COMPETITION AUTHORITY

Competition Authority Decision of 15 November 1999 relating to a proceeding under Section 4 of the Competition Act, 1991.

Notification No. CA/4/96: ARAL, BP, IP, MOBIL and STATOIL 

 
Decision No  571

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Competition Authority Decision of 15 November 1999  relating to a proceeding under Section 4 of the Competition Act, 1991. 

Notification No. CA/4/96: ARAL, BP, IP, MOBIL and STATOIL 
 
Decision No  571

Introduction

1. Notification was made by Den Norske Stats Oljeselskap A.S. (Statoil) on 12th January 1996 with a request for a licence under Section 4(2) of the Competition Act, 1991 in respect of a joint venture agreement for international commercial cards. In addition to this agreement there are ancillary agreements viz a purchase and sale agreement, a trademark management agreement, a share sale and transfer agreement/option agreement and a trademark licence agreement which have all been notified as a single agreement.  

The Facts

(a) Subject of the Notification

2. The notification concerns a joint venture agreement and ancillary agreements dated 2nd September, 1993 between Aral Aktiengesellschaft (Aral), BP Oil International Limited (BP), Italiana Petroli S.P.A. (IP), Mobil Europe Limited (Mobil) and Statoil. Statoil was joined as a party to the joint venture by an Entry Agreement dated the 27th of October 1994. In accordance with this Entry Agreement, Statoil was obliged to become a party to the Trademark Management Agreement and to enter into Trademark Licence Agreement with ROUTEX BV, the owner of the joint venture trademarks and other related intellectual property rights. The parties to the notified agreement have devised an arrangement whereby each party will issue its own international commercial cards (with Routex symbol attached) for the cashless purchase of motor fuel and related products by commercial customers in all suitable service stations throughout Europe.

(b) The Parties Involved

(i) The Parties

3. Aral is a company organised and existing under the laws of Germany with its registered office located at Wittener Strasse, 45 Bochum, Germany. Aral is a purchaser of oil and other petroleum products and is engaged in the business of owning and operating service stations from which it sells gasoline, diesel, lubricants and other related products directly in Germany and within the EC through its subsidiaries. Aral is not a participant in the market for the supply of motor fuels in Ireland.

4. BP is a company organised and existing under the laws of  England with its registered office at Britannic House, I Finsbury Circus, London EC2M, 7BA, United Kingdom. BP, a wholly owned subsidiary of The British Petroleum Company plc and its main operating company, is responsible for the supply, transportation, refining and marketing of crude oils and petroleum products. BP and its affiliates market automotive fuels and related petroleum products through networks of service stations worldwide. The British Petroleum Company plc is engaged in the exploration, production, refining and marketing of crude oil and derivative products, natural gas and the production, and distribution of chemicals and the manufacture and sale of animal nutrition products. BP Oil International Limited ("BP") is a wholly owned subsidiary of The British Petroleum Company  plc. The BP group is no longer engaged in the supply of motor fuel for resale in Ireland, having sold this part of its business to  Statoil in March 1992. 

5. Italiana  Petroli  S.P.A.  ("IP") is a company organised and existing under the laws of Italy with its registered office located at Piaza Della Vittora, Genoa, Italy. IP is a purchaser, processor and trader of oil and other petroleum products and is engaged in the business of owning and operating service stations in Italy from which gasoline, diesel, lubricants and other related products are sold. IP is not engaged in the motor fuel supply market in Ireland.

6. Statoil is a company organised and existing under the laws of Norway with its registered office located at Forus, PO Box 300, N-4001 Stravanger, Norway. Through its operating subsidiary, Statoil is one of the main competitors in the motor fuel market in Ireland.

7. Mobil is a company organised and existing under the laws of England with its registered office at Mobil Court, 3 Clements Inn, London WC2A 2EB, United Kingdom.  Mobil is a wholly owned subsidiary of the Mobil Corporation which is engaged in the exploration, production, transportation, refining and marketing of crude oil petroleum products and natural gas. Mobil affiliates market automotive fuels and related petroleum products through networks of service stations worldwide. Mobil is not engaged in the motor fuel supply market in Ireland.

