COMMISSION STAFF WORKING DOCUMENT Accompanying the document Report from the Commission to the European Parliament and the Council The application of the Union competition rules to the agricultural sector
Date: 2018-10-26
Institutions: Directorate-General for Competition, European Commission
Subjects: agricultural production, application of EU law, common organisation of markets, control of restrictive practices, farming sector, inter-company agreement, producer organisation, restriction on competition, restrictive trade practice, single market

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 26.10.2018 SWD(2018) 450 final  COMMISSION STAFF WORKING DOCUMENT Accompanying the document Report from the Commission to the European Parliament and the Council  The application of the Union competition rules to the agricultural sector {COM(2018) 706 final}  
 
 
Contents 

1 

INTRODUCTION ....................................................................................................... 3 

1.1  The context and structure .................................................................................. 3 

1.2  The Union competition rules - Articles 101 and 102 TFEU ............................. 3 

1.3  The  scope  of  the  Union  competition  rules  in  the  agricultural  sector 

according to the TFEU ...................................................................................... 5 

1.4  Competition derogations in Regulation (EU) 1308/2013 .................................. 5 

1.5  Derogations  from  Article  101  TFEU  according  to  general  competition 

rules ................................................................................................................... 6 

2 

THE APPLICATION OF UNION COMPETITION RULES AS SET OUT IN 
THE CMO ................................................................................................................... 7 

2.1  Description of various producer cooperations ................................................... 7 

2.2  General CMO Provisions concerning recognised producer organisations ........ 8 

2.3  Article 209 CMO – farmers and farmers' associations .................................... 10 

2.4  Article 210 CMO – Agreements by Interbranch Organisations ...................... 11 

2.5  Sector specific rules in the CMO ..................................................................... 14 

2.5.1  Article  160  CMO  –  Producer  organisations  in  the  fruit  and 

vegetables sector ................................................................................ 14 

2.5.2 

Supply management rules for certain sectors .................................... 17 

2.5.2.1

  Article  150  CMO  -  Supply  management  of  cheese 

with protected PDO/PGI.................................................... 17 

2.5.2.2

  Article  162  CMO  –  Olive  oil,  tobacco  -  Co-

ordination of supply and marketing of the produce ........... 18 

2.5.2.3

  Article 167 CMO - Supply management of wine .............. 18 

2.5.2.4

  Article 172 CMO - Supply management ham with a 

PDO/PGI............................................................................ 20 

2.5.3  Article  125  –  Sugar,  Agreements  within  the  trade  and  value 

sharing mechanism ............................................................................ 20 

2.5.4  Contractual  negotiations  by  producer  organisations  in  various 

sectors ................................................................................................ 22 

2.5.4.1

  Article  169,  170  and  171  CMO  –  Olive  oil, 
beef&veal  and  certain  arable  crops  (repealed  by  the 
Omnibus Regulation)......................................................... 23 

2.5.4.2

  Article 149 CMO - Collective negotiation in the milk 

and milk products sector  (in force) ................................... 27 

2.6  Crisis situations ............................................................................................... 28 

2.6.1  Articles 222 CMO as applied during the milk market crisis ............. 28 

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111 

 
 
2.6.2  Article 33 CMO – Crisis measures in operational programmes 

in the fruit and vegetables sector ....................................................... 29 

2.7  Exemptions  under  individual  assessment  according  to  Article  101  (3) 

TFEU ............................................................................................................... 32 

3 

INVESTIGATIONS  BY  COMPETITION  AUTHORITIES 
AGRICULTURAL SECTOR .................................................................................... 32 

IN  THE 

3.1  Nearly 170 antitrust investigations in 2012-2017 ........................................... 33 

3.2  Main product categories investigated .............................................................. 33 

3.3  Entities subject to investigations ..................................................................... 35 

3.4  Main sources of investigations ........................................................................ 36 

3.5  Types of complainants ..................................................................................... 37 

3.6  Types of infringements investigated ............................................................... 38 

3.7  Outcomes of investigations ............................................................................. 40 

3.8  Types of infringements found ......................................................................... 43 

4  CONSULTATIONS  RECEIVED  BY  EUROPEAN  COMPETITION 

AUTHORITIES ......................................................................................................... 47 

4.1  More than 40 consultations ............................................................................. 47 

4.2  Main source of consultations ........................................................................... 49 

4.3  Main types of consultations ............................................................................. 49 

5  MONITORING AND RELATED ACTIVITIES ..................................................... 51 

5.1  Number of monitoring and related activities ................................................... 51 

5.2  Main types of monitoring and related activities .............................................. 51 

6  COURT CASES ........................................................................................................ 56 

2 

 
 
 
 
1 

INTRODUCTION   

1.1  The context and structure 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

Under Article 225(d) of Regulation (EU) No 1308/2013 ('CMO')1 the Commission 
shall present to the European Parliament and the Council, by 31 December 2017, a 
report  on  the  application  of  the  competition  rules  to  the  agricultural  sector,  in 
particular on the operation of Articles 209, 210 and 169, 170 and 171 CMO. 

The  report  and  this  Staff  Working  Document  are  based  on  input  from  national 
competition  authorities  ('NCAs')  and  the  Commission  concerning  investigations, 
consultations and monitoring activities, Member States and private organisations to 
the Commission, studies of the European Commission on producer organisations in 
the  olive  oil,  arable  crops  and  beef&veal  sector  (2017)  and  on  interbranch 
organisations (2016). 

'Agricultural sector' covers the products listed in Article 1 (2) and Annex I CMO. 
In  parallel,  competition  authorities  have  carried  out  investigations  and  other 
activities  regarding  food  products  that  are  not  agricultural  products.  The  report 
does not cover these latter investigations/activities. 

The  report  covers  the  period  from  1  January  2014  to  mid-2017,  as  far  as 
derogations  from  the  competition  rules  in  the  CMO  are  concerned  and  from  1 
January 2012 to mid-2017 for the description of antitrust investigations.2  

This Staff Working Document is divided into three main parts.  

In the first part, it describes the EU competition rules and in particular the scope of 
the Union competition rules in the agricultural sector according to the TFEU. 

In  the  second  part,  it  describes  the  case  investigations,  consultations  and 
monitoring activities of European competition authorities from 1 January 2012 to 
mid-2017 ('the Period').   

The  third  part  provides  background  on  the  application  of  the  Union  competition 
rules as set out in the CMO Regulation.   

The  Annex  provides  an  overview  of  the  number  of  recognised  producer 
organisations and associations of producer organisations in different sectors.  

1.2  The Union competition rules - Articles 101 and 102 TFEU 

(10)  Article 101 of the Treaty on the Functioning of the European Union (TFEU) and 
Article  102  TFEU  address  the  behaviour  of  undertakings  under  the  competition 
rules.  While  Article  101  TFEU  addresses  agreements  between  undertakings, 
Article 102 TFEU deals with the abuse of a dominant position of an undertaking.  

1  Regulation  (EU)  1308/2013  of  the  European  Parliament  and  of  the  Council  of  17  December  2013 
establishing a common organisation of the markets in agriculture, OJ L 347 of 20.12.2013,p. 671. 
For the period 2004-2011 see report on competition law enforcement and market monitoring activities 
by the European competition authorities in the food sector.  

2 

3 

 
                                                 
(11)  Article  101(1)  TFEU  prohibits  agreements  between  two  or  more  independent 
market  operators  which  restrict  competition  within  the  internal  market.  It  is 
important  to  note  that  joint  sales,  joint  production  and  supply  management 
measures  of  competitors  are  normally  considered  restrictions  of  competition 
covered  by  Article  101  (1)  TFEU.  A  competitor  can  be  'actual'  or  potential.  An 
actual  competitor  is  active  on  the  same  relevant  market.    A  competitor  is  a 
potential one if, while not actually active on the relevant market, is likely to enter it 
when it becomes attractive to do so.3 The definition of the relevant market in terms 
of  product  and  geographic  market  is  subject  to  an  assessment  in  each  individual 
case. 

(12)  Agreements  covered  by  Article  101  (1)  TFEU  can  be  horizontal,  i.e.  concluded 
between  actual  or  potential  competitors  on  the  same  level  of  the  chain  (e.g. 
farmers)  or  vertical,  if  concluded  between  actors  operating  on  different  levels  of 
the chain (e.g. farmers agree with processors). 

(13)  Under  Article  101(3)  TFEU,  Article  101(1)  may  be  declared  inapplicable  if  the 

agreement 

a.  contributes to improving the production or distribution of goods or to promoting 

technical or economic progress,  

b.  while allowing consumers a fair share of the resulting benefit,  

while it does not  

c.  impose  on  the  undertakings  concerned  restrictions  which  are  not  indispensable 

to the attainment of these objectives and  

d.  afford such undertakings the possibility of eliminating competition in respect of a 

substantial part of the products in question.   

(14)  Article  102  TFEU  prohibits  market  operators  holding  a  dominant  position  on  a 
given  market  to  abuse  that  position,  e.g.  by  charging  unfair  prices  or  by  limiting 
output.  The  Commission's  Guidance  on  the  application  of  Article  102  TFEU 
contains  a  description  of  how  the  market  power  of  an  undertaking  should  be 
assessed,  stating  that  market  shares  provide  a  first  indication,  but  that  the 
assessment will take place in light of the relevant market conditions.4 

(15)  For the purposes of the CMO Regulation, Article 208 CMO states that 'dominant 
position means a position of economic strength enjoyed by an undertaking which 
enables it to prevent effective competition being maintained in the relevant market 
by  giving  it  the  power  to  behave  to  an  appreciable  extent  independently  of  its 
competitors, customers and ultimately of consumers.' 

3 

4 

See further in the Guidelines on the applicability of Article 101 of the Treaty of the Functioning of the 
European Union to horizontal co-operation agreements, OJ C 11 of 14.1. 2011. 
See  Guidance  on  the  Commission's  enforcement  priorities  in  applying  Article  82  of  the  EC  Treaty  to 
abusive exclusionary conduct by dominant undertakings, OJ C 45 of 24.2.2009, p.7. 

4 

 
 
 
 
                                                 
1.3  The scope of the Union competition rules in the agricultural sector according to 

the TFEU 

(16)  Under  Article  42  TFEU,  the  Union  competition  rules  apply  to  production  of  and 
trade  in  agricultural  products  only  to  the  extent  determined  by  the  European 
Parliament  and  the  Council,  within  the  framework  of  Article  43(2)  TFEU  and 
taking into account the objectives of Article 39 TFEU. 

(17)  The priority of the objectives of common agricultural policy as set out in Article 39 
TFEU over the objectives of competition law have recently been confirmed in the 
Court's  'Endives'  judgment  which  relies  on  long  standing  case  law.5  At  the  same 
time, the Court recalled that the maintenance of effective competition is one of the 
objectives  of  the  common  agricultural  policy  and  the  common  organisation  of 
markets.6 

(18)  Article 39 TFEU lists the objectives of the common agricultural policy:  

 
 

 
 
 

to assure the availability of supplies,  
to  increase  agricultural  productivity  by  promoting  technical  progress  and  by 
ensuring  the  rational  development  of  agricultural  production  and  the  optimum 
utilisation of the factors of production, 
to stabilise markets and  
to ensure that supplies reach consumers at reasonable prices, and  
to  ensure  that  the  agricultural  community  achieves  a  fair  standard  of  living,  in 
particular by increasing the individual earnings of persons engaged in agriculture.  

1.4  Competition derogations in Regulation (EU) 1308/2013 

(19)  With Article 206 of Regulation (EU) 1308/2013 (CMO), the European Parliament 
and the Council have decided that the competition rules apply to agriculture, save 
as otherwise provided for in this Regulation.7  

(20)  The  CMO  contains  certain  derogations  from  the  application  of  Article  101(1) 
TFEU either generally for all sectors or specifically for certain agricultural sectors 
only. Some derogations apply in any market situation whilst others may be applied 
only  in  times  of  crisis.  In  some  cases  the  measures  can  be  taken  or  triggered  by 
'recognised' producer organisations  ('POs') only whilst others apply to all farmers 
and their associations, with or without recognition as a PO. Special rules also apply 
to recognised interbranch organisations (´IBOs´). The CMO was amended as of 1 

5 

6 

Judgment of 14 November 2017, APVE and Others, C‑671/15,EU:C:2017:860,  paragraph 37. See also 
judgment of 29 October 1980, Maizena, 139/79, EU:C:1980:250, paragraph 23, judgment of 5 October 
1994, Germany v. Council, C-280/93, EU:C:1994: 367, paragraph 61, judgement of 19 September 2013, 
Panellionios Szdesmos Viomichanion Metapoiisis Paknou, C-373/11, EU: C: 201: 567, paragraph 39.  
Judgement  of  9  September  2003,  Milk  Marque  and  National  Farmers'  Union,  C-137/00, 
EU:C:2003:429,  paragraph  57, 
judgment  of  14  November  2017,  APVE  and  Others, 
C‑671/15,EU:C:2017:860, paragraph 37 and 48. 

7  Article  206,  1st  subparagraph  CMO  reads:  'Save  as  otherwise  provided  in  this  Regulation,  and  in 
accordance with Article 42 TFEU, Articles 101 to 106 TFEU and the implementing provisions thereto 
shall, subject to Articles 207 to 210 of this Regulation, apply to all agreements, decisions and practices 
referred  to  in  Article  101(1)  and  Article  102  TFEU  which  relate  to  the  production  of,  or  trade  in, 
agricultural products.' 

5 

 
 
                                                 
January  2018.  The  'Omnibus  Regulation'8  introduced  a  horizontal  competition 
derogation  for  recognised  POs  and  APOs  in  all  agricultural  sectors,  as  far  as 
certain activities (such as joint sales) of recognised POs and APOs are concerned 
(Article 152 CMO was amended). The existing sectoral derogations for recognised 
POs and APOs in the olive oil, beef and veal and arable crops sector (Articles 169-
171 CMO) have consequently been repealed.9   

(21)  The CMO does not contain any explicit derogation from the application of Article 

102 TFEU.  

(22)  The  determination  whether  a  derogation  from  competition  law  applies  is  to  be 
made  on  a  case  by  case  basis  and  should  be  assessed  by  the  party  relying  on  an 
exception ('self-assessment').10 It is also for this party to prove that the conditions 
for the application of an exemption are met.  

(23)  The CMO, with the exception of notifications pursuant to Article 210 CMO, does 
not foresee a notification of agreements, decisions or concerted practices closed by 
a Commission decision that would establish whether the conditions for application 
of the exemption are met.  

(24)  Article 210 CMO provides for a voluntary notification system for agreements and 
decisions  of  recognised  interbranch  organisations.  Under  certain  conditions  the 
agreements  of  such  recognised  interbranch  organisations  might  derogate  from 
Article 101 (1) TFEU (for details, see paragraph (48)).  

1.5  Derogations from Article 101 TFEU according to general competition rules 

(25)  As  already  mentioned  above,  Article  101  (1)  TFEU  is  not  applicable,  if  the 
conditions of Article 101 (3) TFEU are fulfilled. In this regard, the Commission's 
Guidelines  on  horizontal  co-operation  agreements  describe  various  forms  of 
horizontal  cooperation  (see  footnote  3)11,  including  information  exchanges, 
production and purchase agreements, which might be relevant for the cooperation 
of agricultural producers or other operators in the food supply chain. 

(26)  Certain  activities,  for  which  it  can  be  assumed  with  sufficient  certainty  that  they 
satisfy  the  conditions  of  Article  101  (3)  TFEU  are  'block  exempted'  by  way  of 
Regulation.  This  is  the case for specialisation agreements, which also  cover joint 
production  agreements  between  competitors.  Subject  to  a  20%  market  share 
threshold  (on  the  relevant  market),  parties  which  jointly  produce  products,  may 

8   Regulation  (EU)  2017/2393  of  the  European  Parliament  and  of  the  Council  of  13  December  2017 
amending  Regulations  (EU)  No  1305/2013  on  support  for  rural  development  by  the  European 
Agricultural Fund for Rural Development (EAFRD), (EU) No 1306/2013 on the financing, management 
and  monitoring  of  the  common  agricultural  policy,  (EU)  No  1307/2013  establishing  rules  for  direct 
payments to farmers  under support schemes  within the framework of the common agricultural policy, 
(EU)  No  1308/2013  establishing  a  common  organisation  of  the  markets  in  agricultural  products  and 
(EU)  No  652/2014  laying  down  provisions  for  the  management  of  expenditure  relating  to  the  food 
chain, animal health and animal welfare, and relating to plant health and plant reproductive material (OJ 
2017 L350, p. 15) ("Omnibus Regulation"). 

9   Repealed from 1 January 2018 by the Omnibus Regulation.Regulation (EU) 2017/2393, see fn. 8.  
10  Article 209(2) CMO, second subparagraph.  
11   Guidelines on the applicability of Article 101 TFEU to horizontal co-operation agreements, OJ C 11 of    

14.1.2011. 

6 

 
                                                 
under certain conditions be allowed to sell these products according to Article 2, 3 
and 4 of the Specialisation Block Exemption Regulation.12  

(27)  This is relevant for the agricultural sector, as it gives e.g. agricultural producers a 
possibility to market those products, which they process together. In practice, the 
provision will in particular apply to those agricultural cooperatives, which engage 
in processing.13 However, in sectors where such processing typically does not take 
place, e.g. for eggs, the sale of live animals or fresh fruit and vegetables, the Block 
Exemption Regulation will not be relevant.14 

2  THE APPLICATION OF UNION COMPETITION RULES AS SET OUT IN THE CMO 

(28)  As many of the derogations from the application of Article 101(1) TFEU refer to 
specific  entities,  such  as 
interbranch 
organisations  or  farmers'  associations,  this  section  will  give  an  overview  of  the 
main  characteristics  of  the  different  cooperation  forms  which  agricultural 
producers might engage in. 

recognised  producer  organisations, 

2.1  Description of various producer cooperations 

Producer  organisations  (POs):  Producers  can  cooperate  among  themselves 
(horizontal  cooperation).  POs  vary  in  terms  of  number  and  size  of  their  members 
and  also  regarding  the  degree  of  cooperation,  e.g.  for  the  types  and  numbers  of 
products  covered,  the  size  of  the  geographical  area  in  which  the  PO  operates  and 
the  kind  and  number  of  activities  which  the  PO  carries  out  for  its  producer 
members. Some POs are recognised by Member States under Articles 152 and 154 
CMO. The CMO does not define what constitutes a PO, but it lists – for the purpose 
of the national recognition process – certain criteria which a PO needs to meet to be 
recognised. Such a condition is in particular that the PO is constituted and controlled 
by producers in a specific sector listed in Article 1 (2) CMO. 

