Articles

CBb ruled that the ACM wrongfully blocked merger between baking companies

CBb ruled that the ACM wrongfully blocked merger between baking companies

CBb ruled that the ACM wrongfully blocked merger between baking companies

01.03.2016 NL law

On 11 February 2016, the Trade and Industry Appeals Tribunal ("CBb") annulled the decision of the Authority for Consumers & Markets ("ACM") to block the proposed acquisition of A.A. ter Beek B.V. by Continental Bakeries B.V. (the "Parties"). 

The Parties both produced and sold rusk (beschuit) and gingerbread (ontbijtkoek) [see our April 2014 newsletter]. The CBb concluded that the ACM failed to substantiate its relevant market definition. As a result, the ACM's competitive analysis of the acquisition's effects lacked grounds.

On 14 December 2012, the ACM decided not to grant approval for the proposed acquisition [see our February 2013 newsletter]. The acquisition would lead to competitive concerns on the upstream market for rusk products, which could not be alleviated by the remedy the Parties offered. The ACM established the existence of competitive concerns after it found that the upstream market for rusk products comprised both branded and private label rusk products. As a result of its investigation, the ACM found that (i) there is a single downstream market for branded and private label rusk products and (ii) the substitutability of these products downstream significantly affected upstream negotiations between producers and retailers. On appeal, the Rotterdam District Court found that the ACM duly investigated the relevant market and fully upheld the ACM's decision.

On final appeal, the CBb ruled, first, that product variations - such as branded and private label rusk products - do not necessarily belong to the same market, even if these products are substitutable on a downstream level. Second, it found that branded and private label rusk products are subject to different procurement procedures. Private label products are procured through tenders, whereas branded label products are purchased through direct negotiations. This indicates the existence of two separate markets. Third, the CBb established that the ACM did not appropriately investigate whether branded label producers are able to discipline private label producers and vice versa. The ability to do so would generally imply that these producers compete on the same market. Finally, the CBb held that the ACM did not investigate other circumstances which could have supported a single product market for branded and private label rusk products.

Overall, the CBb concluded that the ACM failed to provide sufficient reasons for blocking the proposed acquisition, because it erred in defining the market. The CBb did not assess the other grounds of appeal brought forward by the Parties, as the erroneous market delineation already sufficed to overturn both the judgment of the Rotterdam District Court and the ACM decision.

The parties did not try to re-file the concentration because A.A. ter Beek B.V has meanwhile been acquired by a third party. However, the CBb's ruling might form a basis for Continental Bakeries B.V. to claim damages.

This article was published in the Competition Law Newsletter of March 2016. Other articles in this newsletter:

1. General Court largely confirmed Commission's freight forwarding cartel decision
2. European Commission qualified Dutch and Belgian tax regimes for seaports as state aid

Team

Related news

30.04.2019 EU law
Climate goals and energy targets: legal perspectives

Seminar - On Tuesday April 30th, Stibbe organizes a seminar on climate goals and energy targets. Climate change has incited different international and supranational institutions to issue climate goals and renewable energy targets. Both the UN and the EU have led this movement with various legal instruments.

Read more

04.04.2019 NL law
Fine liability in antitrust cases is closely scrutinised by Dutch courts

Short Reads - A parent company can be held liable for a subsidiary's anti-competitive conduct if the parent has exercised decisive influence over the subsidiary, because the two are then considered a single undertaking. This is why the Trade and Industry Appeals Tribunal (CBb) recently found that the ACM cannot simply rely on managing partners' civil liability to determine fine liability for a limited partnership's anti-competitive conduct.

Read more

12.04.2019 NL law
Hoogste Europese rechter bevestigt dat overheden onrechtmatige staatssteun proactief moeten terugvorderen

Short Reads - De maand maart 2019 zal vermoedelijk de juridisch handboeken ingaan als een historische maand voor het mededingings- en staatssteunrecht. Niet alleen deed het Hof van Justitie een baanbrekende uitspraak op het gebied van het verhaal van kartelschade. Het heeft in de uitspraak Eesti Pagar (C-349/17) van 5 maart 2019 belangrijke vragen opgehelderd over de handhaving van het staatssteunrecht op nationaal niveau.

Read more

04.04.2019 NL law
Tick-tock: no reset of the appeal clock for amending Commission decision

Short Reads - The European Court of Justice recently upheld the General Court's order finding that metal production and recycling company Eco-Bat had submitted its appeal outside of the appeal term. Eco-Bat had relied on the term starting from the date of the European Commission's decision correcting figures for the fine calculation in the initial infringement decision.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring