TDI Metro Limited / Joseph John Patchell [1998] IECA 509 (17th June, 1998)

3 TDI Metro Limited (“TDI”) is a company incorporated in the State. Its ultimate parent company is the Westinghouse Electric Corporation of Pittsburgh, Pennsylvania. It is engaged in the sale of advertising space in the transport and outdoor hoarding markets. TDI’s turnover in 1995 was IR£3.9 million. In November 1995 CIE, the Irish state transport company, granted TDI an exclusive five-year licence to sell advertising space on its poster sites, on buses, trains and bridges and on other CIE properties. This licence is the subject of a separate notification to the Authority (CA/17/96).

4 Roadshow is a company incorporated in the State in 1994. It is engaged in the business of outdoor advertising displays. [Turnover for the financial year ending 31 March 1997 was £272,292.] Pre-tax profits rose to £78k, up from £42k in 1996. Roadshow had an authorised share capital of £100,000 divided into 100,000 ordinary shares of IR£1 each of which 100 have been issued and fully paid up. The Vendor, Joseph John Patchell is the beneficial owner of the Company’s entire issued share capital.

5. The parties have submitted that there are a large number of marketing and advertising services available. They state that the expenditure committed to marketing and advertising activities by advertisers is generally divided between what is known as “above the line” and “below the line” expenditure. “Above the line” consists of expenditure on mainstream advertising media covering both display/space advertising (advertising media) and design/production costs. The mainstream advertising media are television, radio (local and national), newspapers (regional and national), magazines, cinema and outdoor. “Below the line” consists of expenditure on sales promotion, direct marketing and direct mail.

7. Outdoor advertising thus represents 6.9% of the total expenditure on media advertising in the State. Outdoor advertising consists mainly of roadside posters, transport advertising (buses, DART, train stations), airport displays, perimeter advertising at sports stadia, shopping centre advertising and bus shelter advertising. Transport advertising on all trains, the DART, Bus Atha Cliath and Bus Eireann is carried out by TDI under exclusive licence from CIE. Metro Poster Advertising Limited is not involved in transport advertising.

9. In its decisions on David Allen Holdings Limited [8], the Authority considered the question of definition of the relevant market in the context of outdoor advertising. While acknowledging that all of the advertising media mentioned above could be considered to be substitutes to some degree, with clients choosing among them based on cost, audience and product, the Authority decided that on balance, it believed that the outdoor advertising market constituted a distinct product market and that larger size posters constituted a distinct market segment within the overall outdoor advertising sector. The Authority also noted that barriers to entry existed in the market. The cost of negotiating advertising rights with a property owner, obtaining planning permission for an advertising display and erecting an advertising structure would be approximately IR£2,000 per 48-sheet site at that date (1994). The planning regulations, which limited the number of new structures which could be erected, significantly constrained the extent to which a new entrant could construct panels or a small firm could expand.

10. The Authority also noted that there was a trend in the market towards poster networks, which would require that a firm establish a widespread range of poster sites in order to be able to enter the market effectively. The 1991 Annual Report of Avenir Havas Media, the parent company of David Allen Holdings, pointed out that a poster network was made up of a set of billboards linked by the same marketing idea, with local networks for cities, for urban areas, for regions or even national networks. This tended to imply that effective entry to the market would require a firm to establish a widespread range of poster sites. Technical advances within the industry, the growth of packages by leading firms and other improved services tended to make it more difficult and more expensive for smaller firms to compete.

11. In the present case the Authority considers that, for the same reasons as those given in the David Allen Holdings cases, 48-sheet posters should be considered as a separate market segment. This treatment is also in line with the UK Monopolies and Mergers Commission’s 1987 report on a merger within the UK outdoor advertising market [9], which found that, while outdoor advertising represented only a small proportion of total advertising, it nevertheless constituted a distinct product market. It also found that large outdoor posters comprised a separate market from other forms of outdoor advertising. The Authority will therefore treat 48-sheet posters and all other poster sizes as separate markets. The geographical market is the State.