Associations of producer organisations (APOs): Associations of recognised producer 
organisations  are  entities  formed  by recognised POs.  APOs  can  also  be  recognised 
by  Member  States.  They  may  carry  out  any  of  the  activities  or  functions  of  POs 
according to Article 156 CMO.  

Interbranch  organisations  (IBOs):  Producers  can  also  work  together  with  other 
operators  in  the  food  supply  chain  in  interbranch  organisations,  which  constitute 
vertical cooperation between the production sector and at least one other level of 
the  food  supply  chain  such  as  processors  or  distribution,  including  retail.  Member 
States  can  recognise  such  interbranch  organisation  based  on  Articles  157  and  158 

12   Commission Regulation (EU) No 1218/2010 of 14 December 2010 on the application of Article 101(3) 
of  the  Treaty  on  the  Functioning  of  the  European  Union  to  certain  categories  of  specialisation 
agreements, OJ L 335, 18.12.2010. 

13  For  a  distinction  of  different  types  of  agricultural  cooperatives,  see  the  Commission's  study  on 

https://ec.europa.eu/agriculture/sites/agriculture/files/external-studies/2012/support-farmers-
coop/fulltext_en.pdf. 

14  See  Memo 

of  DG  COMP 

for 

the  Agricultural  Markets  Task  Force, 

p 

6/7, 

https://ec.europa.eu/agriculture/sites/agriculture/files/agri-markets-task-force/2016-06-28/memo.pdf. 

7 

 
 
 
                                                 
CMO. The CMO lists certain recognition criteria which the interbranch organisation 
has  to  meet  to  be  recognised.  These  requirements  are  in  particular  that  an  IBO  is 
constituted in a specific sector listed in Article 1 (2) CMO and pursue a specific aim 
listed in Article 157 (1) CMO, which is  e.g. improving knowledge and transparency 
and  the  market  by  publishing  aggregated  data  e.g.  on  production  costs,  price 
indices, etc., drawing up contract models or carrying out research e.g. with a view to 
improving production, processing and marketing or promoting more sustainable or 
environmentally sound production methods. 

Farmer  cooperatives:  Producers  may  organise  themselves  in  the  form  of  farmers' 
cooperatives, which are generally formed by the members, controlled by them for 
their benefit 15 and may often encompass downstream activities, such as processing. 
The  European  Court  of  Justice  recognised  the  benefits  of  cooperatives  in  the 
agriculture sector and confirmed that their creation does not of its own constitute 
an infringement of Union competition rules.16 A cooperative, a common legal form 
used in particular in Northern Europe, is not the only legal form of PO – other legal 
forms  exist  and  their  activities  and  extent  of  integration  of  producer  cooperation 
vary. The CMO does not contain any special rules for cooperatives, although certain 
provisions  dealing  with  farmers'  associations,  such  as  Article  209  CMO  would  also 
cover cooperatives. As farmer cooperative is only a special form of a PO, it can ask 
for recognition in the same manner as any other PO. 

Farmers'  associations:  Some  of  the  provisions  in  the  CMO  refer  to  farmers' 
associations, a term which is not defined, but would cover a cooperation of farmers, 
irrespective  of  whether  this  cooperation  is  recognised  as  a  PO.  This  term  is 
associated with farmers' cooperatives, but not limited to them only. 

2.2  General CMO Provisions concerning recognised producer organisations 

(29)  Until  1  January  2018,  Article  152  CMO  listed  as  objectives  of  recognised  POs 
important tasks such as concentration of supply, placing of products on the market 
or production planning. Article 152 CMO did not stipulate any explicit derogation 
from the competition rules when POs engage in such activities. 

(30)  While  this  report  is  limited  to  the  period  mentioned  in  paragraph  4,  two  recent 

developments should be mentioned.  

(31)  Firstly  on  14  November  2017  the  European  Court  of  Justice  answered  a 
preliminary ruling request from the  Cour de cassation in France in the 'Endives' 
case.  In  2012,  the  French  Competition  Authority  had  imposed  sanctions  on 
practices  of  POs,  APOs  and  other  entities  regarding  the  endive  production  and 
marketing  sector.  The  French  competition  authority  had 
fined  various 
organisations and companies for anti-competitive agreements, in essence on price 
concertation,  volume  coordination  of  endives  as  well  as  the  exchange  of 
commercially sensitive information.  

15  Study 'Support for Farmers' cooperatives', Bijman a.o, p. 110, 

https://ec.europa.eu/agriculture/sites/agriculture/files/external-studies/2012/support-farmers-
coop/fulltext_en.pdf. 
 Judgment in Oude Luttikhuis, C-399/93, EU:C:1995:434, paragraphs 10-16. 

16 

8 

 
 
 
 
                                                 
(32)  Secondly,  as  of  1  January  2018,  Article  152  CMO,  as  amended  by  the  Omnibus 
Regulation17,  provides  for  an  explicit  derogation  from  Article  101(1)  TFEU  for 
recognised  POs/APOs.  Recognised  POs/APOs  must  integrate  an  activity  such  as 
transportation  or  promotion  etc.  in  order  to  be  recognised.  To  rely  on  the 
derogation  from  Article  101(1)  TFEU,  the  PO/APO  must  genuinely  exercise  the 
integrated activities; concentrate supply and place products of its members on the 
market.  If  those  conditions  are  met,  the  PO/APO  may  plan  production,  place 
products  of  its  members  on  the  market  and  engage  in  contractual  negotiations 
(joint sales) on behalf of its members. 

(33) 

In  the  Endives  judgment,  the  Court  made  a  distinction  between  agreements 
between recognised POs/APOs or with unrecognised entities on the one hand and 
behaviour  taking  place  within  a  recognised  PO/APO  on  the  other.18    The  Court 
stated that to agreements between POs/APOS and other non-recognised entities the 
competition rules apply.  

(34)  The  Court  acknowledged  that  a  PO  or  an  APO  may,  in  order  to  achieve  the 
objectives  of  the  common  market  organisation,  have  recourse  to  means  different 
from  those  which  govern  normal  market  operations  and,  in  particular,  to  certain 
forms  of  coordination  and  concertation  between  agricultural  producers.19  Under 
strict conditions  as  specified in  the judgment, the competition  rules thus may not 
apply  to  practices  of  producer  members  within  a  recognised  POs  or  recognised 
APOs,  provided  that  the  entity  is  duly  recognised  by  the  Member  State  and  the 
practices are actually and strictly necessary for and proportionate to the pursuit of 
the objectives assigned to the PO or APO concerned.  

(35)  The practices of producers, to which Article 101(1) TFEU may not apply subject to 
this  necessity  and  proportionality  test,  concerned  coordination  of  quantities, 
exchange of information and a certain form of coordination of the pricing policy. 
However, the Court clarified that collective fixing of minimum sale prices within a 
PO, which does not allow its members, who sell a part of their production outside 
the PO, to sell at a price below a minimum price, may not pass the proportionality 
test. The Court refers in this context to the already low level of competition in the 
markets for agricultural  products resulting from in particular the possibility given 
to producers to create POs. To such behaviour, the competition rules do apply. 

(36)  Given that this non-application of the competition rules focused on recognised POs 
and APOs and taken into account that also some other CMO provisions explicitly 
refer to such recognised POs and APOs, the Annex at the end of this document 
presents an overview of the number of POs and APOs currently recognised in the 
European Union. This overview on recognised POs and APOs refers to Article 152 
CMO  applicable  before  its  amendment  as  of  1  January  2018  by  the  Omnibus 
Regulation (i.e. it was not mandatory for these POs/APOs to exercise any activity 
on behalf of their members in order to be recognised). 

17  Omnibus Regulation, OJ L 350 of 29.12.2017, p. 15, cited above fn.8. 
18 

Judgment  in  Case  C-671/15  APVE  and  Others,  see  fn5.  The  questions  of  interpretation  posed  to  the 
Court  concerned  provisions  of  Regulation  1234/2007  which  has  been  repealed  and  replaced  by 
Regulation 1308/2013.  
Judgment C-671/15, see fn. 5, paragraph 43. 

19 

9 

 
                                                 
(37)  However, the Commission has thus far received limited data, as the recognition is 
done  by  Member  States.  The  notification  by  Member  States  under  Article 
154(4)(d) CMO only concerns recognitions, refusal or withdrawal of recognitions 
taken  during  the  previous  year  and  does  not  require  Member  States  to  report  the 
total number of recognised POs/APOs.  

(38)  As  a  first  step  to  establish  the  recognised  entities,  the  Commission  requested  the 
Member States in April 2017 to provide information on the number of recognised 
POs and to indicate the activities that these entities carry out.  

(39)  The Commission also launched a study on producer organisations, based on a pilot 
project of the European Parliament, which will entail an analysis of the best ways 
for producer organisations to be formed, carry out their activities and be supported, 
inter alia based on this data.20 The study should inter alia establish an inventory of 
recognised  POs  and  APOs  as  well  as  a  survey  of  unrecognised  producer 
cooperations,  taking  as  a  starting  point  the  results  from  the  Commission's 
the  Annex  for  data  on  producer 
questionnaire 
organisations).  

to  Member  States  (see 

(40)  The Annex includes information on the fruit and vegetables sector (which has the 
highest  number of recognised POs/APOs), the milk and milk  products  sector and 
all  other  agricultural  sectors,  in  which  POs/APOs  are  recognised.  In  these  other 
sectors, the highest number of recognised entities can be found in the wine, cereals, 
meat and olive oil sector. 

2.3  Article 209 CMO – farmers and farmers' associations 

(41)  Article  209  CMO,  which  has  existed  with  similar  wording  since  196221,  is  a 
general derogation from Article 101 (1) TFEU for farmers and their associations. 
Article 209 1st subparagraph stipulates that Article 101(1) TFEU shall not apply to 
the agreements, decisions and practices referred to in Article 206 CMO necessary 
for  the  attainment  of  the  objectives  set  out  in  Article  39  TFEU.  The  Court  of 
Justice held that for its application all the five CAP objectives mentioned in Article 
39  TFEU  must  be  fulfilled,  when  the  producer  organisation  adopts  measures  not 
foreseen by the CMO for the common organisation of the market.22 

(42)  Article  209  2nd  subparagraph  of  the  CMO  stipulates  that  Article  101(1)  TFEU 
shall not apply to agreements, decisions and concerted practices of all farmers and 
their  associations,  such  as  cooperatives,  as  well  as  recognised  POs  and  their 
associations that concern production or sale of agricultural products or the use of 
joint facilities for the storage, treatment or processing of agriculture products. The 
agreements shall not i) jeopardise the objectives of Article 39 TFEU, ii) entail an 
obligation to charge an identical price and iii) exclude competition.  

(43)  Article  209  only  applies  to  farmers  and  their  associations,  including  recognised 
POs/APOs. It does not apply to associations which also involve other operators of 

20  https://ec.europa.eu/agriculture/calls-for-tender/280414-2017_en. 
21  Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty, OJ 13, 21.2.1963, p. 

204. 

22  See  e.g.  judgment  of  the  General  Court,  Case  T-217/03  and  T-245/03,  FNCBV,  EU:T:2006:391, 
paragraph 199, upheld on appeal by the Court of Justice in  Joined Cases C-101/07 P and C-110/07 P, 
FNCBV, EU:C:2008:741.  

10 

 
                                                 
the food supply chain. In a decision, the Commission found that23 the organisations 
involving pure processors or trade organisations cannot rely on this provision.  

(44)  Currently, the Commission has no information on how often farmers and farmers 

associations rely on this article. It has been rarely referred to in competition cases. 

(45)  The  national  competition  authority  ("NCA")  in  the  Netherlands  dealt  with  the 
predecessor article to Article 209 CMO – Article 176 of Regulation 1234/2007 - in 
two  investigations:  In  2012,  the  NCA  in  the  Netherlands  fined  five  agricultural 
producer  organisations  and  three  wholesalers  for  exchanging  information  on 
prices, on how much they each would produce and their market shares in order to 
reduce the quantity of bell peppers in the market, thereby increasing the prices of 
bell peppers. The NCA concluded that the derogation in Article 176 of Regulation 
(EU)  1234/2007  did  not  apply  since  1)  the  parties  were  not  part  of  a  national 
market  organisation,  2)  the  parties  did  not  demonstrate  that  minimum  price 
agreements  are  necessary  to  achieve  CAP  objectives  and  3)  the  agreements 
entailed charging identical prices. 

(46)  Also in 2012, the NCA in the Netherlands fined a group of agricultural producers, 
wholesalers  and  processors  for  an  agreement  that  limited  the  production  of 
silverskin  onions.  The  parties  to  the  agreement  also  shared  price  information  in 
order to align prices and obtain the highest possible price level. In order to support 
the  agreement  they  bought  several  competing  onion  producers  that  after  the 
acquisition would no longer produce silverskin onions. The parties argued that the 
agreement could be covered by the derogation, because it was needed to increase 
the productivity and yield of the production as well as to obtain reasonable prices.  
However,  the  NCA  found  that  the  derogation  did  not  apply  since  1)  the  parties 
were not  part of  a national  market  organisation, 2) the  yearly output quotas were 
intended  to  raise  prices  above  the  competitive  level  and  the  agreement  did  not 
contribute to ensuring that supplies reach consumers at reasonable prices and 3) the 
agreements entailed charging identical prices. 

(47)  With  the  changes  in  the  Omnibus  regulation  as  of  1  January  2018,  under  Article 
209(2) CMO parties have the option to ask an opinion from the Commission on the 
compatibility of their agreements with the objectives set out in Article 39 TFEU. 

2.4  Article 210 CMO – Agreements by Interbranch Organisations  

(48)  Pursuant to Article 210 CMO recognised interbranch organisations (IBOs) need to 
notify  their  agreements  and  practices  to  the  Commission  to  benefit  from  an 
exemption from Article 101(1) TFEU. As IBOs potentially represent  all levels of 
the supply chain, they should – as reflected in the catalogue of objectives in Article 
157(1)  of  the  CMO  –  deal  with  general  supply  chain  issues  and  address  topics 
which may contribute to greater supply chain efficiency. 

(49)  Where  the  Commission  after  examination  of  the  agreement  does  not  find  the 
agreement  to  be  incompatible  with  Union  rules  within  2  months  after  having 
received full notification, Article 101(1) TFEU does not apply to such agreement. 
This applies if the following conditions are fulfilled: 

23  Commission  Decision  of  26.11.1986  relating  to  a  proceeding  under  Article  85  of  the  EEC  Treaty 

(IV/31.204 - MELDOC). OJ 1986 L 348, p. 50.  

11 

 
                                                 
  The IBO must be recognised by the Member State according to Article 157(1) 

CMO. 

  The agreement must be notified to the Commission24. 
  The agreements cannot be put into effect before or during the Commission 

examination of the agreement. 

  The agreement may not:  

  lead to market partitioning within the Union, 
  affect the sound operation of the market organisation, 
  create distortions of competition, which are not essential to achieving CAP 

objectives pursued by the interbranch organisation activity, 

  entail price or quota fixing, 
  create  discrimination  or  eliminate  competition  in  respect  of  a  substantial 

proportion of the product in question. 

(50)  Article  210  CMO  only  applies  to  such  agreements  of  IBOs  which  have  not  yet 
been  implemented.  This  results  from  Article  210  (3)  CMO,  which  stipulates  that 
such  agreements  may  not  be  put  into  effect  before  the  lapse  of  the  two  months 
period  of  investigation  for  the  Commission,  referred  to  under  Article  210  (2)  1st 
subparagraph, b) CMO. 

(51)  Where the Commissions finds that the agreements  notified are incompatible with 
the  Union  rules,  it  shall  set  out  its  findings  in  a  decision  without  applying  the 
procedure referred to in Article 229 (2) or (3) CMO. In case that the Commission 
does  not  intend  to  adopt  a  decision  finding  incompatibility,  it  will  inform  the 
notifying party accordingly. For the purposes of notification, the Commission has 
given  details  on  the  notification  and  the  functional  mailbox  established  for 
notification purposes on the website of DG Agriculture and rural development.25 

(52) 

(53) 

In  January  2015,  the  Commission  did  not  object  to  an  agreement  of  the  Centre 
National  Interprofessionnel  de  l'Economie  Laitière  (CNIEL)  which  established 
price grids for certain milk characteristics. Given that the milk price depends on its 
composition  and  quality,  the  regional  organisations  of  CNIEL  publish  values  for 
various technical milk specifications based on different parameters of milk (e.g. fat 
content, origin of the milk based on type of cattle, criteria for health and hygiene) 
which lead to bonuses or penalties in relation to the base price. Milk farmers and 
buyers  may  on  a  voluntary  basis  refer  in  their  contracts  to  the  published  grids  to 
agree on a premium or penalty in relation to the basic milk price.  

In  June  2017,  the  Commission  did  not  object  to  the  agreement  of  the  French 
interbranch organisation Comité national interprofessionnel de la pomme de terre 
(CNIPT) establishing a price indicator for potatoes. The price indicator is based on 
aggregated  data  on  how  farmers  in  the  past  have  been  remunerated  for  certain 
potato  varieties.  Publishing  this  information  aims  at  increasing  the  knowledge  of 
the supply chain. Potato farmers and buyers may on a voluntary basis refer to the 
published price indicator in their individual contracts. 

24  Details  on  IBOs  and  the  notification  procedure,  https://ec.europa.eu/agriculture/producer-interbranch-

organisations/interbranch-organisations_en. 

25   https://ec.europa.eu/agriculture/producer-interbranch-organisations/interbranch-organisations_en. 

