Deal Reporter
BG/Shell could be approved on fast track in Brazil, source says
Royal Dutch Shell’s (LON:RDSA) acquisition of BG Group (LON:BG) is unlikely to trigger competition concerns large enough to derail the deal in Brazil, said a source close to the situation and several Brazilian antitrust lawyers.
The source close said a fast track process will be requested by the companies, and that he believed the Administrative Council for Economic Defense (CADE), Brazil’s antitrust authority, is likely to grant that request, though nothing is guaranteed.
A major factor cited by the attorneys was the market dominance of Petrobras (NYSE:PBR), Brazil’s state-owned oil and gas company.
Brazil market breakdown
According to a study released by the Brazilian National Agency of Petroleum, Natural Gas and Biofuels (ANP), Shell ranked third, trailing Petrobras and Statoil Brasil, in terms of February oil production per operator. Petrobras was overwhelmingly dominant, producing 91.3% of the oil generated by operators, while Statoil Brasil had 3.5%, Shell 3%, Chevron Frade 1.1%, and OGX 0.6%. BG Group did not show up on this list.
On another list produced by ANP, this one regarding production by concessionaires for the same month, Petrobras had 84.1%, BG Brasil had 4.5%, Statoil 2%, Shell 1.7%, and Repsol 1.6%.
In a conference call announcing the deal, Shell CEO Ben van Beurden said the company does not anticipate any “insurmountable” regulatory hurdles to completion.
The deal is conditional on antitrust approvals from CADE as well as China’s Ministry of Commerce (MOFCOM), the European Commission, and the Australian Competition and Consumer Commission (ACCC). The deal will also require approval from Australia’s Foreign Investment Review Board (FIRB).
CADE to go vertical
CADE will examine both the horizontal and vertical relationships between the two companies, the attorneys agreed. A horizontal deal is when a company is bought by a competitor, and a vertical deal is when one of the parties is a supplier to the other. BG and Shell are competitors, but BG is also a supplier to Shell, the source close and one of the attorneys said.
The most important aspect of CADE’s review will center around the vertical relationship between the two companies, the first attorney said. In Brazil, CADE considers 30% market concentration to be the trigger for examination in a vertical analysis.
Because BG is a supplier to Shell, the vertical relationship there may warrant “deeper analysis”, he said.
CADE timing
At CADE, a horizontal deal is generally fast-tracked and approved within 30 days if it would result in a less than 20% market concentration, the first antitrust attorney said. In a non-fast track situation, where there is a stronger causal link, the parties would see approval in a maximum of 330 days from notification.
While the complexity of CADE´s analysis will depend on just how the watchdog determines the sector´s relevant market, it should take around 40-50 days for CADE to announce its verdict on the subject after it receives the notification of the deal, estimated the second antitrust lawyer, adding that he does not expect it to be a “difficult analysis".
In the midst of the numerous corruption scandals playing out in Brazil, including those involving Petrobras, a third attorney noted that approvals are “more complicated than usual” these days. Despite that, CADE is very likely to approve the transaction, the attorney predicted.
Exploration and production
When examining the various business segments of the oil giants, horizontal market concentration is more likely to occur in the area of oil extraction, the first antitrust attorney said. However, because Petrobras is such a dominant participant in the market, it is unlikely that another company will have more than a 20% share, he said.
Transactions that result in horizontal overlap, but where the combined market share is less than 20%, can be fast-tracked.
The source familiar said the investigation will definitely be more focused on the exploration and production market. CADE could also look closely at gas sales, he added, noting that BG sells liquid natural gas (LNG) to Brazil. Shell also has interests in gas.
“They should have a discussion about it,” the source said, but reiterated that it was still not a deal breaker.
“The beautiful thing is that Petrobras’ concentration in Brazil is so great, that it won’t be an issue,” he said.