By decision n°2018-FO-02 of 13 June 2018, the Competition Council ("Council") decided not to impose a fine following its own-initiative investigation of a horizontal cooperation agreement between small supermarket chains involving the joint commercialisation of a series of food retail products at common promotional prices through a website and brochures under the common label "Epiceries du Luxembourg".
The promotional actions and prices were determined at joint meetings between the companies involved. The Council found a horizontal price-fixing agreement in violation of Article 3 of the Law on Competition of 23 October 2011 ("Law") between the Pall Center group and Shopping Center Massen, whose retail sales of daily consumer goods partially overlap from a geographical perspective.
However, in order to determine the amount of the fine, the Council analysed whether the agreement restricted competition on the market for retail sales of daily consumer goods to an appreciable extent. It concluded that the restriction on competition was very limited both as regards the geographical area of activities affected and with respect to the affected sales volumes. It also considered that the cooperation agreement had pro-competitive effects beneficial to the consumer. According to the Council, these circumstances justified the absence of a fine.
Besides the non-imposition of a fine, a takeaway point is the Council's rigorous analysis of the food retail market on which the parties operate. From a product market point of view, the Council confirmed that service station shops form a separate market considering the reduced nature of the assortment they propose. From a geographical perspective, the Council identified, for each of the parties, the relevant catchment area of their activities allowing it to conclude that there was only a very limited geographical overlap.
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