12 

 
 
                                                 
There are currently 128 recognised  IBOs in the European Union in nine Member 
States,  with  the  vast  majority  of  these  IBOs  in  France  and  Spain.  IBO  are  also 
present  in  the  Netherlands  (9),  Greece  (7),  Hungary  (6),  Italy  (3),  Portugal  (5), 
Romania (5) and Germany (1). Most of the interbranch organisations operate in the 
wine and fruit and vegetables sector.26 

Figure 1: Recognised Interbranch organisations in the European Union  
(data July 2017) 

tobacco; 4 

sheepmeat and 
goatmeat; 1 

sugar; 5 

seeds; 2 

rice; 1 

poultrymeat; 7 

pigmeat; 5 

cereals; 5 

apiculture 
products; 2  beef and 
veal; 10 

fruit and vegetables; 
16 

dried 
fodder; 1 

eggs; 3 
flax and 
hemp; 2 

wine; 31 

other products; 14 

olive oil and table 
olives; 7 

milk and milk 
products; 10 

horticultural 
products; 1 

live trees and other 
plants, bulbs, roots 
and the like, cut 
flowers and 
ornamental foliage; 
1 

Figure 2: Recognised Interbranch Organisations per Member State (data mid 2017)  

IT; 3 

HU; 6 

NL; 9 

PT; 5 

RO; 5 

DE; 1  EL; 7 

ES; 27 

FR; 65 

26  https://ec.europa.eu/agriculture/sites/agriculture/files/producer-interbranch-

organisations/documents/recognised_ibos_2017_en.pdf.  

13 

 
 
 
 
 
                                                 
2.5  Sector specific rules in the CMO 

(54)  According  to  sector  specific  provisions  in  the  CMO,  POs,  APOs  and  IBOs  are 
entitled  to  apply  certain  measures,  which  otherwise  might  be  considered 
restrictions  of  competition  under  Article  101(1)  TFEU.  Such  measures  are 
typically  supply  management  measures,  sometimes  also  crisis  prevention 
measures,  by  which  POs  and  APOs  e.g.  regulate  volumes  of  production  or  sell 
products  of  the  producer  members.  This  section  will  describe  the  sector  specific 
rules and provide information to which extent these provisions have been used.  

2.5.1  Article 160 CMO – Producer organisations in the fruit and vegetables sector 

(55)  Article  160  CMO  requires  producer  members  to  market  their  entire  production 
concerned through the PO (the producer members’ ‘delivery obligation’). Subject 
to the necessity and proportionality test recalled by the European Court of Justice 
in  the  Endives  case27,  the  PO  may  be  allowed  to  sell  the  quantities  on  behalf  of 
their members (Article 160 (3) CMO) and carry out other activities (e.g. planning 
of  volumes,  exchange  of  commercially  sensitive  information).  Article  160  CMO 
states that the PO and associations of POs in the fruit and vegetables sector shall be 
deemed to  be acting in  the name of and on behalf of their members in  economic 
matters within their terms of reference.  

(56)  According to Article 11 of Commission Delegated Regulation (EU) 2017/891, the 
main activity of POs in the fruit and vegetables sector relates to the concentration 
of supply and the placing on the market of the products of their members for which 
they are recognised. Placing on the market includes among others the decision on 
the  product  to  be  sold,  the  way  of  selling  and  unless  the  sale  is  by  means  of  an 
auction, the negotiation of its quantity and price. If the PO does not comply with 
these requirements a Member State may ultimately withdraw its recognition for the 
PO, and recover Union financial assistance that the PO received.28 

(57)  According to Article 12 of Commission Delegated Regulation (EU) 2017/891 the 
percentage of produce that any producer member markets outside the PO shall not 
exceed  25%,  in  volume  or  in  value.  Member  States  may  set  a  lower  percentage 
and,  subject  to  conditions,  a  higher  percentage.29  Only  POs  which  fulfill  all 
recognition criteria and which implement the operational funds and the operational 
programmes in line with the existing rules are allowed to market produce on behalf 
of their members.30 

(58)  The  annual  reporting  from  Member  States  shows  that  in  201631  there  were  1,763 
POs in the EU and 60 APOs in the fruit and vegetable sector, which corresponds to 
an  organisation  rate32  of  47%  in  the  EU.  There  is  a  great  divergence  among  the 

27  Judgment C-671/15, see fn.18. 
28  Article  59  of  Regulation  (EU)  2017/891  (OJ  L  138,  25.5.2017,  p.  4)  –  Article  114  of  the  former 

regulation, Regulation (EU) No 543/2011 (OJ L 157, 15.6.2011, p. 1). 

29  Regulation  (EU)  2017/891,  Article  12.  The  current  provisions  replace  Article  26a  of  Commission 
Implementing Regulation (EU) No 543/2011, where  this  derogation  was  limited to 10%, but Member 
States could set a higher percentage. 
30  Articles 59 seq of Regulation (EU). 
31 
32    The  ‘organisation  rate’  is  the  proportion  (%)  of  the  total  value  of  the  EU’s  or  Member  States’  F&V 

Latest available data from Member States' annual reports. 

production that is marketed by POs or APOs. 

14 

 
                                                 
organisation  depending  on  the  Member  State.  There  are  no  recognised  POs  in 
Slovenia, Estonia or Luxembourg. POs in Poland, Bulgaria or Latvia started only 
recently to use the Union fruit and vegetables aid scheme i.e. to benefit from Union 
support.  In  some  cases,  this  is  due  to  low  production.  In  others,  it  is  because  the 
producer group33 (PG) scheme is currently being used and it is expected that the PO 
scheme is put in place at a later stage or has only marginally started to function.  

(59) 

In  2016  321  668  producers  in  the  fruit  and  vegetable  sector  were  members  of 
recognised  POs,  APOs  or  PGs.  The  table  below  provides  an  overview  for  each 
Member State. 

33  Producer groups are an earlier stage of producer cooperation before cooperation within a PO.  It would 
be  expected  that  after  finishing  plan  implementation,  PGs  receive  recognition  as  a  PO  and  start  the 
implementation of an operational programme. PG recognition and recognition plans implementation are 
now covered by  Regulation (EU) No 1305/2013 (art 27). The  recognition plans under  Regulation EU 
No  1234/2007  were  approved  last  time  in  2013.  As  they  can  last  up  to  5  years,  the  last  year  of 
implementation under 1st pillar – Regulation EU No 1234/2007 - will be 2018. Until 31.12.18, there are 
still plans which co-exist under both pillars. 

15 

 
 
 
                                                 
  
Table 1: Organisation rate and marketable production of POs/APOs in the Fruit and 
Vegetable Sector 2016 

2016 

Belgique/Belgi
ë 
Bulgaria 

Česká 
republika 
Danmark 

Deutschland 

Elláda 

España 

Estonia 

France 

Hrvatska 

Ireland 

Italia 

Kypros 

Latvia 

Lithuania 

Luxembourg 

Magyarország 

Malta 

Nederland 

Österreich 

Polska 

Portugal 

Romania 

Slovenija 

Slovensko 

Suomi/Finland 

Sverige 

United 
Kingdom 
TOTAL EU 

Total value 
of fruit and 
vegetables 
production 
by Member 
State (EUR 
Million)  (1) 

Total value of 
fruit and 
vegetables 
production 
marketed by 
POs or APOs  
(EUR 
Million)  (2) 

1,288 

1,112 

299 

145 

264 

3,551 

2,977 

13,186 

29 

6,228 

128 

279 

10,513 

106 

65 

84 

6 

870 

41 

3,304 

394 

3,510 

1,588 

2,793 

156 

137 

433 

314 

2,525 

2 

90 

147 

1,440 

318 

8,070 

0 

3,117 

2 

202 

6,852 

23 

20 

0 

0 

150 

0 

1,675 

220 

617 

400 

30 

0 

35 

75 

152 

1,029 

Organisation 
rate (POs or 
APOs) by 
Member State 
(2)/(1) 

Number 
of POs* 

Number 
of APOs* 

Numbe
r of 
PGs* 

86% 

1% 

62% 

56% 

41% 

11% 

61% 

0% 

50% 

2% 

72% 

65% 

22% 

31% 

0% 

0% 

17% 

0% 

51% 

56% 

18% 

25% 

1% 

0% 

25% 

17% 

49% 

41% 

14 

8 

19 

2 

31 

126 

568 

0 

228 

3 

2 

304 

9 

3 

0 

0 

55 

0 

13 

11 

239 

62 

19 

0 

5 

4 

5 

33 

3 

0 

0 

0 

0 

1 

7 

0 

27 

0 

0 

13 

0 

0 

0 

0 

7 

0 

0 

0 

1 

0 

0 

0 

0 

0 

0 

1 

0 

12 

2 

0 

0 

0 

0 

0 

2 

0 

3 

0 

0 

2 

0 

0 

4 

2 

0 

0 

57 

0 

7 

0 

0 

0 

17 

0 

55,213 

25,779 

47% 

1,763 

60 

108 

Source:  EC-AGRI-G2  -  Elaboration  from  data  transmitted  by  the  Member  States  (Annual  report  2016 
provisional) except (1) Economic Accounts of Agriculture-Eurostat 
*recognised at 31/12 of the year concerned 

16 

 
 
 
 
2.5.2  Supply management rules for certain sectors   

2.5.2.1

  Article 150 CMO - Supply management of cheese with protected PDO/PGI 

(60)  Member States may, under certain conditions and for a limited period of time, lay 
down binding rules to regulate the supply of cheeses with a protected designation 
of origin (PDO) or protected geographical indications (PGI), upon request of a PO, 
an interbranch organisation (IBO) or a  group of  operators  dealing which  PDO or 
PGI products within the meaning of Article 3 (2) of Regulation (EU) 1151/201234 
(PDO/PGI  group).  This  measure  shall  be  aimed  at  adapting  the  supply  of  that 
cheese  to  demand,  at  ensuring  the  value  added  and  quality  of  PDO/PGI  cheeses, 
which are particularly important for vulnerable rural regions and shall meet other 
conditions set out in Article 150(4) CMO. These conditions provide inter alia for a 
prohibition of price fixing and that the measures taken must not render unavailable 
an excessive production of the product concerned that otherwise would have been 
available. 

(61)  Two Member States have adopted rules on the supply management for PDO/PGI 
cheese.  The  two  Member  States  assess  positively  the  effectiveness  of  this 
instrument  as  regards  the  proper  adjustment  of  supply  to  demand,  price 
in  disadvantaged  areas.  The 
stabilisation  and  protection  of  production 
corresponding notifications are published on the Commission website.35  

Table 2: Supply management notifications by Member States 

Supply management PDO PGI cheese 
France  
Comté 

Beaufort 

Reblochon 

For  campaigns  2015/2016 
to 2017/2018 
Campaigns 
31.3.2018 
For  campaigns  2015/2016 
to 2017/2018 

1.4.2017-

Gruyère 

Morbier 
Abondance 
Emmenthal de Savoie  
Tomme de Savoie 

For  campaigns  2015/2016 
to 2017/2018 
Campaign 2017 
Campaign 2017/2018 
Campaign 2017/2018 
Campaign 2017/2018 

Italy 
Asiago 

Grana Padano 

Parmigiano 
Reggiano  

Campaign 
2019 
Campaign 
2017- 2019 
Campaign 
2019 

2017-

2017-

Pecorino Romano 

Three  years  as  of 
March 2016 

34   Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on 

quality schemes for agricultural products and foodstuffs, OJ L 343 of 14.12.2012, p.1. 

35  https://ec.europa.eu/agriculture/milk/milk-package_en. 

17 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
2.5.2.2

  Article 162 CMO – Olive oil, tobacco - Co-ordination of supply and marketing of 

the produce  

(62)  According to Article 162 CMO, recognised interbranch organisations in the olive 
oil and table olives sector and in  the tobacco sector may have  as their objectives 
also the concentration and co-ordination of supply and marketing of the produce of 
their  members,  the  adaptation  of  production  and  joint  processing  to  the 
requirements  of  the  markets,  improving  the  product,  and  promotion  of  the 
rationalisation and improvement of production and processing. 

(63)  The Commission does not have any information on the use of this provision. 

2.5.2.3

 Article 167 CMO - Supply management of wine 

(64)  Producer Member States may, under certain conditions, lay down marketing rules 
to  regulate  supply, 
interbranch 
organisations,  in  order  to  improve  and  stabilise  the  operation  of  the  common 
market in wines.  

in  particular  by  decisions  of  recognised 

(65)  France has notified the Commission of having made use of this possibility, in the 
years  2014-2016.  The  below  table  summarizes  the  notifications  received  under 
Article 167(3) CMO.  

18 

 
 
 
 
Table 3: Notification by Member States of market stabilisation measures in the wine sector 

Decision 

Topic 

Decision and publication in the 
Official Journal (JORF) 

Publication in the Bulletin Officiel 
(BO) 

la 

relatif  à 

Arrêté  relatif  aux  volumes  complémentaires  individuels 
pour  certaines  appellations  d'origine  contrôlées  pour  la 
récolte 2015 
Arrêté relatif aux volumes substituables individuels pour 
certaines appellations d'origine contrôlées pour la récolte 
2015 
Arrêté 
géographique  protégée  pour 
complémentaire individuel peut être constitué 
Arrêté  relatif  à  la  fixation  d'un  volume  complémentaire 
au titre de ta récolte 2015 pour certains vins à indication 
Géographique protégée 
Décret modifiant le décret fixant la liste des vins rouges 
tranquilles  et  des  vins  blancs  tranquilles  bénéficiant 
d'une  appellation  d'origine  protégée  pour  lesquels  un 
volume complémentaire individuel peut être constitué 

indication 
lesquels  un  volume 

liste  des  vins  à 

en  œuvre 

Mise 
interprofessionnel du vin de Champagne (CIVC) 

décision 

d'une 

du  Conseil 

en  œuvre 

Mise 
interprofessionnel des vins de Bourgogne (BIVB) 

décision 

d'une 

du  Bureau 

en  œuvre 

Mise 
interprofessionnel du vin de Champagne (CIVC) 

décision 

d'une 

du  Conseil 

Mise  en  œuvre  d'une  décision  du  Comité  national  du 
Pineau des Charentes (CNPC) 

Year 2016 

complémentaire 

Arrêté  du  19/04/16  publié  au 
JORF du 29/04/16 

substituable 

Arrêté  du  19/04/16  publié  au 
JORF du 29/04/16 

complémentaire 

Arrêté  du  16/06/16  publié  au 
JORF du 29/06/16 

complémentaire 

Arrêté  du  16/06/16  publié  au 
JORF du 29/06/16 

complémentaire 

Décret  du  07/10/16  publié  au 
JORF du 09/10/16 

Volume 
individuel 

Volume 
individuel 

Volume 
individuel 

Volume 
individuel 

Volume 
individuel 

- 

- 

- 

- 

- 

Sortie de la réserve au cours 
des  campagnes  2016-2017, 
2017-2018 et 2018-2019 

Arrêté  du  06/04/16  publié  au 
JORF du 16/04/16 

BO du 06/04/16 

Mise en réserve de Crémant 
de la récolte 2015 

Arrêté  du  14/06/16  publié  au 
JORF du 24/06/16 

BO du 30/06/16 

Mise en réserve d'une partie 
de  la  récolte  2015  et  sortie 
de  la  réserve  au  cours  de  la 
campagne 2015-2016 

Réserve interprofessionnelle 
d'une partie de (a production 
de la campagne 2015-2016 

Avis  du  18/10/16 publié  au  JORF 
du 26/10/16 

BO du 03/11/16 

Arreté  du  10/10/16  publié  au 
JORF du 29l\0i\6 

BO du 03/11/16 

Décret  fixant  la  liste  des  vins  tranquilles  à  AOP  pour 
lesquels un VCI peut être constitué 

Volume 
individuel 

Décret modifiant le décret du 9/10/15 fixant ia liste des 
vins  tranquilles  à  AOP  pour  lesquels  un  VCI  peut  être 
constitué 

Volume 
individuel 

Year 2015 

complémentaire 

Décret du 9/10/15 publié au JORF 
du 11/10/15 

complémentaire 

Décret du 4/12/15 publié au JORF 
du 6/12/15 

Décret  relatif  au  VCI  pour  les  vins  rouges  tranquilles 
bénéficiant d'une appellation d'origine contrôlée 

Volume 
individuel 

complémentaire 

Décret  du  25/08/15  publié  au 
JORF du 27/08/15 

- 

- 

- 

Bureau 
(BIVB) 

interprofessionnel  des  vins  de  Bourgogne 

Mise en réserve de Crémant 
de la récolte 2014 

Arrêté  du  26/03/15  publié  au 
JORF du 03/04/15 

BO du 09/04/15 

Comité national du Pineau des Charentes (CNPC) 

Conseil interprofessionnel du vin de Champagne (CIVC) 

Réserve interprofessionnelle 
d'une partie de la production 
de la campagne 2015*2016 

Mise en réserve d’une partie 
de  la  récolte  2015  et  sortie 
de  la  réserve  au  cours  de  ia 
campagne 2015-2016 

Arrêté  du  07/09/15  publié  au 
JORF du 16/09/15 

BO du 17/09/15 

Arreté  du  27/10/15  publié  au 
JORF du 07/11/15 

BO du 19/11/15 

Decret  portant  experimentation  du  VCI  pour  certain 
appellations 

Volume 
individuel 

Year 2014 

complémentaire 

Décret  du  13/10/14  publié  au 
JORF du 15/10/14 

non concerné 

Conseil interprofessionnel du vin de Champagne (CIVC) 

Mise en réserve d’une partie 
de la récolte 

arrêté du 26/09/14 publié au JORF 
du 11/10/14 

BO du 16/10/14 

(66)  Spain has notified the adoption of the Real Decreto 774/2014 on the application of 
Article 167 of Regulation (EU) No 1308/2013. The Decreto sets the basis for the 
implementation of this provision when necessary and it also lays down a specific 
19 

 
 
rule for application in the marketing  year 2013/2014. This campaign was marked 
by a significant increase in wine production in certain areas of Spanish production, 
which led to unduly high surpluses in the market, creating tensions and problems 
of  capacity  in  the  wineries  for  the  next  marketing  year.    This  called  for  the 
implementation of a marketing rule.  

(67)  The  Commission  has  not  received  any  notification  from  the  other  producer 

Member States. 