14. The notified arrangements consist of an agreement between Joseph John Patchell (the Vendor) and TDI (the Purchaser) for the purchase of the entire issued share capital of Roadshow. Clause 2.1 of the Agreement states that the Vendor shall sell, Purchaser shall purchase, the Shares. Clause 3 deals with completion and conditions. Clause 3.4 provides that on Completion, the Purchaser and the Vendor shall enter into the Employment Agreement [15] and Clause 4 sets out conditions pending Completion relating to ordinary course of business, access to records, consultation and announcements.

15. Clause 5 of the Agreement relates to Warranties which are set out in the Third Schedule. The warranties cover capacity and title, accuracy of information about the constitution of the company and returns to the Registrar of Companies, financial information, general business information, employment, pensions and benefit schemes, insurance, taxation and other corporate information. Clause 11.5.1 states that the Company is not in breach of competition law. Clause 11.5.2 states that the Company has not made any notification to the Competition Authority. Clause 11.5.3 states that the Company has not abused a dominant position.

“Clause 6.1 Restrictions : For the purpose of assuring to the Purchaser the full benefit of the business and goodwill of the Company, the Vendor undertakes with the Purchaser for itself and as trustee for the Company that for so long as the Vendor shall be employed by the Purchaser and for a period of two years thereafter the Vendor will not either for himself or for any other party other than the Company or the Purchaser in any way deal with any of the Panels or any panels used by the Purchaser or any subsidiary of the Purchaser nor will he (whether for himself or as employee, agent, consultant, contractor or otherwise for any other party other than the Company or Purchaser) carry on or be engaged in the business of 48 sheet admobile advertising. The Vendor shall procure that no body corporate owned or controlled directly or indirectly by the Vendor will act in such a way as would be a contravention of the obligations contained in this clause 6.1 if any Vendor were to so act.

6.2 Modification: While the restrictions in clause 6.1 are considered by the parties to be reasonable and indispensable in all the circumstances as at the date of this Agreement, it is acknowledged that restrictions of that nature may be invalid because of changed circumstances or other unforeseen reasons; therefore, if any restrictions are held to be void by any court or regulatory authority but would be valid if part of the wording were amended or the relevant period or scope reduced, those restrictions will apply with the modifications necessary to make them valid and effective, and those modifications will not affect the validity of any other restrictions in this Agreement

17. Clause 7.1.1 of the Agreement states that the parties shall, as soon as possible after Completion make a notification of this Agreement to the Competition Authority under the Competition Acts seeking a certificate or licence. Clause 7.1.2 provides that the notification be made by the Purchaser acting on behalf of all the parties. Clause 7.1.3 states that the parties shall use all reasonable endeavours to ensure that the contents of the notification remain confidential. Clause 7.2.1 states that in the event of the Competition Authority granting a licence subject to conditions or if it proposes to grant a licence or issue a certificate subject to pre-conditions, then the parties shall amend this Agreement wherever necessary. Clause 7.2.2 states that if the Competition Authority grants a certificate or licence for a particular restriction for a shorter period than that specified in clause 6, then (if such a certificate or licence is acceptable to the Purchaser ) the duration of the relevant restriction or restrictions in clause 6 will be curtailed accordingly. However, the Purchaser, at any time prior to the expiry of the period of such a certificate or licence, will be entitled to decide that the parties shall make such further notifications to the Competition Authority, on the same terms as are set out above, as may be necessary in the future to cover the period of the said restrictions in respect of which a certificate or licence has not been granted, and the parties shall if necessary enter into another agreement in place of this Agreement to reflect such curtailment. The Purchaser may at any time during the period of the certificate or licence by notice in writing to the Vendor require the parties to make whatever further notifications to the Competition Authority may then be necessary to cover the period of the restriction not covered by the certificate or licence, and clause 7.1 will apply mutatis mutandis to the further notification. Clause 7.2.3 states that if a court amends any certificate or licence granted by the Competition Authority, then the parties shall amend this Agreement so as to conform to such amendments.

