Total Energie Development S.A.S v Tenesol S.A (69/LM/Aug11) [2011] ZACT 78 (6 October 2011)

Total Energie Development S.A.S v Tenesol S.A (69/LM/Aug11) [2011] ZACT 78 (6 October 2011)

The Tribunal found that the proposed transaction, which shifts control of Tenesol S.A from joint to sole control by Total Energie Development S.A.S, does not result in any accretion of market share or change in market structure in South Africa. The horizontal overlap in the production and supply of solar modules is not significant, and future vertical integration, when SunPower commences production, is unlikely to raise competition concerns due to Tenesol's low market share and the presence of larger competitors. The Tribunal also determined that job losses identified were operational and not related to the merger, and thus no public interest issues arise. Accordingly, the transaction was...

Citation
[2011] ZACT 78
Parties
Applicant: Total Energie Development S.A.S; Respondent: Tenesol S.A
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
6 October 2011
Case Number
69/LM/Aug11
Procedural Posture
Merger Application / Approval
Outcome
The merger is approved unconditionally.
Judges
Norman Manoim, Andiswa Ndoni, Medi Mokuena
Legal Topics
Merger Control, Horizontal Overlap, Vertical Integration, Public Interest, Market Share Analysis
Competition Law Commercial and Corporate Merger Control Horizontal Overlap Vertical Integration Public Interest Market Share Analysis

Case Brief

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Parties

Total Energie Development S.A.S

Applicant

Tenesol S.A

Respondent

Procedural Posture

Merger Application / Approval

Legal Issues

  1. 1 Whether the proposed transaction will substantially prevent or lessen competition in any relevant market.
  2. 2 Whether the transaction raises any public interest concerns, including job losses.
  3. 3 Whether the move from joint to sole control alters market structure or market share.

Ratio Decidendi

The Tribunal found that the proposed transaction, which shifts control of Tenesol S.A from joint to sole control by Total Energie Development S.A.S, does not result in any accretion of market share or change in market structure in South Africa. The horizontal overlap in the production and supply of solar modules is not significant, and future vertical integration, when SunPower commences production, is unlikely to raise competition concerns due to Tenesol's low market share and the presence of larger competitors. The Tribunal also determined that job losses identified were operational and not related to the merger, and thus no public interest issues arise. Accordingly, the transaction was...

Court Disposition

The merger is approved unconditionally.

Orders

  • The proposed transaction between Total Energie Development S.A.S and Tenesol S.A is approved without conditions.