Samancor Manganese (Pty) Ltd and Advalloy (Pty) Ltd (32/LM/Apr06) [2006] ZACT 54 (5 July 2006)
- Citation
- [2006] ZACT 54
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Competition Tribunal
- Panel
- D. Lewis, Mokuena, N Manoim
- Case number
- 32/LM/Apr06
More details
- Court
- Competition Tribunal
- Panel
- D. Lewis, Mokuena, N Manoim
- Case number
- 32/LM/Apr06
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Tribunal found that the proposed merger between Samancor Manganese and Advalloy is a vertical transaction affecting both upstream and downstream markets for manganese ore and ferromanganese alloys. The Commission's investigation revealed that the merger would not result in input foreclosure, as Samancor Manganese continues to supply a significant portion of its ore to unrelated third parties and existing relationships with downstream producers predate the merger. Furthermore, the merger would not promote coordinated conduct between competitors in the downstream market, as the shareholding structure and business relationships remain unchanged. No public interest concerns were identified. Accordingly, the Tribunal concluded that the merger would not substantially lessen or prevent competition in the relevant markets and approved the transaction unconditionally.
Court disposition
Merger approved unconditionally.
Orders
- The proposed merger between Samancor Manganese (Pty) Ltd and Advalloy (Pty) Ltd is approved without conditions.
02
Material facts
Parties
Samancor Manganese (Pty) Ltd
Applicant Counsel: E van BiljonAdvalloy (Pty) Ltd
RespondentAmounts and remedies
- Samancor Manganese National Market Share (manganese Ore): 54
- Assmang National Market Share (manganese Ore): 46
- Advalloy National Market Share (medium Carbon Ferromanganese, 2005): 40
- Transalloys National Market Share (medium Carbon Ferromanganese, 2005): 20
- Ore & Metal National Market Share (medium Carbon Ferromanganese, 2005): 40
03
Procedural history
Posture
Large Merger / Approval
04
Questions and positions
Legal issues
- 01
Whether the proposed merger will result in a substantial lessening or prevention of competition in the relevant markets.
- 02
Whether the merger is likely to result in input foreclosure in the downstream market for medium and low carbon ferromanganese.
- 03
Whether the merger is likely to promote coordinated conduct between competitors in the downstream market.
- 04
Whether any public interest concerns arise from the merger.
Party arguments
- Applicant
- The merging parties argued that the activities of Advalloy and the Metalloys division of Samancor Manganese are closely integrated, both physically and operationally. They submitted that further vertical integration is preferable to allowing a new participant into Advalloy. Samancor Manganese supplies a significant portion of its manganese ore production to unrelated third parties, and the relationships between Samancor Manganese and downstream producers existed prior to the merger. No public interest issues were raised.
- Respondent
- The Commission investigated the likelihood of input foreclosure and coordinated conduct. It found that competitors in the downstream market had no objections and that Samancor Manganese supplies ore to third parties. The Commission concluded that the merger would not heighten coordination between Transalloys and Advalloy, as the shareholding structure and business relationships existed pre-merger. The Commission also found no public interest concerns.
05
Court’s reasoning
Legal principles
- 01
Competition Act, 89 of 1998
A merger will not be prohibited unless it is likely to substantially prevent or lessen competition in any relevant market.
- 02
Competition Tribunal precedent
Vertical mergers are assessed for potential input foreclosure and coordinated conduct, but such concerns must be substantiated by evidence of market power and changed incentives post-merger.
06
Ratio, limits and disposition
Ratio decidendi
The Tribunal found that the proposed merger between Samancor Manganese and Advalloy is a vertical transaction affecting both upstream and downstream markets for manganese ore and ferromanganese alloys. The Commission's investigation revealed that the merger would not result in input foreclosure, as Samancor Manganese continues to supply a significant portion of its ore to unrelated third parties and existing relationships with downstream producers predate the merger. Furthermore, the merger would not promote coordinated conduct between competitors in the downstream market, as the shareholding structure and business relationships remain unchanged. No public interest concerns were identified. Accordingly, the Tribunal concluded that the merger would not substantially lessen or prevent competition in the relevant markets and approved the transaction unconditionally.
Obiter and limits
- The Commission's decision to refrain from further defining the downstream product and geographic markets was justified given the minimal effect of the transaction on market structure.
