| Tue 31 May 2011, 14:35 | | THEE - The Competition Commission - Tribunal statement on the conditional |
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JSE
THEE
THEE - The Competition Commission - Tribunal statement on the conditional
approval of the merger between Wal-mart Stores Inc. and Massmart Holdings
Limited - 31 May 2011
Tribunal statement on the conditional approval of the merger between Wal-mart
Stores Inc. and Massmart Holdings Limited - 31 May 2011
Introduction
The Competition Tribunal has today approved the merger between Wal-Mart Stores
Inc. of the United States ("Walmart") and South African retailer Massmart
Holdings Limited ("Massmart"), subject to conditions which are contained in the
attached annexure.
The merging parties had initially argued for unconditional approval of the
merger, a position initially supported by the Competition Commission. Opposed to
this view were three government departments, Economic Development, Trade and
Industry and Agriculture, Forestry and Fisheries, who had proposed that the
merger be approved, but subject to conditions to protect the public interest.
Also intervening were the South African Commercial, Catering and Allied Workers`
Union ("SACCAWU") which is recognised by Massmart, the South African Clothing &
Textile Workers` Union ("SACTWU"), other unions organising workers in industries
which sell products into the retail sector and their federation Congress of
South African Trade Unions ("COSATU"). The unions had proposed that the merger
be approved subject to a wide range of public interest conditions, but that if
this was not possible, that the merger should be prohibited.
The evidence that the Tribunal considered differed in important respects from
that considered by the Competition Commission during its earlier investigative
process. In our proceedings we have had the benefit of further discovery of
documents at the instance of the government departments` team, and the testimony
and examination of witnesses brought by the intervenors.
This explains why the Commission changed its recommendation in argument at the
end of the hearing, from one of unconditional approval to one with suggested
conditions to meet the retrenchment dispute and the concerns over collective
bargaining rights. We commend the Commission for not taking a static approach to
the proceedings, but we believe that the undertakings furnished by the merging
parties largely address the Commission`s concerns.
The Tribunal process has also been instrumental in raising issues of concern
that, as we consider more fully below, the merging parties have seen fit to
react to by making certain undertakings, albeit that they do not concede that
they were legally obliged to do so. We appreciate the testimony of witnesses
and experts put up by all the parties in these proceedings.
Outcome
It is common cause that this merger raises no competition concerns. Walmart does
not compete with Massmart in South Africa and its only presence in the country
is a small procurement arm that sources local products for its stores globally.
The merging parties contend that the merger will indeed be good for competition
by bringing lower prices and additional choice to South African consumers. We
accept that this is a likely outcome of the merger based on Walmart`s history in
bringing about lower prices. However the extent of this consumer benefit is by
no means clear - Walmart itself has not been able to put a number to this claim,
only that it is likely.
Given our highly concentrated retail market, the strengthening of Massmart,
which is in some product categories only a number four or five size retailer,
measured in terms of sales, is likely to benefit consumers by strengthening
rivalry and improving choice.
This merger will also likely have certain losers. Walmart`s proposed entry into
areas presently under served by large retailers may displace certain small
businesses and in others, reduce the market share of some of the major
retailers. That is an inevitable consequence of the competitive process.
We are however required by the Act not to be indifferent to certain public
interest concerns caused by a merger, if they are substantial. The purpose of
public interest concerns is not to protect firms from losing out to market
forces, but to protect a substantial public interest. However the Act does
limit our ability to remedy public interest concerns in two ways. First, the Act
recognises only a limited set of public interest concerns as specified in the
Act. Second, the public interest concerns must be merger specific. Expressed
in less technical language, unless the merger is the cause of the public
interest concerns, we have no remit to do anything about them. Our job in merger
control is not to make the world a better place, only to prevent it becoming
worse as a result of a transaction. This narrow construction of our jurisdiction
has not always been appreciated by some of the intervenors who have sought
remedies whose ambition lies beyond our purpose. It is not our task to determine
whether those ambitions are legitimate public policy goals; only whether they
lie within our powers.
On the final day of this hearing the merging parties offered certain
undertakings to the Tribunal which they agreed might be imposed as conditions
for the approval of the merger. These undertakings were made to address certain
labour and local procurement concerns raised by intervening parties during the
course of the hearing process. The merging parties made it clear that in their
view the undertakings were not required legally in order for the merger to be
approved, but were offered to meet adverse perceptions about the effect of the
merger on the public interest.
