[导读：2017年8月22日，欧盟委员会宣布将对德国化工巨头拜耳(Bayer)拟以660亿美元收购孟山都(Monsanto)的交易展开深入调查。欧盟委员会称，二者在杀虫剂、种子、性状研究等市场中占据高度份额，如果拜耳收购成功，将会使其成为全球最大的种子和农用化学品供应商。对此，欧盟委员会担心，此次交易将会“减少多个不同市场的竞争，导致价格上涨、质量下降以及选择和创新的减少”。同时，欧盟委员会还担心，二者在数字农业（digital agriculture）研究方面正在加大投入，可能会利用农业数据搭售杀虫剂和种子等产品。负责竞争政策的专员Margrethe Vestager表示：“我们需要确保有效的市场竞争，让农民能够获得创新性的产品、质量更好的产品，并且能以实惠的价格购买产品，同时保持一个让公司能够创新和投资改善产品的环境”。（本文源自欧盟委员会官网。导读系本公众号原创，转载请注明文字出自本公众号。）]
Mergers: Commission opens in-depth investigation into proposed acquisition of Monsanto by Bayer
The Commission has opened an in-depth investigation to assess the proposed acquisition of Monsanto by Bayer under the EU Merger Regulation. The Commission has concerns that the merger may reduce competition in areas such as pesticides, seeds and traits.
Commissioner Margrethe Vestager, in charge of competition policy, said: “Seeds and pesticide products are essential for farmers and ultimately consumers. We need to ensure effective competition so that farmers can have access to innovative products, better quality and also purchase products at competitive prices. And at the same time maintain an environment where companies can innovate and invest in improved products.”
The proposed acquisition of Monsanto (US) by Bayer (Germany) would create the worlds largest integrated pesticides and seeds company. It would combine two competitors with leading portfolios in non-selective herbicides, seeds and traits, and digital agriculture. Both companies are active in developing new products in these areas. Moreover, the transaction would take place in industries that are already globally concentrated, as illustrated by the recent mergers of Dow and Dupont and Syngenta and ChemChina, in which the Commission intervened to protect competition for the benefit of farmers and consumers.
The Commissions preliminary concerns
The Commission has preliminary concerns that the proposed acquisition could reduce competition in a number of different markets resulting in higher prices, lower quality, less choice and less innovation. In particular, the initial market investigation identified preliminary concerns in the following three areas:
Monsantos pesticide product glyphosate is the most sold non-selective herbicide in Europe. Bayer produces glufosinate ammonium, also a non-selective herbicide and one of the very few alternatives to glyphosate. According to the Commissions preliminary investigation, Monsanto and Bayer are two of a limited number of competitors in this field capable of discovering new active ingredients and developing new formulations, including addressing the growing problem of weed resistance to existing products.
In addition, the Commission will further assess both Monsantos activities in biological pesticide products that would compete with Bayers existing portfolio of chemical pesticide products, and the parties overlapping activities in products that tackle varroa mites, a parasite affecting bee colonies in Europe.
Bayer and Monsanto are both active in the breeding of vegetable seeds. The Commissions initial investigation shows that the parties have high combined market shares in a number of these vegetable seeds markets, and that some of their products compete directly with each other.
Bayer and Monsanto are also active in the breeding and licensing of seeds for several field crops. Monsanto has the highest market share in oilseed rape seeds in Europe. Bayer, with the highest market share in oilseed rape seeds at global level, is one of the few players with the means to compete intensively in this market. Furthermore, both parties are important licensors of cotton seeds to their competitors in Europe, and both are investing in research and innovation programs for wheat.
A trait is a characteristic of a plant, such as height, herbicide tolerance and insect or disease resistance, and can be developed in laboratories and introduced in certain plant varieties.
The Commissions preliminary investigation indicates that Monsanto has a dominant position in several traits markets worldwide. Bayer is one of the few competitors to Monsanto in certain traits markets, and has notably developed alternative herbicide tolerance traits to Monsantos. The Commission will investigate in particular whether the transaction could lead to a reduction of competition in these markets, taking into account the existing links between the few worldwide competitors through cross-licensing and through research and development cooperations.
Finally, the merged entity would hold both the largest portfolio of pesticides products and the strongest global market positions in seeds and traits, making it the largest integrated company in the industry. The Commission will further investigate whether competitors access to distributors and farmers could become more difficult if Bayer and Monsanto were to bundle or tie their sales of pesticide products and seeds, notably with the advent of digital agriculture. Digital agriculture consists in the collection of data and information about farms with the aim of providing tailored advice or aggregated data to farmers. Both Bayer and Monsanto are currently investing in this emerging technology.
The transaction was notified to the Commission on 30 June 2017. The Commission now has 90 working days, until 8 January 2018, to take a decision. The opening of an in-depth investigation does not prejudge the final result of the investigation.
On 31 July 2017, Bayer and Monsanto submitted commitments to address some of the Commissions preliminary concerns. However, the Commission considered these commitments insufficient to clearly dismiss its serious doubts as to the transactions compatibility with the EU Merger Regulation. The Commission therefore did not test them with market participants.
Given the worldwide scope of Bayer and Monsantos activities, the Commission is cooperating closely with other competition authorities, notably with the Department of Justice in the US and the antitrust authorities of Australia, Brazil, Canada and South Africa.
The Commission has been petitioned through emails, postcards, letters and tweets expressing concerns about the proposed acquisition of Monsanto by Bayer. The Commissions mandate under the European merger control rules is to assess the merger solely from a competition perspective. This assessment must be impartial and is subject to the scrutiny of the European Courts.
The other concerns raised by the petitioners are subject to European and national rules to protect food safety, consumers, the environment and the climate.
Companies and products
Bayer, headquartered in Germany, is a diversified pharmaceuticals, consumer health, agriculture (Bayer Crop Science) and animal health company. This transaction mainly concerns the Bayer Crop Science division. Bayer Crop Science operates three business segments: (i) Crop Protection; (ii) Seeds and Traits; and (iii) Environmental Science. Bayer is also active in developing digital agriculture technologies.
Monsanto, headquartered in the US, is an agriculture company which produces seeds for broad acre crops, fruits and vegetables as well as plant biotechnology traits. It also provides pesticide products, including the glyphosate herbicide under the “Roundup” brand and other herbicides for agricultural and non-agricultural use. Additionally, Monsanto is involved in research on biological agriculture and provides farmers with digital agriculture services through its Climate Corporation business.