For announcement of referral see OFT Press Notice CR/064/03
Anticipated acquisition by Dräger Medical AG / Air-Shieldsfrom
Hillenbrand Industries Inc
Terms of Reference
1. Whereas in exercise of its duty under section 33(1)
of the Enterprise Act 2002 (“the Act”) to make
a reference to the Commission in relation to an anticipated
merger the Office of Fair Trading (“the OFT”)
believes that it is or may be the case that-
(a) arrangements are in progress or in contemplation which,
if carried into effect, will result in the creation of a relevant
merger situation in that:
(i) enterprises carried on by or under the control of Drager
Medical AG & Co KgaA will cease to be distinct from
enterprises carried on by or under the control of Hillenbrand
Industries Inc; and
(ii) as a result, the condition specified in section 23(3)
of the Act will prevail to a greater extent; and
(b) the creation of that situation may be expected to result
in a substantial lessening of competition within any market
or markets in the United Kingdom for goods or services namely,
the supply of neo-natal warming therapy products (which here
includes closed care incubators, open care warming beds, transport
incubators, photo therapy products, accessories and the provision
of aftercare services) in the United Kingdom.
2. Now, therefore, the OFT, in exercise of its duty under
section 33 of the Act and its power under section 36(5) of
the Act, hereby refers to the Competition Commission (“the
Commission”), for investigation and report within a
period ending on 3 June 2004, the following questions in accordance
with section 36 of the Act-
(a) whether arrangements are in progress or in contemplation
as described in paragraph 1 which, if carried into effect,
will result in the creation of a relevant merger situation;
and
(b) if so, whether the creation of that situation may be expected
to result in a substantial lessening of competition within
any market or markets in the United Kingdom.
3. In relation to the question whether a relevant merger
situation will be created, the Commission shall exclude from
consideration one of the subsections (1) and (2) of section
23 of the Act if they find that the other is satisfied.
18 December 2003
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