2.5.2.4

  Article 172 CMO - Supply management ham with a PDO/PGI 

(68)  As for cheese (see above section 2.5.2.1), Member States are allowed, for a limited 
period of time, to lay down binding rules for the regulation of the supply of ham 
benefiting from a PDO/PGI upon request of a PO, an IBO or a PDO/PGI group36. 
This measure is aimed at ensuring the added value, and to maintain the quality of, 
in particular, cured ham  benefitting from a PDO/PGI. The measures must respect 
the  conditions  of  Article  150  (4)  CMO,  which  in  particular  prohibit  price  fixing 
and  which  stipulate  that  excess  production  which  would  otherwise  have  been 
available, should not be rendered unavailable by the measure. 

(69)  Only one Member State has thus far adopted rules for the regulation of the supply 
of ham. Italy adopted supply management measures concerning 'Prosciutto di San 
Daniele'.  The  measure  was  adopted  in  18  May  2015  and  was  valid  until  31 
December 2017. 

2.5.3  Article 125 – Sugar, Agreements within the trade and value sharing mechanism  

(70)  On  30  September  2017,  the  sugar  quota  ended.  Articles  125  and  126  CMO 
covering  terms  for  buying  sugar  beet  and  sugar  cane,  including  pre-sowing 
delivery contracts continue to apply after the end of the sugar quota regime. 

(71)  Article  125  CMO  provides  that  the  terms  for  buying  sugar  beet  and  sugar  cane 
shall  be  governed  by  written  agreements  within  the  trade  ("AWT").  AWTs  are 
horizontal/vertical  contractual  arrangements  between  beet  growers  and  sugar 
undertakings,  which  are  under  the  conditions  of  the  CMO,  not  subject  to  the 
competition  rules.  AWT  are  defined  as  an  agreement,  concluded,  prior  to  the 
conclusion  of  a  delivery  contract37,  between  undertakings  or  an  undertakings' 
organisation  recognised  by  the  Member  State  concerned,  or  a  group  of 
undertakings'  organisations  on  the  one  hand  and  a  sellers'  association  recognised 
by  a  Member  State  concerned  or  a  group  of  such  sellers'  organisations  on  the 
other.38 

(72)  Annex X to the CMO names the elements which the parties to an AWT may agree 
upon.  This  concerns  e.g.  the  minimum  sugar  content,  conditions  on  delivery, 
including  in  relation  to  pulp  and  rules  on  price  adaptation  for  pluri-annual 
contracts. 

36   For the PDO/PGI group, see above paragraph (60). 
37  Delivery contract: Contract concluded between a seller and an  undertaking for the delivery of beet for 

the manufacture of sugar, CMO Annex II, Part II, Section A, point 5. 

38  CMO Annex II, Part II, Section A, point 6 CMO.  

20 

 
                                                 
(73)  Commission  Delegated  Regulation  (EU)  2016/1166  of  17  May  2016  amending 
Annex X to Regulation (EU) No 1308/2013 of the European Parliament and of the 
Council as regards purchase terms  for beet  in  the sugar sector as from  1 October 
201739, contains a value sharing clause, which allows the parties to agree to share 
value and losses between them.40 This clause reads: 'A sugar undertaking and the 
beet  sellers  concerned  may  agree  on  value  sharing  clauses,  including  market 
bonuses  and  losses,  determining  how  any  evolution  of  relevant  market  prices  of 
sugar or other commodity markets is to be allocated between them'. 

(74)  The rationale of the value sharing mechanism is to enable beet growers and sugar 
undertakings to secure their supplies on pre-defined purchase terms with certainty 
of  sharing  the  profits  and  costs  throughout  the  supply  chain  to  the  benefit  of  the 
beet  growers.  The  benefit  of  value  sharing  also  transmits  the  price  signals  in  the 
market  directly to  the  growers. The value sharing can be whatever parties decide 
among themselves, and thus can also include formulas on sharing market bonuses 
and losses e.g. based on the sales price of the processed product sugar. However, 
when negotiating value sharing, the parties cannot engage in price fixing (for the 
beet or the sugar price). 

(75)  The  value  sharing  clause  is  optional.  As  it  should  only  be  agreed  between  one 
undertaking  (i.e.  no  cooperation  of  several  undertakings)  and  its  suppliers  at  the 
same time, AWT at the national level can only be concluded with a national value 
sharing clause if there is only one undertaking in that Member State. 

(76)  Finally, in the absence of a reference price, the value sharing formula can make a 
link  to  the  evolution  of  other  relevant  market  prices  or  commodities.  The  table 
below  shows  that  the  majority  of  AWTs,  for  which  information  is  available,  a 
value sharing mechanism is used and linked to the sales price of sugar.  

(77)  Based  on  a  recent  survey  of  December  2017  conducted  by  the  Comité  europeén 
des  Fabricants  de  Sucre  (CEFS)41  among  its  members,  the  vast  majority  of  beet 
sugar producing companies, namely 36 out of 42, have concluded AWTs. Out of 
the remaining six companies, two are cooperatives.42  

(78)  A total of 22 of such agreements have been concluded. Four of the agreements are 
national and cover 18 undertakings. 11 of the 22 agreements cover the marketing 
years 2017/2018, while 11 run for several years or for an unlimited period.  

(79)  Of the 42 active sugar undertakings, 30 make use of the value sharing mechanism. 
3  private  undertakings  do  not  use  the  mechanism.  Another  5  undertakings  are 
organised in cooperative form and engage in profit sharing. For 4 undertakings, no 

39   OJ 2016 L 193, p. 17.  
40  This clause resembles, but is not identical to the so-called profit sharing clause which applied under the 
quota regime in Annex XI, point (j) and which read that 'any difference between the reference threshold 
and the actual selling price of sugar is to be allocated between the sugar undertaking and beet sellers'. 
41  CEFS  is  the  European  association  of  sugar  processors.  It  has  made  a  survey  on  the  use  of  the  value 

sharing mechanism among its members in November 2017. 

42  See annex II, Part I, Section A, 6 (b) CMO which states that in the absence of an agreement between the 
parties,  the  law  on  cooperatives  and  on  companies  is  considered  a  AWT  as  far  as  they  govern  the 
delivery of sugar beet by the shareholders or members of a company or cooperative. 

21 

 
                                                 
information is available. The 30 undertakings and 5 cooperatives which use value 
or profit sharing present 96% of the former total EU beet sugar production quota.  

Figure  3:  Use  of  value  sharing  mechanisms  in  delivery  contracts  or  AWT  by 
undertakings, 2017 

of which coops: 5, 
which  use  profit 
sharing instead 

of which private: 3 

(80)  The value sharing mechanism can be implemented in different ways.  Normally the 
sugar sales price is used as a reference, but sometimes the price of ethanol or both 
of sugar/ethanol is used. Sometimes reference is made to an independent reporting 
system,  such  as  the  monthly  sugar  price  as  published  by  the  EU  price  reporting 
system.  A  small  number  of  private  sugar  companies  link  value  sharing  to  the 
profitability of the company. 

(81)  As to antitrust investigations, in 2013 the NCA in Poland investigated a complaint 
from  sugar  beet  growers  about  an  alleged  abuse  of  dominance  by  a  sugar 
processor.  According  to  the  complaint,  the  processor  had  abused  its  dominant 
position  by  stipulating  in  the  supply  contract  that  growers  could  only  use  seeds 
purchased from the sugar processor for sowing sugar beets. The processor argued 
that  the  requirement  should  be  exempted  from  competition  law  pursuant  to 
Regulation  (EC)  No  707/2008  of  24  July  2008,  Annex  II  point  XII.3d.  This 
derogation allows the AWTs to include "rules on the choice and supply of seeds of 
the  varieties  of  beet  to  be  produced".  The  NCA  closed  the  case  during  the 
preliminary proceedings after having found that there were no indications that the 
seed  requirements  were  exploitative  since  the  growers  could  obtain  a  fair 
commercial  margin  and  that  the  Regulation  allowed  the  AWT  to  include  seed 
specifications. 

2.5.4  Contractual negotiations by producer organisations in various sectors   

(82)  Until  1  January  2018,  the  CMO  provided  for  four  sectors  possibilities  for 
recognised POs to engage in contractual negotiations for the sale of the respective 
products  of  their  members.  These  were  derogations  from  the  Union  competition 
rules.  The  derogations  concerned  the  sectors  of  olive  oil,  beef/veal  and  certain 
arable  crops  (Article  169-171  CMO)  and  milk  and  milk  products  (Article  149 
CMO).  All  measures  had  in  common  that  the  possibility  of  selling  the  products 
jointly via a PO should strengthen the bargaining position of farmers in relation to 

22 

 
 
 
 
their  downstream  partners,  but  the  conditions  and  the  activities  carried  out  under 
these provisions were different.  

(83) 

In  the  milk  sector,  the  possibility  to  conduct  contractual  negotiations  was 
introduced in 2012 with the Milk package43, Article 149 CMO. That possibility of 
contractual  negotiations  is  subject  to  a  market  share  threshold,  but  no  further 
conditions  in  the  form  of  the  generation  of  efficiencies  have  to  be  fulfilled  to 
engage  in  such  negotiations.  In  the  three  other  sectors,  however,  the  provisions 
provided for a market share threshold and the need that the producer organisation 
its  members.  The  producer 
integrates  efficiency  enhancing  activities  for 
organisation is also obliged to place the products of its members on the market. 

(84)  The  Omnibus  Regulation  amended  Article  152  CMO  from  1  January  2018  and 
stipulates that recognised POs and APOs can engage in contractual negotiations in 
all sectors. Consequently, it also repealed Articles 169-171 of the CMO Regulation 
for the olive oil, beef/veal and certain arable crops sector as of that date. The sector 
specific derogation for milk in Article 149 CMO was not repealed.  

(85) 

In the following all four derogations will be described. 

2.5.4.1

  Article 169, 170  and 171 CMO  – Olive oil, beef&veal  and  certain  arable crops 

(repealed by the Omnibus Regulation)  

(86)  Articles  169-171  of  the  CMO  Regulation  contained  the  efficiency  based 
derogations from competition rules in the olive oil, arable crops, and beef and veal 
sectors.  While  these  derogations  have  been  repealed,  they  do  form  part  of  the 
reporting  obligation  under  Article  225  d)  CMO,  but  they  continue  legally  to  be  
relevant  for  those  activities,  which  took  place  before  the  amendments  of  the 
Omnibus Regulation entered into force on 1 January 2018. If a recognised PO/an 
APO carried out contractual negotiations on behalf of its members (i.e. jointly sells 
the production of its members), it had to, in order to benefit from the derogation, 
carry  out  an  additional  activit(ies).  These  additional  activities  must  generate 
significant  efficiencies. The provisions at  hand contained a non-exhaustive list  of 
such  activities.  The  rationale  of  these  derogations  was  to  compensate  the  anti-
competitive  effects  of  contractual  negotiations  by  other,  efficiency  enhancing 
activities. This contributes to the real integration of these entities, to their increased 
bargaining power and ultimately to the improved competitiveness.  

(87)  The  conditions  of  the  derogation  included  requirements  of  formal  recognition  by 
Member  States  and  notification  of  the  production  volumes  covered  by  the 
derogations.  In  order  to  facilitate  the  application  of  the  derogations,  the 
Commission  adopted  the  Guidelines  on  the  application  of  the  derogations  in 
2015.44  

43  For more details, https://ec.europa.eu/agriculture/milk/milk-package_en. 
44  Guidelines  on  the  application  of  the  specific  rules  set  out  in  Articles  169,  170  and  171  of  the  CMO 

Regulation for the olive oil, beef and veal and arable crops sectors, OJ C 431, 22.12.2015, p. 1. 

23 

 
 
 
                                                 
  As  a  condition  for  contractual  negotiations  to  take  place,  the  PO  should 
effectively  concentrate  supply and place the products  of its members on the 
market.  

  Further, the PO should integrate one or more activities of its producer members 
and  this  activity  should  be  likely  to  generate  significant  efficiencies  to  ensure 
that the PO activity contributes to the fulfilment of the CAP objectives as set out 
in Article 39 TFEU.  

  The derogation is only applicable if the PO's market share stays below a certain 
threshold, in the case of olive oil the volume of olive oil production covered by 
such  negotiations  must  not  exceed  20  %  of  the  total  relevant  market.  For  the 
beef/veal  and  certain  arable  crops  sector,  the  threshold  is  based  on  national 
production:  For a particular PO and each product covered by those articles, the 
quantity of the product covered by such negotiations must not exceed 15 % of the 
total national production of that product.  

(88)  Moreover,  to  benefit  from  the  competition  derogation,  the  PO  must  notify  the 
competent authority in the Member State in which it operates and provide it with 
the  volume  of  the  product  covered  by  the  negotiations,  Article  169,  170,  171  (2) 
(g) CMO. No PO notified such volumes. Therefore no PO has been able to rely on 
the derogation from the competition rules provided by these articles. 

(89)  The  Member  State  is  in  turn  obliged  to  inform  the  Commission.  Since  the  entry 
into force of Regulation (EU) No 1308/2013, no Member State has notified the use 
of this possibility in its territory in any of the above mentioned sectors. From 2014-
mid 2017 neither the NCAs nor the European Commission investigated any cases 
in which Articles 169-171 CMO were assessed.  

(90) 

In  2017  the  Commission  launched  a  'Study  on  Producer  Organisations  and  their 
activities in the olive oil, beef and veal, arable crops sectors'.45 The study finds that 
the total number of recognised and unrecognised POs and APOs to be over 1 400 
entities in the olive oil sector; over 800 in the beef and veal sector, and around 1 
600  in  the  arable  crops  sector.  In  these  sectors  there  are  overall  five  times  more 
unrecognised POs/APOs than those formally recognised by Member States under 
EU legislation.  

45  http://ec.europa.eu/competition/publications/reports/kd0218732enn.pdf   

24 

 
 
 
 
 
 
                                                 
Table 4: POs and APOs in the 28 Member States, 2017 

Number of 
recognised PO 

the 
of 

Estimate  of 
number 
non/recognised* 
PO 

Number 
recognised APO 

of 

the 
of 

Estimate  of 
number 
non/recognised 
APO* 

0><10 
Olive oil 
17><27 
Beef and veal 
19><29 
Arable Crops 
26><66 
Total 
Recognised POs are producer organizations recognised under the Article 154 CMO Regulation; recognised 
APOs are associations of producers organizations recognised under Article 156 CMO Regulation 

1161><1181 
609><644 
1364><1414 
3134><3239 

252 
178 
189 
619 

8 
2 
3 
13 

(91)  The  study,  based  on  a  sample  of  203  POs  and  23  APOS,  reveals  that  the  main 
motivating factors for farmers to set up a PO or an APO are (i) to improve access 
to markets due to an increased volume, (ii) to improve the position of the members 
in negotiations with buyers, (iii) to reduce costs for members, and (iv) improve the 
position of members in negotiations with suppliers.  

(92)  According  to  the  study,  most  producers  did  not  encounter  many  barriers  to 
establish  the  PO  or  APO.  POs  considered  that  lack  of  support  from  the 
government,  difficulty  to  organise  support  from  sector  organisations,  and  lack  of 
good  examples  of  successful  cooperation  within  the  sectors  were  sometimes  a 
barrier to the establishment of the organisation.  

(93)  Furthermore,  according  to  the  study  the  main  benefits  for  members  in  a  PO/an 
APO  are  (i)  improved  market  access  and  price  stability,  (ii)  reduced  costs  and 
economies of scale. 

(94)  The results also show that not all POs and APOs carry out contractual negotiations 
and other commercialisation-related activities (involving, in addition to contractual 
negotiations,  also  commercialisation  strategies  and  planning  of  quantities).  Only 
two-third  of  POs  and  APOs  carry  out  contractual  negotiations  and  other 
commercialisation-related  activities.  More  than  90%  of  the  entities  that  carry  out 
these  commercialisation-related  activities  also  carry  out  at  least  one  of  the 
efficiency-enhancing  activities  required  by  Articles  169-171  of  the  CMO 
Regulation. The most common efficiency-enhancing activities are quality control, 
distribution/transport,  and  procurement  of  inputs.  According  to  the  study,  most 
POs  carry  out  these  latter,  efficiency-enhancing  activities  because  they  consider 
them  to  improve  their  position  in  negotiations  with  buyers  and  secondly  because 
they reduce the costs of the members. Ensuring compliance with competition rules 
was  found  to  be  the  least  important  reason  for  organisations  carrying  out  these 
activities. 

(95)  Most organisations  covered by the study46 state that their activities are at  least  to 
some  extent  contributing  to  the  CAP  objectives.47  60%  of  the  POs  consider  that 
their  activities  contribute  to  the  CAP  objective  of  increasing  agricultural 
productivity. Around 50% of POs consider that their activities contribute to a fairly 

46   See paragraph (91). 
47  Cf. Article 39 TFEU. 

25 

 
 
 
 
 
                                                 
good  extent  to  the  CAP  objectives  of  ensuring  availability  of  supply,  ensuring  a 
fair  standard  of  living  for  farmers,  and  stabilising  markets.  40%  of  the 
organisations perceive that their activities contribute to reasonable consumer prices 
to  at  least  a  fairly  good  extent.  APOs  have  a  slightly  different  view,  namely  that 
their  activities  contribute  to  increasing  productivity  relatively  more  to  stabilising 
markets,    and  to  a  fair  standard  of  living  for  farmers,  and  to  a  lesser  extent  to 
availability of supply and reasonable consumer prices. 

(96)  The  study  provides  useful  information  about  the  relevance  and  benefits  of  the 

recognition process for POs: 

(a)  Most POs have not been able to rely on the derogation from the competition 
rules because most POs did not ask for recognition. As explained above the 
study  finds  that  there  are  five  times  more  unrecognised  POs/APOs  than 
formally  recognised  POs/APOs.  The  study  provides  information  about  the 
reasons of the POs for seeking or not seeking recognition. 

(b)  Around  half  of  the  unrecognised  POs  and  APOs  stated  that  they  were  not 

aware of the possibility of recognition under the CMO Regulation. 

(c)  The  other  half  of  the  unrecognised  POs  and  APOs  stated  that  they  were 
aware  of  the  possibility  of  recognition  under  the  CMO  Regulation.  About 
three  fourth  of  them  perceive  that  there  are  potential  benefits  of  being 
recognised.  

