Apresentação
Este é um informativo diário que traz para o(a) leitor (a) notícias e casos de defesa da concorrência das principais jurisdições antitruste do mundo (CADE, FTC, Comissão Europeia, CMA etc).
Notícias
FTC Moves to Block Tempur Sealy’s Acquisition of Mattress Firm
The Commission votes 5-0 to challenge a vertical deal seeking to combine the world’s largest mattress supplier and manufacturer with the largest U.S. mattress retailer
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The Federal Trade Commission voted unanimously to block Tempur Sealy International, Inc.’s (Tempur Sealy) proposed $4 billion acquisition of Mattress Firm Group Inc. (Mattress Firm).
The Commission issued an administrative complaint and authorized a lawsuit in federal court to block the acquisition, alleging that Tempur Sealy—the world’s largest mattress supplier and manufacturer—will have the ability and incentive to suppress competition and raise prices for mattresses for millions of consumers once it acquires Mattress Firm. The proposed vertical acquisition would merge Tempur Sealy’s manufacturing and supply operations with Mattress Firm’s vast retail footprint, giving the combined company enormous power at multiple parts of the mattress supply chain.
Multiple deal documents show that Tempur Sealy plans to limit rivals’ access to Mattress Firm’s nationwide network of stores to harm competition. Competing mattress suppliers—which are predominately American manufacturers employing thousands of workers—are likely to lose access to the single most important retail channel, significantly impairing their ability compete and potentially leading competing suppliers to reduce output, close factories, and lay off workers.
“Through emails, presentations, and other deal documents, Tempur Sealy has made it abundantly clear that its acquisition of Mattress Firm is intended to kneecap competitors and dominate the market,” said Henry Liu, Director of the FTC’s Bureau of Competition. “This deal isn’t about creating efficiencies; it’s about crippling the competition, which would raise prices on an essential good and could lead to layoffs for good paying American manufacturing jobs in nearly a dozen states.”
Mattress Firm is the nation’s largest mattress retailer and is considered one of the most important retail channels for mattresses given its national footprint, unparalleled consumer insights, and unique ability to turn nascent brands into significant competitors. By acquiring Mattress Firm, Tempur Sealy would wield significant power over its rival mattress suppliers—which include Serta Simmons Bedding and Purple Innovation, Inc.—and could cut or limit their access to Mattress Firm’s stores, the FTC alleges in the complaint.
The FTC alleges that the vertical acquisition would harm competition across the premium mattress market—an industry term for a segment made up of products known for superior quality, enhanced features, and reputable brand names. Working class, older adults with limited disposable income make up substantial portion of buyers of premium mattresses. A large percentage of customers who buy Tempur Sealy’s premium Tempur-Pedic mattresses rely on financing to afford this infrequent purchase. These mattresses are sold predominantly through brick-and-mortar furniture stores and mattress specialty stores, the largest of which is Mattress Firm.
The acquisition would enable Tempur Sealy’s mattress brands—which include Stearns & Foster and Tempur-Pedic—to dominate the market over those of its competitors. By cutting off or degrading rivals’ access to Mattress Firm as a retail channel, Tempur Sealy’s acquisition could result in higher mattress prices, decreased product quality and choice, or reduced innovation.
Once Tempur Sealy acquires Mattress Firm, the FTC alleges that the combined firm could foreclose its rivals in a multitude of ways. For example, the combined firm could limit present and future rivals’ access to Mattress Firm’s floor space, award sales associates higher commissions on Tempur Sealy products sold, or otherwise take steps designed to steer customers away from competitors’ products and toward Tempur Sealy’s mattresses.
In the past, the closure of competing mattress suppliers’ factories has benefitted Tempur Sealy, which has further motivated Tempur Sealy to want to see even more competing mattress supplier factories close. Tempur Sealy’s acquisition of Mattress Firm could result in even more factory closures, ultimately to Tempur Sealy’s benefit, the FTC’s complaint states. By significantly impairing rivals’ ability to compete, the acquisition could force rival suppliers to cease their manufacturing plant operations across the country, spanning Georgia, North Carolina, Ohio, and Wisconsin, to Arizona, Colorado, and Utah, the FTC’s complaint alleges.
The Commission vote to issue an administrative complaint and authorize staff to seek a temporary restraining order and seek a preliminary injunction was 5-0. Commissioner Melissa Holyoak issued a statement.
The federal court complaint and request for preliminary relief will be filed in the U.S. District Court for the Southern District of Texas to halt the transaction pending an administrative proceeding.
