Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE  
Europese Commissie, DG COMP MERGER REGISTRY, 1049 Brussel,  BELGIË  
 
Tel: +32 229 -91111. Fax: +32 229 -64301. E -mail: COMP -MERGE R-REGISTRY@ec.europa.eu .  EUROPEAN COMMISSION  
Brussels, 21.09.2020  
C(2020 ) 6585 final  
PUBLIC VERSION  
 
To the notifying p arty 
Subject : Case M. 9495 – FORTENOVA GRUPA / POSLOVNI SISTEMI 
MERCATOR  
Commission decision pursuant to Article 6(1)(b) of Council Regulation 
No 139/20041 and Article 57 of the Agreement on the European Economic 
Area2 
Dear Sir or Madam,  
(1) On 17 August 2020 , the European Commission received notification of a proposed 
concentration pursuant to Article 4 of the Merger Regulation by which Fortenova 
grupa d.d. ( ‘Fortenova ’, Croatia) acquires within the meaning of Article 3(1)(b) of 
the Merger Regulation sole control over Poslovni Sistemi Mercator  (‘Mercator ’, 
Slovenia), by way of purchase of shares (the ‘Proposed Transaction ’).3 Fortenova is 
referred to hereinafter as the ‘Notifying Party ’ and Fortenova and Mercator are 
referred to together  as ‘Parties ’. 
1. THE PARTIES   
(2) Fortenova  is a Croatian based entity established for the purposes of the restructuring 
of Agrokor  d.d. (‘Agrokor’,  Croatia) . On 1st April 2019, as part of a debt-for-equity 
                                                 
1  OJ L 24, 29.1.2004, p. 1 (the “Merger Regulation ”). With effect from 1 December 2009,  the Treaty 
on the Functioning of the European Union ( “TFEU ”) has introduced certain changes, such as the 
replacement of “Community” by “Union” and “common market” by “internal market”. The 
terminology of the TFEU will be used throughout this decision.  
2  OJ L 1, 3.1.1994, p. 3 (the “EEA Agreement”).  
3  Publication in the Official Journal of the European Union No C 280 , 25.08.2020 , p. 20.  
In the published version of this decision, 
some information has been omitted 
pursuant to Article 17(2) of Council 
Regulation (EC) No 139/2004 concerning 
non-disclosure of business secrets and other  
confidential information. The omissions are 
shown thus […] . Where possible the 
information omitted has been replaced by 
ranges of figures or a general description.  
 
 
2 restructuring, the business and all the assets of Agrokor with the exception of 
Mercator were transferred to Fortenova . At the same time,  the business and assets of 
Agrokor’s subsidiaries were transferred to Fortenova’s subsidiaries.   
(3) According to the Notifying Party, Mercator was not transfer red to Fortenova  with 
the rest of Agrokor’s business and assets  on 1st April 2019  because of  potential 
mandatory takeover implications that required further  consideration and thus  more 
time to prepare the business for transfer.4 As a result , Mercator remained with 
Agrokor . 
(4) Fortenova ’s core business is the production and supply of food and beverages and 
the retail s upply  of groceries/daily consumer goods (and related products). It 
operates through three core business segments:  
(a)  the retail and wholesale segment , which encompasses the retail supply of 
groceries/daily consumer goods;  
(b)  the food production and supply segment , which includes the production an d 
supply of mineral water, ice cream, oil, margarine and mayonnaise; and  
(c)  the agriculture segment, which encompasses activities in the production of 
cereal, oils crops, cheese, fresh fruit and vegetables, as well as the operation of 
livestock farms.  
(5) Mercator is headquartered in Slovenia . Together with its subsidiaries, it is primarily 
active  in the retail supply of daily consumer goods to end consumers via a network 
of retail stores, notably  in Slovenia . 
2. THE OPERATION  AND THE CONCENTRATI ON  
(6) The Proposed  Transaction forms part of the broader restructuring of Agrokor , the 
scope and objective of which is to maintain the operational business of the Agrokor 
group by substantially reducing its debt burden to a sustainable level so as to ensure 
that the restructured group (i.e. , Fortenova) has the capacity to fulfil  its liabilities in 
the long term  on the basis of a lasting strengthened equity capital basis.  
(7) On 6th April 2017, the Croatian Parliament passed the Law on the Procedure of 
Extraordinary Admini stration in Companies of Systemic Importance for the 
Republic of Croatia (the “ CSI Extraordinary Administration Law ”). The  CSI 
Extraordinary Administration Law  came into force on 7th April 2017 and on the 
same day Agrokor filed a petition to commence extra ordinary administration 
proceedings (the “Extraordinary Administration”).  
(8) The Extraordinary Administration procedure is overseen by the  Extraordinary 
Administrator in charge of restructuring Agrokor and negotiating  the terms set out in 
the Settlement Plan  of Agrokor Creditors (the “Settlement Plan” 5). With a view to 
implementing the Settlement Plan, the Extraordinary Administrator created several 
entities consisting of an ultimate holding company  in the form of a Dutch Stichting , 
Fortenova STAK, and vario us subsidiaries  including Fortenova . 
                                                 
4  Form CO, para. 9.  
5  http://nagodba.agrokor.hr/en/settlement -plan-agrokor -creditors/  
 
 
3 (9) The Proposed  Transaction is  carried out  in accordance with the terms of the 
Settlement Plan and a letter of intent entered into by Agrokor and Fortenova on 
15 July 2019. The Proposed  Transaction will result in Fortenova exercising  sole 
control over Mercator after acquiring the controlling 69.57% equity stake in 
Mercator held by Agrokor.  
(10) The Proposed  Transaction therefore constitutes a concentration within the meaning 
of Article 3(1)( b) of the Merger Regulation.  
(11) In contrast, the operation whereby, on  1st April 2019, Agrokor’s equity holders 
exchanged their existing debt in Agrokor for shares/depositary receipts in Fortenova 
STAK  and, concomitantly, the businesses and assets of Agrokor (except for 
Mercator) were transferred to Fortenova , was not notifiable under the Merger 
Regulation. In effect, as Fortenova could not be considered an undertaking when it 
acquired  control over Agrokor’s assets and businesses , control over the latter  was 
not acquired by “ one or more undertakings ” or by “ one or more persons already 
controlling at least one undertaking ”, within the meaning of Articles 3(1)(b) of the 
Merger Regulation .  
(12) Likewise, the operation whereby  Agrokor originally acquired a controlling stake in 
Mercator was not notifiable under the Merger Regulation because the relevant sale 
and purchase agreement was entered into prior to Croatia’s accession to the EU on 
1st July 2013, at a time when Agrokor’s EU turnover was below the turnover 
threshol ds provided for in Articles 1(2)(b) and 1(3)(d) of the Merger Regulation.  
3. EU DIMENSION  
(13) In 2019, Fortenova and Mercator achieved a combined aggregate worldwide 
turnover of more than EUR  5 000 million6 (Fortenova: EUR 3 167 million, 
Mercator: EUR  2 167 million) . Each of them also achieved  an EU -wide turnover in 
excess of EUR  250 million  (Fortenova: EUR […] million, Mercator: EUR […] 
million), yet they do not achieve more than two -thirds of their aggregate EU -wide 
turnover within one and the same Member State.  
(14) The notified operation therefore has an EU dimension  within the meaning of 
Article  1(2) of the Merger Regulation .  
4. RELEVANT MARKETS  
(15) Fortenova and Mercator are both active throughout the supply chain of daily 
consumer goods, namely in the production  and supply, procurement, wholesale 
supply  and retail supply of daily consumer goods. Within the EEA, Fortenova has a 
large  presence in Croatia and some activities in Slovenia , though not at retail level . 
In contrast, Mercator has a large  presence in Slovenia , notably at retail level,  and 
some de minimis  wholesale activities  and adjacent  procurement activities in Croatia.  
(16) The Parties’ activities overlap horizontally  to a limited extent  with regard to the 
procurement and wholesale supply o f daily consumer goods. In addition, v ertical 
overlaps between the Parties’ activities ar ise primarily  in Slovenia between 
                                                 
6  Turnover calculated in accordance with Article 5 of the Merger Regulation . 
 
 
4 Fortenova’s activities  upstream in the production and supply of daily consumer 
goods and Mercator’s activities downstream in the reta il supply of daily consumer 
goods.  
4.1. Relevant product markets   
4.1.1.  The pr oduction and supply of daily consumer goods  
(17) The P roposed Transaction concerns  the production and supply of daily consumer 
goods and agricultural products, the procurement  of daily consumer goods , the 
wholesal supply of daily consumer goods and the retail sale of daily consumer 
goods.  
4.1.1.1.  Previous cases  
(18) The Commission has segmented the production and supply of daily consumer goods  
market based on narrow product categories , thus as those discussed  in further detail 
below in Sections 4.1.1.1 (A) to (G) . 
(19) In the past the Commission also indicated7, that private label and branded products  
may within each category belong to the same market as there is a tendency for the 
customers to switch from  one grou p of the products to another; but left the question 
ultimately open.  
(20) In so far as food products are concerned, in past decisions the Commission has 
consistently distinguished between the production and supply of food products 
dedicated to the retail sector  and the production and supply of food products to the 
food service sector (i.e. the supply to out -of-home eating, institutional catering and 
the quick service restaurants sectors).8  
(A) Production and supply of frozen foods  including ice cream  
(21) The Commission ’s decisional practice concerning the frozen food sector 
distinguishes between  ice cream products and other frozen food products.9 
(22) The Commission  has previously distinguished between industrial ice cream (which 
is usually manufactured in specialised facili ties and its consumption site is 
independent of the production site and comprises a broad range of sweetened frozen 
desserts consisting of a number of major components, all of which are mixed 
according to different recipes, packaged and stored before deliv ery to downstream 
customers) and artisanal ice cream (which is produced by street vendors or bakers 
who produce themselves their ice cream, as well as ice cream parlours and small 
companies generally with less  than 10 employees, which offer their ice cream  
products at a local level).10 
                                                 
7   See, for instance, Case M.1740 – Heinz/United Biscuits Frozen and chilled foods (1999); Case 
M.7946 – PAI/Nestle/Froneri (2016), para. 44 et seq.; Case M.6348 – Arla Foods/Allgauland (2011), 
para. 28,  Case M.6895 – 3G Special Situations Fund III/Berkshire Hath away/H J Heinz Company 
(2013), para. 17 and Case M.8150 – Danone/The Whitewave Foods Company (2016), para. 36 et seq.   
8   Case M.5975 – Lion Capital/Picard Groupe (2010), para 10.  
9  Case M.7669 – Lion Capital/Aryzta/Picard Groupe  (2015).  
10  Case M.7946 – PAI/Nestle/Froneri  (2016), para. 15.  
 
 
5 (23) Within the market for industrial ice cream the Commission  has previously11 
identified distinct product markets for each of: (i) take -home ice cream, potentially 
further segmented by branded vs. private label (although the results of market 
investigations have been inconclusive regarding such a further segmentation); (ii) 
impulse ice -cream; (iii) catering ice cream (i.e. ice cre am sold to restaurants, hotels 
etc., and which is mainly sold and delivered in bulk to be consumed at the catering 
location). The Commission  has not previously considered it appropriate to further 
segment the market for artisanal ice cream.12 
(B) Production and  supply of edible oils  
(24) In previous decisions, the Commission has segmented the broader edible oils sector 
into the following sub -segments: (i) crude seed oil; (ii) refined seed oil which can be 
sold in bulk (“BRSO”); and (iii) refined seed oil which is packaged for sale to end -
users (“PRSO ”).13  
(25) The Commission  has also considered that olive oils are distinct from seed oils, and 
treated the former as forming a distinct product market. As the  Proposed  Transaction 
will only potentially give  rise to affected markets with respect to the production and 
supply of PRSO and olive oil, the correct market definition to adopt with respect to 
the supply of other oils has not been discussed further.  
(26) In its previo us decisions, the Commission did not consider it necessary to further 
segment the market for the production and supply of olive oil .   
(27) As regards PRSO, the Commission previous market investigations have indicated 
that it may not be necessary to define sepa rate markets based on  different types of 
seeds.14 
(C) Production and supply of vegetable (plant -based) fats  
(28) The Commission  has previously concluded that vegetable fats (namely, margarine) 
are not in the same market as packet butter, given the extent to which prices would 
need  to increase before inducing customers to switch from margarine to butter.15  
(29) In its previous decisions , the Commission did not consider further segment ations of  
the market for the production and supply of margarine .  
(D) Production and supply of cheese/dairy spreads  
(30) In previous decisions , the Commission  has considered dividing the cheese market 
according to ca tegory of cheese, that is, spreadable, fresh, soft, semi -hard and hard 
cheese.  
(31) The Commission  has also considered further segmentations based on type of 
presentation (e.g. slice, fixed weight and variable weight), type of milk used and 
protected geographic  status.16 
                                                 
11  Case M.7946 – PAI/Nestle/Froneri, para. 21 et seq.  
12   Case M.7946 – PAI/Nestle/Froneri, para. 21 et seq.  
13  Case M.7963 – ADM/Wilmar/Olenex JV (2016), para. 20. 
14  Case M.8068 – Bunge/Walter Rau Neusser Ől Und Fett  (2016), para. 15 et seq.  
15  Case M.8150 – Danone/The Whitewave Foods Company (2016), para. 14.  
 
