On 29 July 2011, the 's-Hertogenbosch District Court issued an injunction against the confectionary company Mars ordering it to cease the further implementation of a marketing strategy relating to the preferred display of its products. In particular, this strategy consists of a programme of rewarding petrol stations in the Netherlands with products and vouchers when they arrange their shelves and displays in such a way that Mars products are displayed prominently.
The injunction relates to proceedings brought by Mars's competitor Nestlé, which filed a complaint in order to stop Mars from further rolling out the rewards programme or any other similar programme. The complaint is based on two main infringements, namely an infringement of Article 101 TFEU and Article 24 of the Dutch Competition Act, and Article 102 TFEU and Article 6 of the Dutch Competition Act.
In its interim decision on the proceedings brought by Nestlé, the District Court took the preliminary view that the relevant market could be defined as the market for full-size and bite-size candy bars in petrol stations or a more general market for chocolate products in petrol stations. According to the District Court, it cannot be excluded that Mars would have a dominant position on these markets, and its market shares would prevent the Vertical Agreements Block Exemption Regulation from applying. In addition, the District Court took the preliminary view that the Mars rewards programme has anti-competitive effects and may foreclose competitors such as Nestlé from the market.
Further to these findings, the District Court has issued an injunction prohibiting Mars from further rolling out the rewards programme. However, this injunction only concerns new agreements, and existing agreements may remain in force at least until the main proceedings brought by Nestlé are concluded. Mars is also subject to a periodic penalty payment of € 20,000 per day for non-compliance with the injunction.
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