European Commission opens in-depth investigation into proposed merger between Dow and DuPont

The European Commission has opened an in-depth probe to assess whether the proposed merger of Dow and DuPont is in line with the EU Merger Regulation. The Commission will investigate further whether the deal may reduce competition in areas such as crop protection, seeds and certain petrochemicals.
 

Commissioner Margrethe Vestager, in charge of competition policy, said: “The livelihood of farmers depends on access to seeds and crop protection at competitive prices. We need to make sure that the proposed merger does not lead to higher prices or less innovation for these products.”
 

The proposed merger between Dow and DuPont, both of the US, would create the world's largest integrated crop protection and seeds company. It would combine two competitors with leading herbicides and insecticides portfolios and with a strong track record of bringing innovative crop protection and seeds products to the market. It would also create a leading integrated producer of certain petrochemical products that are widely used in packaging and adhesive applications. The transaction would take place in industries that are already globally concentrated.

 

The Commission’s preliminary concerns
 

The Commission's initial market investigation identified preliminary concerns in the following markets:
 

Dow and DuPont both have a strong portfolio of herbicides for a number of crops (e.g. cereals, beets and oilseed rape), as well as of insecticides, particularly those used against chewing insects. The Commission has preliminary concerns that the proposed merger could reduce competition on these markets and that the reduction in the intensity of competition may have an impact on price, quality, choice and innovation.
 

The Commission's investigation will also be looking into Dow and DuPont's activities in nematicides, which are products used to protect against nematode worms, as well as into the companies’ product pipelines in fungicides.
 

Finally, the Commission also has preliminary concerns that the merger may lead to a reduction of innovation in crop protection as a whole. Dow and DuPont are important innovators in the crop protection industry, which is characterised by a limited number of global companies with significant R&D capabilities. The transaction would lead to the elimination of one of the few companies able to develop and launch new active ingredients.
 

Dow and DuPont both develop so-called “gene editing” technologies that could be used to materially accelerate the breeding of new seed varieties. The Commission has preliminary concerns that, after the proposed transaction, the companies may have fewer incentives to license these technologies to competitors or may make the development of competing technologies more difficult.
 

The merged entity would hold both a broad portfolio of crop protection products and one of the leading global market positions in seeds, making it the largest integrated company in the industry. The Commission is investigating whether competitors' access to distributors of crop protection products and seeds could become more difficult if Dow and DuPont were to tie their sales of crop protection products and seeds.
 

Dow and DuPont are strong suppliers of specialty polyolefins, which are thermoplastics derived from petrochemical products and widely used in packaging and adhesive applications. The Commission is investigating the effect of eliminating one competitor and creating new vertical links in these concentrated markets.

 

The transaction was notified to the Commission on 22 June 2016. The Commission now has 90 working days, until 20 December 2016, to take a decision. The opening of an in-depth inquiry does not prejudge the final result of the investigation.
 

On 20 July 2016, Dow and DuPont submitted commitments to address some of the Commission’s preliminary concerns. However, the Commission considered these commitments insufficient to clearly dismiss its serious doubts as to the transaction's compatibility with the EU Merger Regulation. The Commission therefore did not test them with market participants.
 

Given the worldwide scope of Dow and DuPont's activities, the Commission is cooperating closely with other competition authorities, notably with the Department of Justice in the US and the antitrust authorities of Brazil and Canada.

 

Companies and products
 

Dow is a diversified chemicals company headquartered in the United States. It is the ultimate parent company of the Dow group, which is active in plastics and chemicals, agricultural sciences, and hydrocarbon and energy products and services.
 

DuPont is also headquartered in the United States. It is the ultimate parent company of the DuPont group, which researches, develops, produces, distributes, and sells a variety of chemical products, plastics, agro-chemicals, paints, seeds, and other materials.

 

Merger control rules and procedures
 

The Commission has the duty to assess mergers and acquisitions involving companies with a turnover above certain thresholds (see Article 1 of the Merger Regulation) and to prevent concentrations that would significantly impede effective competition in the EEA or any substantial part of it.
 

The vast majority of notified mergers do not pose competition problems and are cleared after a routine review. From the moment a transaction is notified, the Commission generally has 25 working days to decide whether to grant approval (Phase I) or to start an in-depth investigation (Phase II).
 

In addition to the current transaction, there are three other on-going phase II merger investigations:
 

• The proposed joint venture between the telecommunications activities of Hutchison and VimpelCom in Italy, with a decision deadline on 8 September 2016;

• The proposed takeover of railway equipment manufacturer Faiveley by Wabtec, with a decision deadline on 24 October 2016;

• The proposed acquisition of the Greek gas transmission system operator DESFA by the Azeri state oil company SOCAR.