This is the Competition Flashback Q1 2026 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here).

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Overview Q1 2026

Merger control, FDI, and FSR

• ACM approves acquisition of DigiD provider by US firm Kyndryl despite concerns over digital sovereignty
• Commission launches in-depth FSR investigation into Goldwind’s activities in wind energy sector
• Merger highlights European Commission

Digital platform markets

• Commission threatens interim measures against Meta for excluding AI competitors on WhatsApp
• Amsterdam District Court issues interim judgment in Booking.com case concerning parity clauses: parties may submit additional documents

Cartels and vertical restrictions

• CBb refers questions for preliminary ruling on inter-brand competition in Samsung vertical price-fixing case
• CJEU clarifies rules on extension of time limits in cartel investigations
• General Court dismisses action against Commission’s fine decision in ethanol benchmark cartel; hybrid settlement procedure not contrary to the presumption of innocence
• CJEU dismisses appeal by twelve airlines in air freight cartel case; only SAS Cargo Group’s fine reduced
• ACM gives positive assessment of pallet return system in the brick sector
• Zilveren Kruis’ reduction policy not contrary to free movement and competition rules
• Amsterdam District Court admits error: following Metro criteria, an actual assessment of HP’s selective distribution system is required

Claims for damages for infringements of competition law

• Private Damages Directive applicable to claims for access to evidence
• Amsterdam District Court assesses damages in follow-on case against Heineken/AB for abuse of dominant position in Greek beer market

Regulated markets

• CBb dismisses Youca’s appeals: definitive end era of ex ante telecoms regulation
• Highest administrative court overturns Schiphol reduction decision

Consumer law and unfair trading practices

• Court upholds fine against Epic Games for, among other things, ‘dark patterns’ in Fortnite
• ACM declares Seats and Sofas commitment decision binding
• Single fine for sixteen unfair commercial practices in food supply chain permitted, provided sanction remains effective
• Kings Online’s alternative offer for the OV-chipkaart is misleading

ACM approves acquisition of DigiD provider by US firm Kyndryl despite concerns over digital sovereignty

Netherlands Authority for Consumers and Markets, decision of 26 February 2026

On 26 February 2026, the Netherlands Authority for Consumers and Markets (“ACM”) cleared the acquisition of Solvinity Group B.V. (“Solvinity”) – the provider of, among other things, DigiD – by Kyndryl Nederland B.V. (“Kyndryl”). The ACM concludes that the acquisition will not lead to a significant impediment to competition in the Dutch market for IT services, despite expressed concerns from public sector customers regarding data sovereignty and service continuity.

The US-based Kyndryl aims to acquire sole control of Solvinity through the takeover; Solvinity is an IT service provider with an extensive client base in the public sector, including government departments, local authorities and the National Police. In addition to the notification to the ACM, the transaction has also been notified to the Investment Screening Bureau (“BTI”), which assesses the takeover for risks to national security.

The main concerns raised in the market consultation came from public sector customers with critical infrastructure. They fear that, following the acquisition, US law will apply to Solvinity, which could allow the US government to gain access to confidential data and critical public processes. In addition, there is a fear that the continuity of service provision could be jeopardised. According to these customers, digital autonomy has become one of the most important competitive parameters in the selection of IT service providers.

The ACM acknowledges these concerns but considers that they have no basis in competition law. The combined market share of Kyndryl and Solvinity in the overall Dutch market for IT services is a maximum of 5%, and even in the narrowest sub-segment – implementation and management of IT infrastructure for the public sector – the combined share remains limited to 15 to 20%. Furthermore, the parties are not close competitors: tender data shows that they have not bid on the same tenders over the past two years. The market also has sufficient Dutch and European alternatives, including Capgemini, Atos, Conclusion, Cegeka and T-Systems.

The barriers to switching faced by public sector customers – such as contracts that sometimes run for more than ten years and migration processes lasting one to several years – are real, but the takeover does not in itself increase them. The ACM further points out that the government, as a major client, can exert a disciplining influence by bundling contracts and embedding requirements for digital sovereignty more firmly in tender criteria.

The decision illustrates a broader tension in merger control: societal and geopolitical concerns about digital dependence on non-European parties are real and growing, but fall outside ACM’s statutory assessment framework as long as they do not result from a restriction of competition. The ACM cannot therefore block the acquisition on the basis of the Competition Act (“Mw”).

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Commission launches in-depth FSR investigation into Goldwind’s activities in wind energy sector

European Commission, press release of 3 February 2026

On 3 February 2026, the European Commission (“Commission”) announced that it was opening an in-depth investigation under the Foreign Subsidies Regulation (“FSR”) into the EU activities of wind turbine manufacturer and seller Goldwind Science & Technology Co., Ltd. (“Goldwind”). Based on a preliminary assessment, the Commission considers that there are sufficient indications that Goldwind and its affiliated companies have received foreign subsidies that distort the internal market. These subsidies include:

1. subsidies from central or local Chinese government authorities, including insurance premium subsidies and R&D subsidies;
2. tax benefits in the form of reduced corporation tax and VAT refunds; and
3. preferential financing through loans from banks which the Commission provisionally considers to be acting on behalf of China.

On the basis of its preliminary investigation, the Commission considers that the identified subsidies have strengthened Goldwind’s competitive position in the internal market and enabled it to win tenders in the wind energy sector. The Commission opened the investigation on the basis of its ex officio powers on 9 April 2024. Although the Commission did not publish the opening of this investigation, it also launched several other investigations under the FSR in Q2 2024 (see CF Q2 2024).

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Merger highlights European Commission

Downtown Music Holdings/Universal Music Group

On 13 February 2026, the Commission announced that it would approve, subject to conditions, the proposed acquisition of Downtown Music Holdings (“Downtown”) by Universal Music Group (“UMG”), both of which operate globally as music companies providing artist and label services (“A&L services”) and related services. Following its in-depth investigation, the Commission concluded that the transaction would not lead to a significant restriction of competition in the markets where Downtown’s and UMG’s activities overlap (music recordings, A&L services and music publishing). According to the Commission, the market share of UMG and Downtown in the areas of music recording and A&L services remains ‘modest’; furthermore, there are several competitors active in the market, such as Sony Music Entertainment, Warner, as well as Believe and other (smaller) music companies. Nor will the transaction significantly alter UMG’s bargaining position vis-à-vis digital services platforms, such as Spotify and Apple Music. However, the Commission concluded that the transaction as initially notified would have harmed competition, as UMG could then have gained access to commercially sensitive data from competing record labels stored on Downtown’s royalty accounting platform, Curve Royalty Systems (“Curve”). According to the Commission, UMG would therefore have had an incentive to gain access to this data. To address the Commission’s concerns, UMG and Downtown offered to divest Curve in its entirety. Subject to the divestiture, the Commission approved the acquisition.

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Commission threatens interim measures against Meta for excluding AI competitors on WhatsApp

European Commission, press release of 9 February 2026

On 6 February 2026, the Commission announced its intention to impose interim measures on Meta for excluding third-party AI assistants from WhatsApp. Late 2025, the Commission opened its investigation following a policy change announced by Meta in October 2025, whereby the WhatsApp Business Solution Terms were amended in such a way that third-party AI assistants were effectively banned from the platform. Since 15 January 2026, Meta AI has been the only AI assistant available on WhatsApp.

In its statement of objections (SO), the Commission found on a prima facie basis that Meta holds a dominant position in the EEA market for consumer communication applications, in particular via WhatsApp, and that Meta is abusing that position by denying competing AI assistants access to the platform. The Commission considers WhatsApp as a key gateway for AI assistants to reach consumers and argues that Meta’s conduct raises barriers to entry and risks irreparably marginalising smaller competitors in the rapidly growing market for AI assistants. The Commission therefore intends to impose interim measures to prevent serious and irreparable harm to competition. Meta now has the opportunity to respond to these objections and the Commission’s intention. The statement of objections covers the entire EEA, with the exception of Italy, where the Italian competition authority already imposed its own interim measures on Meta in December 2025.

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Amsterdam District Court issues interim judgment in Booking.com case concerning parity clauses: parties may submit additional documents

Amsterdam District Court, interim judgment of 4 March 2026

On 4 March 2026, the Amsterdam District Court delivered an interim judgment in the dispute between Booking.com and 63 German hotels concerning price parity clauses. This follows a 2024 judgment of the Court of Justice of the European Union (“CJEU”), which ruled that these clauses do not constitute permissible ancillary restrictions (see CF Q3 2024). The clauses prohibited hotels from offering rooms at lower prices via their own channels or third parties. The court must now assess whether these clauses actually had the effect of restricting competition, as it had previously ruled out that the clauses had an anti-competitive purpose.

The hotels cite previous German rulings against Booking.com and HRS as evidence, but the court has ruled that these have no binding force in the Netherlands and are only admissible as preliminary evidence. In order to assess a possible restriction of competition, it is first necessary to define the relevant market, including to determine Booking.com’s market share. As insufficient data is available on this matter, an expert will be called in. For the time being, Booking.com appears to have rebutted the evidence of restriction of competition, partly because the platform actually grew stronger following the abolition of the clauses and prices and consumer behaviour changed little.

Finally, the court wishes to revisit its earlier ruling on the limitation period, partly in light of recent case law from the CJEU. It is possible that the hotels’ claims for damages are not time-barred after all, as the limitation period only begins to run after the end of the infringement (in 2016 at the earliest). Both parties are still permitted to comment on the damages and the limitation period, after which an expert will further analyse the market, and the hotels must provide additional evidence of the alleged restriction of competition.

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CBb refers questions for preliminary ruling on inter-brand competition in Samsung vertical price-fixing case

Trade and Industry Appeals Tribunal, judgment of 3 February 2026

In Samsung’s appeal against the cartel fine of nearly €40 million imposed by the ACM in 2021 for vertical price fixing, the Trade and Industry Appeals Tribunal (“CBb”) has referred questions for a preliminary ruling to the CJEU. Following the Rotterdam District Court’s decision to uphold the decision in its entirety (see CF Q4 2023), the CBb sees grounds for clarification of the role played by (harm to) inter-brand competition in determining a (hardcore) restriction of intra-brand competition.

The conduct subject to the fine concerns vertical price agreements between Samsung – the market leader in the Dutch TV market – and seven retailers representing between 54% and 70% of total sales of Samsung televisions in the Netherlands. The ACM has classified this conduct as a vertical agreement intended to restrict competition. The CBb first confirms that the conduct must be classified as a ‘vertical agreement’, given Samsung’s systematic requests to its retailers to apply its ‘recommended’ prices and the system whereby it monitored retailers and they reported back to Samsung on compliance with these requests. It does not follow from European case law that ‘consent’ requires the use of coercive measures or financial incentives.

As regards the question of whether the ACM was correct in concluding that there was a restriction of trade, the CBb held that the conduct is sufficiently harmful to competition between different sales channels of the Samsung brand. According to Samsung, however, the ACM should have investigated whether, given the economic context, the conduct is also sufficiently harmful to competition between Samsung and other brands. The CBb considers that European case law and the Commission’s 2022 Guidelines on Vertical Restraints are not unequivocal on this point. However, the CBb infers from the Superbock judgment that, in the case of hardcore restrictions, it may already be established that intra-brand competition is harmed to a sufficient degree.

The CBb has referred the case to the CJEU with the question of whether, in the case of a (vertical) scope restriction – and specifically hardcore restrictions – it is still necessary to examine whether a particular conduct is sufficiently harmful to inter-brand competition, and if so, which competition parameters should be taken into account in that examination.

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CJEU clarifies rules on extension of time limits in cartel investigations

Court of Justice of the European Union, judgment of 15 January 2026

In response to questions referred for a preliminary ruling by Italy’s highest administrative court, the CJEU has clarified the rules governing the setting and extension of (investigative) time limits by competition authorities. The question arose in the context of the fine imposed in 2019 by the Italian competition authority (“AGCM”) on, amongst others, Imballaggi Piemontesi (“IP”) for participating in the cardboard cartel. Following the launch of the investigation in 2017, the AGCM decided on several occasions to add various undertakings to the investigation proceedings concerning both the cardboard and packaging cartels, and the AGCM extended the deadlines for the conclusion of those investigation proceedings on several occasions. In its appeal against the final fining decision in the cardboard cartel case, IP argued, among other things, that the AGCM’s ability to continually extend the deadline – thereby rendering it non-‘mandatory’ – is contrary to Articles 41 and 47 of the Charter and Article 6 of the ECHR insofar as the AGCM might still exercise its power to impose fines.

Referring to established case law, the CJEU emphasises that national competition authorities must be able to extend the time limit for the conclusion of the investigation phase where necessary to impose effective and dissuasive sanctions for competition infringements. However, such an extension must not result in the reasonable time limit being exceeded, which must be assessed on a case-by-case basis. In any event, such an extension must not lead to a violation of the fundamental rights of the undertakings concerned. In that context, it is important that (i) the extension of the time limit is notified to the undertaking concerned as soon as possible and a new time limit is set, (ii) the extension of the time limit is duly justified, (iii) the extension of the time limit is subject to judicial review, and (iv) the absolute maximum time limit set by Member States in accordance with the principles of equivalence and effectiveness is observed. In those circumstances, Article 47 of the Charter does not preclude such a national rule, according to the CJEU.

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General Court dismisses action against Commission’s fine decision in ethanol benchmark cartel; hybrid settlement procedure not contrary to the presumption of innocence

General Court of the European Union, judgment of 21 January 2026

The General Court of the European Union (“General Court”) has dismissed the action brought by the Swedish agricultural cooperative Lantmännen ek för en Lantmännen Biorefineries AB (“Lantmännen”) against the Commission’s decision in the case concerning the manipulation of price benchmarks on the European ethanol market. The Commission had imposed a fine of over €47 million on Lantmännen for participating in a cartel aimed at artificially influencing the ethanol price indices published by S&P Global Platts.

The case was conducted under a so-called hybrid procedure, in which the Commission first adopted a settlement decision regarding Abengoa – the only company ultimately willing to settle – and subsequently a decision under the standard procedure regarding Lantmännen. Alcogroup, the third company involved, saw the proceedings against it discontinued because the Commission considered the evidence of its participation in the infringement after March 2013 to be insufficient.

Lantmännen raised two pleas: breach of the presumption of innocence due to both the choice of the hybrid procedure and the wording of the settlement decision, and breach of the requirement of objective impartiality. The General Court rejects both pleas. The use of a hybrid procedure with only one settling party does not in itself constitute a breach of the presumption of innocence. The decisive factor is whether the settlement decision was carefully drafted. That was the case here: the Commission consistently referred to ‘other parties to the investigation’ and emphasised on several occasions that their liability had not been established. The references to Lantmännen were objectively necessary to describe the collective nature of the infringement and did not contain any legal characterisation of its conduct.

As regards impartiality, the General Court finds that Lantmännen has not adduced any concrete evidence to give rise to reasonable doubt. The fact that a settlement decision had been adopted in respect of Abengoa did not oblige the Commission to find Lantmännen guilty as well – as the Alcogroup case illustrates, the Commission was free to reach a different conclusion after assessing the evidence.

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CJEU dismisses appeal by twelve airlines in air freight cartel case; only SAS Cargo Group’s fine reduced

Court of Justice of the European Union, judgments of 26 February 2026

On 26 February 2026, in a series of thirteen judgments, the CJEU dismissed the appeals of twelve airlines that had been fined for participating in a price-fixing cartel in the air freight services market. Only the appeal by SAS Cargo Group was partially upheld, on the grounds of a calculation error by the General Court in determining the fine.

The case dates back to a Commission decision from 2010, in which several airlines were fined a total of approximately €790 million for a cartel that ran from December 1999 to February 2006. The cartel concerned the introduction of fuel and security surcharges and the refusal to pay commission to freight forwarders on those surcharges. Following a partial annulment by the General Court, the Commission adopted a new decision in 2017, setting the total fine at €776 million. The airlines appealed against that decision to the General Court and subsequently to the CJEU.

In the judgments now delivered, the CJEU rejects the airlines’ main arguments. Firstly, the CJEU confirms the Commission’s competence to fine the cartel in so far as it relates to flights from third countries to the EU. That competence is based on the ‘qualified effects’ test: it is sufficient that the conduct has foreseeable, immediate and substantial effects on the internal market. Secondly, the CJEU upholds the classification of the conduct as a single and continuous infringement, and confirms that an airline may be held liable for routes on which it does not itself operate, provided that it contributed to the common objectives of the cartel and was aware of the conduct of the other participants. Thirdly, the CJEU ruled that the defence of limitation cannot be raised ex officio by the General Court, but should have been raised by the party concerned itself.

For SAS Cargo Group, however, an error in the calculation of the fine does lead to a reduction. The General Court had wrongly included turnover from internal routes within a single state in the calculation basis to ensure equal treatment with the other airlines, whilst it was not established that those other airlines had in fact been treated differently. The CJEU corrects this and sets the fine for SAS Cargo Group at a lower amount.

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ACM gives positive assessment of pallet return system in the brick sector

Netherlands Authority for Consumers and Markets, publication of 12 January 2026

To make the use of pallets in the masonry brick sector more sustainable, a group of seven masonry brick manufacturers intends to set up a deposit and return system for sustainably produced, reusable pallets. The ACM has informally assessed this initiative on the basis of its Policy Rule on ACM’s Oversight of sustainability agreements (“Policy Rule”) and currently foresees no competition issues.

The initiative involves brick manufacturers jointly establishing a cooperative to create a standardised return system for pallets, replacing wooden pallets with durable, reusable alternatives made from 100% recycled plastic and produced using green electricity. The cooperative will own the pallet pool and engage an independent pooling partner to manage, distribute and handle the return logistics, using a deposit-refund system to encourage the return of the pallets. Participants jointly pay for the purchase and maintenance of the system, whilst economies of scale, more efficient transport and reuse should lead to lower costs and a reduction in waste and CO₂ emissions within the sector. The system is initially aimed at the Dutch market.

According to the ACM, the initiative pursues a sustainability objective as defined in the Policy Rule and is not expected to lead to any significant restrictions of competition. Participation in the initiative is open to all masonry brick manufacturers, including those based abroad, and is voluntary. Furthermore, no competitively sensitive information is exchanged. With regard to competition in the pallet sector, the ACM also foresees no problems: the initiative would not lead to purchasing power vis-à-vis pallet manufacturers and safeguards competition for the pallet production contract by renegotiating contracts with pallet manufacturers and pooling partners every five years. However, the ACM stipulates as a condition for the initiative’s admissibility under competition law that it must not remove the incentive for further innovation or improvements in pallet sustainability.

Furthermore, competition in the market for masonry bricks would not be adversely affected. The initiative would lead to quality improvements and cost savings in the production of pallets, and ACM expects these savings to result in lower prices for buyers of masonry bricks. Furthermore, as pallets account for only a small proportion of the total cost of a pallet including bricks, ACM does not expect the costs of masonry brick manufacturers to become harmonised.

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Zilveren Kruis’ reduction policy not contrary to free movement and competition rules

Supreme Court of the Netherlands, judgment of 13 February 2026

On 13 February 2026, the Dutch Supreme Court confirmed that the discount policy applied by Dutch health insurer Zilveren Kruis Zorgverzekeringen N.V. (“Zilveren Kruis”) does not contravene the free movement of goods and/or the prohibition on cartels. The case concerned the medicinal product Imbruvica, which is marketed in the Netherlands by both Janssen-Cilag International N.V. (“Janssen-Cilag”), the sole manufacturer of this medicinal product, and parallel distributor Eureco-Pharma B.V. (“Eureco-Pharma”). In 2019, Janssen-Cilag entered into agreements with health insurers that Imbruvica could be claimed for its full purchase amount, after which Janssen-Cilag would pay a discount to health insurers via post-calculation, provided that Imbruvica was purchased directly from it (“discount agreement”). In the years that followed, Zilveren Kruis did not apply a reduction on the reimbursement of direct purchases, but did impose reductions of up to 49% on parallel purchases (“reduction policy”). This resulted in hospitals no longer purchasing Imbruvica from Eureco-Pharma, causing its market share to fall to zero. Eureco-Pharma argued that this course of action was contrary to Article 34 TFEU or Article 101 TFEU and/or Article 6 of the Mw.

Article 34 TFEU is, in principle, directed at the public authorities of Member States. According to Eureco-Pharma, this provision should nevertheless apply to Zilveren Kruis, due to its (semi-)public nature: it offers compulsory, solidarity-based basic health insurance, operates within a highly regulated system, is subject to government supervision and is partly financed by public funds. The Supreme Court, however, rejects these arguments. Given the private-law nature of the Dutch healthcare system, Zilveren Kruis’s reduction policy cannot be regarded as a government measure within the meaning of Article 34 TFEU. The refusal policy forms part of the private-law procurement relationship between health insurers and healthcare providers; the government exercises no influence over this. Eureco-Pharma’s argument that a private party already falls within the scope of Article 34 TFEU if it is actually capable of restricting market access is also rejected. According to the Supreme Court, this position is not supported by the case law of the CJEU. As there is no reasonable doubt on this point, the Supreme Court sees no reason to refer questions for a preliminary ruling to the CJEU.

In the Supreme Court’s view, the discount agreement between Zilveren Kruis and Janssen-Cilag did not otherwise contravene Article 101 TFEU or Article 6 Mw. The ACM’s Guidelines on Joint Procurement of Medicines (Leidraad gezamenlijke inkoop geneesmiddelen voor de medisch-specialistische zorg) indicate that such agreements are not considered to be in breach of Article 101 TFEU or Article 6 Mw. In itself, therefore, there is nothing wrong with the discount agreement made between Zilveren Kruis and Janssen-Cilag, the Supreme Court found.

Nor does the Supreme Court see any competition law issues in the vertical relationship between Zilveren Kruis and healthcare providers. The Supreme Court considers that it has not been established that Zilveren Kruis’s reduction policy has become part of the legal relationship between Zilveren Kruis and healthcare providers through their (express or tacit) consent. The mere fact that healthcare providers purchased Imbruvica exclusively from Janssen-Cilag and no longer from Eureco-Pharma does not in itself constitute consent, meaning there was no agreement or concerted practice as referred to in Article 101 TFEU and Article 6 Mw. According to the Supreme Court, the healthcare providers had no other choice from a business perspective but to purchase from Janssen-Cilag.

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Amsterdam District Court admits error: following Metro criteria, an actual assessment of HP’s selective distribution system is required

Amsterdam District Court, judgment of 11 February 2026

On 11 February 2026, the Amsterdam District Court dismissed the claims brought by 123inkt in its dispute with HP concerning the selective distribution system that HP employs for the sale of its products. 123inkt argued that this system contravenes the prohibition on cartels under Article 101(1) TFEU and that HP is abusing its dominant economic position. The case concerns, among other things, ink cartridges sold by 123inkt.

In an earlier interim judgment from 2024, the court had already ruled that HP’s selective distribution system does not meet the Metro criteria for qualitative selective distribution. However, this does not automatically mean that a prohibited restriction is present.

The court now rules that it omitted a crucial step in the interim judgment: even in the case of a system that does not meet the Metro criteria, it must be assessed whether that system serves to (or results in) restricting competition. In doing so, the court aligns itself with the assessment framework developed by the UK Competition Appeal Tribunal in the Up and Running case.

The court concludes that it is for 123inkt to argue and substantiate that the selective distribution system infringes competition law. It would have sufficed for it to argue that any selective distribution system is, by definition, restrictive of competition, but it had not addressed the wording of the agreement, nor the legal and economic context. Nor did 123inkt put forward any of these arguments during the oral hearing. In view of the absence of arguments from 123inkt and the conclusion in the interim judgment that there are no indications that the nature of HP’s selective distribution system is harmful to competition, the court dismisses 123inkt’s claims.

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Private Damages Directive applicable to claims for access to evidence

Court of Justice of the European Union, judgment of 29 January 2026

On 29 January 2026, the CJEU confirmed that Article 5 of the Private Damages Directive on the disclosure of evidence applies to preliminary claims seeking access to evidence prior to the bringing of a claim for damages for an infringement of competition law. This question arose in a case in which the Commission had found that Meliá Hotels International (“Meliá”) had infringed competition law by imposing certain restrictions in vertical agreements, causing consumers to be shown hotel offers based on their nationality and place of residence. Consequently, Associação Ius Omnibus brought an action in front of a Portuguese court to obtain access to Meliá’s documents, with a view to establishing and substantiating potential consumer harm and preparing a collective action for damages.

According to the CJEU, interpreting Article 5 of the Private Damages Directive as also covering prior claims for access to evidence is consistent with the Directive’s objective of ensuring the effective enforcement of competition law and reducing information asymmetry. In this regard, however, a Commission decision finding an infringement of competition law is not in itself sufficient to demonstrate the prima facie case for a claim for damages needed for the disclosure of evidence, as the damage and the causal link have not yet been established. It is irrelevant in this assessment whether the restriction of competition was deemed by object or by effect, or whether the decision was taken following a settlement procedure.

The CJEU further ruled that no high standard of proof applies to the prima facie case of a claim for damages within the meaning of Article 5 of the Private Damages Directive. The claimant need not demonstrate that it is more likely than not that the conditions of an infringement, damage and causal link are met. It is sufficient that, on the basis of the facts and evidence reasonably available to them, they convince the court that the assumption that these conditions are met is reasonable.

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Amsterdam District Court assesses damages in follow-on case against Heineken/AB for abuse of dominant position in Greek beer market

Amsterdam District Court, judgment of 18 February 2026

On 18 February 2026, the Amsterdam District Court delivered an interim judgment in the damages proceedings brought by the Greek brewery MTB against AB and its parent company Heineken, a Dutch listed company. MTB is claiming €82 million for abuse of a dominant position in the Greek beer market during the period 1998–2014, an infringement previously established by the Greek competition authority (see CF Q4 2024).

The court largely agrees with MTB’s assessment of damages. It considers it plausible that, in the absence of the infringement, MTB would have achieved the same sales growth three years earlier, could have charged higher prices and would have incurred lower costs. The court does not consider the alternative approach of AB and Heineken’s expert CRA – in which MTB’s growth is compared with that of new entrants in other European beer markets – to be applicable, as the established abuse implies that MTB could have grown even faster in the absence of the infringement.

On one point, the court disagrees with MTB. The counterfactual price applied by MTB is partly influenced by the Greek excise duty increase of 2016, for which there is no causal link to the infringement. AB and Heineken have already produced an alternative calculation that excludes the excise duty increase, resulting in a principal sum of approximately €43 million. As MTB has not yet been able to comment on this, the parties are given the opportunity to submit their views in writing. The case is further adjourned pending the Supreme Court’s forthcoming judgment on jurisdiction regarding the claims against AB.

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CBb dismisses Youca’s appeals: definitive end era of ex ante telecoms regulation

Trade and Industry Appeals Tribunal, judgments of 10 February 2026

On 10 February 2026, the CBb dismissed the appeals by telecoms company Youca against three telecoms decisions by the ACM. Youca is a telecoms company established with the aim of offering internet services over the cable network of VodafoneZiggo (“VFZ”).