 
6 (32) As noted above, t he Commission  has previously treated spreadable cheese (cream 
cheese and soft processed) as forming a distinct product market, and has undertaken 
a competitive assessment on this basis in a number of cases.17  
(33) In its previous deci sions, the Commission did not consider a further segment ation of  
the market for the production and supply of cheese/dairy spread.  
(E) Production and supply of cold sauces  
(34) The Commission ’s past decisional practice18 has defined a separate market for cold 
sauces  (which are typically used to add flavour to cooked food) from hot sauces 
(which  are employ ed during the cooking process).  
(35) As regards cold sauces, the Commission  has consistently further segmented  the 
market by type of cold sauce due to differences in char acteristics and use of  the 
products. As such, the Commission  has defined separate markets for the supply of  
each of ketchup, mayonnaise, mustard, salad dressing and other cold sauces.19  
(F) Supply of meat products  
(36) In its previous cases, the Commission  has drawn a distinction between the supply of 
fresh meat (i.e. fresh, frozen or minced meat that has not undergone any further 
processing, that is, no other ingredients or spices have been added, nor has the meat 
been cooked, smoked or dried) and processe d meat (i.e. meat products containing  
external ingredients such as salt, spices, being raw, dried smoked or cooked).20 
(37) The Commission  has previously concluded that the supply of fresh meat for further 
processing and the supply of fresh meat for direct human  consumption constitute two 
separate  markets. The Commission  has also segmented this market based on type of 
fresh meat.21  
(38) The Commission ’s decisional practice with respect to processed meat  has been to 
segment the market by narrow product categories. Whil st leaving the  precise market 
definition open, the Commission  has grouped processed meat products into  the 
following categories:22  
 Raw cured products – that is, products that will be cooked by the  consumer prior 
to eating. Some of the products may have alr eady received  some heat treatment 
(i.e. by smoking) but will still be viewed by  consumers as being raw. This group 
consists of bacon, larger pieces of  ham and loin cured or smoked.  
                                                                                                                                                      
16  Case M.6348 – Arla Foods/Allgauland (2011), para. 29.  
17  Case M.6348 – Arla Foods/Allgauland (2011) and Case M.2011 – Delta Selections/Arla Foods Hellas 
(2000). 
18  Case M.1990 – Unilever /Bestfoods (2000), para. 8 et seq; Case M.6895 – 3g Special Situations Fund 
Iii/ Berkshire Hathaway/ H J Heinz Company (2013), para. 13.  
19  Case M.6895 – 3G Special Situations Fund III/Berkshire Hathaway/H J Heinz Company (2013), 
para.  18. 
20  Case M.7565 – Danish Crown/Tican (2015), para. 17 and para. 21.  
21  Case M.7930 – ABP Group/Fane Valley Group/Slaney Foods (2016).  
22  Case M.7565 – Danish Crown/Tican, para. 22 and Case M.2662 – Danish Crown/Steff -Houlberg 
(2002), para 74. 
 
 
7  Processed meat for cold consumption (cold cuts or charcuterie) – that is,  
products that will not be cooked by the consumer before eating, but will  be 
consumed as is (typically in slices or dices). This category includes  dried ham, 
cooked ham and salami for sandwiches, which can also be used  in salads and 
cold starters.  
 Canned meat – that is, fully preserved meats in selected metal cans or glasses, 
which  have a prolonged shelf life at ambient temperatures. This product group 
includes canned ham, luncheon meat, cocktail sausages and semi -prepared 
meats with gravy and other  ingredients.  
 Cooked sausages – that is,  sausages which are cooked and consumed directly as 
sausages, typically after heating in  water, frying or grilling (including  sausages 
for hotdog stands).  
 Pates and pies – that is, pies, which are commuted  and heat-treated  products 
(baked or boiled) often including  ingredients such as liver.  
 Ready prepared dishes and components (convenience products) – that is, those 
products which typically requires  a higher degree of preparation for 
consumption, either being the co mplete meal itself or being a significant 
component of this (e.g.  meatballs, burgers etc.). Such products are often sold in 
frozen state but can also be sold as chilled products.  
(39) The Commission has also left open further sub -segmentations within the above 
categories (e.g. by type of raw product, such as, raw sausages, bacon etc.) and 
whether such product types should be further sub -divided according to the meat type 
(i.e. pork, beef etc.).  23 
(G) Production and supply of non -alcoholic beverages  
(40) The Commission ha s consistently defined a separate market for the supply of 
alcoholic and non -alcoholic beverages (“NABs”). As regards the latter, the 
Commission  has further distinguished between the supply of carbonated soft drinks 
(“CSDs”) and non -carbonated  soft drinks (“NCSDs”).  
(41) As regards NCSDs, the Commission indicated in past cases24 that it may be  
appropriate to further segment NCSDs into mineral waters, fruit juices, iced/ready -
to-drink (“RTD”) teas and energy and sports drinks , although it ultimately left the 
question on such segmentation open,  apart from distinguishing bottled water 
(comprising different types of still and carbonated waters, such as mineral water, 
spring water and treated water ) from other NABs25, and from  RTD teas.26 
                                                 
23  Case M.3401 – Danish Crown/Flagship Foods (2004).  
24  Case M.2276 - The Coca -Cola Company/Nestle/JV, para. 17; Case M.6924 - Refresco Group/ Pride 
Foods, para. 16. and Case M.8244 – The Coca -Cola Company/Coca_Cola HBC/Neptuno Vandenys 
(2016), para. 18 et seq.   
25  Case M.190 - Nestlé/Perrier, para. 8 et. Seq (1992) .  
26  Case M.6924 – Refresco Group/Pride Foods, para. 23. 
 
 
8 (42) The Commission has  to date left open the question whether bottled water should be 
further segmented (including into still and carbonated water) .27  
4.1.1.2.  The Notifying Party’s view  
(43) The Parties consider that most of the food products they produce  and supply 
(including edible oils, margarine, cold sauces, cheese, meats and NABs) are 
relatively  homogeneous . Therefore, customers  will focus more on price and volume 
than on the brand itself when purchasing such food products .28 More specifically, the 
Notifying Party considers that in part icular  the following food products are  
characteri sed by homogeneity: take -home ice cream  and fresh meat. 29  
(44) In addition, the Notifying Party  also considers that the edible oil  and margarine 
markets display a certain level of homogeneity, but that increasingly at  least a certain 
segment of customer (i.e. those that place a premium on perceived health  benefits) 
are placing a greater emphasis on product characteristics (e.g. margarine with  added 
omega -3 fatty acids due to the perceived cardiovascular benefits).30  
(45) However, Fortenova also points out  that there are other food products  - most notably 
impulse  ice cream, iced tea, bottled water, carbonated soft drinks and cold sauces 
(mayonnaise  and ketchup) – in relation to which customers  place great impor tance  
on the brand. According to the Notifying Party  these food products  are typically 
(although not always) associated with lower private label penetration.31 
(46) The Notifying Party did not take a view on other aspect s of the product market 
definition in rela tion to  the production and supply of daily consumer goods . 
4.1.1.3.  The Commission’s assessment  
(47) In the Commission’s market investigation,  a clear  majority of market participants 
who took a view agreed that the production and supply of food products dedicated to 
the retail distribution sector, on the one hand, and the production and supply of food 
products dedicated to the food service sector (i.e . the supply to out -of-home eating, 
institutional catering and the quick service restaurants sectors),  on the other hand, 
constitute separate product markets with different supply -demand dynamics.32 
(48) In light of the above , in line with previous cases  and for the purposes of this decision 
the Commission considers that th e production and supply of food products dedicated 
to the retail distribution sector and the production and supply of food products 
dedicated to the food service sector constitute separate product markets.  
                                                 
27  Case M.8244 – The Coca -Cola Company/Coca_Cola HBC/Neptuno Vandenys (2016), para. 21 et 
seq.  
28   See Form CO, paragraph 384.  
29   See Form CO, paragraph 387.  
30   See Form CO, paragraph 387.  
31   See Form CO, paragraph 388.  
32  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1), question 11; 
replies to questionnaire to wholesalers of daily consumer goods ( Q2), question 12; replies to 
questionnaire to retailers of daily consumer goods (Q3), question 12; replies to questionnaire to 
certain producers and suppliers of daily consumer goods (Q4), question 11.  
 
 
9 (A) Production  and supply of frozen foods including i ce cream  
(49) In the Commission’s market investigation, a majority of market participants who 
took a position agreed with the finding in previous cases that the production and 
supply of ice cream products, on the one hand, and other frozen food products, on 
the other hand, constitu te different product markets with different supply -demand 
dynamics.33 
(50) Further, a majority of market participants who took a view agreed in the market 
investigation that  the production and supply of  industrial ice cream, on the one hand,  
and, on the other hand,  the production and supply of artisanal ice cream constitute 
different product markets with different supply demand dynamics.34 
(51) Moreover, a majority of market participants who took a view in the market 
investigation agreed that  the p roduction and supply  of (i) take -home ice cream, (ii) 
impulse ice cream, and (iii) catering ice cream constitute different product markets 
with different supply demand dynamics.35 One market participant commented in this 
regard: “ Yes the packaging is comple tely different, the basic composition of the 
products is different and also the expiration dates themselves .”36 
(52) In light of the above and for the purposes of this decision the Commission considers 
that the production and supply of ice creams constitutes a s eparate product market 
from the production and supply of other frozen food. The Commission further 
considers that the production and supply of industrial ice cream constitute a separate 
market from artisanal ice cream. Further, there are strong indications  that the 
production and supply of (i) take-home ice cream; (ii) impulse  ice cream and (iii) 
catering ice cream constitute separate product markets. The exact market definition 
can, however, be left open. The Proposed Transaction does not raise serious doubts 
as to its compatibility with the internal market irrespective of this market definition.  
(B) Production and supply of edible oils  
(53) In the Commission’s market investigation, a clear majority of market participants 
who took a view agreed with the finding in previous cases that  the production and  
supply of  (i) crude seed oil; (ii) BRSO; and (iii) PRSO  constitute separate product 
markets with different supply -demand dynamics . Similarly, a clear majority of 
market participants who took a position in the marke t investigation agreed that olive 
oils, on the one hand, and seed oils, on the other hand, constitute separate product 
markets with different supply -demand dynamics.37 
                                                 
33  Replies to questionnaire to producers and suppliers  of daily consumer goods (Q1), question 13; 
replies  to questionnaire to wholesalers of daily consumer goods (Q2), question 14; replies  to 
questionnaire to retailers of daily consumer goods (Q3), question 14. 
34  Replies to questionnaire to producers and sup pliers of daily consumer goods (Q1), question 14; 
replies  to questionnaire to wholesalers of daily consumer goods (Q2), question 15; replies  to 
questionnaire to retailers of daily consumer goods (Q3), question 15. 
35  Replies to questionnaire to producers a nd suppliers of daily consumer goods (Q1), question 15; 
replies  to questionnaire to wholesalers of daily consumer goods (Q2), question 16; replies  to 
questionnaire to retailers of daily consumer goods (Q3), question 16. 
36  Replies to questionnaire to produ cers and suppliers of daily consumer goods (Q1) , question 15.1.  
37  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1), question 16; 
replies  to questionnaire to wholesalers of daily consumer goods (Q2), question 17; replies  to 
questionnaire to retailers of daily consumer goods (Q3), question 17; replies  to questionnaire to 
certain producers and suppliers of daily  consumer goods (Q4), question 16 .  
 
 
10 (54) As regards a potential further segmentation by seed type within the production and 
supply  of PRSO, the market investiga tion is inconclusive. A slight majority of 
market participants who took a view in the market investigation agreed that a further 
segmentation by different seed type within the production and supply of PRSO is not 
necessary .38 One producer /supplier explained in this regard  that demand -side 
substitutability was high . However, another producer/ supplier  brought forward that 
supply -side substitutability was limited “(…) due to different sources of purchase, 
prices and availability of  seeds to obtain PRSO .”39 
(55) In light of the above , in line with previous cases  and for the purposes of this decision 
the Commission considers  cases that the production and supply of (i) crude seed oil; 
(ii) BRSO; and (iii) PRSO constitute separate product mar kets. Similarly, the 
Commission considers that the production and supply of seed oil is separate from the 
production and supply of olive oil. A further segmentation of the three identified 
markets for the production and supply of  seed oil by seed type cann ot be excluded.  
The exact market definition can, however, be left open. The Proposed Tran saction 
does not raise serious doubts  as to  its compatibility with the internal market 
irrespective of this market definition.  
(C) Production and supply of vegetable (plan t-based) fats  
(56) In the Commission’s market investigation, a majority of market participants who 
took a view agreed with the previous Commission finding that the production and 
supply of margarine constitutes a separate product market with its own supply -
demand dynamics .40 Further, all market participants who expressed a  view further 
explained that they did not consider a further market segmentation with respect to 
the production and supply of margarine as appropriate.41 
(57) In light of the above and for the purposes of this decision the Commis sion finds that 
the production and supply of margarine constitutes a separate product market.  
(D) Production and supply  of cheese/dairy spreads  
(58) In the Commission’s market investigation, a clear majority of market participants 
who took a clear position agreed that the production and supply of (i) spreadable, (ii) 
fresh, (iii) soft, (iv) semi -hard and (iv) hard cheese each constitute separate product 
markets with different supply -demand dynamics.42 One producer and su pplier 
explained in this regard, that the preservation production and marketing policies 
were different.43 
                                                 
38  Replies to questionnaire to certain producers and suppliers of daily  consum er goods (Q4) , question 
16.2.  
39  Replies to questionnaire to certain producers and suppliers of daily  consumer goods (Q4) , question 
16.2.1 . 
40  Replies to questionnaire to certain producers and suppliers of daily  consumer goods (Q4), question 
15. 
41  Replies  to questionnaire to certain producers and suppliers of daily  consumer goods (Q4), questions 
15.2 and 15.3.  
42  Replies to questionnaire to certain producers and suppliers of daily  consumer goods (Q4), question 
13. 
43  Replies to questionnaire to certain pro ducers and suppliers of daily  consumer goods (Q4), question 
13.1.  
 
