Yara International ASA and Another v Competition Commission of South Africa (133/AM/Dec07) [2008] ZACT 26; [2008] 1 CPLR 196 (CT) (30 April 2008)

Yara International ASA and Another v Competition Commission of South Africa (133/AM/Dec07) [2008] ZACT 26; [2008] 1 CPLR 196 (CT) (30 April 2008)

The Tribunal found that the revised conditions, agreed upon by both the applicants and the Commission, adequately addressed the competition concerns identified in the Commission's original decision. The conditions ensure that qualifying small purchasers of urea will have continued access to supply from the merged entity for a two-year period, with specific percentages of imported urea allocated to them. This arrangement provides sufficient time for small purchasers to organize collective imports and mitigates the risk of exclusion from the market. The Tribunal also required that qualifying purchasers be notified directly and through public announcements to register with the merged entity....

Citation
[2008] ZACT 26
Parties
Applicant: Yara International ASA; Applicant: Kemira Growhow OYJ; Respondent: Competition Commission of South Africa
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
30 April 2008
Case Number
133/AM/Dec07
Procedural Posture
Review Application / Tribunal Reconsideration of Merger Conditions
Outcome
Merger approved subject to revised conditions agreed between the parties and the Commission.
Judges
D Lewis, Y Carrim, N Manoim
Legal Topics
Merger Control, Intermediate Merger, Supply Conditions, Market Definition, Barriers to Entry
Competition Law Commercial and Corporate Merger Control Intermediate Merger Supply Conditions Market Definition Barriers to Entry

Case Brief

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Parties

Yara International ASA

Applicant

Kemira Growhow OYJ

Applicant

Competition Commission of South Africa

Respondent

Procedural Posture

Review Application / Tribunal Reconsideration of Merger Conditions

Legal Issues

  1. 1 Whether the revised merger conditions adequately address competition concerns in the supply of urea in South Africa.
  2. 2 Whether the conditions imposed by the Commission are reasonable and practical for the merged entity and small purchasers.
  3. 3 Whether the definition of the relevant market and barriers to entry were correctly determined.

Ratio Decidendi

The Tribunal found that the revised conditions, agreed upon by both the applicants and the Commission, adequately addressed the competition concerns identified in the Commission's original decision. The conditions ensure that qualifying small purchasers of urea will have continued access to supply from the merged entity for a two-year period, with specific percentages of imported urea allocated to them. This arrangement provides sufficient time for small purchasers to organize collective imports and mitigates the risk of exclusion from the market. The Tribunal also required that qualifying purchasers be notified directly and through public announcements to register with the merged entity....

Court Disposition

Merger approved subject to revised conditions agreed between the parties and the Commission.

Orders

  • The merger between Yara International ASA and Kemira Growhow OYJ is approved subject to the revised conditions set out in Annexure A.
  • The merged entity must allocate 20% of its imported urea in 2008 and 22% in 2009 to qualifying small purchasers and GrowHow customers as defined.