Firstly, Youca had lodged an appeal against the ACM’s ‘Market Analysis Decision on Local Access’ of 12 December 2023, in which the ACM concluded that there was no risk of significant market power (“SMP”), meaning there was no reason to oblige KPN and/or VodafoneZiggo to open up their networks. Youca disagreed with this and argued, amongst other things, that the ACM should not have included the commitments by KPN and Glaspoort – which had been declared binding – to continue offering wholesale access in the market analysis, and that these commitments were, moreover, insufficient in any case. However, the CBb agrees with the ACM that the commitment decision, although a competition law instrument, constitutes a factual element that the ACM must take into account as a characteristic of the market. Youca’s argument that the ACM wrongly concluded that VFZ does not have SMP is also rejected. The ACM noted that in Market IV, where, apart from a cable network, only KPN’s copper network is present, VFZ does indeed have a relatively large market share and enjoys certain competitive advantages, but that large-scale open fibre-optic networks will be rolled out in the Netherlands over the next five years. Since, from the consumer’s perspective, fibre-optic and cable networks are equivalent, the ACM expects Market IV to become competitive within the regulatory period. The CBb emphasises that AMM regulation is forward-looking in nature and that there is a degree of uncertainty regarding market developments. The ACM has not underestimated VodafoneZiggo’s position in the retail market, so there is no question of a flawed analysis of the retail market.

Secondly, Youca lodged an appeal against two rejection decisions by the ACM. Youca had requested the ACM to grant access to VFZ’s cable network in Amsterdam on the basis of Article 6.3(1) and (3) of the Telecommunications Act (“Tw”), also known as symmetric access. Although the ACM found that there were barriers to replication, imposing access obligations would be disproportionate or would not satisfy the condition that there is a “situation that will lead to significant consequences for end-users in terms of choice, price and quality”. The ACM had therefore rejected the requests.

With regard to the first rejection decision (Article 6.3(1) Tw), Youca argues that the ACM wrongly classified the multitap as the first point of convergence (“EPVS”). However, the CBb finds that this is in line with the BEREC guidelines, which state that the point closest to the end-user where full physical unbundling is possible must be selected. The fact that making the multitaps in Amsterdam accessible entails high costs for VFZ and that Youca has no business case from the multitaps (but only from a higher point in the cable network) is not relevant in determining the EPVS. These aspects did, however, lead to the conclusion that imposing access obligations to the multitaps is disproportionate.

With regard to the second rejection decision (Article 6.3(3) Tw), Youca considers that the ACM wrongly based its decision on the Market Analysis Decision on Local Access. However, the CBb endorses ACM’s argument that, in the context of symmetric regulation, not only is the current market situation relevant, but prospective elements are also included. The ACM concluded that its competition analysis of Market IV in the Market Analysis Decision also applies specifically to Amsterdam and that the barriers to replication in Amsterdam therefore do not have significant consequences for end-users in Amsterdam, which is required to oblige VFZ to provide symmetric access.

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Highest administrative court overturns Schiphol reduction decision

Administrative Jurisdiction Division of the Council of State, judgment of 11 March 2026

Following the Supreme Court’s ruling in 2024 and the European Commission’s (partially) negative opinion in 2025, the Administrative Jurisdiction Division of the Council of State (“ABRvS”) has for the time being put a stop to the capacity reduction plans at Schiphol.

On 6 May 2025, the Minister of Infrastructure and Water Management published the Royal Decree amending the Schiphol Airport Traffic Decree (Luchthavenverkeerbesluit, “LVB”), thereby setting a ceiling of 478,000 aircraft movements (“AMs”) per year (of which 27,000 at night). This concerned a separate, accelerated amendment to the existing LVB pending the adoption of a comprehensive new LVB as determined within the framework of the balanced approach procedure (for further background and the previous course of proceedings, see our CF Q3 2024 and our blog).

Various airlines, industry organisations, local authorities and individual appellants challenged the Royal Decree. They argued, among other things, that Article 8.17(5) of the Dutch Aviation Act – which requires the inclusion of noise pollution limits at specific enforcement points – does not provide a basis for an AM ceiling. However, the ABRvS ruled that Article 8.17(1) of the Aviation Act grants the Minister broad powers to lay down rules on noise pollution, of which the fifth paragraph is merely a further elaboration. The ABRvS further ruled that there was no need to conduct specific environmental impact assessments, as the amending decree does not, as such, constitute a ‘framework plan’ under Dutch environmental law.

However, the ABRvS considers the reasoning for the AM ceiling to be flawed. Firstly, according to the ABRvS, the Minister fails to recognise the nature of the legal system based on enforcement points: a maximum number of AMs does not in itself determine the maximum noise exposure, as this can fluctuate depending on factors such as the type of aircraft (fleet renewal) and runway usage. Secondly, the AM ceiling of 478,000 is at odds with the limits in the current LVB, which, according to the Minister himself, allow for only 400,000 to 420,000 AMs. In practice, the higher ceiling of 478,000 AMs is only possible through the application of the ‘New Standards and Enforcement System’ (“NNHS”), under which exceeding the limit at enforcement points is tolerated provided flights are conducted in accordance with strict preferential runway use, with a maximum number of AMs of 500,000 per year. Since the enforcement points in the LVB have not been amended by the Royal Decree, the AM ceiling and the system of enforcement points are incompatible: either the limits at the enforcement points are exceeded at 478,000 AMs, or the AM ceiling cannot be utilised to prevent those limits from being exceeded, even though that number is permitted. As the NNHS has never been enshrined in law, the Minister has wrongly used this system as a frame of reference to substantiate that, with 478,000 AMs, noise pollution will decrease (or at least remain equivalent), as required under Article 8.17(7) of the Aviation Act.

All in all, the ABRvS has annulled the Royal Decree on the grounds of violation of the principle of due care and an inadequate statement of reasons. As there was no dispute regarding the maximum number of flights during the night, it has granted an interim order whereby the maximum of 27,000 night movements per operating year remains in force for the time being, until the general amendment to the LVB comes into force.

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Court upholds fine against Epic Games for, among other things, ‘dark patterns’ in Fortnite

Rotterdam District Court, judgment of 14 January 2026

On 14 January 2026, the District Court of Rotterdam dismissed the appeal lodged by game developer Epic Games (“Epic”). Epic had lodged an appeal against the fine imposed by the ACM for various breaches of the Consumer Protection Enforcement Act. In the contested penalty decision, the ACM found that Epic had committed three breaches in its video game Fortnite (see CF Q3 2024). The first infringement concerned the display of countdown timers for products in the in-game shop, whilst those timers were factually incorrect: products remained available for longer than suggested. Epic did not lodge an appeal against this infringement.

The second infringement concerned aggressive commercial practices towards children. According to the ACM, whilst playing Fortnite, children were directly encouraged to make purchases through advertising (in breach of Article 6:193b, third paragraph, preamble under b, and Article 6:193i of the Dutch Civil Code). The court agreed with the ACM’s assessment that the combination of language used (such as “Check it out” or “Grab it”) and the layout of the advertisements constituted direct incitement to purchase. Epic argued that, in its use of the term ‘child’, the ACM wrongly assumed a homogeneous group up to the age of 18, whereas, in its view, a distinction should have been made between children up to and including the age of 15 and young people aged 16 and 17. Be that as it may, the court considers that, with regard to the group up to and including 15 years of age, a violation remains in any event. This could, at most, lead to a reduction in the fine due to the exclusion of the 16–17 age group. However, as Epic has not lodged an appeal against the amount of the fine, its appeal is also declared unfounded on this point.

Thirdly, the ACM found that Epic had acted in breach of its professional duty of care (Section 6:193a, preamble and under f and second paragraph, of the Dutch Civil Code) through the use of so-called ‘dark patterns’. According to the ACM, Epic exploited behavioural pitfalls of consumers, including by creating ambiguity regarding the offer and by using time pressure to suggest artificial scarcity. Contrary to Epic’s argument, the court ruled that the ACM had sufficiently substantiated that this conduct was contrary to professional diligence. The fact that the Guidelines on Unfair Commercial Practices cited by the ACM refer to ‘data-driven personalisation and dark patterns’ does not, in the court’s view, mean that these guidelines cannot provide a basis for an assessment focusing exclusively on dark patterns. The causal link has also been sufficiently substantiated by ACM: partly on the basis of studies and literature, it has demonstrated that Epic’s commercial practices are capable of significantly distorting the economic behaviour of children.

Finally, the court ruled that there was a legal basis for the ACM to issue a binding instruction, as there had been a breach of Section 6:193b(2) of the Dutch Civil Code. The court also found that the content of the instructions – which relate, among other things, to the timers and the design of the in-game shop in Fortnite – was sufficiently substantiated. Epic’s appeal is therefore declared entirely unfounded.

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ACM declares Seats and Sofas commitment decision binding

Netherlands Authority for Consumers and Markets, decision of 16 March 2026

On 16 March 2026, the ACM declared the commitments made by Dutch furniture chain Seats and Sofas to be binding. These commitments follow an investigation into compliance with Article 7:21 of the Dutch Civil Code, which obliges sellers to offer consumers repair, replacement or a refund free of charge in the event of non-conformity. A signal from the Dutch Consumers Association, several complaints on ConsuWijzer and a ruling by the Advertising Code Committee revealed that Seats and Sofas made consumers pay for transport (€ 75) or a home visit by a technician (€ 49.95) when they claimed their statutory warranty, or was obliging consumers to take their sofa back to a branch themselves. On 26 November 2025, the ACM informed Seats and Sofas of its intention to prepare a report and impose a fine. Seats and Sofas subsequently submitted a commitment proposal containing a wide range of measures. Essentially, the commitments relate to amending the general terms and conditions with an explicit reference to the statutory warranty of at least two years, the collection of sofas free of charge in response to service requests from now on, and the training of staff on consumer regulations. Consumers who were wrongly charged costs during the period from 18 September 2023 to 18 September 2025 will be fully compensated. To ensure verifiability, Seats and Sofas will send a questionnaire to the consumer concerned after every service procedure and commission an external customer satisfaction survey twice the coming year, the results of which will be shared with the ACM.

Partly because affected consumers are now being compensated, the ACM considers it more effective to declare these commitments binding under Article 12h Act establishing the ACM than to continue enforcement proceedings. The decision is valid for two years.

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Single fine for sixteen unfair commercial practices in food supply chain permitted, provided sanction remains effective

Court of Justice of the European Union, judgment of 29 January 2026

On 29 January 2026, the CJEU delivered a judgment on the question of whether Directive (EU) 2019/633 on unfair trading practices in the agricultural and food supply chain prohibits multiple prohibited payment requests to different suppliers from being treated as a single infringement and punished with a single fine under national law.

The case concerns an Austrian food retailer which, according to its own account, was severely affected economically by the consequences of the COVID-19 pandemic. As part of a restructuring process, in May 2023 it requested sixteen suppliers to pay a contribution towards its internal ‘transformation process’. These payment requests were not linked to the actual purchase of products and were therefore prohibited under the national transposition of Article 3(1)(d) of Directive (EU) 2019/633. The Austrian Competition Authority (Bundeswettbewerbsbehörde) regarded each of the sixteen requests for payment as a separate infringement and filed sixteen separate claims for fines. The retailer argued, however, that all sixteen claims for fines related to the same factual situation and that treating them as sixteen separate infringements would be contrary to the ne bis in idem principle.

The Oberlandesgericht Wien subsequently referred questions for a preliminary ruling to the CJEU. The key question was whether Directive (EU) 2019/633 precludes national courts from combining such conduct into a single infringement with a single fine, with Austrian law applying a maximum of €500,000.

The CJEU answers that question in the negative, but attaches an important condition to it. As Directive (EU) 2019/633 is based on minimum harmonisation, it leaves Member States, in principle, free to determine how multiple prohibited acts are classified. The ne bis in idem principle neither requires nor prohibits this: that principle requires the material facts to be identical, and payment requests to different suppliers, whilst similar, do not constitute the same facts. Nor does the competition law concept of a ‘single and continuous infringement’ apply here, as the Directive has a different legal basis and rationale from competition law.

The condition set by the CJEU is that the competent authority or court must have sufficient discretion to impose a penalty that is effective, proportionate and dissuasive. This may be compromised where the national maximum fine is significantly lower than the financial advantage the offender intended to obtain. The CJEU instructs the referring court to assess this in concrete terms by comparing the intended gain against the maximum of €500,000.

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Kings Online’s alternative offer for the OV-chipkaart is misleading

Midden-Nederland District Court, judgment of 20 January 2026

The preliminary relief judge has granted the application by the owner of the OV-chipkaart (Trans Link Systems B.V.) and the Public Transport Passengers’ Association (“Rover”) to cease the operation of the website www.reisproductenaanvragen.nl. On this website operated by Kings Online B.V., consumers could apply for a personal OV-chipkaart for €37.50, whereas doing so directly through Translink costs only €7.50. The court agreed with the claimants that Kings Online misled consumers by failing to clearly state that it was providing an intermediary service.

Firstly, the marketing (sponsored adverts on Google Search) and the website design wrongly gave the impression that the website was affiliated with Translink. Furthermore, the judge in the preliminary relief proceedings ruled that there were no substantial benefits for the consumer in using the intermediary service, for which Kings Online charged an additional €30. Kings Online failed to demonstrate sufficiently that the verification of the application, the user-friendliness of the website and its customer service were substantially better than those of Translink’s own website. For that reason, the judge agreed with the claimants that, viewed in its entirety, the consumer’s journey on the website did not allow the consumer to make an informed decision regarding their willingness to pay an additional €30 for the intermediary service. Where a commercial practice leads to the consumer making, or being able to make, a decision that they would not otherwise have made, this constitutes misleading conduct.

What is interesting in this case is that private parties are invoking legislation on unfair commercial practices, the primary aim of which is to protect consumers. Although Rover has a limited number of members, the court found the association to be sufficiently representative as an interest group to act on behalf of all public transport users. According to the court, Translink also has a legal interest in the proceedings because Kings Online’s unfair commercial practice could have a negative impact on consumers’ perception of and confidence in the public transport chip card. In general terms, therefore, an unfair commercial practice may also constitute a tort against businesses, such as competitors, the court ruled.

