No proceeding initiated on account of purchasing agreement for further operation of 63 “real” stores

Following an in-depth preliminary examination, the Bundeskartellamt has decided not to initiate a proceeding under competition law on account of a planned pur-chasing cooperation between the acquirers of further “real” stores and REWE. On 2 March, the Bundeskartellamt cleared the acquisition of "real" stores by the investor Dr Tischendorf with the involvement of the previous "real" management (so-called "management buyout" or "real MBO": See press release of 2 March 2022). Dr Tischendorf has now acquired a total of 63 stores. At that time, however, possible agreements on procurement had not yet been examined.

Andreas Mundt, President of the Bundeskartellamt: “We essentially focused on the question of whether a purchasing cooperation with REWE as one of the largest retail-ers was absolutely necessary to ensure the further operation of the 63 “real” stores instead of considering small and medium-sized partners. Our assessment can only be based on whether the investor’s concept is transparent and plausible in terms of en-trepreneurial aspects and on whether alternative options are refused without reasons or for reasons that cannot be recognised under competition law. Ultimately, no other model appeared to be sufficiently viable to ensure the future operation of the stores.”

Apart from REWE, some food retailers which belong to the medium-sized RTG purchasing cooperation had also expressed an interest in cooperating with the new owner of the 63 stores. RTG had already been “real”'s purchasing partner. However, the negotiation process initiated in December 2021 had been characterised by the need to achieve sufficiently clear and sustainable solutions for the economic viability of the “real MBO” within a very limited period of time. This applied all the more since a new small or medium-sized competitor in the food retail market only accounts for a limited procurement volume and it can be expected that in the near future the previous parent company Metro will discontinue the support it has pro-vided so far. However, the negotiations with the RTG companies have so far not reached a stage where a contract can be concluded. The investor had almost con-cluded its negotiations on such a contract with REWE. Based on the examination it could not be determined that the investor had refused further negotiations on an alternative solution without reasons or because of reasons that would not be ade-quate under competition law.

It must therefore be accepted that based on the purchasing cooperation with “real MBO”, REWE can further increase its procurement volume in the food retail sector. At least as far as the acquisitions of a large number of “real” stores by Kaufland (B2-83/20) and Edeka (B2-85/20) were concerned, the Bundeskartellamt had only cleared the transactions under merger control law subject to the remedy that “real” stores with a food procurement volume of at least 200 million euros be sold to small and medium-sized competitors. This provided the small and medium-sized competitors with procurement volumes larger than they would have been if the “real” stores had been closed altogether. Meanwhile this volume has not only been achieved, but even exceeded.

As, in view of the overall conditions, the competition concerns raised by the pro-posed cooperation are not substantial, the authority has decided not to initiate a proceeding