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Belgian Competition Authority Pursues Below-Threshold Merger on Basis of Article 101 TFEU

  • 23/01/2025
  • News

On 22 January 2025, the Belgian Competition Authority (BCA) announced that it would investigate the proposed acquisition of the artisan bakery segment of Ceres by Dossche Mills Group (Dossche), a transaction which is not notifiable under Belgian merger control rules because it does not reach applicable financial thresholds (see, attached press release). The BCA specified that it would proceed pursuant to Article 101, Treaty on the Functioning of the European Union (TFEU) and Article IV.1, Code of Economic Law (CEL). It thus bolstered its budding reputation for being a zealous guardian of competition in the face of corporate acquisitions which it considers as a threat to competition. The zeal is apparent in the BCA’s willingness to use non-traditional tools of merger control, when the dedicated tools, the merger control rules, do not apply.
 
Back in March 2023, the BCA opened proceedings against telecommunications operator Proximus to challenge its acquisition of EDPnet under the rules prohibiting abusive conduct by dominant companies (Article 102, TFEU and Article IV.2, CEL). That transaction was also not caught by Belgian merger control rules. The impetus for the BCA’s review was a judgment in case C-449/21, Towercast SASU v. Autorité de la concurrence and others, in which the Court of Justice of the European Union (CJEU) held that a concentration, such as a merger or an acquisition of a business, that does not reach the financial thresholds for review under European Union or national merger control rules may, post-transaction, still be made subject to an abuse of dominance review by a national competition authority pursuant to Article 102 TFEU. The BCA now relies on the same judgment to challenge Dossche’s acquisition, but it does not seek to combat an abuse of dominant position, but rather an agreement that allegedly distorts trade. Towercast could arguably be read to sanction both approaches.
 
The BCA’s concern stems from its understanding that Dossche and Ceres are the two largest producers and suppliers of flour to artisan bakeries in Belgium. The context of the case is peculiar in that Dossche had already tried to acquire all of Ceres in 2019 but had later abandoned the deal, a notifiable transaction, after the BCA had raised serious doubts regarding the transaction’s impact on competition on the affected markets. Earlier still, each of Dossche and Ceres had been fined, along with other parties, on account of collusive behaviour in both Belgium and the Netherlands.
 
Despite its firm stance against supposedly market-distorting transactions that are not caught by the merger control rules, the BCA is not the first competition authority to deploy Article 101, TFEU against a concentration. It follows in the footsteps of the French competition authority (FCA) which investigated under Article 101, TFEU five mergers in the form of asset-swap transactions in the meat-cutting sector. The deals were not notifiable under French merger control rules. While the FCA eventually, in May 2024, closed the case without challenging the transactions, it reminded the business community that Towercast has diminished the legal certainty which parties to below-threshold mergers had previously thought to benefit from.

Similarly, neither the FCA, nor the BCA would seem to be in urgent need of “call-in merger review powers” to tackle below-threshold transactions which in their judgment pose a threat to competition. The FCA has just launched public consultations on the subject, while the BCA has signalled that it would seek such statutory powers from Parliament once a new federal government is in operation (see, VBB Belgian Antitrust Watch of 25 October 2024). 

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