Tag: exclusionary abuse

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When suppliers become the captains: Is Red Bull clipping rivals’ wiiings?

When we think about suppliers and retailers working together, we usually imagine negotiations over things like the price a retailer pays for products, the quantities ordered, or delivery schedules. However, some suppliers do much more than simply supplying products. In fact, suppliers to many supermarkets also advise them on which brands to stock, how much shelf space each brand should get, and which products to promote. In this role, known as a ‘category captain’, a supplier can influence not only its own products but also those of its competitors within a specific category of products.

For example, if Red Bull were acting as a category captain in the energy drinks category for a supermarket like Tesco, it could also advise on where its competitor, Monster Energy, appears on the shelves, or even whether it appears at all!

Sounds problematic? Arrangements like these are an example of vertical relationships between suppliers and retailers, something economists often study. Like other vertical arrangements, such as exclusive dealing, they can have both benefits and drawbacks. For example, while a category captain can result in efficiency gains, allow for a more organised category of products and improve consumer choice, it also raises questions when the supplier giving the advice also competes with the products it is advising on.

That is exactly what the European Commission (EC), the EU’s competition authority, began examining in November 2025, when it opened an investigation into potential anticompetitive conduct by Red Bull.

One of the key concerns is whether Red Bull used its role as a category captain to disadvantage competing energy drink brands.

Category management is common … but novel for enforcement

The practice of appointing a category captain is not new. Many large supermarkets appoint category captains from major consumer goods suppliers. For example, firms such as Kraft Foods and Procter & Gamble have long taken on category management roles in a range of consumer-packaged goods categories.

However, despite how common these arrangements are in retail, this is the first time the EC has formally investigated whether a supplier has misused its category management role to limit or disadvantage competing products, and it has said it will treat the case as a priority.

How Red Bull could be disadvantaging competitors

According to the Commission, Red Bull appears to hold a dominant position in the wholesale supply of branded energy drinks, at least in The Netherlands. In competition policy, a firm which holds a dominant position has a special responsibility to ensure that its actions do not unfairly restrict competition. Regulators are investigating whether the company abused this position by offering financial or non-financial incentives and/or leveraging its role as a category captain to disadvantage competing energy drinks sold in larger can sizes.

At an extreme, a category captain could advise a supermarket to stop selling a competitor’s product entirely, effectively excluding the brand from the shelves and potentially reducing consumer choice.

But there are also more subtle ways Red Bull could disadvantage its competitors. Insights from behavioural economics suggest that the placement of products on shelves can strongly influence what consumers notice and buy. By reducing the visibility of rival energy drinks, for example, products in less prominent locations are less likely to be purchased and are therefore disadvantaged.

These practices matter for consumers as well as competitors. By limiting which products are stocked or how prominently they are displayed, dominant suppliers could reduce choice and potentially keep prices higher.

Growing scrutiny of category management?

Competition authorities seem to be paying closer attention to how suppliers influence the management of product categories in retail stores. In April 2025, the Belgian Competition Authority fined three large pharmaceutical companies more than €11 million for co-ordinating the placement of over-the-counter medicines in pharmacies. The companies had created shelf layouts that favoured their own products, disadvantaged competing brands, and monitored whether pharmacies followed the plans.

Thus far there have not been many European cases related to category management.

Why the Red Bull case matters

The Red Bull investigation is the first EC case focusing specifically on the potential misuse of category management by a dominant supplier. There is currently little guidance on how these arrangements should be assessed under competition law, meaning the case could set an important precedent.

If the Commission concludes that category management was used strategically to disadvantage competitors, Red Bull could be found to have abused its dominant position under EU competition rules. Such a decision could reshape supplier–retailer relationships across Europe.

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Questions

  1. Beyond prices, how might dominant suppliers influencing shelf space affect competition and consumer choice?
  2. How might category captain arrangements affect barriers to entry?
  3. What are the potential efficiencies of supplier-led category management, and what are the possible anti-competitive effects?
  4. What guidelines or safeguards could regulators provide to ensure category captains deliver the potential efficiencies without harming competition?
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Competition policy – the evolving approach towards firms that misuse market power

The enforcement of Article 102 of the Treaty on the Functioning of the European Union (TFEU) by the European Commission (EC) tends to focus on exclusionary abuses by firms with significant market power. Exclusionary abuses are actions that limit or prevent competition, as opposed to exploitative abuses that directly harm the consumer, such as charging high prices.

The treatment of exclusionary abuses has evolved over time. Initially, the approach towards enforcement was form-based (i.e. the nature of the abuses), but this changed when the EC produced new guidelines in 2009 which signalled a move to a more effects-based approach.

The EC plans to produce a new set of guidelines in 2025 and published a draft version in August 2024 as part of the consultation process with businesses and other stakeholders. These draft guidelines indicate a partial shift back to a form-based approach. Any moves in this direction made by the EC are likely to influence both national-level competition authorities and the courts.

