Belgium: Commission refers supermarket acquisition to Belgian authority

The transaction, which meets the European merger notification thresholds, was initially notified to the European Commission (“Commission”). However, after a preliminary investigation, the Commission considered that the Belgian Competition Authority (“BCA”) is better placed to assess the acquisition, citing the fact that the transaction only concerns the Belgian territory and the BCA’s experience in the sector. 

On the basis of Article 4(4) of Regulation 139/2004 (the “EU Merger Regulation”), notifying parties may inform the Commission that they believe a transaction, which meets the European thresholds, should be analysed, not by the Commission, but by the competition authority of one of the Member States. The Commission can then, after conferral with the relevant Member State, refer the transaction, in whole or in part, to the national authority if the transaction 'may significantly affect competition in a market within a Member State which presents all the characteristics of a distinct market'. 

On the basis of information which is publicly available, Intermarché’s acquisition of Mestdagh’s supermarket activities indeed seems to tick all those boxes. First, the transaction exclusively concerns supermarkets located within Belgium. Second, as consumers are usually not willing to drive long distances to do their shopping, relevant geographic markets are typically considered to be distinct and local (limited to a certain distance around the supermarket – the so called “catchment area”).

The BCA has considerable experience in the supermarket distribution sector. For example, it previously assessed the acquisition by Mestdagh of 16 Carrefour supermarkets in Brussels and Wallonia. The BCA also goes beyond merger control. In 2015, for example, it concluded a large antitrust investigation into an information sharing and price fixing cartel concerning several large supermarkets, in which it imposed a total of approx. EUR 174 million in fines. In a recent case, the BCA also accepted engagements from Carrefour and Provera (Louis Delhaize group) over possible anticompetitive information exchange between parties in the context of a joint buying alliance which they had set up. The BCA was also concerned that the purchasing alliance could impact Carrefour and Provera’s commercial strategy.

The BCA’s press release on the Commission’s referral of the Intermarché/Mestdagh transaction can be found here in English, Dutch and French.

For more information, please contact Hein Hobbelen and Baptist Vleeshouwers.

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