(d)  Virtually  all  of  recognised  POs  and  APOs  see  additional  benefits  of  the 

recognition.  

(e) 

(f) 

POs  that  are  aware  of  the  possibility  to  get  formally  recognised  under  the 
CMO  Regulation  state  that  the  recognition  may  provide  the  following 
benefits  to  a  fairly  good  or  to  a  large  extent:  financial  support  of 
investments, services and plans (about 70%); credibility towards other actors 
in  the supply  chain  (about  60%);  better access  to extension  services (about 
60%); and legal security (about 60%). Benefiting from the derogation from 
competition  rules  (whose  pre-requisite  was  the  recognition)  is  least  often 
indicated  to  be  an  important  benefit  of  recognition  to  a  fairly  good  or  to  a 
large extent (about 35%).  

POs that are aware of the possibility  to  be formally recognised, but  do not 
get  recognised,  consider  that  the  most  relevant  reason  for  not  applying  for 
recognition  is  that the benefits  are unclear  (about  three quarters considered 
that  this  is  an  important  or  very  important).  Equally  often,  organisations 
stated  that  the  lack  of  good  examples  was  a  reason  for  not  applying.  The 
thresholds for recognition were  important or very important reasons for two 
thirds  of  the  organisations.  Other  reasons  included  the  complexity  of  the 
application process, the increased supervision or the amount of information 
requested by the Competent Authorities.  

(g)  About  two  thirds  of  formally  recognised  POs/APOs  or  those  that  have 
applied  for  recognition  (i.e.  those  effectively  went  through  the  recognition 
process)  consider  that  the  complexity  of  the  application  process  and  the 
amount  of  information  requested  are  fairly  important,  important  or  very 
important barriers for recognition.  

26 

 
2.5.4.2

  Article  149  CMO  -  Collective  negotiation  in  the  milk  and  milk  products  sector  

(in force) 

(97)  Recognised  POs  in  the  milk  and  milk  products  sector  (Articles  152(3)  and  161 
CMO)  may  negotiate  contract  terms  collectively  on  behalf  of  their  farmers, 
including the price of raw milk (Article 149 CMO).  

(98)  Article  149  CMO  however  does  not  require  that  the  PO  concentrates  supply  and 
places the products on the market. Further, it also does not require that the milk PO 
integrates activities which are likely to generate significant efficiencies. In the milk 
and  milk  product  sector  POs  are  allowed  to  carry  out  so-called  'bargaining 
activities'  for  their  members,  i.e.  to  negotiate  a  sales  price  for  their  members' 
products,  without  itself  acting  as  an  economic  operator  that  integrates  other 
members' activities beyond the mere selling activity. 

(99)  The volume of milk over which a PO can negotiate is limited to 3.5% of the EU 
production  and  to  33%  of  the  national  production  of  the  Member  State(s) 
concerned. For Member States with a production of less than 500 000 tonnes, this 
limit  is  set  at  45%  of  national  production.  The  limits  allow  negotiations  between 
POs  and  dairy  processors  of  approximately  the  same  size  while  maintaining 
effective competition on the dairy market. 

(100)  The implementation of this provision was described in the Commission reports to 

the European Parliament and to the Council in 201448 and 2016.49 

(101)  Nine  Member  States  reported  deliveries  of  raw  milk  in  2016  under  contracts 
collectively negotiated (six in 2014 and 2015). The collectively negotiated volume 
amounted  to  22.8  million  tonnes,  corresponding  to  some  15%  of  total  milk 
deliveries in the EU in 2016. 

(102)  No  intervention  of  the  competition  authorities  has  been  reported  thus  far  against 
exclusion of competition or serious damage to SME processors of raw milk due to 
these collective negotiations. 

48 https://ec.europa.eu/agriculture/sites/agriculture/files/milk/milk-package/com-2014-354_en_0.pdf 
49 https://ec.europa.eu/agriculture/sites/agriculture/files/milk/milk-package/com-2016-724_en.pdf 

27 

 
 
 
                                                 
Table 5: Contractual negotiations in the milk sector 2015 and 2016 

Member State 

Volume 
collectively 
negotiated 
(x1000 t) 

Approximate  
 share  of  MS 
deliveries 

Volume 
collectively 
negotiated 
(x1000 t) 

Approximate  
 share  of  MS 
deliveries 

Belgium 
Bulgaria 
Czech Republic 
Germany 
Spain  
France 
Croatia 
Italy 
United Kingdom 

2015 
- 
5,6 
497 
13 253 
621 
5 171 
- 
- 
820 

- 
1,10% 
17% 
42% 
9% 
20% 
- 
- 
5% 

2016 

1 495 
3,94 
1 314 
11 681 
716 
5 893 
0,49 
95 
1 599 

39% 
0,8% 
44% 
37% 
10% 
24% 
0,1% 
0,8% 
11% 

2.6  Crisis situations 

2.6.1  Articles 222 CMO as applied during the milk market crisis 

(103)  Article 222 CMO allows the Commission to adopt implementing acts to the effect 
that Article 101(1) TFEU is not to apply to agreements and decisions of recognised 
producer organisations, their associations and recognised interbranch organisations 
in  any  of  the  sectors  of  Article  1(2)  CMO  during  periods  of  severe  market 
imbalance,  provided  that  these  agreements  do  not  undermine  the  proper 
functioning of the internal market, strictly aim at sector stabilisation and fall under 
one or more of the categories of actions listed in Article 222 CMO.  

(104)  Commission  Implementing  Regulation  2016/55950,  based  on  Article  222  CMO, 
authorised  recognised  POs, 
interbranch 
organisations in the milk sector to plan production for a period of 6 months. That 
period  was  extended  for  a  further  six  months  by  Commission  Implementing 
Regulation 2016/161551, until 12 April 2017. 

their  associations  and  recognised 

(105)  Given  that  the  milk  sector  is  predominantly  characterised  by  cooperative 
structures,  it  was  considered  to  be  appropriate  to  extend52  that  authorisation  to 
cooperatives  formed  by  milk  producers.  In  order  to  address  the  situation  in  the 
milk  and  milk  products  market  effectively,  the  measure  covered  other  forms  of 
farmers'  cooperation that have been  established by  milk  producers under  national 
law  and  active  in  the  milk  and  milk  products  sector.  Commission  Delegated 
Regulation  that  put  in  place  this  extension  was  based  on  Article  219(1)  CMO 
which allows the Commission to adopt delegated acts in order to react efficiently 
and effectively against threats of market disturbances. 

50  Commission  Implementing  Regulation  (EU)  2016/559  of  11  April  2016  authorising  agreements  and 
decisions on the planning of production in the milk and milk products sector (OJ 2016 L 96, p. 20). 
51  Commission Implementing Regulation (EU) 2016/1615 of 8 September 2016 amending Implementing 
Regulation (EU) 2016/559 as regards the period in which agreements and decisions on the planning of 
production in the milk and milk products sector are authorised (OJ 2016 L 242, p. 17). 

52  Commission  Delegated  Regulation  (EU)  2016/558  of  11  April  2016  authorising  agreements  and 
decisions of cooperatives and other forms of producer organisations in the milk and milk products sector 
on the planning of production. 

28 

 
 
  
 
                                                 
(106)  No  notification  has  been  received  from  any  Member  States  of  agreements  or 
decisions  covered  by  Commission  Implementing  Regulation  2016/559  and 
Commission Delegated Regulation (EU) 2016/558. 

(107)  In  2016,  an  NCA  received  a  request  for  consultation  from  a  Dairy  Producer 
Organisation concerning whether it would be compatible with competition law to 
publicly  make  a  statement  to  its  members    encouraging  them  to  reduce  their 
production  of  raw  milk.  The  NCA  informally  concluded  that  such  a  statement 
could potentially be problematic and any communication on that regard should be 
followed up by  an  encouragement  and a call for the members to  observe and act 
according  to  the  Regulation  adopted  by  the  European  Commission  pursuant  to 
Article 222 CMO.53 

2.6.2  Article  33  CMO  –  Crisis  measures  in  operational  programmes  in  the  fruit  and 

vegetables sector 

(108)  In  the  fruit  and  vegetables  sector,  POs/APOs  are,  pursuant  to  Article  33  CMO, 
entitled to take certain measures in the framework of the operational programmes. 
The measures under these programmes may include production planning, measures 
to  maintain  product  quality,  research,  but  also  measures  to  prevent  and  manage 
crisis.  Some  of  these  measures,  such  as  production  planning  and  certain  crisis 
measures  such  as  market  withdrawal  may  have  an  impact  on  the  volume  of 
products supplied to the market. EU provides financial assistance to the POs/APOs' 
operational programmes.  

53   The consultation and therefore NCA in question is confidential.  

29 

 
 
 
 
                                                 
Table 6: Total expenditure on the operational programmes of POs/APOs and EU, by 
measures (2016) 

Planning of 
production 

Product 
quality 

Marketing 
improve-
ment 

Research 
and 
Experime
ntal 
productio
n 

Training 

Environ
mental 
actions 

Other 
actions 

Crisis 
preventio
n and 
managem
ent 

398.551.853 

428.851.3
21 

368.302.47
7 

11.021.994  30.931.268  89.960.339 

241.332.
308 

35.354.
944 

EU financial 
assistance 
and PO 
contribution 
Share 
measure  of 
total 
expenditure 

25% 

6% 
Source EC AGRI G2 Extraction from data submitted by MS (Annual report 2015, provisional data) 

27% 

23% 

2% 

1% 

15% 

2% 

(109)  The  EU  financial  assistance  to  the  operational  programmes  also  covers  crisis 
prevention and management measures. As can be seen from the below table, these 
measures  include  different  actions.  There  are  preventive  actions  such  as  harvest 
insurance  as  well  as  crisis  management  measures,  which  may  have  an  impact  on 
volumes supplied to the market, namely market withdrawals, green harvesting and 
non-harvesting of fruit and vegetables. 

Table 7: EU financial assistance to crisis prevention measures of POs/APOs 
(2016)54 

Crisis prevention and management measures 2016 

Promotion and communication activities 

Amount of the EU financial 
assistance (€) 
10.989.328 

Training actions and exchanges of best practices 

187.752 

Harvest insurance 

Support for the administrative costs of setting up 
mutual funds 
Investment making the management of the volumes 
placed on the market more efficient 
Replanting of orchards where that is necessary 
following mandatory grubbing up for health and 
phytosanitary reasons 
Market withdrawals 

Green-and non-harvesting 

9.812.787 

196.591 

1.080.896 

192.290 

22.205.324 

2.900.040 

Total crisis prevention and management measures 

47.565.009 

% 

23% 

0% 

21% 

0% 

2% 

0% 

47% 

6% 

100% 

(110)  The  amount  of  EU  financial  assistance  provided  to  crisis  prevention  and 
management  measures  under  Article  33  CMO  was  marginal.  In  2015,  EU 
financing for these measures of around EUR 50 million constituted only 6% of the 
total EU financial assistance to POs/APOs operational funds (total amount of EUR 

54  This document covers only measures available to POs/APOS under the operational programmes based 
on Article 33 CMO. The table does not cover Union financial assistance for crisis management under 
Article 219 CMO, such as measures under Delegated Regulation (EU) 2016/921. 

30 

 
 
 
                                                 
740 862 571). The  weight  in  volume is  even less significant.  In 2015 POs/APOs 
withdrawals  amounted to 79 531 t.  PO/APO market  around 50 million  t per  year 
(50% of the total  F&V  production in  the EU).  Market  withdrawals  represent  less 
than 1% of the total volume marketed by POs/APOs. 

(111)  POs/APOs contributed to the crisis prevention and management measures EUR 29. 
133  741  of  their  funds.  Taken  together,  in  2016,  the  EU  and  POs/APOs  spent  a 
total  of  EUR  76  698  750  for  crisis  prevention  and  management  measures.  The 
table  below  gives  an  overview  how  many  POs  implemented  crisis  management 
measures in 2016.55 

Table 8: Implementation of crisis management measures by POs (APOS) (2016) 

2016 

Number of POs implementing crisis 
prevention and management measures 

Total number of PO by MS 

Share 

Belgique/België 
Bulgaria 
Česká republika 
Danmark 
Deutschland 
Elláda 
España 
Estonia 
France 
Hrvatska 
Ireland 
Italia 
Kypros 
Latvia 
Lithuania 
Luxembourg 
Magyarország 
Malta 
Nederland 
Österreich 
Polska 
Portugal 
Romania 
Slovenija 
Slovensko 
Suomi/Finland 
Sverige 
United Kingdom 
Total EU 

11 
0 
17 
1 
15 
3 
190 
0 
220 
0 
0 
160 
1 
0 
0 
0 
13 
0 
10 
2 
5 
21 
1 
0 
3 
0 
3 
9 
685 

14 
8 
19 
2 
31 
126 
568 
0 
228 
3 
2 
304 
9 
3 
0 
0 
55 
0 
13 
11 
239 
62 
19 
0 
5 
4 
5 
33 
1763 

79% 
0% 
89% 
50% 
48% 
2% 
33% 
0% 
96% 
0% 
0% 
53% 
11% 
0% 
0% 
0% 
24% 
0% 
77% 
18% 
2% 
34% 
5% 
0% 
60% 
0% 
  60% 
27% 
39% 

55  Some  POs  have  not  implemented  these  measures,  because  the  measures  were  not  provided  in  the 

operational programme. 

31 

 
 
 
                                                 
2.7  Exemptions under individual assessment according to Article 101 (3) TFEU 

(112)  Agreements  reached  between  independent  producers  e.g.  on  quantities  and  sales 
can be exempted Article 101(3) TFEU, if the conditions described in paragraph 13 
are met. 

(113)  In 2013, the NCA in France fined five pork slaughterers for agreeing on quantities 
of pork meat to be bought from farmers producing live pigs. The aim was to lower 
the prices paid to farmers. The NCA also fined an association of meat slaughterers 
for  sending  price  instructions  to  its  members.  Further,  seven  slaughterhouses,  an 
association of slaughterers and an auction market buyer federation were fined for 
collectively  agreeing  on  a  base  price  to  be  paid  to  farmers.  Concerning  the  last 
infringement,  the  parties  argued  that  their  agreement  could  be  exempted  under 
Article  101(3)  TFEU.  The  NCA  concluded  that  even  if  the  parties  could 
demonstrate that fixing a base price contributed to improving the meat production, 
the  other  conditions  were  not  demonstrated  because  a  fixed  base  price  did  not 
promote economic progress and the practice did not allow consumers a fair share 
of any resulting benefit. 

(114)   In  2013,  the  NCA  in  Latvia  assessed  under  national  competition  law  the 
cooperation between two dairy cooperatives, which intended to build and manage a 
factory for processing raw milk  together. The cooperation included an agreement 
on raw milk prices. The NCA found that the price agreement was a necessary and 
inevitable component of the cooperation and that the agreement's effects in terms 
of the efficiency, which would arise from collective raw milk sales and processing, 
likely could compensate for the potential negative effect on competition.  On this 
basis  the  NCA  concluded  that  the  exemption  under  national  competition  law 
applied to the agreement and closed the investigation without a decision. 

3 

INVESTIGATIONS BY COMPETITION AUTHORITIES IN THE AGRICULTURAL SECTOR 

(115)  This  Section  describes  the  antitrust  investigations  of  the  European  competition 
authorities56  in  the  agricultural  sector  from  1  January  2012  to  mid-2017  ('the 
Period').  This  part  of  the  report  has  been  prepared  within  the  European 
Competition  Network  ('ECN')  in  close  collaboration  with  the  NCAs  concerning 
their enforcement and related activities in the agricultural sector.  

(116)  This Section provides an overview of (1) the number of antitrust investigations per 
authority,  (2)  the  product  categories  investigated,  (3)  the  main  sources  of 
type  of 
investigations  (4) 
complainants, (6) the type of infringement investigated, (7) the legislation applied, 
(7) the outcomes of investigations, (8) the types of infringements found and (9) the 
entities subject to decisions detecting an infringement. 

the  entities  subject 

investigations,  (5) 

the 

to 

56 

'European competition authorities' covers both the European Commission and EU national competition 
authorities. 

32 

 
 
                                                 
3.1 

 Nearly 170 antitrust investigations in 2012-2017  

(117)  In  the  Period,  European  competition  authorities  have  concluded  about  126 
investigations  and  were  still  as  of  mid-2017  running  about  41  investigations, 
leading to a total of 167 investigations. This number does not take into account all 
the investigations opened to address potential problems regarding non-agricultural 
products in the food supply chain in the Period.  

Table 9: Investigations by competition authorities in the Period 01/2012 -06/2017 
(closed investigations and pending proceedings) 

Authority 

Austria 
Belgium 
Bulgaria 
Cyprus 
Croatia 
Czech Republic 
Denmark 
Estonia 
Finland 
France 
Germany 
Greece 
Hungary 
Ireland 
Latvia 
Lithuania 
Netherlands 
Poland 
Portugal 
Romania 
Spain 
Slovakia 
Sweden 
European 
Commission 

Number of 
investigations 

24 
3 
4 
9 
1 
1 
22 
1 
4 
7 
8 
21 
1 
8 
2 
1 
4 
8 
1 
1 
8 
1 
5 
22 

3.2  Main product categories investigated 

(118)  The investigations undertaken by European competition authorities have covered a 
wide  range  of  agricultural  products.  Table  10  classifies  the  investigations 
according to the main agricultural product categories concerned.  

33 

 
 
 
 
Table 10: Main products subject to scrutiny in antitrust actions  
in the Period 01/2012-06/201757 

Main Agricultural Product 

Number of 
investigations  

Raw58Products  Processed 
Products 

Both:  
raw and processed 
products 

Milk and dairy 
Meat in general 
Fruit & Vegetables 
Oilseeds, oils and fats 
Sugar 
Cereals 
Rice 
Other 
TOTAL 

60 
30 
23 
8 
8 
17 
4 
25 
175 

20 
17 
17 
- 
1 
2 
2 
11 
70 

31 
9 
4 
7 
6 
14 
2 
6 
79 

8 
5 
2 
1 
1 
- 
- 
1 
18 

(119)  European  competition  authorities  investigated  mostly  the  following  agricultural 
product categories: (1) milk and dairy, (2) meat in general, (3) fruit and vegetables 
and (4) cereals. A number of investigations also took place in the categories of (5) 
oilseeds, oils and fats, (6) sugar and (7) rice. 