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For all your questions regarding (EU) competition law, bureau Brandeis w  ould be happy to assist.

Bas Braeken – Jade Versteeg – Timo Hieselaar – Demi van den Berg – Joost van Belois – Lisanne Kooijman

This is the Competition Flashback Q4 2025 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here).

Would you like to receive Competition Flashback by email in the future? You can subscribe to our mailing list here.

Overview Q4 2025

• Rotterdam District Court confirms ACM acquisition license regarding KPN/Youfone
• ACM adjusts approval conditions of KPN’s acquisition of Open Tower Company following third-party appeal
• CBb confirms ACM ban on PostNL’s acquisition of Sandd
• Commission publishes fifth annual FDI-report
• BTI publishes new Q&A on Wet Vifo
• Merger highlights European Commission

• €157 million fine for resale price maintenance by fashion houses Gucci, Chloé, Loewe
• Civil court rejects competition objections from members regarding the articles of association of the Avebe cooperative
• CJEU confirms fines for ‘pay-for-delay’ settlement in Modafinil case
• Commission fines manufacturers of starter batteries for agreements on lead surcharges
• ACM endorses sustainability agreements in metal sector

• CJEU reduces Intel’s fine for ‘naked restrictions’ by € 140 million
• CJEU confirms high threshold Bronner judgment regarding Lukoil’s access refusal
• Commission opens investigation into Google’s AI services
• Dawn raids at Red Bull following informal complaint from competitor were based on sufficient evidence
• CJEU clarifies margin squeeze framework after Bulgarian fine on Lukoil

• ACM assesses feasibility and enforceability of draft Postal Act 2009
• CBb overturns PostNL fine for late mail delivery in 2019

Rotterdam District Court confirms ACM acquisition license regarding KPN/Youfone*

District Court of Rotterdam, judgment of 14 October 2025

On 14 October 2025, the District Court of Rotterdam ruled that the Netherlands Authority for Consumers and Markets (Autoriteit Consument en Markt, “ACM”) rightfully granted a license for the acquisition of mobile virtual network operator (“MVNO”) Youfone by mobile network operator (“MNO”) KPN. MVNO L-mobi lodged an appeal against the license decision in 2024. According to L-mobi, the ACM had insufficiently investigated the consequences of the acquisition for competition in both the wholesale and retail markets for mobile telecommunications services. The merger would result in KPN gaining additional market power over MVNOs, which could lead to a deterioration in wholesale conditions. In addition, the ACM allegedly underestimated the competitive pressure exerted by Youfone on the retail market. L-mobi therefore argued that the ACM should have at least regulated the price of mobile data and the switching or implementation costs, or should have attached conditions to the license.

The court considers that the ACM has conducted an extensive prospective analysis of the effects on both the wholesale and retail markets. In doing so, the ACM looked at, among other things, the development of market shares and prices, as well as Youfone’s brand awareness and image. In addition, the ACM conducted quantitative research using a merger simulation model. The court ruled that L-mobi’s assertions about Youfone’s competitive strength are at odds with the results of this research, are unsubstantiated, and therefore do not give cause to doubt the accuracy of the ACM’s analysis.

With regard to the effects on the wholesale market, the court also ruled that the research conducted by the ACM supports its conclusions and that L-mobi’s assertions are insufficiently substantiated. Although KPN could potentially worsen the conditions for access to its network, the court ruled that the ACM had rightly concluded that MVNOs could credibly threaten to switch providers. Partly because KPN (like other MNOs) has a strong incentive to add as many users as possible to its network, KPN will continue to have an incentive to offer wholesale access post-merger. Insofar as L-mobi refers to the adoption of regulatory measures, this goes beyond the scope of the merger assessment, according to the court. The appeal is therefore declared unfounded.

* Bas Braeken and Demi van den Berg represented Youfone in this merger procedure.

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ACM adjusts approval conditions of KPN’s acquisition of Open Tower Company following third-party appeal

Authority for Consumers & Markets, decision of 21 November 2025

In February 2025, the ACM approved KPN’s acquisition of antenna site provider Open Tower Company (now Althio) subject to conditions. One of these conditions related to preventing the exchange of competitively sensitive information. Cellnex has appealed the conditional approval, arguing that by offering antenna sites to KPN, Althio can gain access (via KPN) to competitively sensitive information concerning its direct competitors, including Cellnex.

The ACM acknowledges that the so-called Chinese Walls, internal protocols designed to prevent the exchange of information between different departments within KPN, were insufficiently developed and that parts of the antitrust protocol were insufficiently clear. For this reason, the ACM has requested the merging parties to submit a new (draft) proposal with amendments to these conditions. The proposal entails designating a number of employees within Althio who will have sole access to competitively sensitive information and who will not be involved in Althio’s commercial negotiations with other mobile network services. In addition, separate IT systems will be provided and a line manager will be appointed who will be responsible for access authorisation. The designated employees are required to sign a confidentiality agreement, their names are disclosed to customers, and they must observe a cooling-off period if they change job positions.

Although Cellnex, Odido, and VodafoneZiggo have raised objections to the amended conditions, the ACM believes that the new draft proposal completely alleviates concerns about Althio obtaining an anti-competitive information advantage. Furthermore, ACM considers the proposal to be enforceable and feasible. The approval decision will therefore be amended on these points. The amendment decision is a textbook example of the implementation of Chinese Walls that ACM considers to be compliant with the competition rules.

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CBb confirms ACM ban on PostNL’s acquisition of Sandd

Trade and Industry Appeals Tribunal, judgment of 2 December 2025

On 2 December 2025, the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven, “CBb”) ruled that the ACM rightfully refused the license for the acquisition of postal company Sandd by PostNL. The CBb ruled that the ACM had sufficiently demonstrated that the acquisition would effectively make PostNL a monopolist in the field of postal delivery. The CBb confirmed the ruling of the District Court of Rotterdam of 29 September 2023 (see also our CF Q3 2023), in which PostNL’s appeal against ACM’s second-phase decision was rejected. This judgment marks the end of a lengthy legal process in which the Minister of Economic Affairs approved the acquisition despite ACM’s prohibition. This ministerial decision was later overturned, while PostNL and Sandd have since become irreversibly integrated.

In the proceedings against ACM’s prohibition decision, PostNL argued, in essence, that ACM’s market definition and counterfactual were flawed and that the ACM had wrongly concluded that the continuity of the Universal Postal Service (universele postdienst, “UPD”) would not be jeopardised even without the acquisition. None of these arguments were accepted by the CBb. According to the CBb, ACM used logical parameters when performing the SSNIP-tests (Small but Significant Non-Transitory Increase in Price) for the purpose of market definition. In particular, the CBb did not consider ACM’s determination of price elasticities to be flawed. The CBb also considered the use of revealed preference analysis – calculating switching behaviour based on switching behaviour in the past – to be reasonable. In addition, the CBb ruled that the 6% percentage used by the ACM for ‘autonomous’, non-price-related switching behaviour was sufficiently substantiated.

PostNL’s arguments that, absent the merger, Sandd would have left the market in the short term, were also unsuccessful. The CBb ruled that the ACM had sufficiently taken into account the declining competitive pressure from Sandd in its counterfactual by assuming a scenario in which Sandd would continue to exist in a scaled-down form and would therefore continue to exert (reduced) competitive pressure on PostNL for three to five years after the second-phase decision. Finally, the CBb rejected PostNL’s arguments that the granting of the UPD would be jeopardised without the acquisition of Sandd. According to the CBb, the ACM had sufficiently substantiated that PostNL would be able to continue to perform the UPD profitably under economically acceptable conditions even without the acquisition. PostNL’s appeal was therefore rejected.

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Commission publishes fifth annual FDI-report

European Commission, publication of 14 October 2025

On 14 October 2025, the European Commission (“Commission”) published its fifth annual report on the screening of foreign direct investments (“FDI”).

The FDI Regulation, which has been in force since October 2020, provides an EU-wide framework for cooperation between Member States and the Commission in assessing foreign investments for risks to security, economic independence, and public order. However, the actual screening and final decision on whether to allow an investment remains entirely with the EU Member States. In the Netherlands, this is regulated by the Security Screening of Investments, Mergers, and Acquisitions Act (Wet veiligheidstoets investeringen, fusies en overnames, “Wet Vifo”).

The new annual report shows that the number of notifications continues to rise sharply: in 2024, Member States with a screening mechanism handled a total of 3,136 notifications and ex officio investigations, compared to 1,808 in 2023 and 1,444 in 2022. Of these cases, 41% were formally screened, while 59% did not qualify for a full assessment. Of the investments formally assessed, 86% were approved without conditions (2023: 85%). In 9% of cases, conditions or mitigating measures were imposed (2023: 10%). The share of blocked investments remained stable at 1%, while 4% of notifications were withdrawn by the parties themselves before a decision was taken.

Against this backdrop, Member States continue to further develop their national FDI regimes. In 2024, three Member States started developing a screening mechanism, two recently introduced systems became operational, and ten Member States updated their existing legislation. By the end of 2024, 24 Member States had FDI screening legislation in place. In parallel, the FDI Regulation is being revised: the proposal presented by the Commission in January 2024 is currently being discussed by the Parliament and the Council of the European Union. The proposed new regulation requires all Member States to introduce a screening mechanism and provides for further harmonisation and procedural improvements within the EU-wide cooperation framework for FDI.

In mid-December 2025, following the publication of the report, the Parliament and the Council reached a political agreement on the amendment of the FDI Regulation.

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BTI publishes new Q&A on Wet Vifo

Investment Screening Bureau, publication of 15 October 2025

On 15 October 2025, the Investment Screening Bureau (Bureau Toetsing Investeringen, “BTI”) published a new version of its Q&A on the interpretation of terms in the Wet Vifo. This document is updated from time to time and contains practical information on the application of the Wet Vifo. For example, in the new Q&A, the BTI provides further clarification on the language in which a notification must be submitted, as well as the method of submitting the notification documentation.

In the updated version of the Q&A, the BTI elaborates, among other things, on the disclosure of limited partners when reporting an acquisition activity by a private equity fund. To enable a swift assessment, it may be desirable to provide insight into limited partners who have committed more than 5% of the fund or more than 2.5% of the total capital. It may also be beneficial to provide immediate insight into state actors that provide capital to the fund, such as sovereign wealth funds or state-owned enterprises, and other capital providers that may raise questions. Other information, such as the target company’s government customers, the type of goods and/or services purchased by the government customer, and the value of the contracts, may also be necessary for a complete assessment of an acquisition activity by the BTI.

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Merger highlights European Commission

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CJEU confirms absolute and territorial jurisdiction of (any) Dutch court over WAMCA claims against Apple

Court of Justice of the European Union, judgment of 2 December 2025

On 2 December 2025, the Court of Justice of the European Union (“CJEU”) ruled that, in principle, any Dutch court has absolute and territorial jurisdiction to hear collective claims where the alleged damage was suffered throughout the Dutch territory. The case concerns Dutch WAMCA proceedings in which two foundations – Stichting Right to Consumer Justice and Stichting App Stores Claims – represent the (collective) interests of both consumers and business users of the Apple App Store (app developers). The foundations accuse Apple of abusing its dominant position in the market for the distribution of apps for Apple devices, causing damage to both consumers and app developers.

Apple took the position that the Dutch court did not have international jurisdiction because the event causing the damage did not take place in the Netherlands. In addition, Apple argued that the Amsterdam court would at most have territorial jurisdiction with regard to claims relating to users who purchased apps in Amsterdam (via the Dutch App Store), and not with regard to users residing in other districts. Against this background, the Amsterdam court referred preliminary questions to the CJEU.

In the context of Article 7(2) of the Brussels I bis Regulation, the CJEU considers, as regards the criterion ‘the place where the harmful event occurred or where the alleged damage occurred’, that the App Store in question was designed specifically for the Netherlands, with, among other things, a Dutch-language interface, a Dutch store front, and an Apple ID linked to the Netherlands. The ‘virtual space’ of the Dutch App Store thus coincides with the entire territory of the Netherlands, so that damage resulting from purchases made through this App Store is deemed to have occurred in that territory.

The CJEU emphasises that in this situation – in which foundations independently represent an unidentified but identifiable group of persons – a court cannot be required, when determining its territorial jurisdiction, to establish the specific place where the damage occurred for each individual injured party. The CJEU concludes that any court with substantive jurisdiction to hear a collective claim has international and territorial jurisdiction to hear the entire claim on the basis of Article 7(2) of Brussels I-bis. This outcome meets the objectives of proximity and predictability as well as the requirements of the proper administration of justice. After all, it is foreseeable for Apple that a representative claim for purchases on the Dutch App Store will be brought before any Dutch court that has substantive jurisdiction. This also allows for effective procedural management and facilitates the presentation of evidence. The CJEU states for the first time that the complexity of competition law cases and the right to compensation in particular argue in favour of the consolidation of individual claims and a concentration of jurisdiction.

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Amsterdam District Court establishes counterfactual for damage assessment after Google Shopping abuse

District Court of Amsterdam, interim judgment of 5 November 2025

In a follow-on damages case concerning the abuse of Google and Alphabet in relation to product comparison websites (Google Shopping), the Amsterdam District Court ruled in an interim judgment on the relevant counterfactual – the hypothetical situation that would have existed in absence of the competition infringement; a step preceding the assessment of the damages.

In this case, Wolfson Capital Limited (“Wolfson”) is claiming damages from Google and Alphabet on behalf of several product comparison services. For this abuse, the Commission imposed a fine of €2.42 billion on the tech giant in 2017. In short, the abuse consisted of two related elements: promoting Google’s own comparison shopping service while simultaneously “demoting” competing comparison shopping services (both visually and through algorithms). The fine decision was subsequently upheld by both the General Court of the European Union (“General Court”) and the CJEU (see also our CF Q3 2024).