18. In support of its arguments for the issue of a certificate, the notifying party submitted that the arrangements did not so much prevent, restrict or distort competition but facilitated competition in the relevant markets by strengthening the First Applicant’s ability to compete with large competitors by having access to the resources of the Second Applicant. The merged entity would be further strengthened in competing with the larger competitors in the market. The accretion of business to TDI Metro would increase its overall outdoor advertising market share by about 1 per cent. They further submitted that there were many competitors left in the market after the Arrangement and new competitors would continue joining. There was no significant distortion of the market and there was likely to be a possible increase in trade by virtue of the emergence of the merged entity.

19. The notifying party stated that non-compete clauses can merit the issuance of a Certificate by the Competition Authority. It was clear from the jurisprudence of the European Court of Justice, the European Commission and the Competition Authority that non-compete clauses which were reasonable did not prevent, restrict or distort competition and merited the issuance of a Certificate where they were necessary to transfer the goodwill. In support of their argument they quoted the Competition Authority’s decision in Woodchester /UDT (Decision No. 6). The parties also argued in favour of a five- year non-compete term. As the Agreement itself only contains a two-year non-compete clause, the Authority has ignored these arguments.

20. The Applicant submitted that the accretion of Roadshow’s business to TDI Metro Limited’s business in the relevant market in Ireland would be about 1 per cent and therefore the alteration in market conditions would be minimal [16]. The Applicant believed that the Agreement did not appreciably affect trade in the State and said that the Competition Authority was entitled to grant a Certificate (see Optical Fibres OJ 1986 L236/20).

21. The notifying party stated that Authority Decision No. 6, Woodchester / UDT set out the test for determining the compatibility of acquisitions with the 1991 Act, and they quoted paragraph 78 of the Decision in support of their argument. They further argued that licences were normally an unsatisfactory method of approving concentrations because such licences would be either for too short a period to be useful or too long so as to be unrealistic.

22. In support of its request for a licence, the applicant submitted that the Arrangement did not impose on the undertakings concerned terms which were not indispensable to the attainment of those objectives. The provisions in the Agreements were standard ones and were negotiated at arms’ - length. The restrictions were reasonable and necessary in the circumstances of the case. The merged entity would be a very small player in the context of the likely market structure over the next few years. The addition of Roadshow ’s share (of 1 per cent of the outdoor market) to TDI Metro Limited’s existing share was a very minor change.

23. The notifying party stated that the symbiosis of the two operations would assist in the efficiency of provision of services. Each company had different methods and would be able to benefit from the interplay. They stated that the fusion of the two businesses would result in improved efficiency and would thereby contribute to promoting economic progress. It would improve TDI Metro’s ability to compete with the larger competitors. The greater efficiency of the merged entity would be passed on to customers who would therefore obtain a fair share of the resulting benefit.

24. For the foregoing reasons, the notifying party argued that the Arrangement did not offend against Section 4(1) and even if it did, the Competition Authority ought to grant a licence for the purposes of Section 4 of the Act because this Arrangement did not impose on the undertakings concerned terms which were not indispensable to the attainment of those objectives; did not afford undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question; and having regard to all relevant market conditions, contributed to improving the productions or distribution of goods or provision of services or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit.

25. In 1987 the UK Monopolies and Mergers Commission investigated the acquisition by Mills and Allen, a subsidiary of Avenir Havas Media Group (the ultimate parent company of David Allen Holdings), of another firm operating in the outdoor poster advertising market in the UK. The MMC report found that the acquisition would have increased Mills and Allen’s share of the market to 33.8% and that this was likely to reduce competition and choice of supply in the relevant market and would in time lead to higher prices. While it found that Mills and Allen had introduced improvements to the industry which were beneficial, it concluded that there were unlikely to be sufficient benefits from the merger to offset the adverse effects identified and that it would therefore offend against the public interest.

