De Minimis Exception Applies To Atlas Copco's Acquisition Of The Medical Gas Division Of Penlon

The OFT has recently published its decision on the anticipated acquisition by Atlas Copco Limited ('Atlas Copco') of the medical gas division of Penlon Limited ('Penlon') (announced on 7 July). The OFT recognised that although the transaction has the potential to create a substantial lessening of competition in the supply of terminal units used in medical gas systems, it was appropriate in the circumstances to exercise its discretion to apply the "de minimis" exception and therefore avoid a reference to the Competition Commission ('CC').

Atlas Copco and the medical gas division of Penlon overlap in the manufacture, installation and maintenance of primary medical gas pipeline equipment (including certain equipment systems and pipeline components) in the UK. In relation to terminal units, it was estimated that, post-merger, the merged entity would have a combined share of supply of 85 - 95% (with an increase of around 30%). Combined with customer concerns, the OFT concluded there was a realistic prospect of a substantial lessening of competition for the supply of terminal units triggering its duty to refer the merger.

The OFT then went on to consider whether the discretionary 'de minimis' exception may apply. The OFT's policy is to consider the application of the 'de minimis' exception to the duty to refer where the total value of the UK market in question is below £10 million (by applying a cost/benefit analysis).

The OFT first considered whether in principle 'clear-cut' undertakings in lieu ('UILs') were available. However, as Penlon's terminal...