The Commission raised horizontal concerns regarding the parties’ activities in flexible packaging for food products and for medical use in the EEA. It concluded that Amcor and Bemis were the most significant players in flexible packaging for medical use. The transaction would “have created a player three times larger than the second largest supplier, on a fragmented market with many small suppliers”[1], while barriers to entry are very high, and customers do not easily switch suppliers. In order to address its concerns, the Commission accepted Amcor and Bemis’s offer to divest Bemis’s entire medical packaging business in the EEA. Notably, Amcor and Bemis withdrew their original notification made in November and refiled in December. As discussed in our January newsletter, this is becoming an increasingly common practice in EU merger control to avoid lengthy Phase II investigations.[2]

[1]              Commission Press Release IP/19/1010, “Mergers: Commission approves merger between Amcor and Bemis, subject to conditions”, February 11, 2019.

[2]              This is a common strategy in the US to avoid an in-depth investigation. Both Quaker/Global Houghton and Knauf/Armstrong (Case COMP/M.8492), Commission decision of December 11, 2018, were conditionally cleared in Phase I by the Commission in 2018 after pulling and refiling the notification. Although this strategy was used in earlier years, for example in Boehringer Ingelheim/Sanofi (Case COMP/7917), Commission decision of November 9, 2016, pre-notification discussions have instead generally been used as a major tool to avoid Phase II investigations in the EU and they continue to be frequently used if an in-depth investigation is expected.