 
11 (59) As regards a potential further segmentation  based , for instance  on type of 
presentation (e.g. slice, fixed weight and variable weight), type of milk u sed and 
protected geographic status , responses from market participants were inconclusive. 
Some said they  agreed with a  further s egmentation, while some said that  they 
disagreed with a further segmentation .44 
(60) In relation to the production and supply of spreadable cheese, all of the  market 
participants who took a view in the market investigation agreed with the finding in 
previous cases, that the production and supply of spreadable cheese constitutes a 
distinct product market with different supply -demand dynamics from other dairy 
products and that no further segmentation is appropriate .45  
(61) In light of the above and for the purposes of this decision the Commission considers  
that the production and supply of (i) spr eadable, (ii) fresh, (iii) soft, (iv) semi -hard 
and (iv) hard cheese each constitute separate product markets. A further 
segmentation by type of presentation, type of milk used and/or protected geographic 
market can be excluded, with the exception of sprea dable cheese, where the market 
investigation suggests that no further segmentation is appropriate.  
(E) Production and supply of cold sauces  
(62) A vast majority of market participants who took a view in the market investigation 
agreed with previous Commission findi ngs (see Section 4.1.1.1 (E) ) that ketchup46 
and mayonnaise47 each constitute distinct product markets with specific supply -
demand dynamics.  One wholesale supplier stated in this regard: “„Ketchup“ has a 
special status within the other cold sauces. The production lines are normally 
separated from other products (e.g. from the production of natural cold sauces) also 
the production quantities are normally much higher .”48 
(63) The Commission therefor e finds that, as in previous cases, for the purposes of this 
decision, the production and supply of ketchup and the production and supply of 
mayonnaise each for m distinct product markets.  
(F) Supply of meat products  
(64) In the Commission’s market investigation, all of the market participants who 
expressed a view  agreed with th e finding in previous cases that the supply of fresh 
meat and the supply of processed meat  constitute distinct product markets with 
different supply -demand dynamics .49 Similarly, all of the market participants who 
took a clear position responded that the su pply of fresh meat for further processing 
                                                 
44  Replies to questionnaire to certain producers and suppliers of daily  consumer goods (Q4), question 
13.2.  
45  Replies to questionnaire to certain producers and suppliers of daily  consumer g oods (Q4), questions 
13.3 and 14.  
46  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , question 17 ; 
replies  to questionnaire to wholesalers of daily consumer goods (Q2) , question 18 ; replies  to 
questionnaire to retailers of daily consumer goods (Q3) , question 18 ; replies  to questionnaire to 
certain producers and suppliers of daily consumer goods (Q4), question 17.  
47  Replies  to questionnaire to certain producers and suppliers of daily consumer goods (Q4) , question 
17. 
48  Repl ies to questionnaire to wholesalers of daily consumer goods  (Q2) , question 18.1.  
49  Replies  to questionnaire to certain producers and suppliers of daily consumer goods (Q4) , question 
19. 
 
 
12 and the supply of fresh meat for direct human consumption constitute two separate 
markets.  
(65) In light of the above and for the purposes of this decision  the Commission considers 
that the supply of fresh meat for human consumption is a separate market from the 
production and supply of processed meat for human consumption. Further 
segmentations cannot be excluded. However, irrespective of a further segmenta tion, 
the Proposed Transaction does not raise serious doubts as regards its compatibility 
with the internal market.  
(G) Production and supply of non -alcoholic beverages  
(66) In the Commission’s market investigation, a majority of market participants who 
took a view  responded that the production and supply of carbonated water, still water 
and flavoured water each constitute  distinct product markets with di fferent supply -
demand dynamics, with one supplier and producer expressly mentioning different 
consumer habits , pricing and packaging strategies , as well as different growth 
rates.50 
(67) In light of its past decisions and for  the purposes of this case, the Commission 
considers that  within the broader market for the production and supply of non -
alcoholic drinks,  there are s eparate product markets each for  the production and 
supply of  CSDs and for the production and supply of NCSDs. The Commission 
further considers  in line with precedents  that bottled water constitutes a separate 
product market.  While the market investigation  indicates that the production and 
supply of carbonated water, still water and flavoured water might constitute separate 
product markets , in absence of serious doubts as to the compatibility of the 
transaction with the  internal market under any alternative market definition, the 
precise product market  definition can be left open in the present case.  
(H) Branded vs private label products.  
(68) With regard to a possible distinction between  the production and supply of  branded 
products and  the production and supply of  private label products, like in previous 
market investigations  (see Section 4.1.1.1  above) , there  are strong indications that 
the production and supply of branded and the production and supply of private -label 
products are part of the same product markets . 
(69) A clear  majority of suppliers and producers do consider that both production and 
supply categories b elong to the same product markets  across the above mentioned 
plausible product markets for daily consumer goods.51 Some producer s/supplier s 
explained that,  on the supply -side, the same manufacturing plants were producing 
the same branded and non -branded products, while on the demand -side consumers 
were less and less distinguishing between the two categories.52 One 
producer /supplier noted: “ In particular, ther e is a strong competitive relationship 
                                                 
50  Replies  to questionnaire to certain producers and suppliers of da ily consumer goods (Q4) , question s 
18 and 18.1.  
51  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1), questions 18 a nd 
18.2; replies to questionnaire to certain producers and suppliers of daily consumer goods (Q4), 
questions 21 and 21.2.  
52  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , question 18.1 ; 
replies to questionnaire to certain producers and suppliers of daily consumer goods (Q4) , questions 
21.1 and 21.2.1.   
 
 
13 between branded and non -branded/private label products, with the latter exerting 
significant competitive pressure on the former. It is increasingly difficult for 
consumers to distinguish whether products were manufact ured by a manufacturer of 
branded goods or whether they ar e being sold as a private label  product,  (…).”53 
(70) However, the Commission notes that a clear majority of both wholesale suppliers  
and retail suppliers  responded that the two categories belong to different product 
markets ,54 with one retail supplier explaining that private label products usually 
target customers with lower income and another retail supplier referring to the 
supply -side stating that produc tion facilities could be specialised and separated for 
private label products.55 
(71) In light of the above and for the purposes of this decision, the Commission notes that 
although there are strong indications that branded and private label products belong 
to the same production and supply markets across product categories , the results of 
the market investigation are mixed . However, th e exact market definition can  be left 
open. The Proposed Transaction does not raise serious doubts as to its compatibility 
with t he internal market irrespective of this product market definition.  
4.1.2.  The procurement of daily consumer goods  
4.1.2.1.  Previous cases  
(72) In previous decisions, the Commission has considered a distinct market for the 
procurement of daily consumer goods , comprising the pur chase of daily consumer 
goods by customers such as  wholesalers, retailers and other firms  from upstream 
producers and suppliers.56 
(73) In its decisional practice57, the Commission,  considered a segmentation of that 
market into 19 relevant product markets corresponding to different types of goods, 
namely : (i) meat and sausage s; (ii) poultry and eggs; (iii) bread and pastr ies; (iv) 
dairy products; (v) fresh fruits and vegetables; (vi) beer; (vii) wine and spirits ; (viii) 
non-alcoholic  beverages; (ix) hot bev erages; (x) confectionery; (xi) basic food 
products (xii) preserved food ; (xiii) frozen foods ; (xiv) baby food s; (xv) pet food s; 
(xvi)  body care articles (e.g. creams, lotions) and cosmetics (make -up and 
perfumes); (xvii) detergents , polishes  and cleaning products ; (xviii) other drugstore 
products; and (xix) other non -food products usually found in supermarkets (e.g. 
newspapers, magazines, entertainment).58 In one precedent59, the Commission also 
considered a different segmentation of the procurement market f or daily consumer 
goods into 2360 product categories. However,  this precedent, which related to 
                                                 
53  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , question 18.1.  
54  Replies to questionnaire to wholesalers of daily consumer goods  (Q2), question 19; replies to 
questionnaire to retailers of daily consumer goods (Q3),  quest ion 19.  
55  Replies to questionnaire to retailers of daily consumer goods (Q3) , question 19.1.  
56  Case M.8468 – Norgesgruppen/Axfood/Eurocash (2017), para. 22 . Case M.7920 – Netto/J 
Sainsbury/Dansk Supermarked/New Edlington/Hedon/Roundhay Road, para. 19, Ca se M.7224 – 
Koninklijke Ahold/Spar CZ, para. 10; M.1221 – Rewe/Meinl, para. 81.  
57  Case M.1221 – Rewe/Meinl (1999), para. 81.  
58  Case M.7920 – Netto/J Sainsbury/Dansk Supermarked/New Edlington/Hedon/Roundhay Road 
(2016), para. 20. 
59   M.7933 – Carrefour/Bi lla Romania and Billa Invest Construct, para. 17.  
60 (1) Liquids (including soft drinks, beer and cider, water, still wine, sparkling wine and spirits); (2) 
hardware store products (including cleaning products, sponges, toilet paper and kitchen rolls, 
 
 
 
14 Romania, included products typically sold in  hypermarkets but not in supermarkets 
(e.g., large domestic electrical appliances, hifi/  audio, TV/video). According to the 
Form CO, Fortenova and Mercator operate  supermarkets and discounters . Thus,  the 
sub-segmentation into 19 product  categories is more appropriate for the purposes of 
this decision.  
(74) The Commission also previously considered, but ultimately left open, w hether a 
further distinction should be  made between different sales channels, such as food -
retailing, specialised trade, delicatessen, cash and  carry stores and other wholesalers, 
drugstores and export trade.61 
4.1.2.2.  The Notifying Party’s view  
(75) The Notifying Party  took no view on the product market definition as regards the 
procurement of daily consumer goods.  
4.1.2.3.  The Commission’s assessment  
(76) The Commission’s market investigation showed that the findings of past cases in 
relation to the procurement of daily consumer goods are still appropriate.  
(77) A vast majority of market participants who expressed a view responded that there is 
a specific marke t for the procurement of daily consumer goods including food 
products to customers such as wholesalers, retailers and other firms from upstream 
producers and suppliers.62 
(78) Likewise, the market investigation showed that an overwhelming number of market 
partic ipants agree with the segmentation into 19 different procurement markets 
according to different product groups with different supply -demand dynamics found 
in previous cases, namely: (i) meat and sausages; (ii) poultry and eggs; (iii) bread 
and pastries; (iv) dairy products; (v) fresh fruits and vegetables; (vi) beer; (vii) wine 
and spirits; (viii) non -alcoholic beverages; (ix) hot beverages; (x) confectionery; (xi) 
basic food products  (xii) preserved food; (xiii) frozen foods; (xiv) baby foods; (xv) 
pet foods; (xvi) body care articles (e.g. creams, lotions) and cosmetics (make -up and 
perfumes); (xvii) detergents, polishes and cleaning products; (xviii) other drugstore 
                                                                                                                                                      
deod orants, insecticides, household soaps, washing products, water softeners, washing -up liquids, 
dishwasher products, all -purpose cleaning products/detergents); (3) perfumes/hygiene products (paper 
or cotton hygiene/sanitary products, perfumes, health -care pr oducts); (4) dry groceries (including 
breakfast products, sweet biscuits, cakes, confectionery, desserts, cake -making ingredients, baby 
foods, soups, pasta, starch -containing foodstuffs, preserves and prepared foods, condiments and 
seasonings, aperitif pro ducts, pet foods); (5) parapharmaceutical products; (6) perishable goods sold 
on a selfservice basis (dairy products and eggs, poultry, frozen foods, ice cream, factory -made 
pastries and bread); (7) delicatessen (prepared meat products and seafood); (8) fi sh; (9) fruit and 
vegetables; (10) fresh bread and cakes; (11) meat; (12) do -it-yourself; (13) home decorating; (14) 
culture; (15) toys/leisure/relaxation; (16) gardening; (17) motor car accessories; (18) large domestic 
electrical appliances; (19) small do mestic electrical; (20) photography/movie -making; (21) hi -
fi/audio; (22) TV/video; and (23) textiles.  
61  See Case M.7920 – Netto/J Sansbury/Danks Supermarked/New Edlington/Hedon/Roundhay Road, 
para. 19; Case M.7933 – Carrefour/Billa Romania and Billa Inve st Construct, para. 16; Case M.1221 
– REWE/Meinl, para. 81.  
62  Replies to questionnaire to Producers and suppliers of daily consumer goods (Q1) , question 19 ; 
replies  to questionnaire to wholesalers of daily consumer goods (Q2),  question 20 ; replies  to 
questionnaire to retailers of daily consumer goods (Q3), question 20 ; replies  to questionnaire to 
certain producers and suppliers of daily consumer goods (Q4) , question 22 . 
 
 
15 products; and (xi x) other non -food products usually found in supermarkets (e.g. 
newspapers, magazines, entertainment) .63 
(79) Further, a clear majority of market participants who took a view expressed that 
different sales channels such as food -retailing, specialised trade, delic atessen, cash 
and carry stores and other wholesalers, drugstores and export trade constituted 
distinct procurement markets with different supply -demand dynamics.64 One 
producer/supplier explained that on the demand side, the customers were different 
for eac h sales channels, and they bought different quantities, different assortments of 
products and required different customer service i.e. the way the order is placed, the 
way it is made up and the way that delivery is made.65 
(80) In light of the above and for the purposes of this case, t he Commission considers that 
there are strong indications for a segmentation of the procurement markets by the 
nineteen product categories mentioned above. Similarly, there are strong indications 
for a segmentation by sales channel.  The exact market definition can, however, be 
left open. The Proposed Transaction does not raise serious doubts as to  its 
compatibility with the internal  market irrespective of this market definition.  
4.1.3.  The wholesale  supply  of daily consumer goods  
4.1.3.1.  Previous c ases 
(81) Within the wholesale supply of daily consumer goods market a number of further 
potential segmentations have previously been considered by the Commission (but 
ultimately left open), that is: (i) segmentation into food and related non -food 
products; (ii ) segmentation by mode of supply (e.g. delivered wholesale, contract 
distribution and cash & carry); (iii) segmentation by temperature range (i.e. frozen, 
chilled/fresh and ambient); (iv) segmentation by geographic scope of customer (i.e. 
national or indep endent); (v) segmentation by end -customer type (i.e. quick service, 
full service, pubs/coffee shops, hotels/accommodation, business & industry, other 
commercial, health, education, other institutional); and (vi) segmentation by product 
category (e.g. fruit  & vegetables, poultry, savoury bakery, sweet bakery, dairy, fish, 
confectionary, desserts, meat, all other).66 However, for reasons of full supply -side 
substitutability,  the Commission concluded in Sysco/Brakes  that further 
segmentation by temperature rang e and end -customer type is not appropriate (at least 
in the context of that transaction).67 
4.1.3.2.  The Notifying Party’s view  
(82) The Notifying Party took no view on the product market definition as regards the 
wholesale supply of daily consumer goods.  
                                                 
63  Replies to questionnaire to producers and suppliers of daily consumer goods ( Q1), question 20; 
replies to questionnaire to wholesalers of daily consumer goods (Q2) , question 21 ; replies to 
questionnaire to retailers of daily consumer goods (Q3) , question 21; replies to questionnaire to 
certain producers and suppliers of daily consu mer goods (Q4) , question 23 . 
64  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , question 21; 
replies to questionnaire to wholesalers of daily consumer goods (Q2) , question 22 ; replies to 
questionnaire to retailers of daily  consumer goods (Q3) , question 22; replies to questionnaire to 
certain producers and suppliers of daily consumer goods (Q4) , question 24 . 
65  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , question 21.1.  
66  Case M.7986 – Sysco/Brakes, para 11.  
67  Case M.7986 – Sysco/Brakes, para 13.  
 