- The parties' rationale for the merger, including operational integration and unsatisfactory returns for Mitsui, did not raise competition concerns.
Court disposition
Merger approved unconditionally.
- The proposed merger between Samancor Manganese (Pty) Ltd and Advalloy (Pty) Ltd is approved without conditions.
Source and reliance status
Competition Tribunal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Competition Tribunal
Judgment
COMPETITION TRIBUNAL
REPUBLIC OF SOUTH AFRICA
Case No: 32/LM/Apr06
In The Large Merger Between
Samancor Manganese (Pty) Ltd ` Acquiring firm
And
Advalloy (Pty) Ltd Target firm
Reasons for Decision
Approval
1. On 22 June 2006, the Tribunal unconditionally approved the proposed merger between the abovementioned parties. The reasons for the decision follow.
Parties
2. The acquiring firm is Samancor Manganese (Pty) Ltd (âSamancor Manganeseâ). The shareholders in Samancor Manganese are BHP Bilton (60%) and Anglo America (40%). Samancor Manganese controls a number of subsidiaries.1 The operations of Samancor Manganese are divided into five divisions namely: Hotazel, Metalloys, MMC, GEMCO, TEMCO.
3. The target firm is Advalloy (Pty) Ltd (Advalloy). The shareholders in Advalloy are Samancor Manganese (50%) and Mitsui & Co Ltd (âMitsuiâ)(50%). Advalloy does not have any subsidiaries.
Transaction
4. The transaction involves Samancor Manganese acquiring 50% of the issued share capital in Advalloy from Mitsui. After the merger, Samancor Manganese will own all the issued shares in Advalloy.
Rationale of the transaction
5. The merging parties submit that there is a close integration of the activities of Advalloy and those of the Metalloys division of Samancor Manganese. The parties further submit that due to the physical proximity of the plants and the close cooperation between Metalloys and Advalloy, Samancor Manganese deems it appropriate and preferable to further vertically integrate its investment in Advalloy rather than to permit the entrance of a new participant in the share capital of Advalloy.
6. From Mitsuiâs perspective, the parties submit that there are two reasons that explain Mitsuiâs willingness to sell its stake in the joint venture. The unsatisfactory returns from the joint venture is one reason and the other reason is its acrimonious relation with Samancor.
The partiesâ activities
7. The acquiring firm (Samancor Manganese) has two business units in South Africa, Hotazel Manganese Mines in the Northern Cape Province and Metalloys, an alloy smelter near Vereeniging in Gauteng Province. At its Hotazel plant, Samancor Manganese operates two mines namely Mamatwan and Wessels. Mamatwan is an open-cast operation, mining a 20-metre thick body of lower-grade manganese ore overlain by 50 meters of Kalahari sand, gravels and concrete. At the Wessels plant, underground mining of a hydrothermally enriched manganese ore of a higher grade occurs at a depth of 300 meters. The ore produced has low phosphorous content.
8. At the Metalloys plant in Meyerton ferromanganese and silicomanganese are produced at three electric arc furnaces using the same submerged arc furnace process. The process consists of the computer-controlled continuous feeding ores, reductants and fluxes into the furnace where electric smelting takes place.
9. BHP Billiton is involved in commodity businesses such as aluminium, energy coal and metallurgical coal, copper, manganese, iron ore, uranium, nickel, silver and titanium minerals, and has substantial interest in oil, gas, liquefied natural gas and diamonds.
10. The target firm (Advalloy) has a plant capacity to produce 75 thousand tonnes of refined manganese alloys at its Meyerton plant. The refined manganese alloys are mainly exported to Japan.
Relevant Market
11. According to the Commission the proposed transaction is a vertical one, in which the effects occurs in the upstream markets for the production of manganese ore and high carbon ferromanganese and the downstream market(s) for the production of medium and low carbon ferromanganese.
12. There are three products and geographic markets relevant in this transaction:
(i) The upstream market for the mining of manganese ore
(ii) The upstream market for the production of hot high carbon
ferromanganese
(iii) The downstream market for the production of medium and low
carbon ferromanganese
13. The Commission defined the relevant upstream product market as the mining of manganese ore. However it refrained from defining the product market for both the upstream market for the production of hot high carbon ferromanganese and the downstream market for the production of medium and low carbon ferromanganese, because it found that concluding on whether medium and low carbon ferromanganese constitute distinct or separate markets is unnecessary for this transaction.
