Ex Post Assessment of European Competition Policy : Buyer Power in Concentration Cases

Buyer power effects in competition law remain a relatively unexplored area of the literature and practice. Even more scarce are concentration cases—instances in which the ability of a buyer to decrease the prices it pays for a good by withholding demand or through bargaining tactics play a major role in the assessment of a concentration.In this contribution, we focus on the retrospective analysis of three landmark buyer power concentration cases from the late 90s and early 2000s—Enso/Stora, Kesko/Tuko, and Carrefour/Promodès.These cases are studied as they represent interesting, rare and somewhat dissimilar examples of merger control in which buyer power has played a role—and does so in its different aspects, either to declare a concentration compatible with the internal market as countervailing power, as in Enso/Stora, or prompting concerns due to their possible exertion with respect to suppliers and associated downstream and selling-side competition risks, as is the case in Kesko/Tuko and Carrefour/Promodès, two mergers in the flood supply sector. All these mergers are horizontal ones taking place between competitive undertakings and our analysis of buyer power effects reflect this transaction structure. That said, anti-competitive effects from changes in bargaining position are also assessed as part of non-horizontal mergers by the Commission often under ‘partial foreclose concerns’.The objective of our study is, beyond discussing the merits of the case and the analysis made by the European Commission (hereafter ‘the Commission’), to illustrate the ways in which buyer power can be assessed in mergers, and some regulatory developments that can be linked to some of these cases in the food supply chain