On 27 February 2014, the District Court of Rotterdam dismissed the appeal brought by two Dutch rusk and gingerbread producers against the ACM's decision to prohibit the intended acquisition of A.A. ter Beek by Continental Bakeries ("the Parties"). The Parties had notified the ACM of the intended transaction on 13 December 2011. The ACM feared that the transaction would lead the Parties to have a 70-80% market share on the Dutch market for the production of rusk. The ACM feared that this would result in decreased competition and a risk of higher prices for consumers. After a Phase II procedure, the ACM prohibited the transaction on 14 December 2012, rejecting the undertakings' proposed remedies of offering a production line to a competitor.
The Parties appealed against the ACM's decision before the District Court of Rotterdam. First, the Parties contended that the ACM erred in its definition of the relevant market by concluding that both the upstream (sales to retailers) and downstream (sales to consumers) level of trade are relevant, while the Parties are only active on the upstream level. Furthermore, contrary to the ACM's findings, the Parties contended that separate markets exist for branded rusk and private label rusk. Second, the Parties claimed that their market shares were incorrectly determined and therefore gave an inflated image of the Parties' market power. Third, the Parties contended that the ACM failed to take their customers significant countervailing buyer power into account. Finally, the Parties claimed that the ACM's rejection of their proposed remedies was economically incorrect and that the ACM incorrectly refrained from conducting a market test in order to appraise its proposed remedies.
The District Court dismissed all grounds of appeal. Most interesting is the fact that the District Court upheld the ACM's rejection of the remedy proposed by the Parties. The Parties had proposed to divest a product line for the production of rusk. They had proposed two potential buyers for the product line. The buyer could purchase the product line for EUR 1. The buyer would need to invest an undisclosed amount in order to get the production line operational and would be able to recoup that investment within one year. Because the costs of exiting the market were insignificant, the ACM feared that the potential buyer would not remain a lasting presence on the rusk market and therefore would not exert competitive pressure on the combined entity. Interestingly enough, the ACM earlier found that entry onto the market of new competitors would be unlikely due to the high costs of investment involved. However, the District Court agreed with the ACM that the remedy offered by the Parties did not sufficiently ensure that the buyer of the production line would become a lasting presence on the Dutch rusk market. The District Court dismissed the Parties' appeal, because the offered remedy could not ensure that the significant impediment of effective competition would not materialise.