Figure 4: Categories of agricultural products investigated by competition authorities 

57 

The  numbers  of  main  agricultural  product  investigated  does  not  match  with  the  total  number  of 
investigations  or  the  total  number  of  raw,  processed  and  both  raw  and  processed  products,  because 
some investigations cover more than one product.  

58  The notion of raw covers raw plant products, raw milk as well as live animals. 

34 

 
 
 
 
 
 
 
                                                 
(120)  The infringements detected by the European competition authorities which resulted 
in  a  prohibition  decision  and  a  fine  concern  a  variety  of  agricultural  products, 
including: milk and dairy products (26%), fruit and vegetables (22%), meat in 
general  (16%),  oilseeds,  oil  and  fats  (10%),  others  products,  e.g.  natural 
vinegar, wine, cereals, wine, cotton, sugar (26%).  

(121)  All  cases  of  abusive  conduct  by  dominant  operators  detected  by  European 

competition authorities concern the milk and dairy sector.  

3.3  Entities subject to investigations  

(122)  The  entities  subject  to  investigations  conducted  by  European  competition 
authorities are:  processors (36%), retailers (15%), other types of associations 
(11%), agricultural producers, (9%), wholesalers (9%), agricultural producer 
organisations  (9%),  general  associations  of  farmers  (9%),  others  (7%), 
associations  of  producer  organisations  (4%).  The  entities  that  most  frequently 
are  the  subject  of  complaints  from  agricultural  producers  are  agricultural 
producers.  

(123)  The entities subject to decisions where European competition authorities found an 
infringement  of  competition  rules  and  fined  the  entities  are:  processors  (39%), 
retailers  (26%),  wholesalers  (12%),  other  types  of  associations  (7%), 
agricultural  producers  (5%),  agricultural  producers  organisations  (4%), 
others (4%),  associations of producers organisations (3%). 

35 

 
 
 
 
 
Figure 5: Entities concerned by 'infringement decisions with fines' 

(124)  Processors  are  the  entities  most  frequently  represented  in  the  investigations.  For 
example,  in  2014  the  NCA  in  Germany  fined  the  three  major  German  sugar 
processors for forming a 'territorial cartel' which meant that they would limit their 
sales of sugar in Germany to their respective home sales areas. They also agreed on 
prices and quantities to be sold. The aim was to get the highest possible prices. In 
two other cases for instance, in 2012 and 2013 the NCAs in France and Germany 
respectively fined 17 and 22 large flour mills for jointly agreeing on sales prices, 
the  quantities  they  would  sell  and  which  customers  each  mill  would  limit  their 
sales to. In another example, in an ex officio case from 2012 the NCA in  Greece 
fined  the  processors  (private  companies,  cooperatives  and  an  association  of 
processors) of poultry meat for jointly i.a. fixing the selling prices of their products 
and preventing imports of chickens.  

3.4  Main sources of investigations  

(125)  The figure below shows the origins of the antitrust investigations covered by this 
Staff  Working  Document.  European  competition  authorities  opened  slightly  over 
half  of  their  investigations  following  complaints  (from  suppliers,  competitors  or 
customers). The authorities opened the other proceedings ex officio, meaning that 
the authorities opened the proceedings on their own initiative after having become 
aware  of  potential  anti-competitive  practices  through  various  ways,  such  as  the 
press or by evidence gathered when investigating other cases. 

36 

 
 
 
 
 
Figure 6: Reasons for opening antitrust investigations in the Period 01/2012-06/2017 

3.5  Types of complainants 

(126)  The  complainants  are  varied  and  the  complaints  have  essentially  come  from: 
agricultural  producers  (23%),  processors  (19%),  others  (15%),  agricultural 
producer  organisations  (13%),  individual  persons  (7%),  wholesalers  (5%), 
retailers  (5%),  other  types  of  associations  (5%),  agricultural  associations  of 
producer  organisations  (3%),  local  authorities  (3%),  general  associations  of 
farmers (2%).  

(127)  The  figures  above  show  that  agricultural  producers  alone  or  in  a  partnership  of 
their  choosing,  are  the  most  important  source  of  complaints.  As  shown  in 
paragraph  (138),  in  most  cases  investigations  did  not  lead  to  findings  of 
infringements: they did so only in about one fourth of the investigations covered in 
this  report.  The  proportion  is  lower  for  investigations  triggered  by  complaints  of 
agricultural  producers:  out  of  25  investigations  opened  in  the  Period  following 
complaints  lodged  by  agricultural  producers,  only  4  investigations  led  to  the 
adoption of a decision finding an infringement. One possible explanation for this is 
that  agricultural  producers  often  make  their  complaints  public  at  the  time  they 
submit them to competition authorities and thereby undermine the chances that the 
authorities can collect evidence of infringements, where such infringements exist.   

(128)  European competition authorities have nevertheless identified several practices that 
were  directly  detrimental  to  farmers.  For  instance,  in  2015,  the  NCA  in  Spain 
fined buyers who had agreed to pay lower prices to farmers for raw milk who had 
allocated  farmers  between  themselves.  The  NCA  in  France  fined  buyers  of  live 
pigs because they had agreed on quantities they planned to purchase with a view to 
reducing  the  price  for  the  animals.  They  also  intervened  to  allow  to  relax 
exclusivity  conditions  imposed  by  dominant  cooperatives  on  farmers:  in  those 
cases,  competition  authorities  enabled  farmers  to  supply  several  processing 
cooperatives  with  raw  milk  (in  Sweden)  and  sugar  beets  (in  France),  thereby 
widening  options  for  producers  to  obtain  higher  prices  and  allowing  them  to 
increase their output (for example for beets at the time of removal of quotas).  

(129)  The  NCA  in  Cyprus  investigated  a  complaint  from  a  farmer  concerning  an 
association  of  dairy  producer  organisations'  clauses  with  their  members  that 

37 

 
 
 
prevent  farmers from  supplying to  other dairies. The complainant argued that the 
obligation to exclusively supply his entire production to the producer organisation, 
the ban on supplying raw milk to third parties, a general ban on farmers carrying 
out competing activities and sanctioning its members for exceeding the production 
cap  constituted  an  abuse  of  dominance.  The  farmer  decided  to  withdraw  his 
complaint and as a result the NCA has opened an ex officio investigation into the 
matter  and  is  currently  investigating  the  case.  In  2018,  the  NCA  in  Germany 
closed  its  investigation  against  Germany's  largest  dairy  into  the  duration  of  the 
notice periods for the supply contracts between milk producers and dairies.  In an 
interim  report  published  in  March  2017,  the  NCA  found  that  along  with  other 
special market conditions such as exclusive supply obligations and ex-post pricing, 
the  prevailing  notice  periods  could  lead  to  a  foreclosure  of  the  market  to  the 
detriment of the farmers. In its interim report, the NCA suggested several changes 
to the conditions of delivery, including shorter notice periods. After a discussion of 
the findings in the market and some changes in market conditions, such as a large 
number of termination notices due to the last milk market crisis and modifications 
of the conditions of delivery by the investigated dairy, the NCA closed its case and 
is  now  monitoring  whether 
improve 
competition in the market. 

these  developments  will  effectively 

(130)  The  type  of  product  categories  for  which  agricultural  producers  filed  complaints 
are:  milk  and  dairy  (36%  of  the  complaints),  meat  in  general  (28%  of  the 
complaints),  fruit  and  vegetables  (16%  of  the  complaints),  eggs  (4%  of  the 
complaints), wine (4% of the complaints), rice (4% of the complaints), cereals (4% 
of the complaints), cotton (4% of the complaints).  

(131)  The types of infringement alleged by individual agricultural producers are: abusive 
conduct by dominant operators (40% of the complaints), vertical agreements 
between  entities  operating  at  different  levels  of  the  production  (32%  of  the 
complaints),  horizontal  agreements  between  two  or  more  actual  or  potential 
competitors (28% of the complaints). 

3.6  Types of infringements investigated 

(132)  European competition authorities have investigated vertical agreements (38% of 
investigations  in  the  Period),  i.e.  agreements  between  entities  operating  at 
different levels of the production. For example, in a number of cases competition 
authorities investigated agreements between processors and retailers establishing a 
minimum retail price. This was the case in Slovakia for one case concerning dairy 
products  and  in  Bulgaria  for  three  cases  concerning  sunflower  oil.  The  NCA  in 
Austria  concluded  23  investigations  into  agreements  between  processors  and 
retailers on minimum retail prices on dairy, meat and flour products. In other cases, 
competition  authorities  concluded  that  it  would  seem  unlikely  to  find  an 
infringement  and  therefore  closed  the  investigation.  For  example,  the  NCA  in 
Croatia 
the 
representatives  of  the  milk  producers  and  milk  processors,  concerning  the 
calculation  of  the  purchase  price  of  milk.  The  NCA  took  the  position  that  the 
negotiations  and  arrangements  for  milk  purchase  prices  were  not  considered  as 
prohibited agreements according to competition rules. 

investigation  concerning  an  agreement  between 

initiated  an 

(133)  European  competition  authorities  have  investigated  horizontal  agreements,  i.e. 
agreements  between  two  or  more  actual  or  potential  competitors  (38%  of  the 
investigations  in  the  Period).  For  example,  competition  authorities  investigated 
38 

 
agreements between producers fixing the price of an agricultural product. In some 
cases, the agreement could be effectively proven: for instance, the NCA in Cyprus 
found  that  an  agricultural  association  of  producer  organisations  infringed 
competition  rules  by  concluding  with  its  farmers,  members  of  the  association, 
distribution  agreements  for  raw  cow  milk  which  included  specific  terms  for 
determining  the  price  of  raw  milk.  In  other  cases,  competition  authorities 
concluded that it would seem unlikely to find an infringement and therefore closed 
the investigation. For example the NCA in  Poland closed its investigation due to 
lack  of  evidence  that  simultaneous  and  relatively  fast  price  changes  (namely 
reduction)  of  industrial  apples  purchased  by  processors  were  not  the  result  of  a 
price-fixing agreement. 

(134)  Competition authorities have also investigated in some cases agreements that were 
both vertical and horizontal because they involved several levels of the chain and 
they involved at each level several, if not all, competitors. This was particularly the 
case for agreements reached in a given Member State that aimed at raising prices 
and,  in  order  to  maintain  higher  prices,  aimed  at  preventing  imports  from  other 
Member States. For instance, the European Commission investigated agreements 
that national associations of agricultural producers publicly reported that they had 
reached  with  national  associations  of  processors  and  national  associations  of 
retailers in France. The agreements aimed at raising prices of some dairy and meat 
products  and  excluding  supplies  of  producers  from  other  Member  States  by 
committing  the  retailers  to  source  100%  of  the  relevant  products  in  France.  The 
Commission  intervention  ensured  that  French  supermarket  shelves  were  not 
reserved  for  French  products,  thus  preventing  a  damaging  cycle  of  retaliations, 
blocking  imports  from  outside  their  own  Member  States,  for  all  farmers  and  the 
cases  have  been  closed.  In  2015-2016,  the  European  Commission  looked  into 
other similar initiatives in Austria, Belgium, Germany and Italy in the milk sector 
that would block certain imports from producers in other Member States or favour 
domestic  production  to  the  detriment  of  imports.  The  NCA  in  Hungary 
investigated a similar case concerning watermelons in Hungary.  

(135)  Collective  agreements  limiting  imports  appear  to  be  a  new  practice  that 
developed  in  the  period59.  It  was  found  not  only  in  the  "vertical  and  horizontal" 
agreements presented in the preceding paragraph but also in horizontal agreements 
between processors: for instance  the NCA in France fined seventeen flour mills in 
France  and  Germany  for  agreeing  to  limit  imports  between  France  and  Germany 
and 
in  Greece  fined  domestic  processors  (private  companies, 
cooperatives and an association of processors) of fresh and frozen poultry meat for 
preventing imports of live chickens in  order to  maintain higher prices.  Collective 
agreements limiting imports run counter to the basic EU principle enforced through 
competition  law  that  all  producers  of  agricultural  products  should  have  a  fair 
access to the whole European Internal market and not be discriminated on the basis 
of their nationality.   

the  NCA 

(136)  Competition  authorities  have  further  investigated  potential  abusive  conduct  by 
dominant  operators  (24%  of  the  investigations  in  the  Period).  These  abuses 

59    In contrast, competition authorities did not identify such agreements in the period 2004-2011 covered by 
the  report  on  competition  law  enforcement  and  market  monitoring  activities  by  the  European 
competition authorities in the food sector. 

39 

 
                                                 
involved  strategies 

mainly 
to  foreclose  competitors,  such  as  exclusivity 
obligations,  minimum  purchasing  obligations,  refusals  to  supply  and  some 
exploitative  abuses,  such  as  unjustified  contractual  obligations.  On  many 
occasions, the competition authority concluded that that it was unlikely to find an 
infringement because of a lack of evidence and therefore closed the investigation. 
For  example,  the  NCA  in  Sweden  has  closed  an  investigation  due  to  lack  of 
evidence that a dominant company was paying retailers not to sell the products of 
competitors.  In  other  cases,  NCAs  have  found  that  dominant  companies  abused 
their dominant positions, for instance by refusing to supply their products to certain 
customers  or  by  excluding  smaller  competitors  of  customers  by  selling  at 
artificially low prices below cost that such competitors cannot compete with.  

(137)  All  cases  where  competition  authorities  found  that  an  operator  had  abused  its 
dominant position concern the milk and dairy sector (i.e. 4 cases in 2012, 2013 and 
2014, see paragraph (140)).  

Figure 7: Main types of infringements investigated in the Period 01/2012-06/201760 

3.7  Outcomes of investigations  

(138)  The  antitrust  investigations  in  the  agricultural  sector  that  were  concluded  during 

the Period led to four different types of outcomes:  

i. 

infringement  decisions  with  fines,  i.e.  the  competition  authorities  found 
an infringement and required the entity concerned to stop the infringement 
and to pay a pecuniary penalty (about half of the concluded cases);  

60  The total number of investigations conducted by the competition authorities and the number of main type 
of infringements detected do not  match because  some investigations  may cover  more than one  type of 
infringement (for instance a vertical and horizontal agreement). 

40 

 
 
 
                                                 
ii. 

iii. 

iv. 

infringement  decisions  without  fines,  i.e.  the  competition  authorities 
found  an  infringement  and  required  the  entity  concerned  to  stop  the 
infringement  without  paying  a  pecuniary  penalty(a  few  of  the  concluded 
cases);  
commitment  decisions,  i.e.  the  competition  authorities  did  not  decide 
whether  there  was  an  infringement  and  adopted  a  decision  that  makes 
legally  binding  the  commitment  offered  by  the  entity  under  investigation, 
thereby removing any potential concerns (a few of the concluded cases); 
closures without decision, i.e. investigations of competition authorities led 
to  a  closure  of  the  proceedings  during  a  preliminary  phase  of  the 
investigation due to lack of evidence, because disproportionate efforts were 
necessary to meet the requisite burden of proof or because of the need to set 
priorities  (about  half  of  the  concluded  cases).  Many  of  these  closures 
concern the rejections of complaints.  

(139)  Overall,  most  of  the  investigations  conducted  by  competition  authorities  led  to  a 
lack  of  evidence  or  because 
closure  of 
disproportionate  efforts  were  necessary  to  meet  the  requisite  burden  of  proof  or 
because of the need to set priorities in the light of the many matters they have to 
investigate and the limited available resources. 

the  proceedings  because  of  a 

Example of a commitment decision   

In  2017,  in  an  investigation  initiated  by  a  complaint,  the  NCA  in  France  expressed 
concerns  that  a  sugar  processor´s  procurement  contracts  with  sugar  beet  farmers 
could  foreclose  the  sugar  beet  procurement  market.  In  response  to  the  NCA's 
concerns the sugar processor committed to amend its articles of association to limit 
the  delivery  obligation  to  the  processor,  to  limit  the  duration  of  the  contracts,  to 
reduce  an  advance  notice  period  from  twelve  to  three  months  and  to  give  its 
mangers  training  in  competition  law.  The  NCA  concluded  that  these  commitments 
will  open  up  the  procurement  contracts  and  allow  sugar  beet  growers  to  benefit 
from greater freedom to choose which processor to supply.  

Example of an infringement decision without fines  

In 2017, the NCA in Sweden adopted an infringement decision in an ex officio case 
without  applying  a  fine.  The  infringement  detected  was  a  breach  of  commitments 
made  in  a  previous  investigation  concerning  the  milk  and  dairy  sector.  As  a  result, 
the NCA decided to repeal the decision to make the commitments binding with the 
effect that the NCA may reopen the original investigations.  

Examples of investigations closed without finding an infringement 

In  2013,  the  NCA  in  Latvia  closed  an  investigation  based  on  a  complaint  without 
finding  an  infringement  due  to  lack  of  evidence  concerning  possible  information 
exchange and customer allocation between the largest flour millers in Latvia.  

In 2013, the NCA in  Hungary closed an ex officio investigation against a number of 
supermarkets,  an  association  of  Hungarian  watermelon  producers  and  an  inter-
branch organisation for fruits and vegetables concerning an alleged anticompetitive 

41 

 
 
 
 
 
agreement.  Allegedly  the  parties  had  agreed  on  prices  for  watermelons  and  that 
they would not distribute (or only at a higher price) imported watermelons. After the 
initiation of proceedings, Hungary adopted a new law which generally exempts the 
agricultural  sector  from  the  general  prohibition  of  the  Hungarian  competition  act. 
The Hungarian NCA subsequently closed the case and issued a statement saying that 
the  new  law  gives  rise  to  serious  concerns  as  it  causes  legal  uncertainty  in  the 
evaluation  of  cartel  activities  concerning  agricultural  products.  The  law  was 
ultimately  repealed 
infringement  proceeding  by  the 
Commission. 

in  2015  following  an 

In 2014, the NCA in Poland closed two ex officio investigations concerning whether 
the  fall  in  prices  of  rapeseed  and  cereals  from  farmers  was  the  result  of  an 
anticompetitive  agreement  between  rapeseed  and  cereal  wholesale  buyers.  The 
NCA  analysis  showed  that  the  decrease  in  buying  prices  was  related to  the  market 
situation and the investigations were closed without finding an infringement.  