NOTE: The Commission issues an administrative complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. The issuance of the administrative complaint marks the beginning of a proceeding in which the allegations will be tried in a formal hearing before an administrative law judge.
The Federal Trade Commission works to promote competition, and protect and educate consumers. The FTC will never demand money, make threats, tell you to transfer money, or promise you a prize. You can learn more about how competition benefits consumers or file an antitrust complaint. For the latest news and resources, follow the FTC on social media, subscribe to press releases and read our blog.
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Commission clears proposed acquisition of stake in ITA Airways by Lufthansa, subject to conditions
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The European Commission has approved, under the EU Merger Regulation, the proposed acquisition of joint control of ITA Airways (‘ITA’) by Deutsche Lufthansa AG (‘Lufthansa’) and the Italian Ministry of Economy and Finance (‘MEF’). The approval is conditional upon full compliance with the remedies offered by Lufthansa and the MEF.
Today’s decision follows an in-depth investigation of the proposed transaction, including the sending of a Statement of Objections. Lufthansa and ITA operate an extensive network of routes from their respective hubs in Austria, Belgium, Germany, Switzerland and Italy. Their operations are to a significant extent complementary as they operate from different hubs in Central Europe and Italy respectively. Lufthansa has joint ventures with United Airlines and Air Canada for transatlantic routes as well as with All Nippon Airways for routes to Japan. Whilst ITA is performing well today, ITA’s long-term sustainability as a stand-alone carrier would have remained highly uncertain absent the transaction.
The Commission’s investigation
During its in-depth investigation, the Commission gathered extensive information and feedback from market participants and other stakeholders, including from rival airlines, airports, business customers, consumer and passenger associations, as well as from individual consumers who reached out to the Commission.
Following its market investigation, the Commission had concerns that the transaction, as initially notified, would have:
- Reduced competition on a certain number of short-haul routes connecting Italy with countries in Central Europe through non-stop and one-stop flights. On such routes: (i) Lufthansa and ITA compete head-to-head or would have likely competed head-to-head soon; and (ii) competition is limited and comes primarily from low-cost carriers, such as Ryanair, who in many cases operate from more remote airports.
- Reduced competition on a limited number of long-haul routes between Italy and the US and Canada. Given that Lufthansa and its joint venture partners United Airlines and Air Canada coordinate on price, capacity, and scheduling, and share revenues, the Commission treats the activities of ITA, Lufthansa and its joint venture partners as those of a single entity when assessing this transaction. ITA and Lufthansa’s joint venture partners compete head-to-head with non-stop flights on these routes and competition from other airlines is limited.
- Created or strengthened ITA’s dominant position at the Milan-Linate airport, which could have made it harder for rivals to provide passenger air transport services from and to Milan-Linate.
The proposed remedies
To address the Commission’s competition concerns, Lufthansa and the MEF submitted a remedy package consisting of:
- Commitments for short-haul routes: Lufthansa and the MEF will make available to one or two rival airlines the necessary assets to enable them to start non-stop flights between Rome or Milan and certain airports in Central Europe. Remedy takers would need to operate on those routes for a certain minimum period. Lufthansa and the MEF will also ensure that one of those rival airlines will have access to ITA’s domestic network to offer indirect connections between certain airports in Central Europe and certain Italian cities other than Rome and Milan.
- Commitments for long-haul routes: The merged company will enter into agreements with rivals to improve their competitiveness on the long-haul routes of concern, for instance through interlining agreements or slot swaps. This will lead to increased frequencies of non-stop flights and/or improved connections for one-stop flights on each of the routes. In its assessment, the Commission took into account the fact that the MEF will retain a controlling stake in ITA after the transaction and will continue to have incentives to have ITA compete against Lufthansa’s joint venture partners in North America, at least until ITA is integrated into the joint venture.
- Commitments for Milan Linate airport: Lufthansa and MEF will transfer take-off and landing slots at Linate airport to the remedy takers for the short-haul routes. The number of slots to be divested exceeds what is necessary to operate the short-haul routes as well as the number of slots that the transaction would have added to ITA’s portfolio. This will allow the remedy taker to establish a sustainable base at Linate airport and to potentially offer its own one-stop connections between Italy and Central Europe.
Pursuant to the commitments, Lufthansa and the MEF can only implement the transaction following the Commission’s approval of suitable remedy takers for each of the short-haul, long-haul and Milan Linate commitments. The Commission will assess the suitability of remedy takers in the context of a separate buyer approval procedure.
These commitments fully address the competition concerns identified by the Commission.
Therefore, the Commission concluded that the transaction, as modified by the commitments, would no longer raise competition concerns. The decision is conditional upon full compliance with the commitments. Under supervision of the Commission, an independent trustee will monitor their implementation.