26. In 1994 the Competition Authority refused to issue a certificate or grant a licence to two related agreements whereby David Allen Holdings Limited (DAH) would gain effective control over advertising panels belonging to Adsites Limited. Under one agreement, DAH would have acquired an exclusive right to market and sell advertising space on the Adsites panels. The other would have given DAH an option to purchase some 200 48-sheet advertising panels from Adsites, provided that DAH complied with its obligations under the related licence agreement.

27. In refusing a certificate or licence to these arrangements, the Authority noted that the market (for 48-sheet panels) was a highly concentrated one and that the effect of the agreement was to increase that level of concentration, bringing DAH’s share of such panels to 64%. DAH’s market share in Dublin was increased by more than 20%, so that the results of the arrangements were particularly anti-competitive in Dublin. There were significant barriers to entry in the market, particularly in the area of planning permission. Poster advertising by its nature was not subject to competition from imports. The Authority therefore concluded that the arrangements would result in a significant diminution of competition in the relevant market. This would still be the case even if it considered that all outdoor posters came within the definition of the market since it would still be a highly concentrated one and the arrangements would result in one of the two largest firms increasing its market share.

28. The Authority wrote to the notifying party expressing concern about some aspects of the agreement. These were, firstly, that Clause 6.1 restricted the Vendor from dealing with any of the panels concerned in the agreement, or with any panels used by the purchaser or any of its subsidiaries, for so long as the Vendor was employed by the Purchaser and for a period of two years thereafter. The Authority considered that this clause was of the nature of a post-employment restriction on the soliciting of suppliers. The Authority considered that this clause contravened Section 4(1) insofar as it extended for more than a year after the termination of employment. Secondly, Clause 6.1 also restricted the Vendor from engaging in the business of 48-sheet admobile advertising, for so long as he was employed by the Purchaser and for a period of two years thereafter. The Authority considered that this clause was of the nature of a post-employment non-compete provision and was not necessary for the transfer of the business, and that therefore Clause 6.1 contravened Section 4(1) in this respect also. TDI subsequently indicated in writing that they agreed to waive the benefit of the restriction on the vendor from dealing with any of the panels concerned in the agreement, or with any of the panels used by the purchaser or any of its subsidiaries, insofar as it applied for more than a period of one year, post-employment; and that they agreed to waive the benefit of the restriction on dealing with 48-sheet admobile advertising post-employment, in its entirety.

30. Section 3(1) of the Competition Act, 1991 defines an undertaking as “a person being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service.” Roadshow Advertising Limited is engaged for gain in the supply of outdoor advertising services in the State and is an undertaking. Joseph John Patchell as the owner of Roadshow Advertising Limited was at the time of the agreement also engaged for gain in the supply of outdoor advertising services in the State and was an undertaking. The agreement is an agreement between undertakings. The agreement has effect within the State.

31. The notified agreement is an agreement between undertakings for the sale of a business. The Authority has expressed its view in several previous decisions [17] that such an arrangement per se does not offend against Section 4(1). On 2 December 1997 the Authority published a Category Certificate [18] which applies to agreements relating to mergers and/or agreements for a sale of business. This Certificate sets out the conditions under which the Authority considers that a merger or sale of business agreement would not contravene Section 4(1). It also provides a guide to the Authority’s thinking on all aspects of such agreements, including any non-competition clauses which they may contain.

32. A merger would, in the Authority’s opinion, contravene Section 4(1) where it resulted in, or would be likely to result in, a lessening of competition in the relevant market such as would allow, for example, the merged undertaking or all of the remaining firms in the market to raise their prices, as the effect of the arrangement would be to restrict or distort competition. Other factors, such as the ease with which new competitors could enter a market, are also relevant in assessing a merger in the Authority’s view. Among the factors which the Authority believes need to be considered in order to decide whether a merger would have the effect of preventing, restricting or distorting competition is the actual level of competition in that market, the degree of market concentration and how it is affected by the merger, the ease with which new competitors may enter the market and the extent to which imports may provide competition to domestic suppliers.