In  2015,  the  European  Commission  concluded  an  ex  officio  investigation  into  an 
agreement  between  one  retailer  and  the  main  national  federation  of  vegetable 
growers  in  France.  The  agreement  aimed  to  restrict  the  majority  of  the  retailer's 
procurement  of  certain  seasonal  vegetables,  excluding  vegetable  producers  from 
other  Member  States.  The  agreement  was  the  first  of  its  kind,  was  only  limited  to 
one  retailer  (Carrefour)  and  was  immediately  renounced  after  the  Commission 
initiated its investigation. The European Commission closed the investigation without 
a finding of an infringement. 

In  2016,  the  NCA  in  Ireland  closed  an  investigation  based  on  a  complaint  from  a 
retailer  into  whether  a  trade  association  of  milk  farmers  had  entered  into  an 
agreement in order to raise the price of milk. The investigation was closed without a 
decision due to lack of evidence.  

In  2016,  the  NCA  in  Romania  concluded  an  ex  officio  investigation  concerning  a 
possible agreement between eleven cereal wholesalers and an association of cereal 
traders that allegedly had set the price to be paid to cereal producers. The case was 
closed due to lack of evidence.   

 In 2016, the NCA in Sweden concluded an investigation based on a complaint into 
whether a dairy cooperative's rebates to retailers could be an abuse of a dominant 
position as they prevented competing dairies from also selling to the same retailers. 
The NCA also investigated alleged payments from the dairy cooperative to retailers 
that  were  allegedly  meant  to  ensure  that  no  other  competing  dairy  products  were 
sold by the retailers. The case was closed due to lack of evidence. 

42 

 
 
 
 
 
 
Figure 8: Results of the investigations conducted by the competition authorities in 
the Period 
01/2012-06/2017 

3.8  Types of infringements found  

(140)  The figure below shows the types of infringements found by competition 

authorities. They can be classified as follows: agreements on price (46%), 
agreements on output (13%), information exchange on output, market shares 
and customers (13%), agreements on market shares (10%), information 
exchange on price (10%), abuses of dominant position, involving strategies to 
foreclose competitors, such as predatory prices, exclusionary rebates, excessive 
and unfair prices (8%). In a number of cases, the competition authorities found 
that there were several infringements at the same time. The boxes below provide 
examples of infringements and combinations of infringements. 

43 

 
 
 
 
 
Figure 9: Main types of infringements detected by competition authorities in the 
Period  

01/2012-06/2017 

Examples of  decisions finding vertical agreement on prices  

In  2013,  the  NCA  in  Bulgaria  found  in  three  separate  ex  officio  investigations  that 
processors  and  wholesalers  had  agreed  on  fixing  a  minimum  price  at  which  the 
wholesaler could sell the processors' refined sunflower oil.  

In 2013 and 2014 the NCA in Austria concluded 23 separate ex officio investigations 
in  cases  where  processors  and  retailers  had  agreed  on  the  final  sales  price  of 
agricultural  products  (dairy,  meat  and  flour  products)  to  consumers.   In  all  these 
cases fines have been imposed by the Cartel Court upon the NCA’s application. 

Example of a decision finding a horizontal agreement on prices 

In  2015,  in  an  investigation  based  on  a  complaint,  the  NCA  in  the  Czech  Republic 
fined  7  competing  producers  of  live  chicken  (private  companies  as  well  as 
cooperatives) for agreeing on sales prices of chicken for slaughtering.  

Example of a decision finding an agreement on quantities to be bought and prices 
to farmers 

In 2013, in an investigation based on a complaint, the NCA in France fined five pork 
slaughterers  agreeing  on  quantities  of  pork  meat  to  be  bought  with  the  aim  of 
lowering  the  prices  paid  to  farmers  producing  live  pigs.  The  NCA  also  fined  an 

44 

 
 
 
 
 
 
association of slaughterers for sending pricing instructions to its members. The NCA 
further  fined  seven  slaughterhouses,  an  association  of  slaughterers  and  an  auction 
market buyer federation for setting together, when the market was down, a unique 
price for their purchases from farmers.   

Example  of  a  decision  finding  an  agreement  on  prices,  customer  allocation  and 
market sharing 

In 2014, in an ex officio investigation, the NCA in Germany fined twenty-two milling 
companies,  the  association  of  German  mills  and  their  representatives  for  their 
involvement  in  a  cartel  on  the  sale  of  flour.  The  milling  companies  involved  had 
agreed on prices offered to customers, which customers each company would sell to 
and the volumes that the companies would supply to all customers. The agreements 
applied to all forms of flour sales, i.e. to industrial customers (such as e.g. processors 
of bakery products and bakery chains), artisan bakers and the direct sale of flour in 
small packages (max. 1 kg packets) to food retailers. 

Example  of  a  decision  finding  an  exchange  of  information  on  price,  output  and 
market sharing 

In  2012,  the  NCA  in  the  Netherlands  fined  five  agricultural  producer  organisations 
and three wholesalers for exchanging information on prices, on how much they each 
would  produce  and  their  market  shares  in  order  to  reduce  the  quantity  of  bell 
peppers in the market, thereby increasing the prices of bell peppers.  

Examples of decisions finding an agreement prices, market sharing and preventing 
imports  

In 2012, in an ex officio investigation, the NCA in France fined seventeen flour mills 
for agreeing to limit imports between France and Germany. Specifically, they agreed 
on  a  maximum  quantity  that  would  be  imported  and  agreed  not  to  market  their 
products  in  each  other's  countries.  The  millers  were  also  fined  for  agreeing  on  a 
certain price for sales to their customers. To maintain a certain price level the millers 
had  also  agreed  to  limit  their  production  of  flour  and  agreed  on  which  customers 
each of them would and should sell to.  

In  2012,  in  an  ex  officio  investigation,  the  NCA  in  Greece  fined  the  processors 
(private  companies,  cooperatives  and  an  association  of  processors)  of  fresh  and 
frozen poultry meat for fixing the selling prices of their products to the next level of 
the  production/distribution  chain  (namely  their  prices  to  wholesalers,  super-
markets,  butchers,  rotisseries)  and  for  market  sharing,  especially  with  regard  to 
safeguarding the existing allocation of clients, as a means to facilitate enforcement 
of  the  price-fixing  agreement.  The  association  of  processors  was  also  separately 
fined for limiting production by controlling and preventing imports of live chickens in 
order to maintain higher prices.  
Example  of  a  decision  finding  an  agreement  on  output  and  an  information 
exchange on price 

In 2012, in an ex officio investigation, the NCA in the Netherlands  fined a group of 
agricultural producers, wholesalers and processors for an agreement that limited the 

45 

 
 
 
production  of  silverskin  onions.  Further,  the  parties  to  the  agreement  shared 
information  on  their  prices  in  order  to  align  their  prices  and  obtain  the  highest 
possible price level. The NCA also found that in order to support this agreement the 
parties  bought  several  competing onion producers  that after the  acquisition  would 
no longer produce silverskin onions.  
Example of a decision finding an information exchange on output and prices 

In 2012, in an ex officio investigation, the NCA in the  Netherlands fined producers, 
wholesalers,  processors  and  retailers  for  agreeing  to  limit  output  and  exchange 
information on prices of first year onion sets for the purpose of creating scarcity in 
the market and increasing the price.  

Example  of  a  decision  finding  a  horizontal  agreement  on  price,  volumes, 
information exchange and bid-rigging 

In 2015, the NCA in France in an ex officio investigation fined 11 processors of fresh 
dairy products (yoghurts, fromage frais, cottage cheese and milk based desserts) for 
exchanging  sensitive  information  and  agreeing  on  volumes  and  any  price  rises  on 
products to be sold under retailers' own brand labels (also so-called private labels). 
The  processors  also  coordinated  who  should  win  tenders  launched  by  major 
retailers.    

Example  of  a  decision  finding  an  agreement  on  price  and  market  sharing  in  the 
sugar sector 

In  2014,  the  NCA  in  Germany  fined  the  three  major  German  sugar  processors  for 
forming a "territorial cartel" which meant that they would limit their sales of sugar in 
Germany  to  their  respective  home  sales  areas.  Sugar  was  exported  to  other 
countries rather than sold to customers in their competitors' sales areas. They also 
agreed on prices and how much they would sell. The aim of the agreements was to 
achieve the highest possible prices for sugar.  

Examples of decisions finding an abuse of a dominant position 

In 2012, in an investigation initiated by a complaint, the NCA in  Finland proposed a 
fine  on  a  milk  processor  for  abusing  its  dominant  position  by  selling  fresh  milk  at 
artificially low prices. The NCA found evidence that the motivation for low prices was 
to  outmatch  all  other  processors,  including  small  dairies  and  dairies  from  other 
Member States, so that the dominant processor eventually would be the only milk 
processor in the market - allowing it then to raise the prices again. This behaviour is 
called "predatory pricing".  

In 2013 the NCA in Cyprus, in an investigation based on a complaint regarding raw 
milk  supply,  fined  an  association  of  cattle  producer  organisations.  The  NCA  found 
that the association's prices were so high that they implied a refusal to supply a milk 
processor.  Given the  dominant  size  of the  producer  organisation  the  manufacturer 
processor had very limited possibilities of getting raw milk anywhere else. 

In 2014 the NCA in Cyprus in an ex officio investigation, fined the same association of 

46 

 
cattle producer organisations for setting too high and unfair prices for raw milk (the 
association was simultaneously fined for anti-competitive agreements).  

In 2014, in an ex officio investigation, the NCA in France fined a dairy processor (i.e. 
yogurt and fresh cheese products) for abusing its dominant position by developing a 
practice of denigration against its competitor's products.  

The  NCA  in  Cyprus  is  also  currently  investigating  a  complaint  from  a  dairy  on 
whether  an  association  of  dairy  producer  organisations  has  abused  a  dominant 
position  in  the  raw  milk  and  cheese  sector.  The  association  has  allegedly  imposed 
unfair trading practices by way of arbitrary and unilateral variations in the price and 
quantities delivered of raw milk, refused to supply and margin squeeze. A statement 
of objections has been issued and the investigation is on-going. 

4  CONSULTATIONS RECEIVED BY EUROPEAN COMPETITION AUTHORITIES  

(141)  This  Section  provides  a  description  of  the  consultations  that  the  NCAs  have 
received and dealt with from the Member States (e.g. ministries, regional or local 
governments)  and  private  entities  (e.g.  consumers  farmers,  companies)  from  1 
January  2012  to  mid-2017  on  the  application  of  the  competition  rules  to  the 
agricultural sector  

(142)  This Section provides an overview of (1) the number of consultations received, (2) 
the  product  categories  subject  to  consultations,  (3)  the  main  sources  of 
consultations (4) the type of consultations received, (5) the number of monitoring 
and  related  activities  conducted,  (6)  the  product  categories  subject  to  monitoring 
and  related  activities,  (7)  the  main  type  of  monitoring  and  related  activities 
conducted. 

4.1  More than 40 consultations 

(143)  In the Period, NCAs received 46 consultations for advice concerning the 

application of competition rules to the agricultural sector.  

47 

 
 
 
Table 11: Consultations conducted by NCAs in the Period 01/2012-06/2017 

Authority 
Austria 
Cyprus 
Denmark 
Finland 
France 
Italy 
Latvia 
Lithuania 
Netherlands 
Romania 
Slovenia 
Spain 
United Kingdom  
Total 

Number of consultations 
1 
1 
3 
2 
3 
3 
4 
9 
3 
10 
1 
4 
2 
46 

(144)  The scope and the focus of the consultations provided by the NCAs in the 

agricultural sector varied but they mainly focused on specific agricultural products, 
such as milk and dairy (35%), cereals (11%), fruit and vegetables (7%) 
oilseeds, oils and fats (7%), meat in general (4%) and eggs (2%). 35% were 
consultations on agricultural issues in general (e.g. sustainability initiatives or 
strengthening farmers) or other products.  

Figure 10: Number of categories of products subject to consultations received by 
NCAs in the Period 01/2012-06/2017 

48 

 
 
 
 
 
 
4.2  Main source of consultations 

(145)  The  following  entities  have  consulted  the  NCAs:  (1)  Governments  (namely, 
Ministries of Agricultural and Rural Development, Ministries of Economic Affairs, 
Departments  for Liaison with Parliament); (2)  Parliaments (namely, Committees 
for Agriculture); (3) producers; (4) producer organisations; (5) associations of 
producer  organisations;  (6)  other  types  of  associations;  (7)  interbranch 
organisations and (8) processors. 

Figure 11 
Sources of consultations during the Period 01/2012-06/2017 

Interbranch 
organisations 
4% 

Processors  
4% 

Producers 
4% 

Government 
55% 

Producers 
organisations  
4% 

Other types of 
associations 
7% 

Parliament 
7% 

Associations of 
Producers 
Organisations 
15% 

4.3  Main types of consultations  

(146)  The consultations received and dealt with by the NCAs were of three main kinds: 
(1) consultations concerning new legislative proposals concerning the agricultural 
sector,  in  which  the  NCAs  have  been  asked  to  advise  on  effect  of  such  new 
proposal  on  competition;  (2)  consultations  from  national  governments  with  the 
purpose of obtaining guidance on envisaged measures in the agricultural sector; (3) 
requests  for  consultations  from  operators  in  the  agricultural  markets,  including 
farmers,  in  which  NCAs  e.g.  have  been  asked  to  provide  guidance  concerning 
envisaged  activities  in  the  sector.  The  consultations  from  operators  in  the  market 
are often confidential.  

49 

 
 
 
 
 
 
Examples of consultations concerning legislation 

In  2015,  the  NCA  in  Romania  received  a  consultation  from  their  national 
government  concerning  the  amendment  of  the  law  on  marketing  of  foodstuff 
(including  in  particular  eggs,  fruit  and  vegetables  and  milk  and  dairy  products), 
regarding  i.e.  the  obligation  for  retailers  to  make  special  areas  in  the  shops 
available  for  Romanian  food  producers.  The  NCA  stated  that  in  their  opinion  the 
legislative initiative would lead to discrimination and a restriction of competition. 

In 2015, the NCA in Cyprus provided input to a public consultation initiated by the 
Cypriot Ministry  of  Agriculture,  Rural Development  and  Environment  on the  draft 
laws  regarding  the  contractual  negotiations  in  the  milk  and  milk  products  sector 
and the recognition of producer organisation of agricultural products.  

In  2016,  the  NCA  in  Italy  received  a  consultation  from  their  national  government 
concerning  draft  legislation  on  the  establishment  of  an  entity  in  charge  of  price 
collection in the supply chain concerning agricultural products. The NCA concluded 
that any price benchmarks should not become an instrument to coordinate future 
prices and recommended safeguards in this regard.  

In  2016,  the  NCA  in  Romania  received  a  consultation  from  their  national 
government  concerning  draft  legislation  introducing  an  obligation  for  traders  of 
food  to  purchase  meat,  eggs,  vegetables,  fruits,  dairy  and  bakery  products  in  the 
proportion of at least 51% from Romanian producers. The NCA stated that in their 
opinion this measure could be considered discriminatory and lead to partitioning of 
the internal market.  

Examples of consultations from the national government and the operators in the 
milk sector 

In 2016 and 2017, the NCA in Lithuania received several consultations concerning 
milk from the national Ministry of Agriculture, milk processors and associations of 
milk processors. The consultations concerned the application of competition rules 
to a publication of the raw milk price of the Ministry's website. The NCA concluded 
that  in  case  such  prices  might  be  of  highly  strategic  importance  and  that 
publication could increase transparency to a degree that could prevent competition 
on  prices.  The  NCA  advised  the  Ministry  to  assess  the  information  and  instead 
publish  historic  information  on  prices  and  only  in  a  form  through  which  the 
processor that had paid a given price could not be identified.  

In  2015,  the  NCA  in  Austria  discussed  and  provided  input  to  the  parliamentary 
committee for agriculture concerning milk and dairy products and in particular the 
supply  management  for  stabilising  Austrian  and  European  milk  markets,  possible 
measures after the end of the milk quota and how the sector could co-operate with 
the tourism industry to consolidate agricultural production.  

50 

 
 
5  MONITORING AND RELATED ACTIVITIES 

5.1 

 Number of monitoring and related activities 

(147)  This Section provides a description of the monitoring and related activities, which 
includes sector enquiries or reports regarding any agricultural product; monitoring 
exercises into agricultural products; and market advocacy work of another type that 
the European competition authorities have conducted and/or issued from 1 January 
2012 to mid-2017. 

(148)  In the Period, NCAs conducted 53 monitoring and related activities concerning the 

application of competition rules to the agricultural sector.  

Table 12: Monitoring and related activities conducted by NCAs in the Period 
01/2012-06/2017 

National Competition 
Authority 

Number of monitoring 
and related activities 

Bulgaria 
Cyprus 
Denmark 
Finland 
Greece 
Hungary 
Italy 
Latvia 
Lithuania 
Netherlands 
Poland 
Romania 
Slovakia 
Spain 
Sweden 
United Kingdom  
Total 

2 
1 
1 
2 
1 
7 
6 
3 
1 
5 
5 
1 
2 
12 
1 
3 
53 

(149)  The scope and the focus of the monitoring and related activities conducted by the 
NCAs  in  the  agricultural  sector  have  focused  on  specific  agricultural  products, 
such  as  milk  and  dairy  (39%),  oilseeds,  oils  and  fats  (10%),  meat  in  general 
(10%),  cereals  (4%),  fruit  and  vegetables  (6%),  sugar  (2%)  and  other 
products  (29%), including, wine, eggs,  rice and  agricultural  products  considered 
as a whole.  

5.2  Main types of monitoring and related activities 

(150)  NCAs  conducted  several  types  of  monitoring  and  related  activities  by:  (1)  sector 
enquiries, (2) advocacy work, (3) reports, (4) monitoring, and (5) policy work. 