Companies and products
ITA, headquartered in Italy, is a full-service carrier with domestic and international operations in passenger and cargo air transport. ITA operates a hub-and-spoke network with its principal hubs in Rome and Milan. ITA was created by the Italian State in October 2020. ITA is a member of the SkyTeam alliance.
Lufthansa, headquartered in Germany, is a global full-service carrier with domestic and international operations in passenger and cargo air transport. Lufthansa also operates a hub-and-spoke network with its principal hubs in Frankfurt, Munich, Zurich, Vienna and Brussels. Its subsidiaries include Austrian Airlines, Brussels Airlines, Eurowings, Swiss International Airlines and Air Dolomiti. Lufthansa is a member of the Star Alliance, of a transatlantic joint venture with United Airlines and Air Canada and of a joint venture with All Nippon Airways for routes between the EEA and Japan.
MEF carries out the tasks and responsibilities of the Italian government in the fields of economic policy, financial policy, budgeting, and tax policies. MEF holds shareholdings in public and strategic companies in Italy, among others in the transport sector, and it is currently the sole shareholder in ITA. The companies in which MEF has shareholdings are active worldwide.
Merger control rules and procedure
The Commission has the duty to assess mergers and acquisitions involving companies with a turnover above certain thresholds (see Article 1 of the EU Merger Regulation) and to prevent concentrations that would significantly impede effective competition in the European Economic Area 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 this proposed transaction, there is currently one ongoing Phase II merger investigation: the proposed acquisition of Air Europa by IAG.
For More Information
More information will be available on the Commission’s competition website, in the public case register under the case number M.11071.
ACCC accepts undertakings from Telstra and Optus during its ongoing investigation into Google’s search services
Date
2 July 2024
Topics
Buying and selling products and services
Digital platforms and services
Telecommunications and internet
The ACCC has accepted undertakings from Telstra and Optus as part of the ACCC’s ongoing competition investigation into Google’s search services in Australia.
During the investigation into Google’s conduct, the ACCC became aware of agreements that Google had initiated and entered into with Telstra and Optus, which meant Google’s search services were pre-installed as the default search service on Android devices supplied by these companies.
“We are grateful for the cooperation of Telstra and Optus in responding to the ACCC’s competition concerns. The undertakings will allow alternative search engines to be able to compete to be a default search engine on the Android devices these companies supply,” ACCC Commissioner Liza Carver said.
Google developed the Android operating system, and Google’s agreements with Telstra and Optus, in place since at least 2017, limited the ability for rival search engines to be pre-installed and promoted on Android devices, in return for a share of Google’s advertising revenue. These agreements expired on 30 June 2024.
Telstra and Optus have cooperated fully with the ACCC’s investigation. They have each undertaken that, after 30 June 2024, they will not renew or enter any new arrangements with Google that require its search services to be pre-installed and set as the default search function on an exclusive basis on devices they supply.
The undertakings from Telstra and Optus resolve the ACCC’s concerns in relation to their involvement in the alleged anticompetitive conduct.
“We are continuing our investigation into Google’s conduct in entering into such agreements more broadly, as we consider this raises potential competition concerns. Accordingly, no further comment about the investigation will be made at this time,” Ms Carver said.
“Practices such as entering into agreements to ensure exclusivity can limit consumer choice or deter innovation. Digital platforms with significant market power should be aware of their obligations under Australia’s competition laws.”
“Globally, a range of measures are underway to protect and boost competition in the digital economy. In our view, these undertakings from Telstra and Optus are an important step in providing Australian consumers with more choice about the digital platforms and services they use, and encouraging more competition in these markets.”
“Reform to Australia’s competition and consumer laws, particularly to create targeted service specific mandatory codes of conduct for certain digital platforms to prevent anti‑competitive conduct, remains critically important to address the influence digital platforms have across the economy,” Ms Carver said.
Copies of the undertakings are available at: Telstra Limited and Telstra Group Limited and Optus Mobile Pty Ltd and Singtel Optus Pty Ltd
Background
In Australia, mobile devices represent the largest and fastest growing distribution channel for general search services, with 95 per cent of Australian adults having used a mobile phone to access the internet in 2023[1]. Securing preinstallation and default rights to devices distributed in Australia ‘out of the box’ is a key distribution channel for a provider of a search service.
