Form G

Commonwealth of Australia

Competition and Consumer Act 2010 — subsection 93 (1)

NOTIFICATION OF EXCLUSIVE DEALING

To the Australian Competition and Consumer Commission:

Notice is hereby given, in accordance with subsection 93 (1) of the Competition and

Consumer Act 2010, of particulars of conduct or of proposed conduct of a kind

referred to subsections 47 (2), (3), (4), (5), (6), (7), (8) or (9) of that Act in which the

person giving notice engages or proposes to engage.

PLEASE FOLLOW DIRECTIONS ON BACK OF THIS FORM

1. Applicant

(a) Name of person giving notice:

(Refer to direction 2)

Total Oil Australia Pty Ltd ABN 15 149 501 922 (Total Oil Australia)

(b) Short description of business carried on by that person:

(Refer to direction 3)

Total Oil Australia distributes a range of oils, lubricants and ancillaries

(lubricants). Total Oil Australia has an agreement with Nissan Motor Co

(Aust) Pty Ltd (Nissan) under which it sells lubricants branded as Nissan

Genuine Oil (Nissan Oil) to Nissan for on-sale to Nissan and Infiniti car

dealers in Australia (dealers). The lubricants are purchased by Nissan and

Total Oil Australia delivers the lubricants to the dealers.

Total Oil Australia also sells lubricants under its own brands, Total Oil

Australia and Elf, to Nissan and a range of other customers either directly

or through other distribution channels.

(c) Address in Australia for service of documents on that person:

Richard Murphy

Partner

MinterEllison

Rialto Towers, Level 23, 525 Collins St

Melbourne VIC 3000

2. Notified arrangement

(a) Description of the goods or services in relation to the supply or acquisition of

which this notice relates:

This notification relates to:

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O the provision of finance to purchase lubricant storage and handling

equipment (equipment);

• the provision of equipment hire services; and

• the supply of lubricants.

(b) Description of the conduct or proposed conduct:

Total Oil Australia is proposing to:

O offer to supply dealers with finance to purchase equipment and/or

equipment hire on the condition that they purchase a minimum

volume of lubricants from Nissan or its related bodies corporate; and

O refuse to supply dealers with finance to purchase equipment or

equipment hire if they do not agree to, or fail to, purchase a minimum

volume of lubricants from Nissan or its related bodies corporate.

(Refer to direction 4)

3. Persons, or classes of persons, affected or likely to be affected by the

notified conduct

(a) Class or classes of persons to which the conduct relates:

(Refer to direction 5)

Nissan and Infiniti car dealers.

(b) Number of those persons:

(i) At present time:

There are approximately 200 Nissan and Infiniti dealers nationally.

(ii) Estimated within the next year:

(Refer to direction 6)

Total Oil Australia is not aware of any expected changes to the number of

Nissan and Infiniti dealers over the next year.

(c) Where number of persons stated in item 3 (b) (i) is less than 50, their names

and addresses:

N/A

4. Public benefit claims

(a) Arguments in support of notification:

(Refer to direction 7)

The proposed conduct would result in the following public benefits:

O Total Oil Australia becoming an additional provider of equipment

finance and hire for the dealers and thereby increasing competition in

those markets;

• increased competition in the supply of lubricants; and

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• enable dealers to obtain finance for lubricants equipment at a lower

cost.

(b) Facts and evidence relied upon in support of these claims:

Increased supply of lubricants equipment hire and finance

In the absence of the condition requiring dealers to purchase a minimum

volume of lubricants from Nissan, Total Oil Australia would be unlikely to

provide the dealers with finance or equipment hire. Accordingly, the

proposed conduct would increase the number of providers of these

services to the dealers.

Increased competition in the supply of lubricants to dealers:

Other suppliers of lubricants (eg Castrol, Valvoline, Shell, Mobil, Fuchs etc)

supply directly to customers such as car dealers and bundle the sale of

lubricants with lubricants equipment hire and/or finance. Total Oil

Australia must compete with these bundling arrangement which are

attractive to lubricant customers as they reduce their finance costs in

respect of lubricant equipment and their administration costs by dealing

with a single supplier.

As Total Oil Australia supplies to Nissan rather than the dealers, it can only

compete with these bundling arrangements by supplying equipment

finance and/or hire on the condition that dealers purchase a minimum

volume of lubricants from Nissan. Accordingly, the proposed arrangement

would mean that Total Oil Australia can bundle the sale of lubricants by

Nissan with equipment finance and/or hire from Total Oil Australia. This

would ensure that Total Oil Australia is competitive in the market for

lubricants.

