On 5 October 2012, the Dutch Competition Authority ("NMa") published its second phase decision regarding the proposed merger between the two largest producers of frozen snacks in the Netherlands, Buitenfood and Ad van Geloven (Case 7313). Despite the conditional clearance decision, the parties ultimately decided to call off the transaction. The decision is nevertheless interesting since one of the remedies implied that one of the most well-known Dutch brands for frozen snacks would after a six-year period no longer be sold in Dutch supermarkets.
Buitenfood and Ad van Geloven produce branded and private label frozen snacks for the retail market (supermarkets) and, through wholesalers, for the out of home market (hospitality industry, e.g. restaurants and bars). Well-known brands of these producers are Mora (Ad van Geloven), Van Dobben and Kwekkeboom (Buitenfood).
In its decision the NMa concluded that the merged undertaking would gain too strong a position on the Dutch supermarket segment for croquettes and bitterballen (small croquet balls). The NMa found that the merger would eliminate competition between branded croquettes and bitterballen produced by Buitenfood on the one hand and branded and private label croquettes and bitterballen produced by Ad van Geloven, on the other hand. Furthermore, the NMa was concerned that competitors producing these snacks for supermarkets, would not be sufficiently able to compete with the merged entity. Finally, the NMa considered it unlikely that the supermarkets possessed countervailing buyer power to discipline the position of the merging parties.
Buitenfood and Ad van Geloven subsequently offered remedies to remove the competition concerns. One of the remedies implied that Buitenfood had to transfer to a competitor a licence to sell for a period of six years "Van Dobben" croquettes and bitterballen to Dutch supermarkets. During these six years, that licensee had to 'rebrand' the Van Dobben croquettes and bitterballen. After the period of six years, the licensee would still be allowed to use the recipes of the snacks as well as the copyrights on the Van Dobben packing and advertising materials. After the six-year period, both the licensee and the merged undertaking would no longer be allowed to use the brand Van Dobben with respect to the sale to Dutch supermarkets.
However, a week after the decision was published, the parties announced that they had pulled the plug on the negotiations, for reasons unknown. It was only confirmed that the remedy as described above, did not form the only obstacle in the negotiations.