The French Competition Authority (“FCA”) prohibited the proposed acquisition of the hypermarket retailer Géant Casino by its competitor E.Leclerc in the French city of Troyes.  It found that the transaction would create a duopoly between the two remaining hypermarkets, Carrefour and E.Leclerc, risk increasing prices, and reduce the diversity of the offer for consumers.  It is the first time the FCA has issued a merger prohibition.

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:

  1. 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.
  2. 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. 
  3. 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.

Photo of Johan Ysewyn Johan Ysewyn

Johan Ysewyn is widely respected as a highly skilled European competition lawyer, advising on complex competition issues, including on merger control, anti-cartel enforcement, monopolisation cases and other conduct investigations. He acts as Co-Head of the firm’s Global Competition group and as Managing Partner…

Johan Ysewyn is widely respected as a highly skilled European competition lawyer, advising on complex competition issues, including on merger control, anti-cartel enforcement, monopolisation cases and other conduct investigations. He acts as Co-Head of the firm’s Global Competition group and as Managing Partner of the Brussels office.

Clients turn to Johan when they need cutting-edge competition and regulatory advice. He has been advising some of the world’s leading companies for over 30 years on their most complex competition issues. Johan is “an exceptional lawyer who is solution-oriented, has a remarkable ability to rapidly understand our business and has excellent reactivity.” (Chambers Global) Johan “attracts considerable praise for his reliable practice, as well as his great energy and insight into cartel proceedings.” (Who’s Who Legal)

Johan represents clients from around the world in dealings with competition authorities as well as in court litigation. He has in-depth knowledge of regulatory procedures and best practices as well as longstanding relationships with key regulators, in particular at the European Commission. He has also an active advisory practice covering a range of areas of interest to corporates, including the interplay between ESG goals and competition law, the impact of competition law enforcement on digital markets and broad strategic compliance issues.

Johan’s experience spans many industry sectors, with recent experience in telecoms and information technology, media, healthcare, consumer goods, retail, energy and transport. He has advised on several of the most major merger investigations in recent years. In addition, he has represented clients in many conduct investigations.

Johan’s practice also has a strong focus on global and European cartel investigations. He has acted for the immunity applicants in the bitumen and marine hose cartels, and acted for defendants in alleged cartels in financial services, consumer goods, pharmaceuticals, chemicals, consumer electronics and price benchmarking in the oil sector. He has acted for the European Payments Council in the first European Commission investigation into standardisation agreements in the e-payments sector. Johan has written and lectured extensively on international cartel and leniency-related issues. He co-authors the loose-leaf European Cartel Digest and lectures on cartel law and economics at the Brussels School of Competition.

Johan is also one of the leading experts on EU State aid issues, working both for beneficiaries and governments. He has advised a number of leading banks and governments, as well as represented major European airlines. From the cases that can be publicly disclosed, he has been involved in the Fortis, KBC, Dexia, Arco, Citadele, airBaltic and Riga Airport State aid cases.