The interim judgment is limited to the question of which counterfactual scenario should be taken as the starting point. Wolfson argues that this is the hypothetical situation in which neither element of the abuse would have been carried out. Google disputes this and argues that only one of the elements needs to be disregarded, because each element separately would not constitute an independent infringement.

The court follows Wolfson’s argument, basing its decision on the judgment of the CJEU, which explicitly ruled that it is precisely the combination of both elements that constitutes abuse. The scenario in which neither practice was applied is therefore the only relevant counterfactual scenario. A different approach would result in the combined effects of the abuse being only partially taken into account in the calculation of damages.

Google’s argument that, had it known that both elements together constituted an infringement but had implemented only one of the practices, is rejected by the court. It is not consistent with the nature of liability (Article 6:97 of the Dutch Civil Code) for an intentional violation of competition law that Google is ‘helped’ by assuming the situation in which Google had chosen the most favourable alternative that would still have been permissible. Wolfson may now comment in more detail on the extent of the damage.

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€157 million fine for resale price maintenance by fashion houses Gucci, Chloé, Loewe

European Commission, press release of 14 October 2025

The Commission has imposed fines totalling €157 million on fashion houses Gucci, Chloé, and Loewe for vertical price fixing (resale price maintenance, “RPM”). The Commission’s investigation found that the three fashion houses restricted both online and physical retailers in their ability to set retail prices independently for almost the entire range of products designed and sold by them. The fashion companies imposed restrictions on their retailers not to deviate from (i) the recommended retail prices, (ii) the maximum discount percentages, and (iii) specific periods for sales. In addition, Gucci imposed restrictions on the online sale of a specific product line by requesting certain retailers to stop selling those products online.

To ensure compliance with their pricing policy, the fashion companies monitored retailers’ prices and took action against them if they deviated from the imposed conditions. All three fashion companies cooperated with the Commission at an early stage of the investigation by providing evidence. As a result, Gucci received a 50% reduction in its fine, while Loewe and Chloé each received a 15% reduction.

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Civil court rejects competition objections from members regarding the articles of association of the Avebe cooperative

District Court of North Holland, judgment of 7 December 2016 (published on 3 October 2025)

On 7 December 2016, the District Court of North Holland ruled in a dispute between the Avebe cooperative (a starch potato processor) and seven agricultural companies that grow starch potatoes (also former members of the cooperative). Under its articles of association, Avebe requires its members to supply potatoes annually in proportion to the amount of shares they hold and applies, among other things, the so-called 681-rule. This rule means that when shares are transferred, an amount of €681 per share is payable to the cooperative.

The potato farmers concerned found these rules too restrictive. They complained about low prices, penalties for insufficient potato deliveries, and a lack of freedom to sell their potatoes to third parties. After some farmers had nevertheless delivered to third parties, Avebe imposed penalties of €125 per ton of undelivered starch. Subsequently, some farmers terminated their membership and refused to pay out in accordance with the 681-rule.

The agricultural companies argued that the 681-rule intolerably restricted their freedom to withdraw, because it meant that the shares would have a negative value and sale to third parties would be virtually impossible. They also argued that the scheme restricted competition, since Avebe was, in their view, the only starch potato processor in the Netherlands and therefore had a dominant position. The agricultural companies further argued that the penalties and the rule were unreasonable and unfair, because the payment prices applied by Avebe were structurally below cost price, which would place them in a position of economic coercion.

The court ruled that both the 681-rule and the delivery obligation served a legitimate purpose, namely to guarantee the continuity and solvency of the cooperative and to protect the interests of remaining members. According to the court, the rule did not violate the freedom of withdrawal or competition law, because it had not been established that Avebe had a dominant position and potato starch played only a modest role on the world market. Nor was there any conflict with the principles of reasonableness and fairness: the fines imposed were not excessive and there was insufficient evidence that Avebe systematically applied excessively low payment prices.

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CJEU confirms fines for ‘pay-for-delay’ settlement in Modafinil case

Court of Justice of the European Union, judgment of 23 October 2025

On 23 October 2025, the CJEU handed down its judgment in the case concerning the sleep disorder drug modafinil. The CJEU rejected the appeal by pharmaceutical giants Teva Pharmaceutical Industries Ltd and Cephalon Inc., thereby upholding the Commission’s decision and the judgment of the General Court.

The case concerned a so-called pay-for-delay agreement, which stipulated that Teva would not enter the modafinil market independently and would refrain from competing on that market. In exchange for these restrictions, Teva received value transfers (‘reverse payments’) from Cephalon, packaged in a series of commercial transactions, including licensing agreements and supplies of the active pharmaceutical ingredient. The Commission imposed fines on Cephalon and Teva for this agreement.

Both the Commission and the General Court classified the agreement as a restriction of competition by object. The CJEU confirmed that the General Court had applied the correct criterion, as set out in the Generics (UK) judgment. A settlement agreement constitutes a restriction by object when the analysis shows that the value transfers can only be explained by the commercial interest of the parties in not competing on the merits. The General Court had rightly ruled that the commercial transactions had no other purpose than to increase the overall transfer of value in favour of Teva in order to induce it to submit to the restrictive clauses.

Teva and Cephalon claimed that the General Court had conducted an overly strict counterfactual analysis. The CJEU rejected this argument and considered that the General Court had not applied a counterfactual method at all, but had merely examined whether the value transfers constituted a sufficient incentive for Teva to refrain from competing. If the transactions had not been concluded on the same (favourable) terms without restrictive clauses, the explanation for this must be found in a restriction of competition. The CJEU therefore upheld the fines imposed in full.

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Commission fines manufacturers of starter batteries for agreements on lead surcharges

European Commission, press release of 15 December 2025

On 15 December 2025, the Commission imposed fines totalling €72 million on starter battery manufacturers Exide, FIAMM Energy Technology (“FET”) and Rombat, as well as on industry association EUROBAT, for participating in a cartel that lasted more than twelve years. Together with Clarios (formerly JC Autobatterie), they coordinated their market behaviour on the sale of starter batteries for motor vehicles to car manufacturers in the EEA.

The cartel agreements concerned the surcharge for the lead used in starter batteries (the so-called EUROBAT surcharge) and may have resulted in higher costs for car and truck manufacturers. The companies involved jointly created and published these surcharges and agreed to apply them in price negotiations with car manufacturers. As a result, the EUROBAT surcharge remained at a higher level than it would have been without the agreement.

Clarios was granted full immunity from fines under the Commission’s leniency program, while FET and Rombat received reductions of 50% and 30% respectively for their cooperation in the investigation. The fine imposed on the trade association EUROBAT was set at a lump sum of €125,000. With this decision, the Commission emphasises that trade associations will also be held accountable when they facilitate anti-competitive behaviour.

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ACM endorses sustainability agreements in metal sector

Authority for Consumers & Markets, press release of 18 November 2025

On 18 November 2025, the ACM published an informal opinion in response to the International Responsible Business Conduct (“IMVO”). This agreement sets out arrangements between companies, trade associations, trade unions, and civil society organisations active in the metal sector regarding due diligence aimed at analysing IMVO risks in the (international) metal chain. Specifically, companies will submit an action plan and report to an independent secretariat – employees of the SER – who will assess their IMVO progress using a monitoring tool.

This sustainability agreement is permitted under ACM’s Guidelines on Sustainability Agreements (‘Beleidsregel Toezicht ACM op duurzaamheidsafspraken’) particularly since (i) participation in the sector agreement is largely voluntary, (ii) it has an open structure, and (iii) participants remain free to take additional sustainability measures. The ACM notes that each participant works on its own IMVO obligations and considers that the agreements therefore do not go beyond what is necessary to achieve the sustainabilit objectives. In addition, the ACM does not foresee any noticeable effects on (sales) prices. Furthermore, when knowledge and practical experience are exchanged to determine sustainability criteria, objective sources are used, accordingly, the ACM considers that there is no restriction of competition in this respect.

To prevent the exchange of competitively sensitive information (in particular production locations), information flows will take place through an independent third party (the secretariat), which will aggregate the information and only distribute non-traceable information to the participants. If companies nevertheless believe that certain information is sensitive to competition, they can request an exemption from the disclosure obligation for specific production locations. In addition, confidentiality agreements and built-in safeguards during meetings help to prevent the exchange of information that could restrict competition.

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CJEU reduces Intel’s fine for ‘naked restrictions’ by € 140 million

Court of Justice of the European Union, judgment of 10 December 2025

On 10 December 2025, the CJEU ruled for the third time on the fine imposed on Intel by the Commission in 2009 for abuse of dominance. The present proceedings only concern the payments made by Intel to HP, Acer, and Lenovo to delay or cancel the launch of products containing computer chips of its main rival (the so-called ‘naked restrictions’). The fine relating to Intel’s exclusivity rebates had been definitively annulled in 2024 (see also our CF Q4 2024 on the earlier proceedings).

In its 2022 judgment, the General Court confirmed the infringement insofar as it related to the naked restrictions. However, as the General Court was unable to determine the amount of the fine for this part of the abuse itself, it annulled the fining decision and instructed the Commission to set a new fine. The Commission subsequently adopted a new decision in 2023, imposing a fine of € 376 million, which is the subject of the present proceedings.

Intel essentially challenged the Commission’s power to assume, on the basis of only part of the infringement originally established, the existence of a single and continuous infringement (SCI) and to impose a substantial fine on that basis. The General Court rejected all of Intel’s arguments. In essence, it held that the Commission had merely imposed a new fine and had not established a new infringement. Accordingly, the Commission was not required to reassess its jurisdiction, refine its reasoning or organise a new hearing. The General Court’s 2022 judgment, which definitively established the unlawfulness of the naked restrictions, had acquired the force of res judicata. Intel’s argument that the Commission had failed to take sufficient account of the limited market coverage, the geographical impact within the EEA and the seriousness of the naked restrictions when calculating the fine was also rejected. According to the General Court, the Commission had applied the fine correctly and in accordance with the Guidelines on the method of setting fines.

Nevertheless, the General Court considered it appropriate to reduce the fine of its own motion. In doing so, it took into account that (i) there was a 12-month gap separating the payments made to HP and Lenovo, and (ii) the naked restrictions affected a relatively modest number of computers covered by the original infringement, as previously acknowledged by the Commission. On that basis, the fine was reduced to € 237 million. Overall, the fining decision remains in force, albeit with a reduction of 37%.

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CJEU confirms high threshold Bronner judgment regarding Lukoil’s access refusal

Court of Justice of the European Union, judgment of 18 December 2025

On 18 December 2025, the CJEU ruled that Lukoil – a vertically integrated company active in the refining, wholesale and retail of motor fuels – did not abuse its dominant position in the form of refusal of access if – in the opinion of the referring court – it were established that the Bronner criteria were met. In doing so, the CJEU confirms the continuing relevance of the Bronner judgment and the essentials facility doctrine developed therein, despite the fact that in recent years it has often declared this doctrine inapplicable in various cases concerning refusal of access, such as in its judgments in Google Shopping and Google Android Auto.

Two entities belonging to the Bulgarian company Lukoil operate a network of transport and storage facilities for motor fuels. Although this infrastructure was originally state-owned, it has been privatised and is now owned by Lukoil. Between 2016 and 2021, the Lukoil group refused to grant other fuel producers and importers access to this infrastructure at a fair price. The Bulgarian competition authority decided that this constituted an abuse of a dominant position and fined the entities. Lukoil appealed, arguing that it was indeed entitled to refuse access since it owned the infrastructure and had developed it for its own activities. The Bulgarian court referred preliminary questions on this matter to the CJEU.

The CJEU points out that a refusal of access by a dominant undertaking only constitutes an abuse if the following conditions are cumulatively met: (i) the refusal is capable of eliminating all effective competition on the market concerned, (ii) it is not objectively justified, and (iii) the infrastructure in question is indispensable for the exercise of the activity of the requesting undertaking. If the dominant undertaking does not own the infrastructure or has not borne the construction costs thereof, for example where it has acquired the infrastructure from the State, those conditions are not, in principle, satisfied.

However, the CJEU ruled that the Bronner conditions may apply to infrastructure developed by the government that was later acquired through open and competitive privatisation, or that is operated on the basis of exclusive rights, provided that the undertaking concerned has complete autonomy in deciding on access. In that case, Lukoil’s situation is comparable to that of an owner of self-financed essential infrastructure, according to the CJEU. It is up to the referring court to assess whether this is the case in the specific situation.

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Commission opens investigation into Google’s AI services

European Commission, press release of 9 December 2025

The Commission recently announced that it has launched an investigation into possible abuse of dominance by Google in relation to its AI-driven services. This primarily concerns the use of ‘AI mode’ within Google Search. The Commission is investigating the extent to which publishers’ content is used without appropriate compensation and whether publishers have the option to refuse the use of their content without losing access to Google Search. Secondly, the Commission is investigating whether Google pays creators of videos and other content on YouTube appropriate compensation for the use of this content to train its generative AI models, or whether the inability to refuse this qualifies as an unreasonable condition within the meaning of Article 102 TFEU. Although the exact timelines are unknown, the Commission has indicated that it will treat this investigation as a priority.

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Dawn raids at Red Bull following informal complaint from competitor were based on sufficient evidence

Court of Justice of the European Union, judgment of 15 October 2025

On 15 October 2025, the General Court ruled that the Commission’s decision to conduct unannounced inspections (dawn raids) at energy drink manufacturer Red Bull was sufficiently justified. Red Bull contested the legality, justification, and proportionality of the Commission’s decision and lodged an action for annulment with the General Court. In 2023, the Commission had carried out unannounced inspections at Red Bull in several Member States. This decision was taken after the Commission had received an informal complaint from main competitor Monster Energy. Based on approximately 700 pages of evidence submitted in connection with that complaint, the Commission suspected anti-competitive behaviour, possibly in the form of coordination through a trade association.

