ACCO

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The Catalonia Competition Authority (ACCO) has declared that the Guild of Consignees of the Central Fresh and Frozen Fish and Seafood Market of the City and Province of Barcelona (the “Guild”) has infringed article 1 of the Spanish Competition Act (the “Act”) by imposing on its members certain conditions on the sale of their products to fish retailers. The ACCO has fined the Guild for €2,667,970.52, the largest fine it has ever imposed. The ACCO is also the most active of the regional competition authorities, having issued 109 decisions in its ten years of existence.

Case 90/2017 began ex officio, following a petition submitted by the municipal organization Mercados de Abastecimientos de Barcelona S. A. (Mercabarna) informing ACCO of legal disclosure proceedings after a complaint from the fishers’ guild of Catalonia (Gremi de Peixaters de Catalunya) on buying conditions in Mercabarna. After a two-year investigation, ACCO found proof of the following restrictions:

  • Mandatory economic conditions be able to buy in the Central Fish Market such as sureties, deposits and guarantees; and
  • Imposed refusal to sell to retailers with outstanding invoices.

These restrictions were implemented by deploying a single payment and invoicing IT system for all wholesalers and a unique “buyer’s card” for the Central Fish Market, without which it was impossible to buy products in any form of payment. Since 100% of fish wholesalers in Barcelona are members of the Guild, the ACCO found that imposing unjustified restrictions on the conditions of sale of products had created uniform sales policy effects for fish wholesalers.

The ACCO had already included in its Annual Competition Promotion Actions for 2018 a Study on the value chain of agrifood products, published in December 2018, an analysis of the growing weight of wholesale fish markets in Mercabarna and the key role of auction systems in the sale of fish.

The sector has been subject to numerous investigations in the past.

In 2008, the ACCO had already investigated the fishers’ associations of Tarragona in Case AR 26/08 for possible price fixing and, in 2015, the fishers’ association of l’Ametlla del Mar (Tarragona) in Case 50/2012 for imposing an unjustified reservation on entry to business. Both cases were shelved because no infringement was found. Both cases were opened after a complaint from the fishers’ guild of Catalonia and the Federation of Guilds and Associations of Fish and Seafood Merchants of Catalonia in the first one, and from the Balfegó Group, the largest tuna supplier in Spain, in the second one.

At national level, the now defunct Competition Court opened several sanctions proceedings against fish wholesaler associations between 1999 and 2005.

In the first one, in 1999, it ruled that the monopoly on the sale of fish granted to Mercamálaga was not contrary to competition law.

However, in 2000, it fined the Vigo fish market for setting commercial conditions and restricting sales to foreign businesses.

Two years later, it found that the Fish Retailers Association of the City and Province of Cordoba had implemented a computerized invoicing and payment system that imposed restrictions on the free setting of commercial terms (including banning sales to late payers and limiting credit), and it involved exchange of commercially sensitive information. However, unlike the ACCO in this case, it did not issue a fine because it considered that the agreement only had a minimal effect on the market.

In 2004, the Competition Court fined the organization responsible for operating the fish market in Lastres, Asturias, for preventing a company from buying in the market for 15 days for breaching tax regulations.

The most recent fine issued in the sector was in 2013 (although the case started in 2005) against four fish wholesalers in Murcia that had agreed not to sell fish in the stalls that had been awarded to them in the Murcia Market. The case was shelved by the Competition Court in 2005, but the National Court of Appeals annulled the decision in 2008, ordering the new Council of the CNMC (National Commission on Markets and Competition) to fine the wholesalers.

It is noteworthy that all these cases, except for the Vigo fish market and the case discussed in this article, arose from a complaint. However, there is no question that the competition authorities are interested in municipal central markets, particularly in the sale of fish and seafood. This warning shot should prompt other central markets across the country to review any potential financial and payment barriers to entry.

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joaquim.candel@cuatrecasas.com

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