Home > Legal articles > Dutch court overturns decision to block bakery merger
The highest administrative appeal court in the Netherlands recently annulled the decision by the Dutch regulator ACM to prohibit the transaction between two rival industrial bakeries due to a high combined market share in the Dutch rusk market. Contrary to earlier Commission decisions on food products, the ACM had concluded that the upstream rusk market included both branded and private label products. The court considered the ACM’s market definition insufficiently substantiated and annulled the ACM’s decision to block the merger. The parties are considering whether to claim damages from the ACM.
The ACM was concerned that the acquisition of Dutch baking company A.A. Ter Beek by rival baking company, Continental Bakeries, would result in a very strong player in the production and sales of rusks, with a combined market share of 70-80%. The ACM defined the relevant product market as consisting of rusks only, excluding other bread substitutes such as crackers and biscuits. It considered the upstream market to include branded as well as private label rusks due to:
On appeal, the parties claimed, amongst other things, that private label rusks and branded rusks constituted separate upstream markets, particularly due to the different procurement procedures. But the District Court found that it had no reason to doubt the ACM’s market delimitation, as outlined above. The parties had not substantiated their claim with a private investigation. Additionally, the Commission decisions they had mentioned as precedents were too case-specific to apply to this matter.
However, on further appeal, the Trade and Industry Appeals Tribunal agreed with the parties and ruled that the ACM had neglected to substantiate why there was one upstream market for private label and branded rusks. Even if upstream producers of private label and branded rusks themselves and the retailers dealing with these producers take account of the substitution between private label and branded rusk on the downstream market, this does not necessarily imply that the producers’ market behaviour is disciplined in such way that there should be one single product market.
17 February 2021
Guidance on green cooperation: Dutch competition authority leads the way
17 February 2021
Green competition: how consumer law can help prevent misleading sustainability claims
17 February 2021
Signed charter needed for foreign in-house counsel to have legal privilege
17 December 2020
Digital Services Act and Digital Markets Act: Commission flexes its muscles
16 November 2020
Fake online reviews – back as area of enforcement by competition authorities
12 November 2020
23 October 2020
Privilege of foreign in-house counsel: English court sets standard, Dutch to follow?
15 October 2020
14 October 2020
Foreign investment screening in Dutch vital sectors – what we know so far
14 October 2020
Investment screening in the Dutch telecoms sector as of 1 October 2020
De Brauw Blackstone Westbroek
Claude Debussylaan 80
1082 MD Amsterdam
The Netherlands
P.O. Box 75084
1070 AB Amsterdam
The Netherlands