33. It is clear that one competitor has a very large share of the market for 48-sheet posters (David Allen Holdings, with 59%). In its decision on the David Allen Holdings Ltd/Adsites Ltd option agreement [19], the Authority noted that DAH then had a market share of 56% in 48-sheet advertising panels and that the acquisition of Adsites would bring this to 64%. The Authority found that, in the two years preceding the notification, the national average DAH base card rate had increased by almost 10% and that actual prices for the year as a whole in 1994 had increased by between 1% and 3% more than the rate card figures. The Authority considered that these increases indicated that competition from other media sources did not impose a serious constraint on DAH increasing its prices.

34. DAH’s market share has now increased from 56% to 59%. While the licence agreement and option agreement with Adsites did not go ahead, Adsites was subsequently placed into receivership by DAH acting as a major creditor. At that time David Allen held a charge over the assets of the company and the Authority understands that DAH subsequently acquired some of Adsites’ poster sites. The number of smaller, independent companies in the market has been reduced in recent years as Summerbrook (with approximately 200 large panels), Nitelites (with 600 panels), Metro and Roadshow have all been acquired by larger companies - Summerbrook by DAH, 60% of Nitelites by More O’Ferrall and Metro and Roadshow by TDI. Thus an already highly concentrated market is becoming more concentrated. TDI is, however, an exception to the general trend since it is a successful new entrant - having only entered the market in late 1995 it now has an estimated 15% of the 48-sheet market through its five-year licensing agreement with CIE and its acquisition of Metro. The combined market share of TDI and Roadshow is 17%.

35. The Authority uses two measure of market concentration: the four-firm concentration ratio and the Herfindahl-Hirschmann index (HHI). The four-firm concentration ratio measures the combined market share of the four largest firms in the market. The HHI is the sum of the squares of the shares of all firms in a market. In the market for 48-sheet posters, the four-firm concentration ratio before the merger is 88 and the HHI is at least 3,800. Post-merger the four-firm concentration ratio is 90 and the HHI increases by 60. These figures indicate a highly concentrated market. They also indicate that the transaction would be excluded from the scope of the Category Certificate for Mergers, since the four-firm concentration ratio and the HHI exceed the thresholds laid down therein. This does not necessarily mean that the merger is anti-competitive, however; it simply means that a more detailed analysis is required in order to establish whether or not it might have an adverse effect on competition.

36. The Authority believes that there are significant barriers to entry in the market concerned. The requirement to obtain planning permission and the cost involved in assembling a large number of suitable poster panel sites reduce the threat of new entry. The Authority believes that in most instances planning permission would be required and that this would constitute a significant barrier to entry. Furthermore, the trend in the market towards nationwide poster campaigns implies that there is a minimum efficient scale, below which companies simply cannot compete because they cannot offer the services demanded by advertisers. This is supported by the tendency of small players to exit the market in recent years.

38. The merger undoubtedly results in increased concentration in an already highly concentrated market which exhibits barriers to entry and where potential competition from imports is non-existent. The question which the Authority must answer is whether the concentrative effect is more than counterbalanced, in competitive terms, by the potential of the merged entity to act as a check on the market power of DAH, in the 48-sheet poster market. On balance, the Authority believes that it is. The dominant feature of both markets is the strength of the big players. Smaller competitors have not proven successful in the long term in acting as a check on this strength. It appears that there is a certain minimum efficient size below which competitors cannot survive in the market. The Authority does not believe that it is in the best interests of competition in this market to preclude smaller competitors from growing by acquisition, since this would force them to stay small and prevent them from ever forming a viable competitive threat.

“Where there are only relatively few competitors and one firm has a large market share, the elimination of a competitor and its acquisition by the largest firm may be expected to restrict or at the very least distort competition unless there are offsetting factors at work. Even if all outdoor posters were deemed to constitute the relevant market, the level of market concentration would be sufficiently high for an acquisition by one of the largest firms to have adverse implications for competition. This is particularly so given that one firm accounts for a major portion of small posters.” [Emphasis added].

