competition policy mergers and acquisitions public policy

MegaBrew deal gets Competition Commission nod, with conditions

Press release from the Competition Commission:


The Competition Commission (Commission) has recommended to the Competition Tribunal (Tribunal) that a large merger whereby Anheuser-Busch Inbev SA/NV (AB InBev) intends to acquire SABMiller plc (SABMiller) be approved with conditions. The Commission has found that the proposed merger raises several competition and public interest concerns, and has thus recommended conditions to the Tribunal to address these concerns.

AB InBev is a public company listed on the Euronext Brussels and New York Stock Exchanges. AB InBev is active in the production, marketing and distribution of beer, near beer and soft drink products. In South Africa, AB InBev only supplies beer products and its brands include Corona Extra, Stella Artois, Beck’s Blue and Budweiser which are imported and sold through DGB (Pty) Ltd (DGB), a global distributor of alcoholic beverages.

SABMiller is a public company with a primary listing on the London Stock Exchange and a secondary listing on the Johannesburg Stock Exchange (JSE). Through its subsidiaries, SABMiller is involved in the manufacture, distribution and sale of various types of alcoholic and non-alcoholic beverages. In South Africa, SABMiller is the largest producer of beer products and its main brands include Carling Black Label, Castle Larger, Hansa, Castle Light and Peroni. In addition to beer and non-alcoholic beverages, SABMiller, through  South Africa Breweries (Pty) Ltd (SAB), owns a hop production company (SAB Hop Farms (Pty) Ltd), a barley farming company (SAB Barley (Pty) Ltd), a barley malting company (SAB Maltings (Pty) Ltd) and holds a significant interest in Coleus Packaging (Pty) Ltd, a tin metal crown producer.  SAB, through its subsidiary ABI Bottling (Pty) Ltd, is an authorised Coca-Cola bottler.

Concerns arising from the merger and proposed conditions

The Distell Shareholding

The Commission found that SABMiller, through SAB, holds a significant shareholding in Distell Group Limited (Distell). Distell is the largest producer of ciders in South Africa, followed by SAB. Upon implementation of the merger, AB InBev will be entitled to appoint a certain number of directors to the board of Distell, its direct competitor. The Commission is of the view that this relationship creates a platform for the exchange of commercially sensitive information between AB InBev and Distell. Further, the ownership of an economic interest in a direct competitor is likely to dampen potential competition that could occur between AB InBev and Distell in relation to the production and supply of ciders in South Africa. In order to address the above concerns, AB InBev will divest (i.e. sell off) the Distell shareholding within 3 (three) years after closing date of the transaction.

Coca-Cola and Pepsi bottling arrangements

The Commission found that AB InBev bottles soft drinks for Pepsi in other jurisdictions and will post-merger also bottle soft drinks in South Africa for Coca-Cola. The Commission is concerned that these bottling arrangements for the two global leading soft drinks manufacturers could be a platform for coordination.  In order to address this concern, AB InBev has undertaken to ensure that its employees who are involved in bottling operations for Coca-Cola will not also be involved in its bottling operations for Pepsi, and there will be no sharing of commercially sensitive information between the two.

Supply of tin metal crowns

The merged entity will continue to be the dominant supplier of tin metal crowns through the ownership of Coleus, the sole producer of tin metal crowns in South Africa. The Commission is concerned that the merger will increase the likelihood of the merged entity foreclosing its competitors by refusing them access to tin metal crowns. To remedy this concern, AB InBev has undertaken that it will supply tin metal crowns to third parties for a period of 5 (five) years after closing date of the transaction and that it will not enter into any exclusive agreements nor induce Coleus not to deal with or supply third parties.

competition policy mergers and acquisitions

Competition Commission approves acquisition of Optimum Coal assets by Tegeta with conditions

Media release from the Competition Commission:

The Commission has recommended to the Tribunal that the proposed large merger between Tegeta Exploration and Resources (Pty) Ltd (Tegeta) and Optimum Coal Mine (Pty) Ltd (OCM) and six other target firms be approved with conditions. On completion of the transaction, Tegeta will acquire control over the target firms.

