16 February 2016
ACM merger prohibition annulled by appeal court
In a rare higher appeal against a merger prohibition decision of the Dutch competition authority ACM, the higher appeal court (the CBB) annulled on 11 February 2016 both ACM’s decision and a lower court judgement. In 2012, ACM prohibited a merger of two producers of rusk (“beschuit”), combining the producer of the most important branded producer of rusk (Bolletje) with a significant private label producer (Continental Bakeries). ACM’s decision argued, in essence, that competition at the consumer level between branded and private label products implies upstream competition between producers of branded products and producers of private label products. The parties demonstrated substantial differences between the competitive conditions in the sourcing of branded and private label products by supermarkets, showing that these should, in this case, be considered separate relevant upstream markets. The higher appeal court sided with the parties, against ACM. RBB advised both parties to the transaction throughout the ACM procedure and in the appeal case alongside De Brauw Blackstone Westbroek.