On 22 January 2025, the Prosecutor General of the Belgian Competition Authority (BCA) initiated an investigation into Dossche Mills' envisaged acquisition of Ceres' artisan flour business, despite the transaction not meeting the notification thresholds. This marks the second instance where the BCA relies on the Towercast case law of the Court of Justice of the European Union (CJEU) to investigate a below-threshold merger, this time in relation to a possible infringement of the general prohibition on anti-competitive agreements.[1]

The Dossche-Ceres Investigation 

Earlier in January 2025, Dossche Mills agreed to acquire Ceres’ artisan bakery business. As this business generates an annual turnover of less than 40 million euros, the transaction was not notifiable under the Belgian merger control regime. 

The Prosecutor General of the BCA, however, states to have “found serious indications” that the transaction could cause a “significant impediment to effective competition”.[2] 

Although the Prosecutor General does not specify the indications identified, the press release offers some additional context. First, Ceres and Dossche Mills are the largest producers and suppliers of artisanal flour in Belgium, suggesting that the transaction could significantly impact this market segment. Second, this transaction follows an initial attempt by Dossche Mills to acquire Ceres in its entirety in 2019. When the BCA raised serious concerns about the transaction's compatibility, the parties decided to abandon it. Third, Dossche Mills, Ceres and other industry participants were found to have engaged in anti-competitive behaviour, including efforts to stabilise market shares amidst structural overcapacity and increased purchasing power. The parties were discovered to have made anti-competitive agreements regarding prices, market division, and capacity limitations, as well as exchanging commercially sensitive information. Finally, the BCA notes that Dossche Mills has already acquired several competitors over the past decade, including some of the parties involved in the anti-competitive behaviour for which the BCA imposed fines in 2013. This suggests the Prosecutor General’s concerns may also revolve around general market concentration. 

Application of the Towercast doctrine to Article 101 TFEU

The first time the BCA relied on the Towercast case law, it had concerns that Proximus, Belgium’s incumbent telecom operator, was abusing its dominant position on the market when acquiring EDPnet, a telecom provider.[3] [4]This time round, the BCA has concerns that the acquisition deal between Dossche Mills and Ceres would amount to an anti-competitive agreement.

In doing so, the BCA follows in the footsteps of the French Competition Authority (FCA), which scrutinised five asset-swap transactions in the meat-cutting sector under Article 101 TFEU. These transactions likewise did not meet the necessary conditions for notification under French merger control rules. Although the FCA ultimately closed its investigation in May 2024 without taking action against the transactions, it provides insight into key aspects of applying Towercast in the context of Article 101 TFEU. Specifically, the FCA dismissed the notion that a concentration could constitute a restriction of competition by object, implying that the authority must carry out an in-depth assessment of the effects of transactions.

We therefore anticipate that the key issue for the BCA in its investigation of the proposed transaction will be to establish the appropriate legal test and the standard of proof required.

Conclusion

The BCA's investigation into the proposed acquisition by Dossche Mills of Ceres is a prime example of the Belgian authority’s proactive approach to competition enforcement, particularly in the context of below-threshold mergers. 

Parties contemplating transactions should be mindful of this development, particularly if they operate in concentrated markets. It is advised to ensure the possibility of regulatory scrutiny is properly accounted for in transaction documentation, in particular with respect to the period between signing and closing.

If you need more information or further guidance in this area, please contact Baptist Vleeshouwers and Claire De Neve.

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[1] Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article IV.1 of the Belgian Code on Economic Law.

[2] Belgian Competition Authority, press release of 22 January 2025 , nr. 3/2025. 

[3] See our article here for more information.

[4] See our article here for more information.