The ACCC’s ongoing competition investigation into Google’s search services in Australia arose from the ACCC’s consideration of competition and consumer issues in its Digital Platform Services Inquiry (DPSI). The third interim report of the Inquiry found that Google’s search engine being pre-installed as a default search service on devices was contributing to it being the dominant search engine in Australia. The ACCC found there are strong consumer biases towards default settings. The ACCC will submit its DPSI 9th interim report in September 2024 and its final report in March 2025.
In its fifth interim report of the DPSI, submitted in September 2022, the ACCC recommended a range of new measures to address harms from digital platforms to Australian consumers, small businesses and competition. The report has also proposed mandatory codes of conduct for certain platforms and services to protect and promote competition.
On 8 December 2023, the Government provided in-principle support for all recommendations in the fifth interim report of the ACCC’s Digital Platform Services Inquiry, which focused on regulatory reform. The United Kingdom, Germany, Japan and the European Union have already announced or implemented significant new competition and consumer regulations for digital platforms.
On mobile devices, Google Search’s market share in Australia has remained consistently around 98 per cent from September 2021 to February 2024, with other search engines, including Microsoft’s Bing, only having a small presence[2].
[1] Australian Communications and Media Authority, Trends and developments in telecommunications 2022-23, December 2023, p 9
[2] Statcounter, Desktop Search Engine Market Share Australia: September 2021 – January 2024, accessed 15 February 2024; Mobile Search Engine Market Share Australia: September 2021 – January 2024, accessed 29 February 2024.
Release number
76/24
General enquiries
Contact us to report an issue or make an enquiry.
Media enquiries
Media Team – 1300 138 917, media@accc.gov.au
Atos de concentração – Decisões
CADE
Ato de Concentração nº 08700.003938/2024-81
Requerentes: ABB Verwaltungs AG e Siemens AG. Aprovação sem restrições.
Ato de Concentração nº 08700.004057/2024-88
Requerentes: Concessionária do Aeroporto Internacional de Guarulhos S.A. e Bioenergia Barra Ltda. Aprovação sem restrições.
Ato de Concentração nº 08700.004157/2024-12
Requerentes: Buzzi S.p.A e Nacional Cimentos Participações S.A. Aprovação sem restrições.
Ato de Concentração nº 08700.004246/2024-51
Requerentes: CERC S.A. e ANTECIPA S.A. Aprovação sem restrições.
Ato de concentração nº 08700.002340/2024-75
Requerentes: GDM Genética do Brasil S.A. e KWS SAAT SE & Co. KGaA. Aprovação sem restrições.
Ato de Concentração nº 08700.002259/2024-95
Requerentes: IRO Indústria de Reciclagem e Comércio de Materiais de Construção Ltda. e Itaguassu Agroindustrial S.A. (em Recuperação Judicial). Aprovação sem restrições.
Ato de Concentração nº 08700.003655/2024-30
Requerentes: Polimix Concreto Ltda., União Administração, Participações e Investimentos S.A. em Recuperação Judicial e Ical Indústria de Calcinação Ltda. em Recuperação Judicial, Aprovação sem restrições.
Ato de Concentração nº 08700.003893/2024-45
Requerentes: CAPGC Pte. Ltd. e Shell Singapore Energy Park Pte. Ltd. Aprovação sem restrições.
Ato de Concentração nº 08700.004359/2024-56
Requerentes: MBS Bem Estar Holding Ltda. e Growth Supplements – Produtos Alimentícios Ltda. Aprovação sem restrições.
Ato de Concentração nº 08700.003919/2024-55
Requerentes: MDS Corretora e Administradora de Seguros S.A., JTO Holding S.A., JTO Fundadores Participações Ltda., Rede D´Or São Luiz Soluções Corporativas em Saúde e Segurança do Trabalho Ltda. e D’Or Consultoria em Corretagem de Seguros e Benefícios Ltda. Aprovação sem restrições.
Ato de Concentração nº 08700.004026/2024-27
Requerentes: Terminal Multimodal de Grãos e Fertilizantes e EMBRAPORT – Empresa Bras. de Terminais Portuários. Aprovação sem restrições.
Comissão Europeia
BLACKSTONE / MDP / AIR CONTROL CONCEPTS HOLDINGS
Merger
Last decision date: 02.07.2024 Super simplified procedure
MARUBENI / CERTAIN PARTS OF TRUSTENERGY
Merger
Last decision date: 02.07.2024 Simplified procedure
CMA
AlphaTheta / Serato merger inquiry
- The CMA is investigating the anticipated acquisition by AlphaTheta Corporation of Serato Audio Research Limited.
- Updated: 3 July 2024
Merger inquiry outcome statistics
- Statistics showing the outcomes of merger inquiries examined under the Enterprise Act 2002.
- Updated: 3 July 2024