The announced acquisition of Ceres’ artisan bakery segment by Dossche Mills has been abandoned less than two months after the Belgian Competition Authority (BCA) launched an investigation. This was not the first investigation by the BCA of a transaction that was not subject to notification under merger control rules. It is part of a broader trend in Europe, where competition authorities are developing new tools and enforcement methods that allow them to investigate acquisitions which, in principle, are not subject to prior merger control clearance.
Dossche Mills: the background
On 22 January 2025, the BCA announced that it would investigate the proposed acquisition of Ceres’ artisan bakery segment by competitor Dossche Mills. Although the transaction did not meet Belgium’s merger control thresholds, the BCA was investigating it under Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article IV.1 of the Belgian Economic Law Code (ELC).
Dossche Mills and Ceres are the two largest producers and suppliers of flour for artisan bakeries in Belgium. The BCA states that there are “serious indications” that the acquisition could lead to a “significant impediment to effective competition”. In its press release, the authority recalls that these parties had already tried to merge in the past. A notification procedure was initiated in 2019 for the acquisition of the whole of Ceres by Dossche Mills (including the activities in the industrial segments). However, that transaction was discontinued in 2020 in light of the BCA’s serious competition concerns. Moreover, in 2013, the then Competition Council found that Dossche Mills, Ceres and other parties in the Belgian flour sector had violated Article 101 TFEU and IV.1 ECL through anti-competitive horizontal agreements and the exchange of commercially sensitive information.
On 20 March 2025, the BCA announced that Dossche Mills and Ceres had chosen to abandon the proposed transaction. Following an accelerated investigation during which the investigation team contacted various industry players, the BCA had informed the parties of its preliminary conclusions. Shortly afterwards, the parties confirmed the termination of the transaction agreement. The BCA indicates in its press release that it will be closing the investigation.
New approach in Europe to mergers below financial thresholds
The BCA’s investigation is part of a tendency for European competition authorities to look for new ways of subjecting non-notifiable transactions to competition scrutiny because they may be anti-competitive. National competition authorities had been using the referral procedure under Article 22 of the Merger Regulation to get a grip on such transactions. Through this referral procedure, non-notifiable transactions could still be subject to prior merger control by the European Commission at the request of national competition authorities. However, this approach was rejected by the ECJ in the Illumina/GRAIL judgment of 3 September 2024.
In the wake of the Illumina/GRAIL judgment, several jurisdictions now allow the investigation of transactions that fall below traditional financial thresholds. These so-called “call-in powers” have now been given to competition authorities in Italy, Sweden and Denmark, for example. Many other Member States are expected to follow. For the time being, the BCA does not have call-in powers, although it has expressed its support for their introduction in Belgium.
However, NCAs can still apply the Towercast case law confirming that non-notifiable transactions can be investigated on the basis of abuse of dominance. This presupposes that a company has a dominant position and abuses it by making acquisitions. This has allowed the BCA to intervene in the past, as it did in March 2023, to block the acquisition of telecom provider EDPnet by Proximus.
The Dossche Mills investigation is different, as the BCA does not invoke an abuse of dominance but instead relies on the prohibition of anti-competitive agreements. This does not require the parties involved to have a dominant position in the market, which means that its application could potentially capture (many) more transactions. This is a novel approach taken by the BCA, although it is not the first competition authority to adopt this strategy. The French competition authority (Autorité de la concurrence) previously investigated five mergers in the form of asset swap transactions in the meat sector; the authority finally closed its investigation in May 2024 without taking any action.
Conclusion
The BCA’s investigation in the Dossche Mills/Ceres case was not without consequence, as the transaction was eventually abandoned. This shows that competition authorities, even without explicit call-in powers, can have a significant impact on non-notifiable transactions. The Dossche Mills/Ceres case confirms the deterrent effect of such investigations.
The shift in Europe towards stricter enforcement of transactions falling below the thresholds for merger control may cause concern in the business community due to the legal uncertainty it creates. However, not every transaction will be targeted, and the specific circumstances of each transaction should be analysed to assess the risks. Especially companies operating in highly concentrated markets – and in particular market leaders employing acquisition strategies – would be well advised to take this development into account. Companies that have tried unsuccessfully to merge in the past, or have encountered competition infringements, would also do well to keep in mind that transactions below the thresholds are not completely shielded from competition enforcement.