40. Taking into account all the circumstances of the markets concerned, therefore, the Authority considers that the effect of the notified transaction will be, not to reduce competition, but to increase it by increasing the ability of the combined entity to act as a competitive constraint on the behaviour of the largest firm in each market. The Authority therefore considers that, in so far as its horizontal effects are concerned, the notified agreement does not contravene Section 4(1).

41. As a general rule an agreement which contains restrictions on an undertaking competing is anti-competitive and contravenes Section 4(1). In the Authority’s opinion an exception to this general rule has to be made in respect of provisions in a sale of business agreement which restrict the vendor from competing with the business being sold, provided they are subject to certain limitations. The restraint must, however, be limited in terms of its duration, geographical coverage and subject matter to what is necessary to secure the adequate transfer of the goodwill.

42. In the present case Clause 6.1 restricted the Vendor from dealing with any of the panels concerned in the agreement, or with any panels used by the purchaser or by any of its subsidiaries, or from engaging in the business of 48-sheet admobile advertising, for so long as the vendor was employed by the purchaser and for a period of two years thereafter. In numerous previous decisions the Authority has consistently taken the view [21] that a post-employment non-compete provision could have the effect of extending the non-compete clause beyond the period necessary for the transfer of the business, and would therefore contravene Section 4(1). The Authority has also taken the view that a post-employment non-solicit restriction, if it extends for more than a year after the termination of employment, would contravene Section 4(1). TDI have now agreed to waive the benefit of the restriction on the vendor from dealing with any of the panels concerned in the agreement, or with any of the panels used by the purchaser or any of its subsidiaries, insofar as this restriction applies for a period of more than one year post-employment. TDI has also agreed to waive the benefit of the restriction on dealing with 48-sheet admobile advertising post-employment, in its entirety. The Authority considers that, in their amended form, the restraints contained in Clause 6.1 are no more than is necessary to transfer the goodwill of the business and that, accordingly, this clause does not contravene Section 4(1).

43. In the Authority’s opinion, TDI Metro Limited, Roadshow Advertising Limited and Joseph John Patchell are undertakings within the meaning of Section 3(1) of the Competition Act, 1991, as amended, and the agreement between them notified on 23 December 1997 (notification no. CA/23/97) is an agreement between undertakings. In the Authority’s opinion, the notified agreement, as amended, does not prevent, restrict or distort competition and thus does not contravene Section 4(1) of the Competition Act.

The Competition Authority certifies that, in its opinion, on the basis of the facts in its possession, the Share Purchase Agreement between TDI Metro Limited and Joseph John Patchell for the entire issued share capital of Roadshow Advertising Limited, notified under Section 7 of the Competition Act on 23 December 1997 (Notification No. CA/23/97) and as amended by letter of 12 May, 1998, does not contravene Section 4(1) of the Competition Act, 1991, as amended.

	4-sheet	6-sheet/ Europanel/ Superadlite	12-sheet	48-sheet	Total
More O’Ferrall/ Adshel	605[1]	[ ]	10[2]	[ ]	[ ]
David Allen [3]	-	71	43	2144	2258
CIE[4]	314	152	141	371	978
Metro[5]	190	146	22	173	531
Roadshow[6]				72	72
[ ]				[ ]	[ ]
[ ]				[ ]	[ ]
Other[7]	100	293	22	300	715
Total	1209	[ ]	238	3613	[ ]

More O’Ferrall/ Adshel	[ ]	[ ]
David Allen [10]	2144	59%
CIE[11]	371	10%
Metro[12]	173	5%
Roadshow[13]	72	2%
[ ]	[ ]	[ ]
[ ]	[ ]	[ ]
Other[14]	300	8%
Total	3613

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	Irish Competition Authority Decisions
You are here: BAILII >> Databases >> Irish Competition Authority Decisions >> TDI Metro Limited / Joseph John Patchell [1998] IECA 509 (17th June, 1998) URL: http://www.bailii.org/ie/cases/IECompA/1998/509.html Cite as: [1998] IECA 509

Irish Competition Authority Decisions

TDI Metro Limited / Joseph John Patchell [1998] IECA 509 (17th June, 1998)