 
16 4.1.3.3.  The Commission’s assessment  
(83) A clear majority of market participants who expressed a view68 confirmed the 
finding of previous Commission decisions, that the market or markets for the 
wholesale supply of non -food products and the market or markets for the wholesa le 
supply of food products are each distinct markets with their on supply -demand 
dynamics.  
(84) A clear majority of market participants who took a clear position69 further responded 
that they considered a s egmentation by product category  (e.g. fruit & vegetable s, 
poultry, savoury bakery, sweet bakery, dairy, fish, confectionary, desserts, meat, all 
other)  as appropriate.  A market participant explained in this regard: “ Purchasing is 
influenced by the specifics of each category (different logistics routes, other s ales 
channels, other methods storage, hygiene requirements, temperature regime s).”70 
(85) The market investigation is  not wholly  conclusive as to a further segmentation by 
mode of supply (e.g. delivered wholesale, contract distribution and cash&carry). 
There are  some indications that this distinction might be appropriate. A majority of 
market participants who took a view said that they considered the different modes of 
supply to be distinct markets with different supply -demand dynamics. However , a 
notable number of respondents also said they did not agree with this distinction . 71 
(86) In light of the above and in line with previous Commission decisions, the 
Commission considers for the purposes of this decision, that there are indications 
that there are separate produc t markets for different product categories of wholesale 
supply of daily consumer goods  (e.g. fruit & vegetables, poultry, savoury bakery, 
sweet bakery, dairy, fish, confectionary, desserts, meat, all other) . A segmentation by 
mode of supply cannot also not  be excluded. The exact market definition can, 
however, be left open  since the Transaction would not give rise to serious doubts as 
to its compatibility with the internal market under the narrowest possible product 
market definition.  
4.1.4.  The retail s upply of daily consumer goods  
4.1.4.1.  Previous cases  
(87) In its pre vious decisional practice the Commission  has consistently held that within 
the retail  segment a separate product market exists for the sale of daily consumer 
goods mainly  carried out by retail outlets such as h ypermarkets, supermarkets and 
discount chains (so  called  “modern distribution channels”).72 These retail outlets 
                                                 
68  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , question 22 ; 
replies to questionnaire to wholesalers of daily consumer goods (Q2) , question 23 ; replies to 
questionnaire to retailers of daily consumer goods (Q3) , question 23 ; replies to questionnaire to 
certain producers and suppliers of daily consumer goods (Q4) , question 25.   
69  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1 ), question 22 ; 
replies to questionnaire to wholesalers of daily consumer goods (Q2) , question 23 ; replies to 
questionnaire to retailers of daily consumer goods (Q3) , question 23 ; replies to questionnaire to 
certain producers and suppliers of daily consume r goods (Q4) , question 25 . 
70  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1), question 22.1.  
71  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , question 22; 
replies to questionnaire to who lesalers of daily consumer goods (Q2) , question 23; replies to 
questionnaire to retailers of daily consumer goods (Q3) , question 23; replies to questionnaire to 
certain producers and suppliers of daily consumer goods (Q4) , question 25.  
72  Case M.7224 – Koninklijke Ahold/Spar CZ (2014), para. 9. 
 
 
17 offer consumers a basket  of fresh and dry foodstuffs and non -food household 
consumables sold in a supermarket environment.  
(88) In addition, in past decisions the Commission has also considered that modern 
distribution channel outlets belong to a different product market to other retailers, 
such as specialised outlets (e.g. butchers, bakers, etc.) and service stations. These 
other retailers fulfil a sp ecialist or convenience function and the variety and range of 
products in these more traditional store types would be narrower than in 
hypermarkets and supermarkets, which means that they belong to a different product 
market.73 
4.1.4.2.  The Notifying Party’s view  
(89) The Notifying Party took no view on the product market definition as regards the 
procurement of daily consumer goods.  
4.1.4.3.  The Commission’s assessment  
(90) A clear majority of market participants who expressed a view  in the market 
investigation responded that within r etail supply a separate product market exists for 
the sale of daily consumer goods mainly by retail outlets such as hypermarkets, 
supermarkets and discount chains (so -called “modern distribution channels”) distinct 
from other specialised retailers74.  
(91) In light of this and in line with previous Commission decisions, the Commission 
finds for the purposes of this decision that the market for the retail supply of daily 
consumer goods through hypermarkets, supermarkets and discount chains constitutes 
a separate p roduct market.  
4.2. Relevant geographic markets  
(92) Within the EEA, Fortenova is mainly active in Croatia, where it has significant 
activities in the retail supply of daily consumer goods (via Konzum) and in the 
production and supply of food products (via Ledo, Jamnica, Z vijezda, Belje and PIK 
Vrbovec) .  
(93) Mercator  in contrast has a limited presence in Croatia (total revenue in the financial 
year 2018 : EUR  […] and in the financial year  2019 of EUR  […]) in the wholesale of 
raw and intermediate daily consumer goods, procurement of daily consumer goods 
and the production and supply of food product s. Mercator, however, ha s a strong 
presence in Slovenia  where Fortenova is not active in the retail supply of daily 
consumer goods but has some activities  upstream in the prod uction and supply of 
daily consumer goods.  Outside of Croatia and Slovenia, the Parties’ activities in the 
EU are limited.  
                                                 
73  Case M.8374 – UAB Rimi Lietuva/UAB Palink (2017), para. 13 et seq.  
74  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , question 23 ; 
replies to questionnaire to wholesalers of daily  consumer goods (Q2) , question 24 ; replies to 
questionnaire to retailers of daily consumer goods (Q3) , question 24 ; replies to questionnaire to 
certain producers and suppliers of daily consumer goods (Q4) , question 26 . 
 
 
18 4.2.1.  The production and supply of daily consumer goods  
4.2.1.1.  Previous cases  
(A) Production and supply of  ice cream  
(94) From a geographic perspective, t he Commission has consistently considered that the 
relevant geographic markets for all ice cream products  are national in scope due to 
legislative differences, national and sub -national trends in sales and distribution, and 
differences in consumers’ habits , products recipes and packaging.75 
(B) Production and supply of edible oils  
(95) As noted above  (See Section 4.1.1.1(B)  above ), the Commission has segmented the 
edible oils sector into the three sub -segments, namely crude seed oil, BRSO  and 
PRSO. In addition, the Commission has also considered that olive oils are distinct 
from seed oils and treated the former as forming a distinct pro duct market.  
(96) The Commission in previous decisions left open the precise definition of the 
geographic scope of the PRSO markets.76 However, the market investigation in 
previous cases revealed elements indicating that supply of PRSO to the retail 
channel can  be regarded as national in scope with possible cross -border effects,  
encompass neighbouring regions, as well as other areas likely to supply without 
significant cost differences .77 
(C) Production and supply of vegetable (plant -based) fats  
(97) The Commission  has no t assessed the geographic market definition for the supply of 
margarine in its previous decisions.  
(D) Production and supply of cheese/dairy spreads   
(98) The Commission  has defined, in its previous decisions, the market for the  production 
and supply of cheese as being national in scope.78 
(E) Production and supply of cold sauces  
(99) In previous decisions, t he Commission has defined the relevant cold sauces markets 
as being national in scope, due to significant differences in sales channels, retailers, 
logistics, brands, an d eating habits between the various EEA countries.79 
(F) Supply of meat products  
(100)  As noted above  (See Section 4.1.1.1(F) above) , in its decisional practice the 
Commission has drawn a distinction between the supply of fresh meat and processed 
meat.  
                                                 
75  Case M.7946 – PAI/Nestle/Froneri, para. 55. 
76  Case M.8068 – Bunge/Walter Rau Neusser Ől Und Fett (2016), para. 24 
77   For instance, the competitive assessment carried out in Case IV/M.1227 – Cargill/Vandemoortele – 
JV, para. 24. 
78  Case M.6242 – Lactalis/Parmalat (2011), para. 55.  
79  Case M.6753 – Orkla/Rieber & Son (2013), para. 38. 
 
 
19 (101)  From a geograp hic perspective, the Commission has in past cases indicated that 
fresh meat for direct  human consumption is likely to be national in scope, whereas 
the supply of fresh meat for further processing is national or wider than national, 
although this was ultimately left open.80 
(102)  As regards  processed meat , the Commission  has previously concluded that the 
market for processed meat is national in  scope. Such delimitation would be justified 
on the basis that suppliers are able to  price discriminate between diff erent Member 
States. 81 The national scope of the  market is also supported by the fact that the 
markets are still to a large extent  characterised by national consumer preferences and 
recipes for national  “specialties” (e.g. “Kasseler” in Germany, “Chorizo” in Spain 
etc.),82 as well as  due to differences in terms of consumption habits and preferred 
national  brands.83 However, the possibility that the market may be broader than 
national in scope for individual product groups of processed meat under specific 
circumstances has not been excluded.84 
(G) Production and supply of non -alcoholic beverages  
(103)  From a geographic perspective, the Commission  has consistently defined the 
geographic market for NABs as being national in scope, particularly in light of 
differentiated consumer preference between countries, the importance of national 
brands, significance of marketing  and advertising expenses, and the significance of 
transport costs in relative terms  to the final value of the product.85 
4.2.1.2.  The Notifying Party’s vi ew 
(104)  The Notifying Party took no view on the definition of the geographic market  as 
regards the production and supply of daily consumer goods.  
4.2.1.3.  The Commission’s assessment  
(A) Production and supply of frozen foods  
(105)  As regards the geographic scope of the market for  the production and supply of all 
ice cream,  a majority of market participants who took a position indicated  that the 
market(s) are national in scope .86 One producer/supplier of ice cream explained that 
there were differences in consumer habits and preferences between countries.87 
                                                 
80   See Case M.7565 – Danish Crown/Tican, para. 32.  
81  Case M.4257 – Smithfield/Oaktree/Sara Lee Foods Europe (2006), para 38.  
82  Case M.4257 – Smithfield/Oaktree/Sar a Lee Foods Europe (2006), para 38.  
83  Case M.7565 – Danish Crown/Tican, para. 39.  
84  Case M.4257 – Smithfield/Oaktree/Sara Lee Foods Europe, para. 39.  
85  Case M.7057 – Suntory/GlaxoSmithKline (Ribena & Lucozade Soft Drinks Business) (2013), 
para.  28 et se q. 
86  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , question 24; 
replies to questionnaire to wholesalers of daily consumer goods (Q2) , question 25; replies to 
questionnaire to retailers of daily consumer goods (Q3) , ques tion 25 . However, the Commission notes 
that some market participants   consider the market or markets for all ice cream or at least for take -
home ice cream and impulse ice cream as broader than national or even EEA -wide in scope.  
87  Replies to questionnair e to producers and suppliers of daily consumer goods (Q1) , question 24.1 . 
 
 
20 (106)  Consequently , and in line with it s findings in previous decisions, the Commission 
concludes that for the purposes of this decision the geograp hic market or markets  for 
the production  and supply of all ice cream is/are  national in scope .  
(B) Production and supply of edible oils  
(107)  As regards the geographic scope of the market for the production and supply of 
edible oils , responses from market participants were not wholly  conclusive. There 
are indications that the market or m arkets for the production and supply of edible 
oils might be wider than national. While a notable number of market participants 
said that the markets were national in scope, a  majority of market participants did not 
agree that each country constitutes a se parate market for the production and supply 
of edible oils with different supply -demand dynamics , with several explaining that 
the market was broader than national, EEA -wide or even global. 88 
(108)  Furthermore, the market investigation was not conclusive as to w hether the 
production and supply of PRSO is national in scope or wider than that. Half of the 
respondents who expressed a view  said it was national while the other half said that 
the geographic market was wider than national.89 
(109)  For the purposes of this deci sion, the Commission leaves open whether the market or 
markets for the production and supply of edible oils are national or wider than 
national.  Irrespective of the geographic market definition for the market or markets 
for the production and supply of edible oils, the Proposed Transaction does not raise 
serious doubts as to  its compatibility with the internal market.  
(C) Production and supply of marg arine  
(110)  With regard to the geographic scope of the market for the production and supply of 
margarine , responses from market participant s were not fully  conclusive.  All market 
participants who expressed a view  indicated that the market or markets for the 
production and supply of margarine are at least national in scope. Market 
participants , however,  did not take a clear view on whether the geographic scope of 
the market for production and supply of margarine  is national or wider than national.  
There are indica tions that the market or markets might be wider than national as a 
slight majority of a limited number of responses considered the market or markets 
for the production and supply of margarine to be wider than national.90 
(111)  For the purposes of this decision, Commission concludes  that the market or markets 
for the production and supply of margarine are at least national in scope.  As, 
irrespective of this geographic market definition, the Proposed Transaction does not 
raise serious doubts  as to its compatibility with the internal market, the Commission 
leaves open whether the market or markets for the production and supply of 
margarine might be wider than national in scope.  
                                                 