Lower costs for dealers

Under the proposed conduct, Total Oil Australia is able to offer equipment

finance to dealers at lower cost than ordinary finance due to the

guaranteed volume of lubricants sold to Nissan.

Total Oil Australia would also be able offer dealers equipment finance or

hire for fees that aligned with the volume of lubricants purchased from

Nissan, such as charging fees on a cents per litre of lubricants purchased

basis equipment finance or hire.

The proposed conduct would also reduce dealers' administrative costs by

enabling them to effectively manage their demand for lubricants and

equipment with aligned suppliers.

5. Market definition

Provide a description of the market(s) in which the goods or services described at 2 (a) are supplied or acquired and other affected markets including: significant suppliers and acquirers; substitutes available for the relevant goods or services; any restriction on the supply or acquisition of

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the relevant goods or services (for example geographic or legal

restrictions):

(Refer to direction 8)

The market for the supply of lubricants is highly competitive and includes

competitors such as Castrol, Valvoline, Shell, Mobil, and Fuchs. Different

branded lubricants would be considered substitutable as they are

manufactured to certain industry standards (API, ACEA and JASO

standards).

For example, many dealers purchase generic lubricants and regard them as

substitutes for Nissan Oil.

The market for equipment finance and/or hire is also very competitive.

There are many other suppliers of lubricants (eg Castrol, Valvoline, Shell,

Mobil, Fuchs, etc) that offer customers lubricants bundled with equipment

finance and/or hire.

6. Public detriments

(a) Detriments to the public resulting or likely to result from the notification, in

particular the likely effect of the notified conduct on the prices of the goods or

services described at 2 (a) above and the prices of goods or services in other

affected markets:

(Refer to direction 9)

The proposed conduct will not have any detrimental impact on

competition in the markets set out in Section 5. The dealers are not

compelled to take up the offer of equipment finance and/or hire from

Total Oil Australia and are at liberty to acquire finance or equipment hire

from other competitors in the market.

Purchasers of lubricants (including the dealers) are able to readily switch

between lubricants suppliers, despite the existence of bundling by

suppliers of lubricants. This is because there are no barriers preventing a

supplier from offering a replacement bundling arrangement.

Total Oil Australia is not involved in the commercial arrangements between

Nissan and the dealers and dealers are free to negotiate the commercial

conditions of supply with Nissan.

Other than the guaranteed volume, dealers are not subject to any

exclusivity.

(b) Facts and evidence relevant to these detriments:

See above for details.

7. Further information

(a) Name, postal address and contact telephone details of the person

authorised to provide additional information in relation to this notification:

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Richard Murphy

Partner

MinterEllison

Rialto Towers, 525 Collins St

Melbourne VIC 3000

Dated CO OcrER (PO i1

Signed by/on behalf of the applicant

APH`l (Full Name)

M )1\)-rE R ELLA S 0

(Organisation)

PARTNJ ER

(Position in Organisation)

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DIRECTIONS

1. In lodging this form, applicants must include all information, including supporting

evidence that they wish the Commission to take into account in assessing their

notification.

Where there is insufficient space on this form to furnish the required

information, the information is to be shown on separate sheets, numbered

consecutively and signed by or on behalf of the applicant.

2. If the notice is given by or on behalf of a corporation, the name of the

corporation is to be inserted in item 1 (a), not the name of the person signing the

notice, and the notice is to be signed by a person authorised by the corporation

to do so.

3. Describe that part of the business of the person giving the notice in the course of

the which the conduct is engaged in.

4. If particulars of a condition or of a reason of the type referred to in section 47 of

the Competition and Consumer Act 2010 have been reduced in whole or in part

to writing, a copy of the writing is to be provided with the notice.

5. Describe the business or consumers likely to be affected by the conduct.

6. State an estimate of the highest number of persons with whom the entity giving

the notice is likely to deal in the course of engaging in the conduct at any time

during the next year.

7. Provide details of those public benefits claimed to result or to be likely to result

from the proposed conduct including quantification of those benefits where

possible.

8. Provide details of the market(s) likely to be affected by the notified conduct, in

particular having regard to goods or services that may be substitutes for the good

or service that is the subject matter of the notification.

9. Provide details of the detriments to the public which may result from the

proposed conduct including quantification of those detriments where possible.

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