8. Mobil withdrew from the agreement on 24th February, 1998 and was replaced by OMV Aktiengesellschaft (OMV). OMV is a multi-national oil, gas and chemicals company with service stations in the relevant market in Austria, Germany and Italy. Its registered office is located at A-1090, Vienna Otto-Wagner Platz 5, Austria.

(ii) Distribution of Shares

9. The distribution of total shares (150) at present:

Aral Aktiengesellschaft                   40 Shares               
BP Oil International Ltd                  40 Shares
OMV Aktiengesellschaft	         40 Shares
Italinana Pedroti S.P.A.                     No Shares held but each of the other 3 parties
                                                          hold 10 shares under option of purchase by IP
Den Norske Stats Oljeselskap A.S.  30 Shares

(c) The products and the Market

10. The notifying party submitted that the structure and segmentation of the market for the supply of motor fuels in Ireland is well known to the Authority both from the Report of Enquiry into the Supply and Distribution of Motor Fuels by the Fair Trade Commission in 1989  (PL.7951) and more recently from the submissions which led to the Decision of  1st July 1993 granting a licence under Section 4 (2) of the Competition Act, 1991 to a category of exclusive purchasing agreements in respect of motor fuels (known as "the Motor Fuels Category Licence").

11. The Authority is of the view that the relevant market is the market for fuel card issuance and use. At present, fuel card issuers in Ireland include Irish Shell, Maxol, Texaco, Esso and Statoil; their cards are for use in the State. The total Irish fuel card market is estimated at approx. 200,000 vehicles, with only 61,000 cards issued at end of 1998. However, only the Statoil card to date carries the Routex symbol, thus facilitating its card use across Europe.

(d) The Notified Arrangement

12. In essence, the parties to the notified agreement have devised an arrangement whereby each party will issue its own international commercial cards for the cashless purchase of motor fuel and related products by commercial customers in all suitable service stations throughout Europe designated by each of the parties. For this purpose the participants entered into the following set of agreements dated  2nd September  1993:- Joint Venture Agreement, Purchase and Sale Agreement, Trademark Management Agreement, Share Sale and Transfer Agreement/Option Agreement and Trademark Licence Agreement.

(i) The Joint Venture

13. This Agreement requires each Participant to use its best endeavours not to issue to any commercial customer within a single country both a commercial card and a company fuel card (the latter being a card other than a commercial card which entitles a commercial customer to make cashless purchases of goods and/or services at automotive service stations of that participant or at any automotive service station of any other company pursuant to a mutual acceptance agreement with such other company).  The Agreement also requires that from the date on which the Participants agree to authorise a commercial card for use, the Participants shall not market or issue to commercial customers any cards having validity at automotive service stations situated outside that country, other than a commercial card having international scope.  

14. The Agreement does however provide for the issuing of both a commercial card and a company fuel card to any one commercial customer in exceptional cases where the commercial customer is able to utilise a company fuel card over a materially wider network of service stations than would be possible through the use of a commercial card. The Agreement provides for a maximum period of two years from the date of the launch of the commercial card in any specific country (the "Launch Date" ) or two years from the date of issuing of the replacement commercial card, by which the use of such company fuel cards are to terminate.

15. The range of products, ("authorised product range"), and the service stations ("authorised outlets") at which commercial cards may be used to obtain goods and/or services are to be determined by the Participants under the Agreement. In so doing, each participant is required to display at its authorised outlets the Joint Venture trademarks indicating the acceptance of commercial cards. Under the terms of the Agreement, Participants are entitled to agree upon discounts to be applied to goods and services within the authorised product range during the two year period after the launch date.  After this two year period has elapsed such discounts, if any, shall be established by bilateral agreements between each Participant and each other Participant.

16. Article 8 governs the relations between the Participants and third parties; it states that during the term of this Agreement the Participants shall not perform agency services in relation to cards issued by any other card company that are capable of being used in more than one country in Europe, nor shall they perform agency services in relation to cards issued by other companies engaged in the retail or marketing of petroleum products and/or related goods and services. The agreement also determines that the Participants shall not enter into any arrangement with any other Company who engages in the retail marketing trade or marketing of petroleum products and/or related goods and services pursuant to which any commercial cards issued by such other company and capable of being used in more than one country in Europe, shall be accepted within some or all of that participant's network of service stations, unless unanimous agreement of all the participants has first been obtained.  Neither shall the Participants be entitled during the term of the agreement to enter into any Agreement with any other person the effect of which is to permit the use of such Participants group commercial cards for the purchase of goods and services at service stations other than authorised outlets of the Participants' groups unless unanimous agreement of all of the Participants have first been obtained.  The Agreement sets out the conditions which must exist before any Participant may engage the services of an agent for the recruitment or  solicitation of customers in a particular country.