88  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , questions 25 and 
25.1; replies to questionnaire to wholesalers of daily consumer goods (Q2) , question s 26 and 26.1 ; 
replies to questionnaire to retailers of daily consumer goods (Q3) , questions 26 and 26.1; replies to 
questionnaire to certain producers and suppliers of daily consumer goods (Q4) , question s 30 and 30.1.  
89  Replies to questionnaire t o certain producers and suppliers of daily consumer goods (Q4) , question s 
30.2. and 30.2.1.  
90  Replies to questionnaire to certain producers and suppliers of daily consumer goods (Q4) , questions 
28 and 28.1  
 
 
21 (D) Production and supply of cheese/dairy spreads  
(112)  As regards the geographic scope of the marke t for the production and supply of 
cheese , responses from market participants were inconclusive.  While half of the 
market participants who expressed a view  said that each country constituted a 
separate market for the production and supply of chees e due to different supply -
demand dynamics, the other half of market participants who took a clear position 
disagreed , with one stating they were at least regional and two others stating they 
were EEA -wide .91 
(113)  As, irrespective of this geographic market definition, the Proposed Transaction does 
not raise serious doubts as to its compatibility with the internal market, the 
Commission leaves open the geographic market definition for the markets for the 
production a nd supply of cheese .  
(E) Production and supply of cold sauces  
(114)  As regards the geographic scope of the market for the production and supply of cold 
sauces , responses from market participants were not wholly conclusive . A slight 
majority of respondents who took a clear position did not agree that each country 
constitutes a separate geographic market for cold sauces , with several of them 
indicating, that the markets might be wider than national .92 
(115)  In light of the above, the Commission concludes that for the purpose s of this 
decision, the markets for cold sauces are at least national in scope.  The Commission  
leaves open whether the markets might be wider than national , as the Proposed 
Transaction does not raise serious doubts as to  its compatibility with the internal  
market irrespective of this market definition.  
(F) Supply of meat products  
(116)  With regard to the markets for the supply of meat for human consumption, the 
market investigation confirms that the markets for the supply of fresh meat for 
human con sumption are natio nal in scope. All of the market participants who 
expressed a view  agreed with this.93  
(117)  As regards the supply of processed  meat for human consumption, the market 
investigation is not wholly conclusive. A majority of respondents agreed in response 
to one question that the  markets for the supply of processed meat are wider than 
national . 94 One produce r/supplier explained the di fference was due to the different 
expiry dates. Because of this, processe d meat could be distributed more broadly.95 
                                                 
91  Replies to questionnaire to certain producers and suppliers of daily consumer goods (Q4) , questio n 
27. 
92  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , question 26; 
replies to questionnaire to wholesalers of daily consumer goods (Q2) , question 27; replies to 
questio nnaire to retailers of daily consumer goods (Q3) , que stion 27; replies to questionnaire to 
certain producers and suppliers of daily consumer goods (Q4) , question 33.  
93  Replies to questionnaire to certain producers and suppliers of daily consumer goods (Q4 ), question  
31. 
94  Replies to questionnaire to certain producers and suppliers of daily consumer goods (Q4) , question  
31. 
95  Replies to questionnaire to certain producers and suppliers of daily consumer goods (Q4) , question 
31.1.  
 
 
22 However, in a response to another question with a limited response rate, market 
participants  agreed with a national scope .96  
(118)  In light of the  above, the Commission concludes for the purposes of this decision, 
that the markets for the supply of fresh meat for human consumption are national in 
scope and the markets for the production and supply of processed meat for human 
consumption are at least  national in scope. The Commission leaves open whether the 
markets for the production and supply of processed meat might be wider than 
national  as the Proposed Transaction does not raise serious doubts as to  its 
compatibility with the internal market irres pective of this market definition.  
(G) Production and supply of non -alcoholic beverages  
(119)  With regard to the geographic scope of the market for the production and supply of 
bottled water , all of the market participants who expressed a view  said that the 
market o r markets for the production and supply of bottled water are national in 
scope .97 
(120)  In light of the clear outcome of the market investigation and in line with its previous 
decisions, the Commission concludes that the market or markets for the production 
and s upply of bottled water are national in scope.  
4.2.2.  The procurement of daily consumer goods  
4.2.2.1.  Previous cases  
(121)  In previous decisions , the Commission has consistently defined the procurement 
market as being national in scope. The main reasons underlying this approach have 
been that consumer preferences relate to national products and suppliers generally 
negotiate on a national level.98 
4.2.2.2.  The Notifying Party’s view  
(122)  The Notifying Party took no view on the definition of the geographic market  as 
regards the procurement of daily consumer goods.  
4.2.2.3.  The Commission’s assessment  
(123)  In the Commission’s market investigation, a clear majority of market participants 
who took a  clear  position said that each country constitutes a separate market for the 
procurement of daily consumer goods  with different supply -demand dynamics99, 
                                                 
96  Replies to questionnair e to certain producers and suppliers of daily consumer goods (Q4) , question  31 
and question 32.  
97  Replies to questionnaire to certain producers and suppliers of daily consumer goods (Q4) , question  
29. 
98  Case M.7920 – Netto/J Sainsbury/Dansk Supermarked/New Edlington/Hedon/Roundhay Road, 
para.  21. 
99  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , question 27; 
replies to questionnaire to wholesalers of daily consumer goods (Q2) , question 28; replies to 
questio nnaire to retailers of daily consumer goods (Q3) , question 28; replies to questionnaire to 
certain producers and suppliers of daily consumer goods (Q4) , question 34. . 
 
 
23 with some providing reasons such as different consumer preferences as well as th e 
prominence of local brands .100 
(124)  The Commission notes that, despite the clear general agreement with a national 
scope of the procurement markets for daily consumer goods, explanations of several 
market participants indicate that at least some of the markets are increasingly 
becoming wider than national .101 
(125)  In light of the above, the Commission concludes that for the purposes of this 
decision it finds that the markets for the procurement of daily consumer goods are at 
least national in scope. However, a wider market definition cannot be fully excluded.  
The Commission ultimately leaves open whethe r the market is wider than national, 
as the  Proposed Transaction does not raise serious doubts as to  its compatibility with 
the inte rnal market irrespective of the  market definition.  
4.2.3.  The wholesale supply of daily consumer goods  
4.2.3.1.  Previous cases  
(126)  From a geogra phic perspective, the Commission has previously considered the 
market for the wholesale supply of daily consumer goods to be national in scope.102 
The one  potential exception is the cash & carry mode of supply, where the 
Commission has previously considered the market to be smaller than national 
(i.e. local) in scope.103 
4.2.3.2.  The Notifying Party’s view  
(127)  The Notifying Party took no view on the definition of the geographic market as 
regards the wholesale supply of daily consumer goods.  
4.2.3.3.  The Commission’s assessment  
(128)  As regards the market or markets for the wholesale of daily consumer goods, the 
market investigation confirms that these markets are national in scope. A  clear 
majority of market participants who expressed a view  said that each country 
constitutes a separate product market for the wholesale of daily consumer goods.104 
(129)  As regards a possible exception for the cash & carry mode of supply, which the 
Commission previously considered to be smaller than national in scope, a majority 
                                                 
100  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , ques tion 27.1; 
replies to questionnaire to wholesalers of daily consumer goods (Q2) , question 28 .1; replies to 
questionnaire to retailers of daily consumer goods (Q3) , question 28 .1; replies to questionnaire to 
certain producers and suppliers of daily consumer  goods (Q4) , question 34.1.  
101  Replies to questionnaire to wholesalers of daily consumer goods (Q2) , question 28.  
102  Case M.2891 – CD&R Fund VI Limited/Brake Bros plc (2002), para. 9. 
103  Case M.784 – Kesko/Tuko (1996), para. 32. 
104  Replies to questionnaire  to producers and suppliers of daily consumer goods (Q1) , question 28; 
replies to questionnaire to wholesalers of daily consumer goods (Q2) , question 29; replies to 
questionnaire to retailers of daily consumer goods (Q3) , question 29; replies to questionna ire to 
certain producers and suppliers of daily consumer goods (Q4) , question 35.  
 
 
24 of market participants who responded  to the market investigation said it is likewise 
national in scope. 105 
(130)  In light of the above and in line with previous decisions, the Commission finds that , 
for the purposes of this decision, the markets for the wholesale supply of daily 
consumer goods (wit h the possible exception of the cash & carry mode of supply) 
are national in scope. In light of the feedback from Slovenian market participants, 
the Commission further considers  that the  plausible Slovenian wholesale market(s) 
for the  cash & carry mode of supply  is(are) national in scope. However, for the 
purposes of this decision, the Commission leaves open whether the markets for the 
wholesale of daily consumer goods through the cash & carry mode of supply outside 
Slovenia may be  smaller than national in scope . Irrespective of this market 
definition, the Proposed Transaction does not raise serious doubts  as to its 
compatibility with the internal market.  
4.2.4.  The retail s upply  of daily consumer goods  
4.2.4.1.  Previous cases  
(131)  The geographic market for the retail supply of daily co nsumer goods has generally 
been considered by the Commission  to be local in scope, as delineated by the 
boundaries of a territory where the outlets can be reached easily by consumers 
(typically based on radii of  approximately 20  to 30 minutes driving time).106 
4.2.4.2.  The Notifying Party’s view  
(132)  The Notifying Party took no view on the definition of the geographic market as 
regards the retail supply of daily consumer goods.  
4.2.4.3.  The Commission’s assessment  
(133)  As regards the geographic scope of the markets for the retail supply of daily 
consumer goods in Slovenia, the Commission’s market investigation showed that the 
markets are most likely local in scope as  delineated by the boundaries of a territory 
where the outlets can be reached easily by  consum ers (typically based on radii of 
approximately 20 to 30 minutes’ driving time). A majority of market participants 
who expressed a view  said that the Slovenian retail supply markets for daily 
consumer goods should be defined as local.107 A retail supplier not es in this regard: 
“Slovene customers are less likely to travel a long distance to buy the daily 
consumer goods. The density of retail stores in Slovenia is amongst highest in 
EU”.108 
                                                 
105  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , question 28; 
replies to questionnaire to wholesalers of daily consumer goods (Q2) , questi on 29; replies to 
questionnaire to retailers of daily consumer goods (Q3) , question 29; replies to questionnaire to 
certain producers and suppliers of daily consumer goods (Q4) , question 35..  
106  Case M.8374 – UAB Rimi Lietuva/UAB Palink (2017), para. 15. 
107  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , question 29; 
replies to questionnaire to wholesalers of daily consumer goods (Q2) , question 30; replies to 
questionnaire to retailers of daily consumer goods (Q3) , question  30; replies to questionnaire to 
certain producers and suppliers of daily consumer goods (Q4) , question 36 .  
108  Replies to questionnaire to retailers of daily consumer goods (Q3) , question 30.1.  
 
 
25 (134)  However, the Commission notes that a meaningful  number of respondents cons ider 
the Slovenian markets for the retail supply of daily consumer goods to be national.   
(135)  In light of the above, for the purposes of this decision, the Commission considers 
that the Slovenian markets for the retail supply of daily consumer goods are likely  
local in scope. However, a national scope of the Slovenian retail supply markets for 
daily consumer goods cannot be excluded.  It can ultimately be left open whether the 
markets are local or national in scope as the  Proposed Transaction does not raise 
serious doubts as to  its compatibility with the internal market irrespective of this 
market definition.  
5. COMPETITIVE ASSESSMEN T 
(136)  In Croatia, due to some  very limited wholesale activities  of Mercator , the Proposed 
Transaction gives rise to plausible horizontally affected markets as regards the  
production and supply of bottled water dedicated to the food service sector, as 
regards the production and supply of ice cream dedicated to the food service sector, 
as regards the procurement of daily consumer goods and as regards the wholesale of 
daily consumer goods. Similarly, the Proposed Transaction gives rise to vertical 
overlaps in Croatia between Mercator’s wholesale activities vis -à-vis Fortenova’s 
production and supply activities upstream and vis-à-vis Fortenova’s r etail supply 
activities in five plausible local markets downstream.  
(137)  However, due to the very limited size of Mercator’s activities in Croatia, the  
horizontal overlaps and the  increments are de minimis  with regard to all plausible 
affected markets.109  The H HI deltas are all below  the 250 threshold , and almost all 
below  150, and are therefore unlikely to raise competition concerns according to 
Paragraph s 20 and 21 of the Horizontal Merger Guidelines.  There are two overlaps 
as regards the wholesale supply of d aily consumer goods  in Croatia , where the pre -
merger market share of Fortenova would be above 50%, namely bottled water (with 
[…]%) and iced tea (with […]%), thereby falling outside the scope of Paragraphs 20 
and 21 of the Horizontal Merger Guidelines in spite of  an HHI delta below 150 . 
However, the Commission notes that  these market shares provided by the Parties 
relate to food product categories  that are relatively narrow compared to the broader 
markets the Commission previously found with regard to the wholesale supply of 
daily consumer goods . The available market shares, therefore, are likely to 
overestimate the market shares on the likely broader relevant  markets . Second, the 
wholesale supply activities of Mercator as regards both bottled water and ice d tea 
account for less than one percent market share both on a volume and value basis ( de 
minimis ).110 As such, substantive competition  concerns can be excluded due to a lack 
of closeness of competition and the de minimis  increments that would result from th e 
Transaction.  
(138)  Similarly, regarding the possible  vertical overlaps  in Croatia , the activities of 
Mercator all account for less than one percent  market share  (de minimis ). In this 
respect , the Commission notes that Fortenova’s brands/products have a  substantial 
share in Croatia in a number of product categories principally in respect of impulse 
ice cream ( […]%), margarine ( […]%), mayonnaise ( […]%) and bottled 
                                                 
109  See Form CO, paragraph 27 5 et seq. and the cover -letter of  the Notifying Party’s response to the 
request for information No. 12 on 18.9.2020.  
110  See Form CO, paragraph 276.  
 