According to the General Court, the decision was duly reasoned: it not only described the suspected conduct. but also placed it in the relevant market context and clarified Red Bull’s alleged role. In addition, the Commission had a considerable amount of evidence at its disposal – approximately 700 pages from an informal complaint – which justified the inspections. Against this background, and given both the seriousness of the suspicions and the risk of non-cooperation, the General Court considered it justified and proportionate to opt for an unannounced inspection rather than a request for information. Red Bull’s procedural objections to the conduct and duration of the inspections, including allegations of infringement of the rights of defence, were also rejected, as they related to the actual conduct of the inspections and not to the legality of the decision itself.

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CJEU clarifies margin squeeze framework after Bulgarian fine on Lukoil

Court of Justice of the European Union, judgment of 18 December 2025

In preliminary ruling proceedings between Lukoil and the Bulgarian competition authority, the CJEU on 18 December 2025 provided clarification, at the request of the Bulgarian court, on the applicable assessment framework in case of an abuse through a margin squeeze. The Bulgarian competition authority had found that Lukoil charged lower prices on the downstream wholesale market (after payment of excise duty) than on the upstream wholesale market (where excise duty was suspended). According to the authority, this pricing structure led to a margin squeeze.

Lukoil contested the definition of the relevant product market because, in its view, the Bulgarian competition authority had wrongly included diesel and gasoline in the same product market, but not LPG. Lukoil also argued that its market shares in these submarkets had not been sufficiently established. In addition, Lukoil contested the distinction made between the downstream and upstream markets. The Bulgarian court referred preliminary questions on this matter to the CJEU.

The CJEU clarifies that an abusive margin squeeze requires (i) a company with a dominant position in the upstream market and (ii) downstream prices that have an exclusionary effect on at least equally efficient competitors. Dominance in the downstream market is not required, but the characteristics of that market may be taken into account in assessing whether there is abuse. With regard to market definition, only sufficiently substitutable products belong to the relevant product market. Although diesel, gasoline, and LPG may not be substitutable for end users, substitutability may exist in the upstream wholesale market, according to the CJEU. The CJEU considers that LPG may be excluded from the relevant product market, as the Bulgarian competition authority has done, if specific (legal) storage and transport requirements apply that demonstrate a lack of substitutability. It is a matter for the referring court to assess this fact.

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ACM assesses feasibility and enforceability of draft Postal Act 2009

Authority for Consumers &  Markets, publication of 17 November 2025

The ACM has conducted a feasibility and enforceability assessment of the draft Postal Act 2009 and the draft Postal Regulations 2009. Although the ACM endorses the need for changes in the postal market, it concludes that the proposed amendments are only feasible and enforceable if significant adjustments are made. ACM notes that the proposed amendments in their current form do little justice to the interests of users.

The proposed changes involve extending the delivery time (standard delivery period) of the UPD to D+2 (a two day delivery period) and, in the long term, to D+3 (a three day delivery period), which should guarantee the financial stability of the UPD. However, the ACM criticises the proposed reduction in the successful delivery within the given deliver period standard to 90% for D+2 and 92% for D+3 compared to the current standard of 95%, as reliability is the most important factor for users. The ACM notes that a standard of 90% at D+2 means that between 1 July 2026, and 1 July 2027, approximately 27 million letters may arrive late, which is not in the public interest.

According to the ACM, a crucial problem for the feasibility and enforceability is that the proposed delivery model – which reduces the number of delivery days per address in order to save costs – would constitute a structural violation of the European Postal Directive and the Postal Act, as these prescribe a minimum of five delivery days per week. The ACM also notes the lack of measures for faster and more effective supervision in the event of poor performance.

Finally, the ACM considers that the proposed evaluation provision, which must take place no later than one year after the entry into force of D+3, is neither effective nor efficient. Because the quality standard is an average over an entire calendar year and operational processes take time, the consequences for quality and affordability can only be effectively measured after three full calendar years. An early evaluation at the proposed time would also create an incentive not to meet the standard.

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CBb overturns PostNL fine for late mail delivery in 2019

Trade and Industry Appeals Tribunal, judgment of 16 December 2025

On 16 December 2025, the CBb overturned the fine imposed by the ACM in 2021 on PostNL for failing to comply with the 95% quality requirement laid down in the Postal Act 2009. As the designated provider of the UPD, PostNL is required to deliver post in at least 95% of cases on the next working day after receiving that post, excluding Sundays, Mondays and public holidays.

In its 2019 annual report – based on a so-called test letter survey – PostNL reported a delivery rate of 94.34%. On that basis, the ACM imposed a fine of € 2 million on PostNL.

After the court dismissed PostNL’s appeal in 2022, PostNL argued for the first time on further appeal that test letters which were not correctly reported back should be excluded from the assessment, as any delay might have been caused by the carelessness of the sender and/or the recipient rather than by PostNL. If those letters were disregarded, the 95% quality standard would be met. The ACM countered that it was entitled to rely on PostNL’s own reporting, which was based on a measurement method developed by PostNL itself. Moreover, the ACM argued that PostNL had effectively abandoned this argument at an earlier stage of the proceedings.

The CBb held that PostNL was entitled to raise new grounds of appeal against the fine. According to the CBb, there is no specific, binding standard for assessing compliance with the 95% criterion, and it is for the ACM to establish ‘beyond reasonable doubt’ that a violation has occurred. As it could not be established that the unreported test letters were in fact delayed as a result of PostNL’s actions — despite PostNL itself having treated those letters as delayed — the ACM should not have assumed that this was the case and imposed a fine on that basis. Those letters should therefore have been excluded from the measurement, according to the CBb. As a result, the ACM failed to establish beyond reasonable doubt that PostNL did not meet the quality standard, so that there was no legal basis for imposing a fine.

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Rotterdam District Court upholds fake discount fines imposed on Leen Bakker and Koopjedeal

District Court of Rotterdam, judgments of 11 November 2025

On 11 November 2025, the District Court of Rotterdam upheld two administrative fines imposed by the ACM on Leen Bakker and Koopjedeal, amounting to €130,000 and €163,000 respectively. The court ruled that both companies had used incorrect discounted ‘from prices’, thereby making product discounts appear more attractive than they actually were.

Leen Bakker argued that the ACM was not authorised to supervise compliance with the rules on the indication of price reductions as laid down in Article 5a of the Products (Price Indications) Decree (Besluit prijsaanduiding producten, “Bpp”) since the Consumer Protection (Enforcement) Act (Wet handhaving consumentenbescherming, “Whc”) does not explicitly designate ACM as the supervisory authority for Directive 2019/2161. Among other things this directive amends Directive 98/6/EC on which Article 5a Bpp, through the Prices Act (Prijzenwet, “Pw”), is based. However, the court ruled that the reference in the Whc to Directive 98/6/EC and the Pw is dynamic, which means that the ACM is also competent to enforce subsequent amendments to those regulations.

The appeal based on the lack of an applicable penalty scale also fails, as the Whc provides for maximum fines and weighting factors. The lack of an explicit penalty policy for an offence such as in the present case is not fatal for administrative fines either. After all, the law does not impose an obligation to establish a penalty policy. Furthermore, according to the court, there was a clear violation of Article 5a of the Bpp.

Arguments concerning the arbitrariness and disproportionate nature of the fine were also unsuccessful for Leen Bakker and Koopjedeal. ACM had applied objective, transparent selection criteria on the basis of which it had established enforcement priorities. The court also considered the fines to be proportionate; the ACM had applied its Fining Policy Rules (Boetebeleidsregels) to calculate the fines, taking into account the number of violations, their duration, and the price differences. The court did not consider it illogical that the ACM had calculated the duration per infringement and aggregated those periods. In addition, the ACM had already reduced the fines in light of the fact the infringements concerned newly introduced rules.

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ACM tightens supervision of discounts, makes agreements with Velderhof on consumer law*

Authority for Consumers &  Markets, publications of 20 November and 18 December 2025

The ACM has addressed furniture retailer Velderhof in relation to sales practices whereby elderly people were offered additional discounts on the purchase of a stand-up chair if they made a quick decision about their purchase. Informal discussions between the ACM and Velderhof took place following reports in the media. During a consumer law compliance process, concrete agreements were made with the ACM, including additional awareness-raising and training for staff and adjustments to the price display on the website.

This informal enforcement action is part of ACM’s broader consumer law enforcement policy, which focuses largely on the correct use of discounts. In the run-up towards Black Friday, ACM warned consumers about misleading discounts (so-called ‘from-for-prices’). Recent research by ACM into the offers of 24 major retailers in the areas of home furnishings, clothing, DIY and gardening, household electronics, and cosmetics revealed that 75% of stores still do not display discounts correctly (in shops and/or online). Despite the Guidelines on Price Display and Comparisons published in September 2025 and the fines imposed by the ACM in 2024 on several retailers (including Leen Bakker and Koopjedeal), many retailers are still not compliant. It is therefore to be expected that the ACM will once again take enforcement measures against the retailers it has recently investigated.

* Jade Versteeg and Bas Braeken assisted Velderhof in this procedure.

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ACM intervenes at Farm Frites following complaints from potato growers

Authority for Consumers &  Markets, publication of 8 December 2025

Following various signals from potato growers, the ACM recently intervened in relation to French fry producer Farm Frites. At the end of November, the producer informed potato growers that it intended to introduce a sudden change in the discount system for potatoes with quality deviations. The ACM considered that this change could have significant financial consequences for growers, as the quality of this year’s harvest is lower than usual. Growers were given only five days to agree to the new conditions, which caused unrest in the sector. Various organisations, including the LTO (the Dutch Agriculture and Horticulture Association), reported the matter to the ACM.

The ACM subsequently entered into discussions with Farm Frites concerning a potential infringement of the Unfair Commercial Practices in the Agricultural and Food Supply Chain Act (“Wet OHP Landbouw”). This act aims to strengthen the negotiating position of farmers, growers, and other suppliers, and to protect them against abuse of purchasing power by large buyers. In response to the ACM’s intervention, Farm Frites has amended its terms and conditions. Growers are now given more time to decide whether they wish to agree to the new discount system, and those who have already agreed may reconsider their decision. The new discount system also aims to reduce the number of potatoes rejected in the future. If growers do not accept Farm Frites’ proposal, the existing terms and conditions will remain in force.

With reference to the Wet OHP Landbouw, the ACM emphasises that parties in the agricultural sector may not unilaterally amend contracts and may not make late payments for agricultural products delivered. In light of the measures taken by Farm Frites, the ACM has closed its investigation.

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Dutch state must grant access to correspondence with Commission regarding state aid application

Court of Appeal of The Hague, judgment of 4 November 2025

On 4 November 2025, the Court of Appeal of The Hague ordered the Dutch state to grant access to correspondence with the Commission in the context of a state aid investigation into the phosphate rights system. Under this system, dairy farmers were allocated a limited amount of phosphate rights. The phosphate rights system qualified as state aid and was approved by the Commission.

After the introduction of this system, uncertainty arose about its application to young cattle intended for the meat sector (kept by farms that keep both dairy and beef cattle). In a policy rule, the minister responsible at the time clarified that young cattle intended to become suckler cows (and therefore beef cattle) are also covered by the system, as a result of which certain beef cattle farmers also received free phosphate rights.
This case was initiated by two Dutch dairy farmers and a Belgian beef cattle farmer (De Baerdemaeker). The Dutch dairy farmers argue that phosphate rights were wrongfully granted to beef cattle farmers; the Belgian beef cattle farmer argues that competition was distorted because Dutch beef cattle farmers received free phosphate rights. They argue that the Commission did not approve the aid measure with this scope and therefore claim, on the basis of Article 843a of the Dutch Code of Civil Procedure (old), access to the correspondence between the state and the Commission in that context. The court upheld the claims, against which the state has lodged an appeal.

The Court of Appeal of The Hague concluded that the existence of a claim by Dutch dairy farmers against the state had not been sufficiently substantiated, as a result of which their appeal under Article 843a of the Dutch Code of Civil Procedure (old) was unfounded. De Baerdemaeker’s request for access was granted. The Court of Appeal ruled that there may indeed be doubt about the scope of the approval decision, because it contains indications that the Commission assumed that only dairy farms (in the narrow sense) were beneficiaries of the scheme and therefore not certain young beef cattle farms.

The court went on to say that there were no compelling reasons against access to the correspondence with the Commission, as argued by the state. The state referred to Article 4(2) of Regulation 1049/2001 and the relevant (European) case law, on the basis of which the Commission may refuse access if disclosure would undermine the protection of the purpose of inspections, investigations, and audits. The court noted that this concerned a state aid procedure that had already been concluded, so that this ground for refusal did not apply in this case. The state was therefore ordered to grant access on the basis of Article 843a of the Dutch Code of Civil Procedure (old).

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Relativity requirement in Wet M&O blocks fitness centre’s claim for damages against municipality

District Court of Arnhem, judgment of 3 December 2025

In its judgment of 3 December 2025, the District Court of Arnhem ruled on the relativity requirement in claims for damages due to violation of Article 25i of the Competition Act (“Mw”). This provision, which is part of the Public Enterprises (Market Activities) Act (Wet Markt en Overheid, Wet M&O), obliges administrative bodies that carry out economic activities to pass on the full costs thereof to the purchasers of these services or products. The case in question concerns a sports centre in Malden, which is leased by the municipality of Heumen and rented and operated by fitness provider Laco Malden.