The form-based approach to policy enforcement

A form-based approach to the enforcement of Article 102 assumes that certain types of business conduct are inherently anti-competitive except in very exceptional circumstances. In other words, there is a presumption that the characteristics or form of the behaviour mean that it must have a negative impact on competition and consumer welfare in virtually all real-world cases.

With a form-based approach to enforcement there is no requirement for the authorities to carry out detailed case-specific analyses of business conduct as part of an investigation. This had been the approach adopted by the EC before 2009. It is possible, however, that the same form of business conduct could have anti-competitive effects in some market situations but pro-competitive effects in others. The EC was criticised for not making enough allowance for the chances of this happening.

The effects-based approach to policy enforcement

In response to this criticism the European Union published a new set of guidelines in 2009 which signalled that the enforcement of Article 102 was moving to a more effects-based approach. The effects-based approach uses economic analysis to assess the impact of a dominant firm’s conduct on a case-by-case basis. Context-specific evidence is examined by the competition authorities to see if the behaviour effectively excludes rival businesses from the market that are just as efficient as the dominant firm.

The use of economics in this effects-based approach gradually increased over time. Initially, the analysis was predominately based on theoretical arguments, but increasingly cases included sophisticated analysis of market-specific evidence using econometric models and market simulations. This, however, led to the following issues.

  • The increasing use of complex economic analysis makes it more difficult to meet the evidentiary standards of the courts and prove a case. As the effects-based approach places a greater burden on the competition authorities to meet these evidentiary standards (i.e. provide evidence of case-specific anti-competitive effects of the conduct) it disproportionality affects their ability to prove cases.
  • Businesses with significant market power are more likely to make large profits and so have access to greater resources than government-funded competition authorities. Therefore, they will be able to employ more economic consultants with the relevant technical expertise to (a) carry out the analysis and (b) communicate the findings effectively in a court case

This led to concerns that the competition authorities were losing cases where there was strong evidence of exclusionary conduct by the dominant firm.

In response to these concerns, the EC announced in 2023 that it would be revising its 2009 guidelines to improve enforcement of Article 102.

The draft guidelines

The draft guidelines published in August 2024 split different types of potentially anti-competitive conduct by dominant firms into three categories.

The first category includes types of conduct where there is a strong presumption of anti-competitive effects: i.e. the sole purpose of the business behaviour is to restrict competition. These types of conduct are referred to as a ‘naked restriction’ and the documentation provides the following three examples:

  • making payments to customers (typically other businesses) on the condition that they cancel or postpone the launch of a product that uses inputs produced by the dominant firm’s rivals;
  • threatening to withdraw discounts offered to suppliers unless they agree to supply the dominant firm’s product in place of a similar product produced by a rival firm;
  • actively dismantling infrastructure used by a rival firm.

The guidelines indicate a form-based approach will be taken when investigating these types of conduct as the EC will not have to provide any case-specific evidence of anti-competitive effects. A business under investigation can challenge the presumption of anti-competitive effects with appropriate evidence, but the guidelines make it clear that this would only succeed in exceptional circumstances. In other words, it is highly unlikely that the conduct could ever be justified on pro-competitive grounds.

The second category of anti-competitive conduct includes actions that are also presumed to have a negative impact on competition. The presumption, however, is not as strong as with naked restrictions, so firms have a better chance of proving pro-competitive effects.

There is a form-based element towards this second category of conduct as the EC will not have to provide any initial case specific evidence of anti-competitive effects. But, if a business under investigation does submit evidence to challenge the presumption of anti-competitive effects, the EC must demonstrate that (a) it has fully assessed this evidence and (b) the evidence is insufficient to prove that the conduct does have pro-competitive effects. As part of this process, the EC can provide its own case-specific evidence. Therefore, for this second category of conduct, the initial burden of proof effectively shifts from the competition authority to the firm under investigation, making it more of a form-based approach. However, if the firm uses relevant evidence to appeal its case, the burden shifts back to the competition authority and becomes a more effects-based approach.

The third category includes types of conduct where the EC must initially provide case-specific evidence that it reduces competition. For this category of conduct, the approach towards enforcement remains the same as in the 2009 guidelines and an effects-based approach is adopted.

It will be interesting to see the extent to which the final guidelines (a) follow the approach outlined in the draft guidance and (b) influence the enforcement of Article 102 by the EC and other national-level competition authorities.

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Questions

  1. What exactly does it mean if a firm has ‘significant’ market power?
  2. What methods do competitions authorities use to assess whether a firm has a dominant market position?
  3. Explain the difference between conduct by dominant firm that is (a) an exploitative abuse of its market power and (b) an exclusionary abuse of its market power.
  4. Explain why a form-based approach towards the enforcement of competition policy is more likely to lead to Type 1 errors (false positives), whereas an effects-based approach is more likely to lead to Type 2 errors (false negatives).
  5. Provide some examples of exclusionary abuses that are not considered to be naked restrictions.
  6. Competition policy guidance documents commonly refer to ‘competition on the merits’. What is the precise meaning of this term?