 
26 water  ([…]%).111 However, even if Fortenova were to be deemed to possess market 
power in one or  more of the upstream markets, input foreclosure would not be a 
credible  strategy for Fortenova  post-Transaction. Fundamentally, the Commission 
considers that the addition of Mercator is too small to change the  ability and/or  
incentives of Fortenova in sup plying  downstream competitors,  and that therefore  the 
risk of input foreclosure is extremely limited. Mercator’s limited downstream 
increment in Croatia (<1% on both a volume and value basis) means that customer 
foreclosure concerns can be dismissed given that post -Transaction there will clearly 
remain sufficient economic alternatives in the downstream market for the upstream 
rivals to sell their competing daily consumer goods and agricultural products to.  
(139)  Similar considerations apply to incentives regarding input and customer foreclosure 
in relation to the overlap with Fortenova’s retail activities downstream.  Input 
foreclosure concerns can be excluded on the basis that the addition of Mercator’s de 
minimis (<1%, on both a volume and value basis) up stream share would not alter the 
ability and/or the incentive of the merged entity to engage in an input foreclosure 
strategy at the wholesale level. As regards customer foreclosure, whilst there are five 
plausible local Croatian markets (counties) in whic h Fortenova’s retail share exceeds 
30% ( their share s range from  […]% to […]%)112, the fact that retailers typically 
procure goods on a national basis (particularly those large downstream retailers that 
compete with Fortenova in Croatia – e.g. Lidl, Kaufland,  Tommy and Spar) means 
that customer foreclosure strategy could not be effectively limited to these plausible 
local markets. Furthermore, Mercator’s transit wholesale business in Croatia 
typically focuses on supply of a limited range of products to food pr ocessors and 
downstream retailers are in any event not an important source of demand for this 
business.113 Finally, one of the key features of  running a successful downstream 
retail business is to ensure that customers are provided with a wide -range of produ cts 
and brands (so as to meet the diverse needs and preferences of consumers), as such, 
it is highly unlikely that Fortenova would cease to procure products from competing 
upstream wholesalers.  
(140)  Therefore, in conclusion, the Commission finds that the Propos ed Transaction does 
not raise serious doubts as to  its compatibility with the internal market in relation to 
Croatia.114 Therefore, t he Croatian markets are  not assessed further in this decision .  
(141)  In Slovenia,  the Proposed Transaction gives rise to horizontally affected markets 
with respect to the markets for the procurement of food products/daily consumer 
goods and plausible  sub-markets thereof , as well as  plausible sub -markets for the 
wholesale supply  of dail y consumer goods. Furthermore, the Proposed Transaction 
gives rise to a number of vertically affected markets in Slovenia because of 
Fortenova’s upstream activities in the  production and supply of daily consumer 
goods (in particular impulse ice  cream) and Mercator’s downstream wholesale 
supply and  retail supply activities.  
                                                 
111  See Form CO, paragraph 285.  
112   There are five counties in Croatia (out of a total of 21) where Fortenova’s retail share will reach or 
exceed 30%, that is: Lika -Senj ( [40-50]%), Dubrovnik -Neretva ( [30-40]%), City of Zagreb ( [30-
40]%), Zagreb County ( [30-40]%) and Sibenik -Knin ( [30-40]%), see Form CO paragraph 290.  
113   See Form CO, paragraph 290.  
114 This would be the case even if the market(s) for the retail sale of daily consumer goods in Croatia  
were to be defined as local in scope.  
 
 
27 (142)  At the outset, though,  as explained in Section 2 above , the target Mercator was 
already part of the same corporate group together with the Agrokor assets currently 
controlled by acquirer  Fortenova, from 2014 until 1 April 2019 when Mercator was 
excluded from the Agrokor assets initially transferred to Fortenova as part of the 
Agrokor debt-for-equity restructuring.  The Notifying Party argues  that the 
Transaction essentially re -establishes the status quo prior to 1 April 2019 and that, 
by construction, the Proposed T ransaction c annot significantly affect  competition as 
compared to the previously existing situation. In its view, the Proposed Transaction 
would merely restore the competitive co nditions/ status quo  that existed until 
immediately befor 1st April 2019.115 In this respect, t he Commission notes that the 
Commission’s market investigation confirmed that Mercator is indeed integrated 
already with the other Fortenova  assets to a high degree. This p rompt ed many 
respondents to expect “ no change ” in the competitive conditions on the relevant 
markets as a result of the Proposed Transaction. Moreover, a s one retail er 
commented  “Mercator is a selfstanding company” and its m anagement has always 
been  “sovereign at taking business decisions and according to our knowledge so 
shall remain also after its reintegration of the corporate group previously known as 
Agrokor and now controlled by Fortenova” .116 
(143)  In light of this, the Commis sion notes that the outcome of the market investigation 
tends to support the Notifying Party’s view that merger -specific effects arising from 
the Proposed Transaction  are likely to be limited . However, for the purposes of this 
decision, the question of the  appropriate counterfactual and the materiality of effects 
can be left open  because  the Proposed Transaction does not raise serious doubts as to 
its compatibility with the internal  market in any event . 
5.1. Horizontal overlaps  
(144)  In Slovenia, the Proposed Transact ion gives rise to horizontally affected markets 
with respect to the procurement of food products/dail y consumer goods and 
plausible sub-markets thereof and plausible sub -markets for the wholesale supply of 
daily consumer goods.  
5.1.1.  Procurement of daily consumer goods  
(145)  Horizontal overlap s arise in Slovenia in the plausible  overall market as well as in 
several plausible sub -markets  for the procurement of daily consumer goods, given 
that both Parties procure items from upstream daily consumer goods manufactu rers 
in Slovenia for sale in their downstream businesses . 
5.1.1.1.  Notifying Party’s view   
(146)  The Parties have based most of their market shares on  data contained in reports by 
Nielsen, an information & measurement company providing market research.  These 
reports dis cuss Fortenova’s share (and those of competitors) in the affected markets 
in Croatia and Sl ovenia for 2016, 2017, 2018 and 2019.117 
                                                 
115   See Form CO, paragraph 329.  
116   Repl y to questionnaire to retailers of daily consumer goods (Q3), question 4.1.  
117   See Form CO, paragraph 1 38 and Su ppporting Documents 4 to 7 and 41.  
 
 
28 (147)  Regarding a plausible segmentation by  19 product categor ies (see above Section 
4.1.2.1 and  4.1. 2.3) 118, the Parties were not a ble to provide market share estimates  
as they do not possess a reliable third party source of data that would allow them to 
provide share estimates on this basis.  They have provided internal revenue data as 
the best available data.  
(148)  The Notifying Party argu es that the fact that the Proposed Transaction would  only 
result in a limited increment of less than [0-5]% (on both a volume and  value basis), 
means that substantive competition concerns should not arise.  
(149)  If the procurement markets were instead to be segmented by sales channel and the 
sector for the procurement of daily consumer goods to be sold via cash and carry 
stores (or via other traditional wholesalers) were to be analysed separately, then the 
Parties’ combined share of approxi mately [5-10] % in Slovenia would not lead to 
affected procurement markets for daily consumer goods in Slovenia. Even a further 
segmentation would not give rise to any horizontally affected markets in light of the 
again limited increment.119 
(150)  In relation to n arrower markets by product category, the Notifying Party notes  that 
substantive competition concerns could be excluded even putting aside the lack of  
merger -specific effect stemming from the Transaction on the basis that the likely  
limited/ de minimis  incre ment in each category accounted for by Fortenova would  
mean that post -Transaction , Mercator’s purchasing position would not be 
significantly strengthened .120 
5.1.1.2.  The Commission’s assessment  
(151)  The Commission considers the Nielsen data credible.  
(152)  In the plausible o verall market for the procurement of daily consumer goods, the 
combined market share of the Parties would, based on t he data provided by the 
Parties,  amount to [20-30] % with a very low increment of [0-5]%.121  
(153)  A plausible segmentation by sales channels woul d not lead to an y affected markets 
based on the market share information provided by the Parties.  
(154)  The internal revenue data of the Parties  for the individual products  seem to generally 
support their claim that the increments would be limited/ de minimis  as the value of 
the Fortenova procurement activities is low in absolute numbers and compared to 
Mercator’s activities, see the Table 1  below.  
                                                 
118 I.e.: (i) meat and sausages; (ii) poultry and eggs; (iii) bread and pastries; (iv) dairy products; (v) fresh 
fruits and vegetables; (vi) beer; (vii) wine and spirits; (viii) non -alcoholic beverages; (ix) hot 
beverages; (x) confectionery; (xi) basic food products (xii) preserved food; (xiii) frozen foods; (xiv) 
baby foods; (xv) pet foods; (xvi) body care articles (e.g. creams, lotions) and cosmetics (make -up and 
perfumes); (xvii) detergents, polishes and cleani ng products; (xviii) other drugstore products; and 
(xix) other non -food products usually found in supermarkets (e.g. newspapers, magazines, 
entertainment)  
119  See Form CO, paragraph 301.  
120  See Form CO, paragraph 300.  
121  See Form CO, paragraph 299.  

 
 
30 (156)  Second , the combined market share of the Parties of [20-30] % remains modest . In 
particular, t he combined market share is just slightly above the threshold of 25%, 
which would indicate a presumption of compatibility with the internal market  
according to Paragraph 18 of the Horizontal Merger Guidelines . 
(157)  Third,  in the market investigation market participants did not express concerns  in 
relation to an increased bargaining power of the  Parties resulting from  the horizontal 
overlap in  procurement activities . On the contrary, asked for the impact of the 
Proposed Transaction on the market or markets for the procurement of food products 
to customers such as wholesalers, retailers and other firms in Slovenia, the clear 
majority of market participants who expressed an opinion  responded that there 
would be no change  in relation to price, quality, choice and innovation .123  
(158)  In conclusion, the Commission finds that the horizontal overlaps in plausi ble 
Slovenian markets for the procurement of daily consumer goods do not raise serious 
doubts in relation to their compatibility with the internal market.124 
5.1.2.  Wholesale of daily consumer goods  
(159)  Horizontal overlaps arise in Slovenia in several plausible sub -markets for the 
wholesale supply of daily consumer goods . This horizontal overlap arises due to: 
(i) the activities of Fortenova in the direct supply of food products manufactured by 
upstream Fortenova entities to  downstream retailers and who lesalers in Slovenia; 
and (ii) Mercator’s traditional  wholesaling activities (i.e. via its warehousing, cash 
and carry, franchise and transit  distribution channels), via which it distributes 
Mercator private label products (primarily  to franchisees) and ot her branded 
products.  Fortenova  does not have a competing traditional  wholesaling business in 
Slovenia.125 
(160)  The overall market for the wholesale supply of daily consumer goods in Slovenia is 
not affected, as the combined market share of the Parties is below 1 0%. 
5.1.2.1.  Notifying Party’s view  
(161)  In addition to the lack of merger -specific impact on competition stemming from the 
Proposed Transaction, the Notifying Party argues that, in any event, the merged 
entity would continue to be constrained by a number of producers/m anufacturers, as 
well as suppliers of private label .126 
(162)  Secondly , the differing nature of the Parties’ activities in the Slovenian wholesale 
market mean s that they  were  unlikely to be viewed by downstream customers as 
being close competitors. This is because  traditional grocery wholesale services, such 
as those offered by Mercator, are typically used by smaller grocery retailers and 
small wholesale customers (e.g. small bus inesses and tradesmen), whereas  larger 
grocery retailers (who typically purchase greate r volumes and have more 
                                                 
123  Replies to questionnaire to producers and suppliers of daily consumer goods (Q1) , question 8 ; replies 
to questionnaire to wholesalers of daily consumer goods (Q2) , question 9 ; replies to questionnaire to 
retailers of daily consumer goods (Q3) , question 9 ; replies to questionnaire to certain producers and 
suppliers of daily consumer goods (Q4),  question 8.  
124  If the market(s) for the procurement  of daily consumer goods were found to be broader than national 
in scope, they would not raise serious doubts as the relevant market shares would be lower.  
125  See Form CO, paragraph 302.  
126  See Form CO, paragraph 307.  


 
 
33 Bio Today, as well as a long tail of private label and smaller manufacturers 
who collectively account for in excess of c. [40-50]% of the category (on both 
a volume and value basis).131 
(c) In relatio n to all industrial ice cream and impulse ice cream, Ljubljanske 
mlekarne will continue to pose a strong competitive constraint on the Parties 
post-Transa ction (e.g. by value it has an approximate  [20-30]% share of the 
total industrial ice cream category a nd an approximate  [20-30]% share of the 
impulse ice cream category). Other significant players include Incom, Pro 
Organika, Mars, Unilever and Nestle who combined account for in excess of c. 
[10-20]% of both of these categories by value and by volume, appr oximately 
[10-20]% of the impulse ice cream category and approximately [5-10]% of the 
all industrial ice cream category).132 
(d) In relation to the wholesale supply of ketchup in Slovenia, the merged entity 
will continue to face strong competition from number of  well-established 
competitors, including: Felix ( [20-30]% volume share and [30-40]% value 
share), ETA ( [5-10]% volume share and [5-10]% value share), Heinz ( [0-5]% 
volume share and [5-10]% value share) and Mutti Fratelli ( [0-5]% volume 
share and ([0-5]% va lue share ).133 
(e) As regards the wholesale supply of mayonnaise in Slovenia, the market is 
dominated by Nestle (via its Thomy brand) with a share of approximately [50-
60]% (by value) and approximately [40-50]% (by volume). Other significant 
competitors include Unilever ( [5-10]% volume share and ([5-10]% value 
share) and GEA ( [0-5]% share by both volume and value).134 
(f) Looking at the wholesale supply of dairy/cheese spread in Slovenia, where the 
Parties would have a combined market share of [20-30]% post -transaction , the 
key competitors include Ljubljanske (via the MU brand), which in 2018 had a 
share of [10-20]% (by volume) and [20-30]% (by value), and Mlekarna Celeia 
(via the Zelene Doline brand), which in 2018 had a share of [5-10]% (by 
volume) and [10-20]% by val ue. Private label suppliers accounted for a 
significant portion of the category, [10-20]% by volume and [10-20]% by 
value in 2018.135 
(168)  Fourthly , responses of market participants to the market investigation who said that 
the geographic markets are wider than n ational suggest that there is a certain degree 
of constraints from imports in particular in relation  to edible oils,  but a lso in relation 
to cold sauces like  mayonnaise and ketchup,  as well as with regard to  margarine and 
impulse and take -home ice cream.136 
(169)  Fifthly , in the market investigation market participants did not express concerns  in 
relation to  the horizontal overlap in the wholesale activities. On the contrary, asked 
for the impact of the Proposed Transaction on the market or markets for the 
wholesal e supply  of food products in Slovenia, the clear majority of market 
                                                 
131  See Form CO, paragraph 307.  
132  See Form CO, paragraph 307.  
133 See Form CO, paragraph 307.  
134 See Form CO, paragraph 307.  
135 See Form CO, par agraph 307.  
136  See above Section 4.2.3.3  above.  
 