Another fitness provider, Lierdal, argued that the lease and operating agreement concluded between the municipality of Heumen and Laco Malden is contrary to the law, public order, and morality, reasoning that the total costs incurred by the municipality for the sports centre were not passed on to Laco Malden (in violation of Article 25i Mw). Lierdal therefore claimed damages from Laco Malden and the municipality of Heumen. However, the court rejected this claim on the grounds that the relativity requirement had not been met.

The court first of all states that Article 25i Mw is a rule of conduct for public authorities. It is intended to prevent a public authority from squeezing out competitors in a specific market in which it itself is active by means of improper government advantages. The scope of protection of Article 25i Mw covers competing companies in the market in which the public authority itself carries out economic activities. In this case, the municipality of Heumen was active in the market for the rental of real estate (for the purpose of sports activities), while Lierdal was active and allegedly suffered damage in the fitness market. Lierdal was therefore not a competitor of the municipality of Heumen, which means that it does not fall within the scope of protection of Article 25i Mw. The court therefore rejected Lierdal’s claims.

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For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist.

Bas Braeken – Jade Versteeg – Timo Hieselaar – Demi van den Berg – Joost van Belois – Lisanne Kooijman

This is the Competition Flashback Q3 2025 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here).

Would you like to receive Competition Flashback by email in the future? You can subscribe to our mailing list here.

Overview Q3 2025

Merger control and FDI

• Article 24(2) Mw repealed: acquisition by dominant party can constitute abuse of power
• Commission investigates possible misrepresentation KKR acquisition NetCo
• Merger highlights European Commission

Damages claims for competition law infringements

• Limitation period for damages national competition infringements starts when decision becomes final

Cartels and vertical restraints

• CJEU emphasises role national courts in reviewing CAS arbitral awards
• CBb confirms cartel fines for tobacco manufacturers
• Comfort letters Commission for sustainability agreement and the automotive industry
• Commission fines companies for providing incomplete information
• General court reduces Credit Suisse fine for participation in FX cartel by more than €50 million
• Rotterdam District Court confirms fine decision LG for vertical price fixing
• Court of Appeal of The Hague questions compatibility New Dockers’ Clause with EU law

Abuse of a dominant position

• Commission accepts Microsoft’s commitments for Teams
• €2.95 billion fine Google for dominance abuse online advertising technology (adtech)
• Commission accepts far-reaching commitments from Corning
• ACM launches investigation into major software supplier for suspected abuse of power

Digital markets (DMA)

• Commission rejects Apple’s request to remove large part of the interoperability obligations for iPhones

Regulated markets

• CBb refers questions CJEU on the interpretation PSO Regulation
• PostNL will not receive subsidy for UPD
• ACM postal market study: higher reliability but slower delivery speeds necessary
• ACM again rejects enforcement request against Lactalis
• Developments and risks in the agro-nutri sector

Consumer protection law

• ACM supplements reasoning withdrawal penalty orders against Dé VakantieDiscounter, Prijsvrij.nl and D-Reizen*
• ACM launches investigation into computer-controlled consumer prices aviation sector
• ACM’s carelessness leads to reduction of fine by CBb on appeal
• ACM publishes guidelines for fair price display

Article 24(2) Mw repealed: acquisition by dominant party can constitute abuse of power

Ministry of Economic Affairs, decision of 15 August 2025

The law repealing the second paragraph of Article 24 of the Dutch Competition Act (Mededingingswet, “Mw”) entered into force on 1 September (by decision of 15 August 2025). This provision previously excluded the national prohibition on abuse of a dominant position from being applied to concentrations. This exception to the prohibition of abuse was therefore at odds with the Court of Justice of the European Union’s (“CJEU”) judgment in the Towercast case . That judgment ruled that Article 102 of the Treaty on the Functioning of the European Union (“TFEU”) – the European prohibition on abuse of a dominant position – can indeed apply to concentrations. Article 24(2) Mw prevented this European approach from being applied in purely national situations. The deletion of this paragraph brings the national and European frameworks back into line with each other on this point.

The amendment to the law means that the Netherlands Authority for Consumers and Markets (Autoriteit Consument en Markt, “ACM”) can also retrospectively investigate transactions that were not subject to notification on the basis of the turnover thresholds applicable to merger control, but where the acquiring party may be abusing its dominant position in relation to the transaction. This gives  the ACM an additional tool to assess mergers and acquisitions that potentially raise competition concerns.

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Commission investigates possible misrepresentation KKR acquisition NetCo

European Commission, press release of 24 July 2025

The Commission is investigating whether Kohlberg Kravis Roberts & Co. Inc. (“KKR”) provided misleading or incorrect information during the assessment of its acquisition of NetCo. KKR is a global investment firm that offers alternative asset management, capital market and insurance solutions. NetCo is a newly  founded company consisting of the broadband infrastructure of Telecom Italia S.p.A. (“TIM”), which connects the central office to the street cabinets, and FiberCop S.p.A. (“FiberCop”), a joint venture between TIM and KKR responsible for the network between the street cabinets and the connections to end users’ premises.

On 30 May 2024, the Commission approved the acquisition unconditionally. The Commission did not foresee any problems in the market which it investigated, namely the Italian market for wholesale broadband access services, based, among other things, on KKR’s assertion that FiberCop’s long-term contracts with access seekers such as Fastweb and Iliad would be maintained after the acquisition. The current investigation focuses on whether KKR provided incorrect or misleading information regarding these contracts.

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Merger highlights European Commission

ADNOC / Covestro

On 28 July 2025, the European Commission (“Commission”) announced that it would launch an in-depth investigation into the foreign subsidies with which the state oil company, Abu Dhabi National Oil Company (“ADNOC”), intends to acquire the German chemicals producer Covestro. The Commission has raised preliminary concerns that the unlimited guarantee and committed capital increase from ADNOC may (i) adversely affect competition in the acquisition process and/or post-transaction (ii) adversely affect competition in the market in which the merging parties operate. The Commission will now investigate both aspects further in the second in-depth FSR investigation following a notified concentration. Earlier this year, the first in-depth FSR investigation into the acquisition of PPF Telecom by e& resulted in a conditional approval decision.

Brasserie Nationale/ Boissons Heintz

On 17 July 2025, the Commission announced its conditional approval of the proposed acquisition of Boissons Heintz by Brasserie Nationale. The Luxembourg brewer will acquire control of beverage distributor Boissons Heintz through its subsidiary Munhowen. According to the Commission, the original transaction would raise competition concerns in the Luxembourg market for beverage supply to the hospitality industry. Both companies are the main distributors to this market. The acquisition would sideline competitors and leave too few alternatives for hospitality businesses. The Commission also feared that Brasserie Nationale would give its mineral water brand Lodyss an unfair advantage over other brands.

To address these concerns, the parties offered to divest a majority of Boissons Heintz’s hospitality industry activities. The buyer would acquire all the necessary assets and personnel, as well as the right to use the Boissons Heintz brand name, the webshop and exclusive import contracts. This would pave the way for a new player to enter the market.

The case was examined by the Commission despite the fact that the turnover thresholds of the EU Merger Regulation were not met. At the request of Luxembourg, which does not have its own merger control mechanism, the transaction was referred on the basis of Article 22 of the EU Merger Regulation (see also CF Q3 2024). The Commission will approve the buyer of the divested business in separate proceedings. An independent trustee will monitor compliance with the commitments.

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Limitation period for damages national competition infringements starts when decision becomes final

Court of Justice of the European Union, judgment of 4 September 2025

On 4 September 2025, the CJEU answered preliminary questions concerning the moment when the limitation period for competition law infringements begins to run in light of Article 101 TFEU, the principle of effectiveness and Article 10 of the Private Damages Directive. The case concerns a follow-on damages action brought in March 2023 against Nissan Iberia SA (“Nissan”) by CP, a purchaser of a Nissan vehicle. The claim followed a decision by the Spanish National Commission for Markets and Competition (“CNMC”) of 23 July 2015 (published on 15 September 2015) finding an infringement of competition law. Nissan argued that the claim for damages was time-barred because the one-year Spanish limitation period applicable at the time had already started to run on the date of publication of the CNMC’s decision, regardless of whether that decision was final.

The CJEU emphasised that the principle of effectiveness requires that limitation periods must not render the exercise of the right to compensation impossible or excessively difficult in practice. This means that the limitation period may only start to run after the infringement has ceased and the injured party has become aware of the information indispensable for bringing the action for damages. The CJEU considered that, under Spanish law, a decision of the CNMC against which an appeal has been lodged is not binding on national courts. Therefore, if the validity of the decision is contested, the injured person cannot effectively rely on that decision to substantiate their claim for damages. Allowing the limitation period to start running before the decision becomes final would undermine the possibility of bringing follow-on damages actions and complicate the exercise of the right to damages.

The CJEU found that the alternatives of suspending the limitation period through extrajudicial claims or the court’s power to stay the proceedings are not sufficient to meet the requirements of the principle of effectiveness. Any suspension of the limitation period does not appear to be automatically possible due to the appeal lodged against the CNMC decision, nor is it certain that this suspension will continue until the decision is final. Although the limitation period may be suspended by extrajudicial claims or the initiation of mediation proceedings, these grounds for suspension are independent of the appeal for annulment of the decision, which means that they are not guaranteed to continue sufficiently until the decision becomes final. Furthermore, the civil court’s power to suspend the damages proceedings until the CNMC decision is final is not automatic, as the court has a margin of discretion. Since a request for suspension of the proceedings can only be made after the action for damages has been brought, this implies that the action must be brought before the expiry of the limitation period, as a result of which the possibility of requesting suspension does not comply with Article 101 TFEU and the principle of effectiveness.

The CJEU ruled that it cannot reasonably be expected that the necessary information to bring a claim for damages is available until the decision of the national competition authority has become final. In light of the principle of effectiveness, Article 10(2) of the Private Damages Directive therefore precludes national legislation that allows the limitation period for damages to start running before the decision of a national competition authority has become final.

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CJEU emphasises role national courts in reviewing CAS arbitral awards

Court of Justice of the European Union, judgment of 1 August 2025

On 1 August 2025, the CJEU answered preliminary questions from the Belgian Supreme Court concerning proceedings between the Belgian football club Royal Football Club Seraing (“RFC Seraing”) on the one hand and FIFA, UEFA and the Belgian football association RBFA on the other. This ruling follows a series of earlier judgments on the relationship between sports and European (competition) law, such as the ISU, Superleague, Royal Antwerp and Diarra cases.

This case concerns two financing agreements that RFC Seraing concluded with Doyen Sports in 2015, according to which the economic rights to four players were transferred from RFC Seraing to Doyen Sports in exchange for monetary compensation to RFC Seraing. According to FIFA, this constituted “third-party ownership”, which it had prohibited in its regulations. FIFA therefore imposed sanctions on RFC Seraing: the club was banned from registering players for one year and was fined by FIFA. RFC Seraing appealed through FIFA’s internal committees and ultimately the Court of Arbitration for Sport (“CAS”) as well as the Swiss federal court upheld the sanctions imposed. In the meantime, national proceedings were brought in Belgium, raising the question of the extent to which Belgian courts are bound by the CAS arbitral award and, therefore, the extent to which they had to reassess the compatibility of FIFA’s regulations and sanctions in light of EU law. It is relevant in that respect that neither the CAS nor the Swiss federal court are part of the EU legal order.

In its judgment the CJEU confirms its previous line as set out in particular in the ISU judgment, i.e., that national courts of EU Member States have the right and the duty to thoroughly review CAS thoroughly against the fundamental rules of EU law, including in particular competition law and the provisions on freedom of movement. This is particularly important because arbitration in sports is imposed unilaterally on clubs and athletes without their voluntary consent, in contrast to (purely) commercial arbitration, as is the case for FIFA.

The CJEU holds that national rules which extend the authority of res judicata to such an extent that judicial review of arbitral awards becomes impossible are contrary to EU law. Athletes and clubs are entitled to effective legal protection. This means that national courts must not only be able to review CAS arbitral awards, but also be able to take provisional measures and refer questions for a preliminary ruling, despite the existence of a (final) CAS award.

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CBb confirms cartel fines for tobacco manufacturers

Trade and Industry Appeals Tribunal, ruling of 22 July 2025

On 22 July 2025, the Dutch Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven, “CBb”) declared the appeals lodged by Philip Morris, JT International, British American Tobacco and Van Nelle Tabak against the fines imposed by the ACM to be unfounded. In 2020, the ACM imposed fines totalling more than €82 million on the four cigarette manufacturers for exchanging information about future cigarette pack prices via wholesalers. According to the ACM, by asking wholesalers for future price information from competing manufacturers and/or not objecting to receiving this information, the manufacturers engaged in a concerted practice restricting competition on the Dutch cigarette market by object (also a single continuous infringement).

The CBb confirmed these qualifications and largely upheld the earlier ruling of the District Court of Rotterdam (see also CF Q3 2023). The CBb found that the evidence demonstrated  a long-standing practice of indirect information exchange and that none of the manufacturers had objected to this. In addition, the mutual communication went far beyond what is considered ‘normal market behaviour’ and was not solely motivated by the customers’ own interest in obtaining a better margin. Furthermore, no evidence of subjective intent is required to establish the existence of a concerted practice; it is sufficient that there is deliberate cooperation – which, according to the CBb, ACM has demonstrated. The CBb also confirmed the classification of the exchange of information as a restriction by object and as a single and continuous infringement.

The CBb further held that there was no violation of the rights of defence. Although the lack of access to the other manufacturers’ research data sets is, ‘in itself’, a shortcoming, the ACM adequately remedied this by setting up a data room, according to the CBb. The CBb also found the restrictions imposed on the data room procedure in terms of time, physical and technical aspects and due to the sensitivity of the competition to be lawful.

