The European Commission and a number of EU NCA’s, including the FCA, have been very focused on the competition issues facing the food retail sector. The European Commission has set up a specific “Food Task Force” dealing with food retail and is investigating a purchasing alliance between two French food retailers. Also, since 2015, the FCA has been scrutinizing and analysing joint purchasing agreements between retailers.
A recent example of this continued focus is the prohibition of the acquisition of joint control by Soditroy and E.Leclerc of a hypermarket – Géant Casino – in the city of Troyes (in the Northeast of France). The FCA decided to open a phase 2 investigation, focusing its competitive analysis on the local market characteristics and potential entry.
In Troyes, there are four hypermarkets owned by three different brands : E.Leclerc (1) , Géant Casino (1) and Carrefour (2). In the FCA’s view, the transaction resulted in a classic three-to-two scenario.
The FCA collected information from industry participants in the area, including hypermarkets, supermarkets, and discount stores and conducted customer surveys. Based on this investigation, the FCA found that the merger raised competition concerns.
From the outset, the parties attempted to challenge the well-established precedents on product market definition. According to the parties, hypermarkets see competitive pressure from specialized superstores, online sales, supermarkets and discount stores and are facing a change in consumer habits. The FCA did not accept that line of argument and decided to maintain its traditional market definition of “retail distribution predominantly for food products”.
In its decision, the Authority set out three key risks arising from the transaction:
- The disappearance of one leading brand (Géant Casino), which would have automatically caused a significant loss of diversity for consumers: After the transaction, consumers would have the choice between two hypermarket brands – Carrefour and E.Leclerc – whereas, before the merger, consumers had a choice among three. That would have resulted in an immediate harmonisation of the production offering and the commercial policies between the merged entities.
- A likely price increase: During its investigation, the FCA had found that, since 2018, the target – Géant Casino – consistently applied higher prices than its competitors which had resulted in a loss of consumers and poor sales performance. There was, therefore, an expectation that, without the acquisition, Géant Casino, at some point, would have been forced to decrease its prices. The mere fact of the acquisition – and the ensuing reduction in competition – would have enabled the Géant Casino hypermarket (under control from E.Leclerc) to maintain its high price policy.
- Facilitating the coordination of the behaviour of the hypermarkets operated by Carrefour and E.Leclerc: Analyzing the criteria for coordinated effects, the FCA found that the retail distribution market for food products was extremely transparent. It concluded that the two remaining hypermarkets would be in a duopoly situation and in a position to retaliate against any deviations from a tacit collusive outcome. Finally, the FCA found there was little possibility of entry that could challenge coordinated behaviour of the two hypermarkets.
In line with the European Commission, the FCA asked for structural remedies aiming at ensuring competitive market structures; in response, the parties offered to reduce the surface area of the target. However, the FCA did not accept that such a reduction would mitigate the threatened harm to competition. On the contrary, it found that this remedy would further reduce the available offering to consumers that likely would result from the merger. The FCA explained that, in general, a commitment to reduce production (in this case the available sales area) may lead to anti-competitive effects by reducing the quantity offered, which may lead to higher prices, and by reducing consumer choice. In the present case, the FCA found that the scarcity of supply on the market and the presence of barriers to entry would reinforce the market power of the incumbent operators.