17. Under Article 9 new Participants may be admitted to the Venture once the qualifying criteria set out in the Agreement have been satisfied and the admission procedure adhered to as set out in the Agreement.  Article 10 provides for the voluntary withdrawal by any Participants from the Venture by means of a withdrawal notice and the agreement also provides for certain conditions, which if they exist, may result in a Participant being deemed to have withdrawn from the venture.

(ii) Ancillary Agreements

18. Under the terms of the agreement each of the participants is required to have in existence a company to act as its International Card Company (ICC) for the purposes of entering into a bilateral Purchase and Sale Agreement with the  ICC of each of the other participants (the form of such an agreement is set out in Schedule D of the Joint Venture Agreement). These Agreements enable the holder of a commercial card issued by a Participant ("A") to purchase fuel and other goods and services which are supplied to it by Participant A at the authorised outlet of another Participant ("B") .

19. Article 13 provides for the setting up of an operation committee in order to implement and give full effect to the provisions of the Agreement including the authority to make decisions on administrative matters in relation to the venture operations, advertising, themes and visual standards and to assess applications from proposed new entrants to the venture.  Schedule B of the Joint Venture Agreement sets out the business procedures manual which contains information regarding the authorised outlets, site procedures for purchases at the authorised outlets, and various procedures for data communication between the  ICCs of the various Participants.

20. Article 15 of the Agreement obliges each Participant to keep confidential all  "confidential information" (as defined by the Agreement) and not to use such information other than for the purpose of  performing  obligations under the Agreement and related agreements.  This obligation as to confidentiality will continue in existence notwithstanding that the Participant may cease to be party to the Agreement or the Agreement itself may be terminated for any reason.

21. Under the terms of the Joint Venture Agreement each of the Participants is required to enter into a Trademark Management Agreement (the form of which is set out in Schedule C of the Joint Venture Agreement) which contains provisions regarding the holding and licensing of the trademarks in connection with the commercial card system.  Pursuant to this agreement the parties together own, (or have an option to acquire shares in) a company now known as  Routex  BV (this ownership is achieved by means of Share Sale and Transfer Agreements and the option to acquire shares in the Company is achieved by means of an Option Agreement as set out in Schedules 1 and 2 of the Trade Mark Management Agreement) who is the registered owner of the trademarks and other intellectual property rights which characterise commercial cards.  Under the Trademark Management Agreement the company grants licences to each of the Participants to use these trademarks by means of a Trademark Licence Agreement.

22. Statoil was joined as a party to the joint venture by Entry Agreement dated the 27th of October 1994.   Under this Entry Agreement  Statoil became bound by the terms of the Joint Venture Agreement save for certain obligations as set out in the  Statoil Disclosure Letter.  In accordance with this Entry Agreement Statoil was obliged to become a party to the Trademark Management Agreement and to enter into Trademark Licence Agreement with ROUTEX BV, the owner of the joint venture trademarks and other related intellectual property rights. [                                         ]. By letter dated  27th October 1994 each of the Participants disclosed by way of Disclosure Letter the provisions of the Entry Agreement to which it was not adhering.  By Waiver dated the 27th of October 1994 each of the Participants agreed to waive noncompliance with the provisions of the  Statoil Entry Agreement as disclosed by each of the participants in such Disclosure Letters.  

(e) Submissions by the Notifying Party

Arguments in support of request for the issue of a certificate/licence

23. The notifying party submitted that the joint venture arrangements would contribute significantly to improvements in the distribution of fuel in Ireland and to the facilitation of transport between Ireland and other European countries by, inter alia providing non-Irish commercial drivers with a new and convenient means to purchase fuel and other products in Ireland without the need to carry cash in Irish currency and by providing reciprocal benefits to Irish drivers in European countries.