 
34 participants who expressed an opinion  responded that there would be no change  in 
relation to price, quality, choice and innovation .137 Moreover, none of the market 
participants who took a vi ew expects a price increase in relation to each  of: all 
industrial ice cream, impulse ice cream, edible oils, mayonnaise, margarine, ketchup 
and dairy/cheese.138 
(170)  Sixthly , the difference in the Parties’ activities suggests they are not close 
competitiors.  Me rcator’s traditional grocery wholesale supply  services  are typically 
used by smaller businesses whereas larger grocery retailers are more likely to 
purchase groceries directly from producers. As such, given that Fortenova’s 
wholesale activities in Slovenia  are limited to the direct supply channel and Mercator 
has very limited activities in this space (solely via Mercator -Emba), the Parties do 
not seem to compete closely.139 
(171)  In conclusion, the Commission finds that the potential horizontal overlaps in 
plausibl e Slovenian markets for the wholesale  of daily consumer goods do not raise 
serious doubts in relation to their compatibility with the internal market.   
5.1.3.  Conclusion on horizontal overlaps  
(172)  In light of the above, the Commission finds that the Proposed Transact ion does not 
raise serious doubts  as to its compatibility with the internal market in relation to 
horizontal overlaps in Slovenia  or on any alternative geographic market definition . 
5.2. Vertical overlaps  
(173)  The Proposed Transaction give s rise to vertically  affected markets in relation to : 
(a) Fortenova’s upstream production and supply of impulse ice cream  overall, 
branded impulse ice cream, branded  take-home ice cream, branded all 
industrial ice cream, private label  ketchup ,branded  edible oils , margarine 
overal l, mayonnaise overall, water overall , PRSO  and iced tea  vis-à-vis 
Mercator’s wholesale (delivered, cash & carry and franchisee supply) and 
retail activities  downstream  in Slovenia ; and  
(b) Mercator’s downstream retail supply  of daily consumer goods, bottled wa ter, 
fresh and processed meat, take -home ice cream, dairy/cheese products, 
mayonnaise ,dairy/cheese spread , ice cream overall,  ketchup, edible oils, 
impulse ice cream, fresh fruit and vegetables, and PRSO  vis-à-vis Fortenova’s 
upstream production and suppl y activities  in Slovenia . 
                                                 
137   Replies to questionnaire to producers and suppliers of daily consumer goods (Q1), question 9;  replies 
to questionnaire to wholesalers of daily consumer goods (Q2), question 10; replies to questionnaire to 
retailers of daily consumer  goods (Q3), question 10; replies to questionnaire to certain producers and 
suppliers of daily consumer goods (Q4), q uestion 9.  
138  Replies to questionnaire to certain producers and suppliers  of daily consumer goods (Q4) , question 
9.2.. 
139 See to a similar effect the results of the market investigation in Case M.7986 in relation to broadline 
vs specialist suppliers, para. 19 et seq.  




 
 
39 products , and that there  is no reason to believe that Mercator coming back under the 
control of Fortenova will hav e any meaningful impact on this  strategy.144 
(A.i) Ability  
(183)  According to the Parties:  
(a) It is extremely  unlikely  that the merged  entity  would be  able to engage  in input  
foreclosure as Fortenova has low market shares in Slovenia with the exception 
of the impulse ice cream market ( [30-40]%). 
(b) It is highly  unlikely  that Slovenian  retailers  would  view  Fortenova  products as 
being important input , or as “must -have” pr oducts . 
(c) A number  of large  upstream  competitors  exist  with strong  brands  in each 
product  market  in which Fortenova is active in Slo venia (in particular  
Ljubljanske Mlekarne in ice cream  and Tovarna Olja in oils). In each upstream 
product category in which Fortenova is active, post -Transaction competing 
retailers would still have a number of strong alternative  suppliers to choose 
from . 145 
(A.ii) Incentive  
(184)  According to the Parties:  
(a) The merged entity would also lack the incentive to engage in an input 
foreclosure strategy. Mercator has a number of important retail competitors in 
Slovenia (including Spar, Lidl, Hofer and Tus) and Fortenova makes a 
significant value of sales to these downstream  competitors  (e.g. in 2018  these  
sales  totalled  approximately  EUR […] million).  Therefore, deciding to refuse to 
supply Mercator’s downstream competitors in Slovenia would involve a 
significant opportunity cost to Fortenova. This is particularly so because there 
are multiple other credible suppliers active in the upstream product markets in 
question which  would  be available  to Mercator’s  downstream  competitors  as an 
alternative  source of supply.146  
(b) Furthermore, many of the products that are supplied by Fortenova (e.g. 
margarine and PRSOs) are homogeneous products where the focus is on price 
and volume, rather than on brand. In these product areas, private label products 
exercise a partic ularly strong constraint. Therefore, downstream competitors 
would be able to easily replace Fortenova with private label supply in this  
regard.147 
(c) The merged entity  was not engaging in any input foreclosure strategies prior to 
1st April  2019.148 
                                                 
144   See Form CO, paragraph 338.  
145   See Form CO, paragraph 335.  
146    See Form CO, paragraph 336.  
147    See Form CO, paragraph 336.  
148   See Form CO, paragraph 335.  
 
 
40 (A.iii)  Effect  
(185)  According to the Parties:  
(a) It appears implausible that Mercator’s downstream competitors would be 
substantially disadvantaged by not having access to (or paying higher prices 
for) Fortenova  products.149  
(b) Given  that Fortenova  would  not be expected  to have  the incentive  or the ability  
to engage in input foreclosure, the likelihood of the Transaction resulting in 
price increases at the retail level to the detriment of consumers i s extremely  
limited.150 
(B) The Commission’s  assessment  
(186)  The risk of input foreclosure through the notified concentration appears limited. It 
seems unlikely that, post -merger, Fortenova would restrict access to its products by 
other retailers competing against Mercator in Slovenia.  
(187)  The results of the market inv estigation showed that customers have few concerns 
about possible input foreclosure  in general . The responses to the market 
investigation included hardly any references to specific segments of daily consumer 
goods. Even when asked to add the specific segme nts to which their comments 
applied, respondents typically did not mention particular markets but merely cited 
general terms such as food products.  
(188)  On the question regarding the effect of the 2014 integration of Mercator into 
Agrokor, when asked to select  the relevant markets, a majority of retailers 
expressing an opinion indicated that the integration had not affected Agrokor’s 
supply activities in Slovenia to their business or other Slovenian retailers with regard 
to food products in general.151 
(189)  The Commis sion therefore considers that the feedback from the market investigation 
relevant to input foreclosure may be taken to apply across the whole range of food 
products sold to retailers in Slovenia, including in each of the plausible affected 
markets.  
(B.i) Ability  
(190)  The prerequisite  for input  foreclosure  concerns  to arise  is that the merged  entity  must  
have a significant degree of market power in the upstream market (i.e. the production 
and supply  of daily  consumer  goods  in Slovenia).  
(191)  The Commission notes that Fortenova’s  market position s in the upstream  supply of 
daily consumer goods in Slovenia are moderate , only exceeding 40% with regard to 
branded impulse ice cream .  
(a) With regard to  the production and supply of impulse ice cream, Ljubljanske 
mlekarne will offer customers an important alternative  source of supply  post-
Transa ction (e.g. by value it has a [20-30]% share of the production and 
                                                 
149   See Form CO, paragraph 335.  
150   See Form CO, paragraph 337.  
151  Replies to questionnaire to r etailers of daily consumer goods (Q3) , question 32. 
 
 
41 supply of  impulse ice cream  in Slovenia ). Other significant players include 
Incom, Pro Organika, Mars, Unilever and Nestle who together  account for 
approximately [10-20]% of the impulse ice cream category .152 
(b) With regard to the production and supply of edible oils153 in Slovenia, 
competitor  GEA will continue to offer a strong alternative, with a market 
share of [20-30]% by value and [20-30]% by volume. Other established 
manufacturers active in this sector include: Bunge Creol, CJS, Narajan Doo, 
Oljarna Fram, Baton and Bio Today, as well as a large number of  private 
label and smaller manufacturers who collectively make u p more than  40% of 
the category (on both a volume and value basis).154 
(c) In relation to the production and  supply of ketchup in Slovenia, customers 
will continue to have a choice among a number of well -established 
competitors, including Felix ( [20-30]% volume share and [30-40]% value 
share), ETA ( [5-10]% volume share and [5-10]% value share), Heinz ( [0-5]% 
volume share and [5-10]% value share) and Mutti Fratelli ( [0-5]% volume 
share and [0-5]% value share ).155 
(192)  The outcome of the market investigation confirmed the  availability of sufficient 
alternatives for Mercator ’s downstream  rivals to source their products . The market 
investigation shows that there are alternative suppliers from which they could 
purchase daily consumer goods if Fortenova stopped supplying them or supplied  
them  at more disadvantageous conditions. Asked whether they would have 
alternative suppliers if Fortenova would stop selling to them, or would sell at more 
disadvantageous conditions, a  retailer replied : “[…] w e are buying products from 
Jamnica  [Fortenova subsidiary producing bottled water] and Ledo [Fortenova 
subsidiar y producing frozen food and ice cream ] and these products could be 
replaced with other suppliers ”.156 Asked about the impact of the reintegration of 
Mercator into Fortenova on the markets in Slovenia, a retailer commented: “ Increase 
of choices to be expected on the segment of distribution (Velpro and Mercator 
Logistika) and also choice of producers of the  food products .”157 Retailers  in 
Slovenia  therefore seem to view Fortenova’s upstream activities as bringing more 
choice and lower prices to the Slovenian market for the production and supply of 
daily consumer goods rather than potentially limiting access to  inputs for retailers .  
(B.ii) Incentive  
(193)  If Fortenova were to stop its sales to other retailers and sell exclusively through 
Mercator post -merger, this would lead to reduced sales of its products as it seems 
unlikely that Mercator could take over all or a large p art of the retail sales of its 
competitors.  Mercator has a national share of about [30-40]% in the retail supply of 
daily consumer goods  and shares not exceeding [30-40]% in sub -segments of daily 
                                                 
152  See Form CO, paragraph 307.  
153 As regards the subsegment PRSOs, where Fortenova has a market share between 30% and 50% on a 
regional basis, these are typically homogeneous products for which p rivate label suppliers offer 
downstream competitors an effective  alternative to Fortenova.  
154  See Form CO, paragraph 307.  
155  See Form CO, paragraph 307.  
156  Replies to questionnaire to retailers of daily consumer goods (Q3) , question 31.2.1.  
157   Replies to questionnaire to retailers of daily consumer goods (Q3) , question 8.1.  
 
 
42 consumer goods in Slovenia. It seems unlikely that Fortenova ’s lost upstream sales 
could be recouped through increased downstream revenues.   
(194)  On the downstream market for the wholesale of daily consumer goods in Slovenia, 
Mercator holds an even smaller market share of [5-10]%, and is subject to fierce 
competition fr om a wide range of other wholesalers. This limits even further the risk 
of input foreclosure because Fortenova has no interest in worsening supply 
conditions to third party wholesalers representing a more significant part of demand 
while it would be unlike ly to recoup lost profits upstream through increased profits 
downstream.  
(195)  A majority of retailers expressing an opinion stated that the 2014 integration of 
Mercator into Agrokor did not affect Agrokor’s supply activities in Slovenia to their 
business or to other Slovenian retailers with regard to  food products, including 
industrial ice cream, take -home ice cream, impulse ice cream, edible oils  and 
ketchup.158 
(B.iii)  Effect 
(196)  A clear majority of retailers expressing an opinion in the market investigation  stated 
that the reintegration of Mercator into the corporate group previously known as 
Agrokor and now controlled by Fortenova, would not lead to any changes on the 
market or markets for the retail supply of food products in Slovenia in terms of 
prices, q uality, choice, or innovation, while some suggested that choice may increase 
and prices may decrease as a result of the Proposed Transaction. Asked about the 
impact of the reintegration of Mercator into Fortenova  on markets in Slovenia, a  
retailer stated: “With the re - inclusion of Mercator in the group of companies, in our 
opinion, the range of products of companies from groups and there will be a larger 
selection of products on both the Slovenian and Croatian markets”.159 A 
wholesaler/retaile r commented : “Price decreases are expected to be seen on agro -
food market (cheaper production on markets outside Slovenia” .160A 
producer/supplier stated: “ Mercator would lose competitive edge if trying to increase 
prices. ”161 Another producer anticipates that “ Competition w ill force retailers to 
provide more innovations an d choice for consumers ”.162 
(197)  With regard to the wholesale markets for daily consumer goods, a  majority of 
wholesalers expressing an opinion in the market investigation did not expect any 
changes in terms of prices and quality, while a majority of those expressing an 
opinion stated that they exp ect an increase in choice and innovation as a result of the 
Transaction.163 
(198)  Therefore, in light of the results of the market investigation and the evidence 
available to i t, the Commission considers that it is not likely that the merged entity 
                                                 
158  Replies to questionnaire to retailers of daily consumer goods (Q3) , question 32. 
159  Replies to questionnaire to retailers of daily consumer goods (Q3) , question 11.1 . 
160  Replies to q uestionnaire to wholesalers of daily consumer goods  (Q2), question 8.1; replies to 
questionnaire to retailers of daily consumer goods  (Q3), question 8.1.  
161  Replies to q uestionnaire to certain producers and suppliers of daily consumer goods (Q4), questio n 
9.2.1.  
162  Replies to questionnaire to certain producers and suppliers of daily consumer goods (Q4), question 
9.1. 
163  Replies to questionnaire to wholesalers of daily consumer goods  (Q2), question 10.  
 