Given that the merging parties have tendered certain conditions, our task in
assessing the merger has changed in emphasis.
The Tribunal will thus take the approach that it must examine if the
undertakings adequately remedy the merger specific public interests concerns
raised, on the assumption that they have been established, and provided that
their remit is within our jurisdiction. We have come to the conclusion that they
are adequate.
Conditions
One of the concerns raised by the intervenors relates to the effect of the
merger on employment. The effect on employment may not be confined to the jobs
of those employed by the merged firm - it may extend to those not employed by
the firm, but whose jobs may be threatened as a result of the merger. Further,
employment concerns may not only relate to jobs lost, but also, as we will
explain in our reasons, an adverse effect on conditions of employment. The remit
of how far we can go in addressing these concerns is controversial and we will
address this in our reasons. On the assumption that the merger will have
certain adverse affects on employment and conditions of employment, we have
examined whether the undertakings adequately remedy them.
Whilst Walmart`s expansion plans suggest that retrenchments of the existing
workforce are unlikely and that increased employment is more likely, the parties
have given an undertaking that there will be no retrenchments at Massmart for
two years for merger specific reasons. Although the undertaking is diluted by a
redeployment exception, we find that as post merger retrenchments are not
likely, the undertaking is adequate.
A hotly contested issue during the merger was whether certain retrenchments that
took place in June 2010 affecting certain Massmart employees were merger
specific. Whilst the retrenchments coincided with the commencement of the merger
negotiations there is no conclusive evidence that it was the cause. Despite
this the merging parties agreed during the proceedings to make an undertaking
that they will give preference to re-employing these retrenched workers if
vacancies arise and to recognise past seniority for this purpose.
A major concern articulated by the union intervenors was that the merger would
likely lead to a diminution of their collective bargaining rights. The
undertaking to honour collective bargaining rights presently enjoyed addresses
this concern. It goes further in undertaking not to challenge the status of
SACCAWU as the largest representative of workers in its divisions and invites us
to determine the appropriate period for which this condition should hold. We
have determined that it should operate for three years.
Finally the parties offered an undertaking to address the local procurement
concern raised by the intervenors. Intervenors were concerned that as a result
of Walmart`s global purchasing powers, which dwarf those of Massmart, the merged
firm would be able to source cheaper imports and hence switch some of Massmart`s
procurement away from local manufacturers to imports, with adverse effects on
those employed in these sectors. No specific figure could be given to this
apprehended substitution by the intervenors, and the merging parties have
contested this, alleging that at worst local importers would be replaced by
direct imports and that there would not be a significant decrease in net
procurement from local manufacturers. Again this concern is the subject of
indeterminate evidence from either side. However, even if the concern is valid,
the undertaking for an investment remedy as suggested by the merging parties is
in our view appropriate, proportional and enforceable. It avoids concerns that
the conditions suggested by some intervenors to impose a form of quota of
mandatory domestic purchases on the merged entity, could violate the country`s
trade obligations, be anti-competitive or be incapable of practical
implementation.
Furthermore the investment undertaking is a more positive response to the
procurement concern. Instead of insulating local industry from international
competition for a period, it seeks to make local industry more competitive to
meet international competition. Whilst at a macroeconomic level the remedy is
modest, at the level of a single firm commitment it is not. Expenditure of
R 100 million over a three year period is significant. Further the remedy seeks
to engage those very critics of Walmart in the decision making process over the
disbursement of the funds, including representatives of small, medium and micro
enterprises ("SMMEs").
We note that the conditions have met some, but not all, the intervenors`
expectations of what conditions should be imposed. We will explain in our
reasons why some of these expectations are misplaced.
Because the undertakings are made as conditions for the approval of the merger
they are enforceable. Non-adherence can lead to serious consequences for the
merged firm, including the risk that the merger could be undone. This
illustrates that the parties view the undertakings as a serious commitment and
not a public relations gesture.
For this reason we have decided to approve the merger subject to the
undertakings made by the parties becoming conditions for the approval.
Reasons for the decision will be released on or before 29 June 2011.
Ends
______________________________
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