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.