14. The Commission further defined the geographic market for the mining of manganese ore as national because its enquiry revealed that the importation of manganese ore is not commercially viable. Given the minimal effect on the market structure as a result of the proposed transaction, the Commission refrained from defining the geographic markets for the downstream market for the production of medium and low carbon ferromanganese. We agree with the Commission.
Market Share and Competitive analysis
15. According to the parties the market shares for the relevant markets would be as follows:
Upstream
15.1 Mining of Manganese ore
Global Market National Market Company name Production Estimated Market share (%) Production Estimated Market share (%) Samancor Manganese 2186 927 7 2186 927 54 Assmang 1 881 621 6 1 881 621 46 Other 25 931 449 86 - - Total 30 000 000 100 4 068 551 100
Downstream
15.2. Production of medium carbon ferromanganese
2004 2005 Company name Production in Kit Estimated market shares Production in Kit Estimated market shares Advalloy 71 6 65 5
CVRD 46 4 48 4 Eramet 233 21 247 21 Transalloys 30 3 33 3 Ore & Metal 66 6 66 6 Japan 94 8 93 8 China 405 36 440 37 Ukraine 34 3 36 3 Minera Autlan 37 3 40 3 India 18 2 20 2 South Korea 61 5 64 5 Ferroatlatica 39 3 39 3 Total 1 134 100 1 191 100
National market shares are as follows:
2004 2005 Company name Production in Kit Estimated market shares Production in Kit Estimated market shares Advalloy 71 43 65 40 Transalloys 30 18 33 20 Ore & Metal 66 40 66 40 Total 167 100 164 100
16. The Commission investigated two relevant sets of concerns that have been identified in anti-trust analyses of vertical mergers, namely the likelihood of input foreclosure and the likelihood of coordinated conduct.
Input foreclosure
16.1 The Commission contacted competitors of Advalloy in the downstream market(s) for the production of medium and low carbon ferromanganese and they indicated that they have no objections to the proposed deal. The parties also submitted that Samancor Manganese currently supplies approximately 54% of its production of manganese ore to third parties that are unrelated to Samancor Manganese. In addition, Ore and Metal, which competes with Advalloy in the downstream market, is vertically integrated to Assmang. Further, Transalloys, a competitor of Advalloy procured its Manganese ore requirements from Samancor Manganese. The relationship between Samancor Manganese and the producers of medium and low carbon ferromanganese existed pre-merger. We therefore agree with the Commission that input foreclosure, as a result of this transaction is unlikely.
Ability to promote coordinated conduct
16.2 In investigating whether the proposed merger is likely to promote any coordination, the Commission used the shareholding structure of the merging parties with respect to the affected subsidiaries as set out below.
60% 40% 80%
Highveld Steel
Division Division 50%(100)2 Division
Hotazel Mine Metalloys Advalloy Transalloys
16.3 The Commission found that the proposed merger is unlikely to heighten any coordination between Transalloys and Advalloy in the downstream market for the production of medium and low carbon ferromanganese, because the business relationships and the shareholding structure of the acquiring group existed pre-merger. We therefore agree with the Commission that post merger the proposed merger is unlikely to promote any coordination between Transalloys and Advalloy in the downstream market for the production of medium and low carbon ferromanganese.
Public interest
17. No public interests issues arise from the merger.
Conclusion
18. Based on the above the transaction will not result in a substantial lessening or prevention of competition in the identified markets and is accordingly approved unconditionally.
___ 5 July 2006
D. Lewis Date
Concurring: Mokuena and N Manoim
For the merging parties: E van Biljon
For the Commission: Hardin Ratshisusu, Mergers and Acquisitions
1 Samancor Manganese subsidiaries are: Danjan (Pty) Ltd, Electronic Metal Corporation (Pty) Ltd, Manganese Metal Co (Pty) Ltd, Tonmet Ag, Middleplaats (Pty) Ltd, South African Manganese (Pty) Ltd, FAH Information Services (Pty) Ltd, Terra Nominees (Pty) Ltd, Chemfos (Pty) Ltd, AMM Holdings Ltd (BVI), Manganore Iron Mining Ltd.
2 The figure in parentheses reflects the shareholding structure of Samancor Manganese post the merger.
7
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