 
43 would have the ability and/or incentive to engage in an input foreclosure  strategy 
post-Transaction.  Thus, the Commission concludes that the Transaction does not 
give rise to serious doubts of  input foreclosure as regards any of the plausibl e 
markets in Slovenia.  
5.2.2.2.  Customer foreclosure  
(A) The Notifying Party’s arguments  
(199)  The Parties submit that , since  Fortenova  does not currently  engage  in a customer  
foreclosure  strategy, and  the Transaction  does not materially  change  its incentive  to 
exclude  its rivals,  the risk of  customer  foreclosure  concerns  arising  is low. They claim 
that this  is further  evidenced  by the fact that Fortenova  (or Agrokor  as it then was)  did 
not pursue  such a strategy  following  its original acquisition  of control  over Mercator  
in 2014  (given  that, as is the case now,  it lacked  both the ability and incentive to do  
so).164 
(A.i) Ability  
(200)  According to the Parties:  
(a) The merged  entity  is unlikely  to have  the ability  to engage  in customer  
foreclosure.  On a national basis,  Mercator only accounts for approximately  
[30-40]% of the total retail market. Therefore,  any decision  by Mercator  to 
refuse  to stock  products  from  suppliers  competing with  Fortenova  would  
nevertheless  leave  those  rival producers  with sufficient  alternative routes  to 
market  (and by lowering  prices  and increasing  sales  in competitor  retail  
outlets, would be able to mitigate the effect of any attempted customer 
foreclosure strategy pursued by the merged  entity).165 
(A.ii) Incentive  
(201)  According to the Parties:  
(a) Even if the merged entity were to have the ability to foreclosure rival 
suppliers of consumer goods, it would not have the incentive to engage in a 
customer foreclosure strategy. This is due in a significant part to the fact that 
end retail/wholesale customers value being able to select from a wide -range 
of competing brands so, by reducing the range stocked, customers would 
likely switch away from Mercator to competing retailers (particularly due to 
the strength/importanc e in Slovenia of certain competing brands that would 
no longer be available in Mercator stores).166 
(b) Therefore, should the merged entity engage in such a strategy it would be 
expected to lead to substantial customer switching away from Mercator, with 
the cust omers that switch likely  to divert  their purchases  for a broader  basket  
of goods  (and not simply  with respect to those categories in which Fortenova 
is active and Mercator has ceased to stock competing  products).167 
                                                 
164    See Form CO, paragraph 343.  
165    See Form CO, paragraph 340.  
166    See Form CO, paragraph 341.  
167    See Form CO, paragraph 341.  
 
 
44 (A.iii)  Effect  
(202)  According to the Parties:  
(a) Consumer  harm  is unlikely  given  that it is implausible  that a large  number  of 
Fortenova’s competitors would be negatively affected by the Transaction to 
such an extent that their ability to compete would be irreparably damaged, 
particularly since competitors, even  if negatively affected, would have 
available to them a range of options for improving their competitive offering 
(e.g. through cost reductions or innovation).168  
(b) The potential for an increase in the prices for daily consumer goods is further 
mitigated by the constraint exercised  by potential  entry  and expansion  by 
importers  or producers  of consumer  goods that currently have a limited 
supply presence in  Slovenia.169 
(B) The Commission’s  assessment  
(203)  The risk of customer foreclosure through the notified concentration appears limited. 
It seems unlikely that, post -merger, the merged entity may decide not to stock 
products produced by Fortenova’s upstream competitors in Mercator stores in 
Slovenia.  
(204)  The Commission has assessed the risk of customer foreclosure on a general basis, 
looking at food products overall, for the following  reasons.  
(205)  The responses to the market investigation included hardly any references to specific 
segments  or categories  of daily co nsumer goods. Even when asked to add the 
specific segments to which their comments applied, respondents typically did not 
mention particular markets but merely cited general terms such as food products.  
(206)  On the question regarding the effect of the 2014 int egration of Mercator into 
Agrokor, when asked to select the relevant markets, a majority of producers 
expressing an opinion indicated that the integration had not affected Mercator’s 
procurement activities in Slovenia from their business or other Slovenian  producers 
with regard to food products in general.170 
(207)  The Commission therefore considers that the feedback from the market investigation 
relevant to customer foreclosure  may be taken to apply across the whole range of 
food products sold to retailers in Slov enia, including in each of the plausible affected 
markets.  
(208)  Moreover, Mercator’s market shares in each of the narrower  retail product categories  
are very close to its overall share of [30-40]%. This indicates  that the re are no 
categories  where the  merged en tity’s  ability and incentive to engage in customer 
foreclosure  would be materially  different from any other .  
(209)  The Commission considers that the general lack of references to particular products  
in the market investigation and the homogeneous nature of Merc ator’s market shares 
                                                 
168   See Form CO, paragraph 342.  
169   See Form CO, paragraph 342.  
170   Replies to questionnaire to producers of daily consumer goods  (Q1), question 31; replies to 
questionnaire t o certain producers and suppliers of daily consumer goods  (Q4), question 38.  
 
 
45 in the various retail product categories  warrants taking a general approach to the 
customer foreclosure assessment , the conclusions of which apply to each of the 
affected markets . 
(B.i)  Ability  
(210)  The Commission notes that Mercator’s national  market position in the downstream 
retail supply of daily consumer goods in Slovenia is moderate , at just above 30%, 
with shares in certain sub -segments of daily consumer goods not exceeding [30-
40]%. A producer/supplier stated: “ Mercator does not have a s trong position and 
there is very strong competition from other retailers (especially discounters) which 
in fact are driving prices down. ” 171 
(211)  As regards  the local retail markets in Slovenia where Mercator’s market sha re may 
exceed 30%, Mercator  and its  large downstream competitors , e.g. Lidl, Spar, Hofer, 
Tus, typically procure goods on a national basis. Therefore, the national market share 
seems to be a more representative basis to assess Mercator’s ability and incentive to 
foreclose customers. In any c ase, sufficient sources of retail demand would remain 
outside of these local markets for competing upstream suppliers .  
(212)  Some international suppliers, which fear that by (re -)integrating with the Agrokor 
assets Mercator will (continue to) internalise the pr ocurement of certain products or 
favour  regional brands to the benefit of Fortenova -controlled Croatian suppliers , as it 
apparently did in the past already, thus taking advantage of its vertical integration . A 
supplier stated: “ If Mercator ceased to purcha se, some lost volume woul d be 
replaced through other channels, but some would not. It is extremely difficult to 
know exactly how much volume would be lost, but it would be material ”.172 
(213)  Some respondents to the market investigation voiced concerns relating to  customer 
foreclosure in relation to local Slovenian producers (e.g., of unbra nded products such 
as meat). A  wholesaler/retailer explained: “ In the past we have already noticed 
complaints from Slovene (local) food suppliers that they shall be better repres ented 
in the product portfolio of Mercator, especially after Mercator become a part of 
Agrokor Group within which are also big food production and supply factories from 
Croatia ”.173 A producer stated  that “20-30% of annual sales could not be replaced 
by othe r customers” .174  
(214)  However, the outcome of the market investigation confirmed the availability of 
sufficient alternatives for Fortenova’s upstream rivals to sell their output. The 
majority of respondents expressing  an opinion in the market  investigation on this 
point indicated that  sufficient economic alternatives for placing their output exist.175 
Asked whether they would have alternative customers if Fortenova would stop 
sourcing from them, or would source at more disadvantageous conditions, a producer 
                                                 
171  Replies to q uestionnaire to certain producers and suppliers of daily consumer goods (Q4), question 
9.2.1  
172  Replies to questionnaire to producers of daily consumer goods  (Q1), question 30.2.1.  
173  Replies to questionnaire to wholesalers of daily consumer goods  (Q2), question 6.1.  
174  Replies to q uestionnaire to certain producers and suppliers of daily consumer goods (Q4), question 
37.2.1  
175  Replies to questionnaire to pro ducers of daily consumer goods  (Q1), question 30.2; replies to 
questionnaire to certain producers and suppliers of daily consumer goods (Q4), question 37.2.  
 
 
46 replie d: “We would look for alternative customers and new markets”.176, while  
another producer explained : “We would look for other ways to make  additional sales 
to other retailers” .177 
(215)  Moreover, the concerns voiced seem to stem primarily from the prospect of 
competitive constraint and pressure on prices being exerted by Croatian suppliers 
competing on the merits, rather than the expectation of the merged entity engaging in 
exclusionary c onduct by limiti ng market access for suppliers. For example, a sked 
about the impact of the reintegration of Mercator into Fortenova on the markets for 
the production and supply of food products in Slovenia, a  producer of daily 
consumer goods stated: “Possi ble pressure on lower prices, possible pressure on 
local producers ”178 Another producer commented: “Increased competition and thus 
pressure on the purchase price of existing suppliers .”179  
(B.ii) Incentive  
(216)  The outcome of the market investigation also indicated that the Parties would not 
have an incentive to foreclose suppliers or customers due to  the already existing 
integration of both entities . In this regard , one wholesaler indicated : “According to 
our assessment, the companies have already been fairly integrated and no major 
changes are to be expected.”180.  
(217)  Other respondents suggest ed that Mercator is likely to remain relatively autonomous 
within Fortenova , as it was already  in the past within Agrokor. A wholesaler/retailer  
indicated that  “Mercator is a self standing company with its headquarter in Slovenia 
(Ljubljana). Their management was always sovereign at taking business decisions 
and according to our knowledge so shall remain also after its reintegr ation of the 
corporate group previously known as Agrokor and now controlled by Fortenova. In 
their current strategy is explicitly outlined that they act first and foremost locally 
and only than regionally (since they operate their activities under Mercator  brand 
also on other markets than Slovene) .”181 
(218)  In this respect, the  Commission  notes that the treatment of Slovenian suppliers by 
Mercator after its acquisition by Agrokor/Fortenova has been a sensitive and 
prominent “national” political issue but that late ly the Slovenian press has reported 
efforts by Mercator to accommodate these concerns by engaging directly with local 
suppliers and committing to support the local value chain.182  
                                                 
176  Replies to q uestionnaire to certain producers and suppliers of daily consumer goods (Q4), questi on 
37.2.  
177   Replies to questionnaire to producers of daily consumer goods  (Q1), question 30.2.1.  
178   Replies to questionnaire to producers of daily consumer goods  (Q1), question 6.  
179  Replies to q uestionnaire to certain producers and suppliers of daily co nsumer goods (Q4), question 
7.1. 
180  Replies to questionnaire to producers of daily consumer goods  (Q1), question 6; replies to 
questionnaire to wholesalers of daily consumer goods  (Q2), question 5.1; replies to questionnaire to 
retailers of daily consumer goods  (Q3), questions 5.1 and 6.  
181  Replies to questionnaire to wholesalers of daily consumer goods  (Q2), question 4.1; replies to 
questionnaire to retailers of daily consumer goods  (Q3), question 4.1.  
182   See, e.g., “Fortenova v kratkem računa na ustvarje ne pogoje za prenos delnic Mercatorja”, 9 June 
2020 (https://www.24ur.com/novice/gospodarstvo/fortenova -v-kratkem -racuna -na-ustvarjene -pogoje -
za-prenos -delnic -mercatorja html); « Fortenova želi čimprejšnji prenos delnic Mercatorja », 9 June 
2020 (https://www.rtvslo.si/gospodarstvo/fortenova -zeli-cimprejsnji -prenos -delnic -
mercatorja/526625 ).  
 
 
47 (219)  A majority of produc ers expressing an opinion in the market investigation stated that 
the 2014 integration of Mercator into Agrokor did not lead to the reduction or 
discontinuation of Mercator’s purchases from their business or other Slovenian 
producers/suppliers with regard to  food products  in general and take-home ice cream  
in particular .183  
(B.iii)  Effect  
(220)  A clear majority of producers of daily consumer goods considered that the 
reintegration of Mercator into the corporate group , previously known as Agrokor and 
now controlled by Fortenova, would have no impact on the market or market s for the 
production and  supply of food products in Slovenia in terms of price, quality, choice 
or innovation.184 
(221)  Therefore, in light of the results of the market investigation and the evidence 
available to it, the Commission considers that that it is not li kely that the merged 
entity would have the ability and/or incentive to engage in a customer  foreclosure  
strategy post -Transaction . Thus, the Commission concludes that the Transaction 
does not give rise to serious doubts in relation to customer foreclosure as regards any 
of the plausible  markets in Slovenia.  
5.2.3.  Conclusion on vertical  effects  
(222)  In light of the considerations in Section 5.2, the Commission concludes that the 
proposed Transaction does not give rise to serious doubts about its compatibility 
with the internal market or the EEA Agreement due to input or customer fore closure 
as regards the markets for the retail supply of daily consumer goods , including 
bottled water, fresh and processed meat, take -home ice cream, dairy/cheese products, 
mayonnaise  and dairy/cheese spread , ice cream overall , ketchup , edible oils , impuls e 
ice cream , fresh fruit and vegetables , and PRSO and as regards  the markets for the 
production and supply of impulse ice cream overall, branded impulse ice cream, 
branded take -home ice cream, branded all industrial ice cream, private label  
ketchup ,branded  edible oils , margarine overall, mayonnaise overall, water overall , 
PRSO  and iced tea in Slovenia . 
                                                 
183  Replies to questionnaire to producers of daily consumer  goods  (Q1), question 31; replies to 
questionnaire to c ertain producers and suppliers of daily consumer goods  (Q4), question 38.  
184  Replies to questionnaire to producers of daily consumer goods  (Q1), question 9.  
 
 
48 6. CONCLUSION  
(223)  For the above reasons, the European Commission has decided not to oppose the 
notified operation and to declare it compatible with the internal  market and with the 
EEA Agreement. This decision is adopted in application of Article 6(1)(b) of the 
Merger Regulation and Article 57 of the EEA Agreement .  
For the Commission  
 
 
(Signed)  
Margrethe VESTAGER  
Executive Vice-President