(f) Other information

24. The arrangements had been notified to the European Commission (Case No. IV/34.427-ABIM Card).  The first  EC notification was submitted on  6th August, 1992.  The Joint Venture Agreement signed on the  2nd September 1993 and other ancillary documents were notified to the Commission on  1st October, 1993.  Subsequently the documentation relating to the accession of  Statoil as a party to the joint venture arrangements was notified to the Commission on Form  A/B on 28th October 1994. The notifying party submitted that the decision of the European Commission to issue a comfort letter and to close its file in relation to Case No.  IV/34.427 -  ABIM Card without having published a notice pursuant to Article 19(3) of Council Regulation No. 17/62 is relevant to this notification.

25. The arrangements implemented under the Joint Venture Agreement dated 2nd September 1993 have also been notified to the United Kingdom Office of Fair Trading ("OFT"), the Italian Competition Authority and the Greek Competition Authority.  The  Bundeskartellant has informally been made aware of the arrangements implemented under the Joint Venture Agreement although no formal notification has been  made. The Statoil Entry Agreement dated 27 October 1994 has been formerly notified to the OFT.

The Assessment

Applicability of Section 4(1)

(a) The Undertakings and the Agreement

26. Section 3(1) of the Competition Act defines an undertaking as ‘a person, being an individual, a body corporate or an unincorporated body engaged for gain in the production, supply or distribution of goods or the provision of a service’. Both Statoil and inter alia Aral Aktiengesellschaft (Aral), BP Oil International Limited (BP), Italiana Petroli S.P.A. (IP), Mobil Europe Limited (Mobil) are engaged in the production and distribution of goods for gain, and they are therefore undertakings within the meaning of the Act. The agreement is an agreement between undertakings. With the accession of Statoil, the agreement has effect within the State.

(b) The Status of the Agreement

27. It is the view of the Authority that the joint venture agreement (and the entry agreement relating to the accession of Statoil as a party to the joint venture arrangements) is an agreement to simply facilitating the issuance of commercial fuel cards. Statoil entered the agreement in 1994 and is the only participant operating in the State.

(c) Economic Assessment

28. At present,   there are five fuel cards available in the State, issued by Esso with [     ], Irish Shell with [    ] Statoil with [    ] Texaco with [    ] and Maxol with [     ] share of the 61,000 cards issued. The Authority is of the view that Statoil’s entry into the notified agreement will facilitate the future development of the fuel card market in the State.  The issuance of a commercial fuel card under the Routex trademark symbol will also facilitate the mutual acceptance in the State of commercial cards issued by each of the participants in the joint venture.

29. The Authority is therefore of the view that the agreement does not restrict or distort competition in the relevant market. Therefore the Authority is of the opinion that the agreement does not contravene Section 4(1) of the Act.

30. In the Authority’s opinion, Aral Aktiengesellschaft (Aral), BP Oil International Limited (BP), Italiana Petroli S.P.A. (IP), OMV Aktiengessellschaft and Statoil are undertakings within the meaning of section 3(1) of the Competition Act and the notified arrangements constitute an agreement between undertakings. In the Authority’s opinion the joint venture agreement and associated agreements dated 2nd December, 1993 do not contravene Section 4(1) of the Competition Act.

The Decision 

31. In the Authority’s opinion, Aral Aktiengesellschaft (Aral), BP Oil International Limited (BP), Italiana Petroli S.P.A. (IP), OMV Aktiengessellschaft and Statoil are undertakings within the meaning of section 3(1) of the Competition Act and the notified arrangements constitute an agreement between undertakings. In the Authority’s opinion the joint venture agreement and associated agreements dated 2nd December, 1993 do not contravene Section 4(1) of the Competition Act.

The Certificate

The Competition Authority has issued the following certificate:

The Competition Authority certifies that, in its opinion, on the basis of the facts in its possession, the joint venture agreement and associated agreements dated (originally) 2nd December 1993 between Aral Aktiengesellschaft, BP Oil International Limited, Italiana Petroli S.P.A., OMV Aktiengessellschaft and Statoil notified under Section 7 of the Competition Act on 12 January 1996 (Notification No. CA/4/96) do not contravene Section 4(1) of the Competition Act, 1991, as amended.

For the Competition Authority

Professor Patrick McNutt
Chairperson
15 November 1999