeted at the prescribers and not the patients, the marketing of OTC pharmaceuticals is targeted directly at consumers. [8]

IV.1.3. Conclusion

15. On the basis of the ATC classification and the distinction between prescription and OTC products, the proposed transaction gives rise to affected markets in the UK and Ireland in the following areas: analgesics, mouth pain relief products, throat preparations, upper gastrointestinal products and antipruritics. [9] In addition to OTC medicines, the Parties' activities give rise to an affected market in the UK in the area of skincare products.

16. Besides the above-mentioned horizontal overlaps, vertically affected markets arise in respect of the Parties' contract manufacturing in the EEA of analgesics and throat preparations for third parties.

IV.2. ANALGESICS

IV.2.1. Relevant product market

17. General purpose non-narcotic analgesics are classified under ATC3 class N2B (analgesics and anti-pyretics). This class includes systemic products for the relief of non-specific pain, and excludes narcotic analgesics (e.g. morphine) (N2A), anti-migraine drugs (N2C), analgesics used in cold and flu remedies in combination with other active ingredients such as antihistamines or decongestants (R5A), and topical analgesics (e.g. creams) (M2A). The Commission has considered in previous decisions [10] that the market for medicines to treat mild to moderate pain relief (non-narcotic analgesics) should be defined at the ATC3 level under code N2B.

18. The Commission has also considered that a further distinction might be made between adult and paediatric analgesics, but has ultimately left this question open [11] . The market investigation confirmed the Commission's product market definition (i.e., including aspirin, paracetamol and ibuprofen products), even if some respondents did consider that a segmentation between adult and paediatric products might be made.

19. The product market definition therefore covers all products classified under ATC3 code N2B. A possible segmentation between adult and paediatric analgesics can be left open in this case as the proposed transaction does not lead to serious doubts under any of the possible market definitions, that is (i) all analgesics classified under ATC3 code N2B, (ii) adult analgesics classified under ATC3 code N2B and (iii) paediatric analgesics classified under ATC3 code N2B.

IV.2.2. Relevant geographic market

20. In previous decisions, the Commission has held that the relevant geographic market for finished pharmaceutical products, including OTC products, is of a national scope because of differences between EU Member States in price setting, conditions of reimbursement and channels of distribution. [12]

21. The market investigation in this case confirmed that the relevant geographic market for analgesics is national.

IV.3. MOUTH PAIN RELIEF PRODUCTS

IV.3.1. Relevant product market

22. The Commission...