Tegeta and OCM are involved in, among other things, the production of thermal coal which is largely supplied to some of Eskom power stations. Tegeta is owned by Oakbay Investments (Pty) Ltd and Mabengela Investments (Pty) Ltd. OCM is controlled by Optimum Coal Holdings (Pty) Ltd (OCH). Both OCM and OCH are in business rescue.

The Commission found that the proposed transaction is unlikely to substantially prevent or lessen competition in the thermal coal market. The merging parties are smaller players in this market and face competition from larger rivals such as Anglo American, Exxaro Coal and South 32 Ltd. Thus, there are credible alternative suppliers of thermal coal that will continue to constrain the merging parties post-merger.

However, the Commission found that the proposed merger raises public interest concerns, in particular the likelihood of job losses. In this regard, the Commission has recommended that the proposed transaction be approved on condition that the merging parties will not retrench any employees of the target firms as a result of the merger.

competition competition policy mergers and acquisitions public policy regulation

SABMiller buyout will test merger guidelines

THE takeover of South African firms by international companies excites a lot of passion. There was heated debate when Massmart became a subsidiary of US retail giant Walmart. Stakeholders raised concerns when AgriGroupe went off with Afgri, Du Pont Pioneer with a majority stake in Pannar, Glencore with Xstrata and Shanghai Zendai with a big chunk of Modderfontein. Now along comes the so-called MegaBrew deal, the takeover of SABMiller by Anheuser-Busch InBev (AB InBev), one of the biggest transactions in global corporate history. Strictly speaking, SABMiller is not South African. Its primary listing is in London. The most significant equity block is held by Altria (26.99%, the company’s latest annual report shows), followed by a company associated with the Santo Domingo family (13.99%).

Readers of the fashion media will be familiar with the Santo Domingo name for other reasons. The Public Investment Corporation owns just more than 3%. But SABMiller is, or was, one of the most South African companies imaginable with its Johannesburg roots, its production line of corporate stars and rainbow nation advertisements. History aside, the company sells more than 90% of the beer consumed in SA, according to a company presentation made last year.

This is a significant company by any measure, with touchpoints across many value chains. The implications of its future ownership by AB InBev will be analysed carefully by the authorities.

competition industrial inputs mergers and acquisitions regulation

Competition Commission prohibits merger between producers of key mining and industrial input

Excerpts from Competition Commission’s media release:

” On 08 May 2014, the Competition Commission referred a recommendation to the
Competition Tribunal to prohibit the proposed acquisition of Arkema Resins by Ferro
Industrial Products. The Commission found that the proposed merger is likely to
result in a substantial prevention and lessening of competition.
In the mining segment, the merging parties are currently the only suppliers of UPR
and the Commission found that the merger would result in the removal of an
effective competitor, leaving Ferro to enjoy a monopoly position post-merger.
The Commission also found that in other segments, the proposed merger would
result in the merged entity gaining a significant share of the market of approximately
64%, with the closest competitor having approximately 16%. The rest of the market
is accounted for by a small local supplier and some imports.
The Commission found that there are high barriers to entry in the UPR market due to
the high capital outlay required for entry, economies of scale and the existence of
excess capacity. In the mining segment, there are additional barriers to entry in the
form of reputation, technology, technical expertise and technical specifications
required. The excess capacity may also be used as a strategic deterrent for entry
and expansion.
The Commission’s investigation included interviews with customers and competitors
of the merging parties who also raised concerns regarding the proposed transaction.
The Commission considered possible remedies such as divesture of Arkema’s
composite business, but this was not deemed to be viable as the firm’s coatings
business is also located in the same plant, making it impractical to separate them.
The merging parties also proposed a pricing formula applicable for two years. The
Commission is of the view that the pricing formula will not address the
anticompetitive effects arising from the structural changes in the market brought
about by the proposed transaction.”