News & Positions - July 2022

Brands suggest adapting the rules governing joint purchasing to tackle new market realities

Brussels – 20 July 2022 – Joint purchasing activities between supermarkets have significantly increased in the past decade and reinforced the bargaining power of these retailers active in already highly concentrated markets. AIM, the European Brands Association, has submitted a series of proposed changes to the European Commission’s draft Horizontal Cooperation Guidelines (“draft HGL”) and R&D Block Exemption Regulation published on 1st March 2022[1] to ensure that the revised framework enables a fair and level playing field for a competitive and resilient supply chain in Europe. 

The FMCG market has undergone substantial changes since 2010:  

  • National retail markets are more concentrated than ever: between 2010 and 2019, the accumulated country share of the five biggest retailers in each national market across the EU rose from 73 to 78%. 
  • Unburdened by access fees from gatekeeping retail alliances unlike branded products, private label products have now reached a market share of 40% in several markets in Europe,[2] enabling leading retailers to further their vertical integration. 
  • Participation in gatekeeping retail alliances has expanded, with several retailers engaging in an extraordinary game of musical chairs across alliances,[3] as recent announcements illustrate.[4]  
  • Reinforced bargaining power through the proliferation of cooperation agreements has crystallised the existence of “must-have shelves”: a manufacturer, regardless of its own size, cannot afford to be absent from the shelves of retailers holding strong market shares, while those can coerce even the strongest suppliers into accepting their commercial conditions. Already in 2014, the German FCO had warned that “in individual cases even large manufacturers with well-known brands can be exposed to the retailers’ bargaining power”.[5] 
  • The dramatic increases of both the access fees charged and the number of collective delisting incidents and threats coordinated by gatekeeping retail alliances illustrate well the considerable bargaining power that large retailers have accumulated. 

This changed market context makes it even more necessary to re-assess whether gatekeeper alliances, which do not purchase themselves, should still enjoy the benefit of the block exemption meant to cover situations that “truly concern joint purchasing”. In particular, the long-held assumption that retail alliances lead to lower consumer prices, which cannot be substantiated simply by comparing apples with pears, as some retailers have attempted to do,[6] should not suffice to enjoy the said benefit.  

Instead, because retail alliances differ immensely from genuine purchasing groups in the way they operate and conduct business,[7] the HGL should distinguish properly between different forms of buy-side cooperation to fully capture the potential competitive risks associated with all forms of cooperation, without overestimating the potential for pro-competitive benefits. 

  • The HGL needs to clarify whether the collective negotiation of trading terms “truly concern joint purchasing” if the cooperating purchasers neither purchase together nor jointly negotiate the substantive terms of a supply agreement and condition their future purchases on the conclusion of a separate agreement under which they will act as suppliers rather than buyers. 
  • The HGL needs to focus on the relative bargaining power of the negotiating parties (i.e., the share of sales that each of the negotiating parties generates via the other party) in the relevant markets – not the size of the companies. While a single powerful retailer may represent more than 20% of a manufacturer’s turnover in a market, a manufacturer’s products may represent at most 1% – 2% of such retailer’s turnover. In that sense, a supplier typically loses more by losing access to a retailer than what a retailer loses by losing a supplier’s products. 
  • The HGL must reflect the market reality of “collective purchase stops” - a purchase stop may overshoot by going beyond the scope of the joint purchase negotiation. A measure cannot be qualified as ancillary if it is disproportionate relative to the underlying main agreement.[8] In fact, such coordinated commercial actions are naked coercion measures akin to collective boycotts that, by their nature, distort competition and therefore restrict competition by object. The determinative criterion for the analysis of collective commercial actions, such as purchase stops, should be whether the collective action remains within the scope of, and proportionate to, the joint negotiation 

 


Given the renewed importance of maintaining a competitive and fair supply chain in the current inflationary times – with unprecedented input and production costs impacting manufacturers across Europe, the HGL should help level the playing field in European retail markets by offering stricter rules on joint purchasing agreements to ensure that the harmful effects of gatekeeper retail alliances on competition, both upstream and downstream, are curtailed. 

[1] AIM, 10th May 2020, “AIM’s Comments on the draft Horizontal Cooperation Guidelines and R&D Block Exemption Regulation of 1st March 2022″

[2] PLMA International, 13th April 2021, “Private label maintains strong position across Europe”: retailer brands sustained their market share position above 30% in all but two of the eighteen European countries surveyed by Nielsen in 2020[, while] nearly half of the countries reached market shares above 40%”.

[3] AIM, 26th March 2021, “Musical chairs of retail alliances could spread further unfair business conduct across EU

[4] RetailDetail, 5th July 2022, “Louis Delhaize and Intermarché combine their buying power

[5] Bundeskartellamt24th September 2014, Sector inquiry “Buyer power in the food retail sector” 

[6] See Frontier Economics, March 2020, “Price Effects of Participation in National buying Groups – Prepared for Metro AG” and INSEAD, June 2022, “International Retail Buying Groups: A Force for the Good? The case of AgeCore/EDEKA”

[7] JRC Research Reports JRC120271, 9th May 2020, “Retail alliances in the agricultural and food supply chain”, p. 9: European retail alliances “typically do not engage in the joint buying of product, but close ‘on-top agreements’ with large A-brand manufacturers or formulate tenders for private label products.

[8] See for example Case T-208/13 Portugal Telecom, para. 97, and Case C-382/12 Mastercard, para. 89 and the case law cited there.

Contact 

For further information, please contact: Laurent Cenatiempo 

Tel: +32 2 736 03 05 • Email: Laurent.Cenatiempo@aim.be  

 

About AIM 

AIM (Association des Industries de Marque) is the European Brands Association, which represents manufacturers of branded consumer goods in Europe on key issues that affect their ability to design, distribute and market their brands. AIM’s membership comprises 2500 businesses ranging from SMEs to multinationals, directly or indirectly through its corporate and national association members. 

More information: www.aim.be