51 

 
 
 
 
 
 
 
 
 
Figure 12: Types of monitoring and related activities in the Period 01/2012-06/2017 

18

16

14

12

10

8

6

4

2

0

Sector inquiries Advocacy work

Reports

Monitoring

Policy work

Examples of sectoral inquiries 

In 2012, The NCA in  Bulgaria published a sectoral inquiry which analyses the sharp 
increase  in  prices  of  oilseed  sunflower  and  sunflower  oil  in  August  –October  2010. 
The  NCA  analysed  price  data  of  the  oil-yielding  sunflower  seed  in  the  entire  chain 
and  observed  that  discrepancies  existed  between  price  changes  at  the  level  of 
production  on the  one hand  and processing  on  the  other.  The  NCA found  that the 
discrepancy may partly be due to the structural weakness at different levels of the 
chain. The NCA subsequently opened an investigation into vertical agreements in the 
sector. See above in para (140) for the outcome.  

In 2013, the NCA in Finland published a study on the position of farmers in the food 
supply chain. Based on questionnaires sent to operators in various levels of the food 
supply  chain  in  the  meat,  fish  farming  and  open  air  and  greenhouse  cultivation 
sectors, the NCA found that the balance of power in the chain could be evened out 
by  increased  cooperation  between  primary  producers.  The  NCA  concluded  that  a 
large-scale  relaxation  of  the  application  of  competition  rules  in  the  agricultural 
sector  would  not  be  a  sustainable  solution  and  that  the  competition  legislation 
already  allowed  cooperation  between  farmers  by way  of  agreements  that  improve 
market  performance  and  as  well  as  pass  on  some  of  the  resulting  benefit  to  the 
consumer. 

In 2013, the NCA in Greece published a sectoral inquiry concerning the functioning 
of  the  fruit  and  vegetables  supply  chain.  The  NCA  analysed  the  pricing  for  certain 
products  and  in  particular  if  and  why  there  would  be  any  remarkable  differences 
between the prices charged at different levels of the chain. The NCA found that the 
production of fruit and vegetables has been gradually shrinking over the last 20 years 
and that the wholesale level of trade is not organized and remains fragmented. The 
NCA's  econometric  analysis  of  the  price  transmission  mechanisms  in  the  sectors 
showed  significant  asymmetries  with  regard  to  the  responses  to  positive  and 
negative  price  changes  along  the  supply  chain  of  fruits  and  vegetables.  These 
52 

 
 
 
 
 
asymmetries are expressed both in terms of the speed of the change-transmission, 
as  well  as  in  terms  of  the  extent  and  permanent  character  of  adaptation  to  other 
levels.  Overall,  the  econometric  analysis  of  the  price  transmission  mechanism 
confirms  the  relatively  weak  position  of  agricultural  producers  and  the  relatively 
strong  position  of  the  wholesalers  along  the  supply  chain  of  fruits  and 
vegetables.The  inquiry  suggested  structural  reforms,  e.g.  removing  regulatory 
barriers to competition, reinforcing the producer organisations and consolidating the 
supply chain.  

In 2015, the NCA in Lithuania published a sectoral enquiry concerning price changes 
and the functioning of the supply chains for raw milk and dairy products. The inquiry 
was  meant  to  identify  potential  problems  and  provide  market  participants  with 
recommendations based on best practices in the EU. The NCA found that a stronger 
negotiation  power  and  a  bigger  quantity  of  produced  milk  may  increase  the 
efficiency  of  milk  producers.  The  NCA  also  found  that  the  most  effective  way  of 
increasing farmers' sales is for farmers to cooperate or form producer organisations. 
This  would  allow  farmers  to  ensure  long-term  agreements  downstream,  build  up 
immunity from market fluctuations and boost export opportunities.  

In 2016, the NCA in Italy published a sector inquiry on the impact of the end of the 
milk quota regime, in reaction to complaints from farmers concerning low prices for 
raw milk and excessive concentration of value in the other levels of the milk supply 
chain. The NCA assessed the contractual dynamics for sale of raw milk from farmers, 
the mechanisms for price transmission along the chain, the behaviour of the buyers 
during  contractual  negotiations  and  the  level  of  competition  throughout  the  milk 
supply chain. The sector inquiry did not reveal any critical competition issues in the 
price  transmission  mechanisms  in  the  supply  chain.  The  NCA  found  that  the  most 
significant way the milk farmers could increase their profits would be by establishing 
producer  organisations  whereby  they  could  obtain  more  bargaining  strength  for 
selling  raw  milk  and  generate  cost  savings  by  cooperating  on  e.g.  transport, 
organisation of production. 

In  2016  the  NCA  in  Slovakia  began  a  sector  inquiry  concerning  meat,  fruit  and 
vegetables, cereals eggs and milk and dairy products. The inquiry was initiated as a 
result  of  the  general  discontentment  of  farmers  and  wholesalers  with  market 
conditions in the agriculture and food sector in Slovakia. The inquiry is still ongoing 
and will assess the problems and to which extent the NCA can intervene. 

In 2016, the NCA in Poland completed a sectoral inquiry into the pork meat supply 
chain. The NCA analysed the supply structure of the markets, production of meat by 
retail chains and the causes of the crisis in the Polish pig breeding industry. 

Examples of advocacy works  

In 2013-2015, the NCA in  The Netherlands presented an example of a competition 
analysis  of  an  agreement,  including  presumed  sustainability  agreements.  Following 
growing  concerns  among  stakeholders  about  environment,  pollution  and  animal 
welfare, parties within the sectors of breeding, slaughter trade and retail of chicken 
and  chicken  meat,  wanted  to  stop  breeding  of  chicken  at  the  lowest  legal  welfare 
limit.  Their  goal  was  creating  a  higher  level  of  sustainability  within  this  particular 
53 

 
 
food channel. As part of the NCA's assessment, a consumer panel inquiry was carried 
out, in order to establish consumer preferences as well as the existence and degree 
of consumers' willingness to pay for these reported advantages. While the consumer 
inquiry showed that consumers care about animal welfare, they were not inclined to 
pay  the  extra  costs  needed  for  the  reported  animal  welfare  measures.  Consumers 
reportedly sensed a misbalance between the measures and the accompanying costs. 
Therefore the  NCA  found  that  this  particular  sustainability agreement  did  not  fulfil 
the criteria under national and EU law and could not be exempted from competition 
rules.  In  addition  to  the  NCA's  Vision  Document  from  2014  which  explains  to  what 
degree  sustainability  initiatives  of  businesses  can  be  compatible  with  competition 
law, the NCA has subsequently in 2016 published basic principles for when the NCA 
will intervene against sustainability agreements.  

In 2015, the NCA in  Italy provided guidance to farmers and producer organisations 
concerning  milk  and  Protected  Designation  of  Origin  (PDO  or  DOP  in  Italian)  dairy 
products.  The NCA  found  that  in  order to  ensure  compliance  with  national  and EU 
competition  law,  the  maximum  compliance  of  the  DPO  scheme  production  plans 
under EU legislation must be ensured. This includes in particular an assessment of an 
undertakings'  decision  to  limit  output  in  order  to  match  supply  and  demand,  that 
rules  that  do  not  hinder  more  efficient  undertakings  are  introduced  and  that  a 
restriction  of  competition  should  be  proportionate  to  the  purpose  of  ensuring 
market stability and quality of the products.  

In  2015,  the  NCA  in  Hungary  provided  input  to  the  initiative  of  the  Ministry  of 
Agriculture concerning national rules for the minimum production quantity required 
for  the  establishment  of  producer  organisations  and  associations  of  producer 
organisations  in  the  milk  and  dairy  sector.  The  NCA  found  that  the  proposed 
minimum  threshold  was  too  high  compared  to  other  EU  Member  States,  where 
there as a result are more producer organisations. The NCA proposed a significantly 
lower threshold and simplifying the rules so that the status of small producers could 
be improved. The NCA's opinion was not taken into consideration.   

In 2016, the NCA in Hungary took part in the initiative of the Ministry of Agriculture 
for making binding the decision of interbranch organisation about monthly reporting 
requirements of producers and traders to the interbranch organisation on quantity 
of production and on average buying prices of raw milk.    

Examples of reports    

In  2012,  the  NCA  in  Spain  published  a  report  analysing  a  legislative  package  to 
improve  the  functioning  of  the  food  supply  chain  for  the  Spanish  Ministry  of 
Agriculture.  The  package  was  aimed  at  achieving  a  better  balance  in  the  trading 
relationships  in  the  food  supply  chain.  In  the  report,  the  NCA  warned  on  the 
questionable necessity and proportionality of the aim and measures in the legislative 
package. Following the report, some provisions were abandoned by the legislator.  

In 2014, the NCA in the Netherlands published a report concerning the relationship 
between  food  prices  at  various  levels  in  the  chain.  The  NCA,  for  this  purpose, 
commissioned  an  investigation  into  pricing  of  basic  food.  The  purpose  of  the 
investigation  was  to  obtain  an  insight  into  the  development  of  the  relationship 
54 

 
 
between  food  prices  in the  various  link  of  the  food  supply  chain.  The  investigation 
further explained price patterns that may indicate a lack of competition.  

In  2016,  the  NCA  in  Spain  published  a  report  analysing  draft  legislation  aimed  at 
introducing more transparency in the different commercial relations within the cow 
milk sector and which imposes that price and quantity information on the previous 
month's sales must be sent to the producers. In the report, the NCA e.g. found that 
the level  of transparency  went  beyond  what  was  necessary  and that  there  may be 
other  instruments  that  better  could  tackle  the  difference  in  negotiation  power 
among  the  operators 
like  e.g.  promoting  cooperatives  and 
internationalisation of the sector. 

in  the  sector 

Examples of monitoring 

In 2015, the NCA in Romania published its monitoring analysis of the price changes 
for milk, dairy, eggs and chicken meat products at producer level and the retail level. 
The  analysis  was  initiated  after  a  legislative  change  on  a  VAT  reduction.  The  NCA 
found  that  both  in  the  modern  and  traditional  trade,  the  shelf  sales  price  of  the 
products was reduced as a result of the VAT change and the reduction of VAT was 
transferred to consumers. Also, the change in VAT led to an increase in sales in the 
overall market, largely in hypermarkets and discounter.  

In 2016 the NCA in Latvia published its monitoring activities concerning the milk and 
dairy  sector.  The  NCA  analysed  the  dynamics  of  the  purchasing  prices  of  raw  milk 
and  the  factors  affecting  prices.  The  NCA  found  no  evidence  of  anticompetitive 
behaviour,  but  rather  that  overproduction,  the  import  restrictions  from  Russia  as 
well as the end of the milk quotas had led to low prices and increased market power 
of dairies. The NCA also found that relatively low efficiency of farmers, the number 
of  many  small  farms  and  the  fact  that  the  farmers  were  not  integrated  with  the 
processing sector effectively prevented them from increasing their market power.  

In 2017, the NCA in Latvia published its analysis of the increase in raw milk prices in 
2016. The NCA found that the increase in raw milk prices was temporary and not due 
to anticompetitive behaviour in the sector.  

Example of policy work 

In  2012  and  on  an  ongoing  basis,  the  NCA  in  the  United  Kingdom  liaises  with  the 
government  on  European  considerations  of  competition  law  derogations  in  the 
agricultural  sector.  In  2012-2013,  the  NCA  for  example  provided  views  on  initial 
possible compromise amendments concerning the CAP proposals and the derogation 
under the CMO Regulation.  

55 

 
 
 
 
 
 
 
 
6  COURT CASES 

(151)  In  the  Period,  the  European  Commission  is  aware  of  the  existence  of  22  Court 
cases concerning agricultural products. All these cases related to an appeal by the 
parties subject to decisions issued by NCAs, either contesting the amount of fines 
imposed or the existence of the illegal conduct itself.  

(152)  The European Commission is not informed of Court cases in which parties sought 
a direct application of European competition rules without a prior investigation by 
a competition authority.  

Example of a court case 
In 2013, the Spanish Court of First Instance (Audiencia Nacional) in Spain dismissed 
the  actions  of  the  companies  subject  to  a  decision  by  the  Spanish  NCA.  The  court 
ruled  inter  alia  that  an  NCA  decision  fining  two  associations  for  making  price 
recommendations to their members was not a violation of the associations' right to 
freedom of speech. 

56 

 
 
 
 
 
 
ANNEX  

Table 13: Recognised POs and APOs in the Fruit and Vegetables sector 201661 

MS 
CODE 
AT 
BE 
BG 
CY 
CZ 

DE 
DK 
EE 
ES 
FI 
FR 
GR 
HR 
HU 
IE 
IT 
LT 
LU 

LV 
MT 
NL 
PL 
PT 
RO 
SE 
SI 
SK 
UK 
EU 

COUNTRY 

POs 

APOs 

Austria 
Belgium 
Bulgaria 
Cyprus 
Czech Republic 

Germany 
Denmark 
Estonia 
Spain 
Finland 
France 
Greece 
Croatia 
Hungary 
Ireland 
Italy 
Lithuania 
Luxemburg 

Latvia 
Malta 
Netherlands 
Poland 
Portugal 
Romania 
Sweden 
Slovenia 
Slovakia 
United Kingdom 
Total EU Ms 

11 
14 
8 
9 
19 

31 
2 
0 
568 
4 
228 
126 
3 
55 
2 
304 
0 
0 

3 
0 
13 
239 
62 
19 
5 
0 
5 
33 
1763 

0 
3 
0 
0 
0 

0 
0 
0 
7 
0 
27 
1 
0 
7 
0 
13 
0 

0 
0 
0 
1 
0 
0 
0 
0 
0 
1 
60 

61  Latest  available  data  from  Member  States'  annual  reports  following  MS  reporting  obligation  in 

Regulation 543/2011. 

57 

 
 
 
 
 
                                                 
600

500

400

300

200

100

0

Fruits and Vegetable by 2016 

POs

APOs

I

N
A
P
S

Y
L
A
T
I

D
N
A
L
O
P

E
C
N
A
R
F

E
C
E
E
R
G

L
A
G
U
T
R
O
P

Y
R
A
G
N
U
H

I

A
N
A
M
O
R

I

M
U
G
L
E
B

S
D
N
A
L
R
E
H
T
E
N

Y
N
A
M
R
E
G

C
I
L
B
U
P
E
R
H
C
E
Z
C

I

M
O
D
G
N
K
D
E
T
I
N
U

I

A
R
T
S
U
A

S
U
R
P
Y
C

N
E
D
E
W
S

I

A
R
A
G
L
U
B

I

A
N
E
V
O
L
S

I

A
K
A
W
O
L
S

D
N
A
L
N
I
F

A
I
T
A
O
R
C

I

A
V
T
A
L

D
N
A
L
E
R

I

I

A
N
O
T
S
E

K
R
A
M
N
E
D

A
T
L
A
M

I

A
N
A
U
H
T
I
L

G
R
U
B
M
E
X
U
L

58 

 
 
 
 
 
 
 
 
Table 14: Recognised POs/APOS in the milk and milk products sector 201662 

MS CODE 

COUNTRY 

POs 

APOs 

AT 

BE 

BG 

CY 

CZ 

DE 

DK 

EE 

ES 

FI 

FR 

GR 

HR 

HU 

IE 

IT 

LT 

LU 

LV 

MT 

NL 

PL 

PT 

RO 

SE 

SI 

SK 

UK 

EU 

Austria 

Belgium 

Bulgaria 

Cyprus 

Czech Republic 

Germany 

Denmark 

Estonia 

Spain 

Finland 

France 

Greece 

Croatia 

Hungary 

Ireland 

Italy 

Lithuania 

Luxemburg 

Latvia 

Malta 

Netherlands 

Poland 

Portugal 

Romania 

Sweden 

Slovenia 

Slovakia 

United Kingdom 

0 

4 

2 

0 

10 

158 

0 

0 

8 

0 

63 

1 

3 

5 

0 

51 

0 

0 

0 

0 

0 

4 

0 

0 

1 

0 

2 

TOTAL EU MS 

312 

0 

0 

0 

0 

0 

3 

0 

0 

0 

0 

3 

0 

0 

0 

0 

1 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

7 

62  Annual reporting by MS according to Commission Implementing Regulation (EU) No 511/2012 of 15 
June  2012  on  notifications  concerning  producer  and  interbranch  organisations  and  contractual 
negotiations and relations provided for in Council Regulation (EC) No 1234/2007 in the milk and milk 
products sector, OJ L 156 of 16.6.2012, 39. 

59 

 
 
  
  
                                                 
Milk 2016 

158 

63 

51 

Total POs

Total APOs

3  3  1 

10  8  5  4  4  3  2  2  1  1  0  0  0  0  0  0  0  0  0  0  0  0  0  0 

200

180

160

140

120

100

80

60

40

20

0

60 

 
 
 
 
 
 
 
Table 15: Recognised POs/APOS in other agricultural sectors, 201663 

MS CODE   COUNTRY 

POs 

APOs 

AT 

BE 

BG 

CY 

CZ 

DE 

DK 

EE 

ES 

FI 

FR 

GR 

HR 

HU 

IE 

IT 

LT 

LU 

LV 

MT 

NL 

PL 

PT 

RO 

SE 

SI 

SK 

UK 

EU 

Austria 

Belgium 

Bulgaria 

Cyprus 

Czech Republic 

Germany 

Denmark 

Estonia 

Spain 

Finland  

France 

Greece 

Croatia 

Hungary 

Ireland 

Italy 

Lithuania 

Luxemburg 

Latvia 

Malta 

Netherlands 

Poland 

Portugal 

Romania 

Sweden 

Slovenia 

Slovakia 

United Kingdom 

15 

3 

7 

0 

3 

494 

0 

0 

3 

0 

430 

97 

4 

0 

0 

222 

- 

0 

1 

1 

1 

0 

53 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

6 

0 

0 

0 

0 

0 

3 

0 

0 

0 

5 

 - 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

TOTAL EU MS 

1334 

14 

63    Data  provided  by  MS  as  a  response  to  the  information  request  of  the  Commission  of  April  2017. 
However, two MS did not provide any information. For Italy the information is incomplete, as the data 
is gathered on a regional level and not all regions had replied at the time of reporting.  

61 

 
 
                                                 
Table 16: POs/APOS in meat, olive oil, cereals and wine64 

SECTOR 

POs  APOs 

Meat  

Olive oil 

Cereals 

Wine  

3 

8 

2 

497 

252 

170 

216 

64  Based on preliminary figures from request of the Commission to Member States and study DG COMP. 

62