The CBb also rejected the manufacturers’ argument that the ACM should not have imposed a fine because the infringement was not foreseeable and culpable. Unlike the court, however, the CBb ruled that the ACM was entitled to apply the 2009 Penalty Policy Rules to the entire infringement. This is because, after the amendment of the 2009 Penalty Policy Rules (compared to the 2007 Penalty Code), the manufacturers continued to commit the infringement for a considerable period of time (approximately 60% of the infringement period). The application of the 2009 Penalty Policy Rules therefore does not lead to a violation of the lex mitior principle. The CBb further considers the classification as a serious infringement to be appropriate and sees no reason to further reduce the fines. By reducing the basic fines by 50%, ACM already applied a “substantial reduction”. In addition, the reasonable time limit had not been exceeded. Due to, among other things, the two data room procedures, the scope and complexity of the case have increased significantly, as a result of which exceeding the regular five-and-a-half years for cartel cases should not be considered unreasonable, according to the CBb. With this final ruling, the cartel fines therefore remain in full force.

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Comfort letters Commission for sustainability agreement and the automotive industry

European Commission, guidance letters of 8 and 9 July 2025

On 8 and 9 July 2025, the Commission published two guidance letters concerning, respectively, an agreement in the port sector for the joint purchase of electric container-handling equipment and a cooperation agreement in the automotive industry. These are the first guidance letters since the Commission’s revision of the Notice on informal advice. A guidance letter is informal written advice from the Commission on how EU competition rules may apply in new or complex situations. Companies may request guidance letters, but remain responsible for their own legal assessment. Guidance letters are not legally binding, but they provide valuable direction by indicating how the Commission views a particular cooperation or practice.

The first guidance letter concerns a cooperation between APM Terminals and other port operators on the joint procurement and standardisation of electric straddle and shuttle carriers. This should accelerate the transition from diesel to electric vehicles, reduce costs and improve interoperability. The Commission concludes that the agreement does not raise any issues under Article 101 TFEU, provided, among other things, that competition-sensitive information is restricted and joint purchasing volumes are limited. The guidance is valid for five years and is limited to the European Economic Area (“EEA”).

The second guidance letter concerns the establishment of the Automotive Licensing Negotiation Group (“ALNG”), in which car manufacturers want to jointly negotiate licences for standard-essential patents (such as 4G, 5G or Wi-Fi). The Commission considers that the formation and activities of ALNG do not raise any competition concerns, as long as the group remains open to other companies, remains voluntary for patent owners, and no sensitive business information is shared. According to the Commission, ALNG can actually contribute to more efficient licence negotiations and the transition to digital and sustainable mobility.

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Commission fines companies for providing incomplete information

European Commission, press release of 8 September 2025

On 8 September 2025, the Commission imposed a fine of €172,000 on Eurofield and its parent company Unanime Sport, which is the subject of a competition investigation, for failing to comply with its obligation to cooperate. In June 2023, the Commission sent Eurofield a request for information, to which it received an incomplete response compared to documents seized during a dawn raid. After a warning and a second request for information, Eurofield’s provision of information remained inadequate.

The Commission then launched an investigation into the suspected breach of the obligation to cooperate. During that process, Eurofield admitted its guilt, provided the missing information and cooperated proactively. Nevertheless, the Commission imposed a fine on Eurofield and Unanime Sport based on 0.3% of their combined global turnover, with a 30% reduction in the fine as they cooperated once they became aware of the breach of procedural rules. This procedure is entirely separate from the competition law investigation that is still ongoing.

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General court reduces Credit Suisse fine for participation in FX cartel by more than €50 million

General Court of Justice of the European Union, judgment of 23 July 2025

On 23 July 2025, the General Court of the European Union (General Court”) ruled that Credit Suisse participated in a cartel relating to foreign exchange trading (also known as Forex or FX) between 2011 and 2012, but that the Commission had incorrectly calculated the amount of the fine.

The case concerns one of three FX cartels that took place between 2007 and 2013 in which traders from major banks exchanged commercially sensitive information via online chat rooms. The Commission imposed fines totalling almost €1.4 billion in relation to three different cartels, named after the online chat rooms in question: Three Way Banana Split, Essex Express and Sterling Lads. A large number of banks participated in these cartels: UBS, Barclays, The Royal Bank of Scotland (now NatWest), Citi, JPMorgan, MUFG (formerly Bank of Tokyo-Mitsubishi), HSBC and Credit Suisse. UBS was granted immunity because it informed the Commission of the existence of the cartels. All other banks settled with the Commission, with the exception of Credit Suisse. It followed the standard procedure and was subsequently fined €83.2 million for its participation in the online chat room from February to July 2012. Its legal successor, UBS, subsequently appealed against the decision.

The General Court ruled that the Commission had correctly established that Credit Suisse was involved in the cartel. However, according to the General Court, the Commission had calculated the amount of the fine incorrectly: the Commission used incomplete and less reliable data in determining the value of the turnover concerned (‘proxy for the value of sales’), while Credit Suisse itself had provided the Commission with more adequate data during the proceedings. The General Court therefore reduced the fine from €83.2 million to €28.9 million, since the Commission had not correctly followed its own Guidelines on the method of setting fines.

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Rotterdam District Court confirms fine decision LG for vertical price fixing

Rotterdam District Court, ruling of 7 August 2025

The administrative court of first instance (in this case the Rotterdam District Court) fully upheld the ACM’s fine decision imposing a fine of almost €8 million on TV manufacturer LG. Most interesting is the discussion of the grounds for challenging the finding of an infringement. LG argued that the ad hoc nature of the communication did not justify classification as an agreement or a concerted practice. However, the court concluded that the retailers agreed in various ways to LG’s (sometimes adamant) requests to adjust prices, so that there was a common intention between the parties. Moreover, it follows from the file that this was not an isolated incident but common practice.

With regard to whether the vertical price restriction can be classified as a restriction of competition by object, the court stated that this requires sufficient experience that is so solid and reliable that an agreement can be considered harmful by its nature. An indication of this exists when similar behaviour has been sanctioned in the past. The fact that the Vertical Block Exemption Regulation classifies vertical price fixing as a ‘hardcore restriction’ is important, although, in view of the Super Bock judgment, even in the case of a hardcore restriction, it must still be examined whether competition is sufficiently harmed in the specific case (or whether, for example, price is a less important competitive parameter). Contrary to LG’s argument, it is not necessary to prove that interbrand competition is weakened in order to assume a restriction by object. According to the court, such an analysis belongs to the discussion of the existence of a restriction by effect.

The court appears to consider decisive that LG’s conduct restricted the freedom of retailers to determine their resale prices. It is irrelevant whether LG used coercion, sanctions or incentives (the file shows that LG did indeed exert pressure). Even the voluntary decision to give up such freedom is sufficient to constitute a restriction by object. In such a case, LG can still provide evidence of any pro-competitive effects of its actions, but these must be sufficiently significant and specific to the agreement/concerted practice in question.

All grounds relating to the calculation and amount of the fine are also unsuccessful. For example, the court ruled that the fine imposed was foreseeable because ACM did not introduce a new interpretation of vertical price fixing.

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Court of Appeal of The Hague questions compatibility New Dockers’ Clause with EU law

Court of Appeal of The Hague, judgment of 30 September 2025

On 30 September 2025, the Court of Appeal in The Hague (“Court of Appeal”) referred questions to the CJEU for a preliminary ruling concerning the compatibility of the New Dockers’ Clause with EU law and the balance between economic freedoms and social rights in the context of the internal market.

The New Dockers’ Clause forms part of the IBF Framework Agreement and stipulates that seafarers or other persons on board a seagoing vessel may not perform lashing services if dockworkers who are members of a trade union affiliated with the International Transport Workers’ Federation (“ITF”) are available. Only in case of a shortage of qualified dockers may the crew voluntarily perform the work after obtaining the prior agreement of the dockers’ trade union. Marlow Navigation c.s. and charterers argue that the clause infringes the free movement of services and competition law.

The Rotterdam District Court ruled that the clause falls outside the scope of Article 101(1) TFEU because it arises from collective bargaining between employee and employer organisations, which means that the so-called ‘Albany-exception’ applies. The Court of Appeal states that the fact that conditions are laid down in a collective labour agreement does not mean that they fall outside the scope of EU law. In view of the ECHR’s Holship judgment of 10 June 2021, the Court of Appeal examines whether invoking the economic consequences of an unjustified restriction on the free movement of services is sufficient to restrict the right to collective action and collective bargaining protected by the Albany case law.

In the present case, the Court of Appeal considered that the clause could be regarded as a restriction on the free movement of services. Marlow et al. and the charterers are entitled to challenge it, despite the fact that the clause stems from social dialogue and is included in the IBF Framework Agreement, because they are effectively forced by ‘ITF Affiliates’ to comply with the clause and use the services of port workers. The Court of Appeal doubted whether this restriction could be justified on the basis of overriding reasons of public interest. Although ITF et al. emphasise that the clause is intended to protect seafarers. The Court of Appeal rejected this interpretation as the primary objective. Various communications from Nautilus and FNV Havens indicated that the clause was primarily designed to safeguard the jobs of port workers. Furthermore, the protective effect is not applied systematically, coherently and consistently. If a lashing ban is necessary for safety reasons, it is difficult to accept that the crew is allowed to lash in ports where no dockworkers are available. Less restrictive measures to protect the crew are also conceivable, such as additional requirements regarding rest periods or the number of crew members available.

The possibility of obtaining ‘prior agreement’ was not considered sufficient to justify the lashing ban, because the key position of the ITF-affiliated trade unions for dockworkers prevents an objective and transparent assessment, based on criteria known in advance, of whether the use of the crew’s services is justified on safety grounds.

According to the Court of Appeal, this means that there appears to be no justification based on an overriding reason of public interest. However, in view of the tension between economic freedoms and social rights, the Court of Appeal considers it necessary to refer preliminary questions to the CJEU concerning (i) the compatibility of the clause with Article 101 TFEU, (ii) whether the restrictive clause should be accepted as part of collective agreements, and (iii) whether, in the context of the Albany exception, it should be assessed against the principle of proportionality.

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Commission accepts Microsoft’s commitments for Teams

European Commission, publication of 12 September 2025

On 12 September 2025, the Commission accepted commitments from Microsoft to address competition concerns regarding its collaboration and productivity tool Teams. The Commission launched a formal investigation into Microsoft in July 2023 following complaints it had received from competitors Slack Technologies Inc. and alfaview GmbH. The Commission provisionally found that Microsoft restricted competition by bundling Teams with its productivity software (such as Outlook and Word) by default. When Teams launched, Microsoft included it by default in Office 365 and Microsoft 365, its widely used SaaS productivity suites for business customers. This gave Teams an unfair distribution advantage, reinforced by limited interoperability with competing communication and collaboration tools. According to the Commission, this allowed Teams to quickly gain market share and further strengthened Microsoft’s dominant position in productivity software. After the investigation began in 2023 and 2024, Microsoft implemented changes, such as offering some packages without Teams. However, according to the Commission, these changes were insufficient.

To address the Commission’s remaining concerns, Microsoft therefore offered the following commitments:

1. Office 365 and Microsoft 365 packages will be offered without Teams at a significantly lower price than packages with Teams, whereby the discounts on Teams packages may not be more favourable than those on packages without Teams.
2. Customers will be given regular opportunities to switch to packages without Teams, which can also be rolled out globally in data centres.
3. Competitors and third parties will be granted effective interoperability with Microsoft products, the ability to integrate Office Web Apps (Word, Excel, PowerPoint) into their own software, and to include their products visibly in Microsoft’s core applications.
4. Customers in the EEA may export their Teams messages for use in competing solutions.

1. Increasing the price difference between Microsoft 365 and Office 365 packages without Teams and packages with Teams (including for business customers) by 50%.
2. Clearly displaying the corresponding offer without Teams on its websites alongside every offer of a package with Teams.
3. Publishing information on interoperability and data portability on all relevant developer websites.

The Commission concluded that Microsoft’s final commitments sufficiently addressed its concerns regarding Microsoft’s competitive behaviour. It therefore decided to make these commitments legally binding on Microsoft. The commitments regarding interoperability and data portability are binding for ten years, while all other commitments are binding for seven years.

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€2.95 billion fine for Google for abuse of dominant position in online advertising technology (Adtech)

European Commission, publication of 5 September 2025

On 5 September 2025, the Commission announced that it had imposed a fine of €2.95 billion on Google for abusing its dominant position in various markets relating to online advertising technology. Google is alleged to have favoured its own display advertising technology at the expense of competitors, advertisers and publishers.

Google generates most of its revenue from advertising and acts both as a seller of advertising space on its own websites and apps and as an intermediary between advertisers and publishers (websites on which the advertisements are placed). Advertisers and publishers use three digital tools: (i) publisher ad servers (systems for publishers to manage digital advertisements), (ii) programmatic ad buying tools (platforms and technologies that make the purchase of advertisements data-driven and automated) and (iii) ad exchanges (digital marketplaces where publishers and advertisers trade). Google itself is a provider of, among other things, the ad buying tools Google Ads and DV360, the publisher ad server DFP and the ad exchange AdX.
The Commission’s investigation shows that Google has a dominant position in both publisher ad servers (DFP) and programmatic ad buying tools (Google Ads and DV360) in the EEA. Between 2014 and the present, Google has abused this position by:

1. Favouring AdX in the selection of advertisements via DFP, for example by informing AdX in advance of the highest bids from competitors.
2. Favouring AdX when placing bids via Google Ads and DV360, thereby excluding competing exchanges.

According to the Commission, this behaviour was intended to favour AdX and may have led to the exclusion of AdX’s competitors. This strengthened AdX’s role in the adtech supply chain and enabled Google to charge higher fees to its users. The Commission has ordered Google to (i) cease its self-preferencing practices and (ii) take measures to end the inherent conflicts of interest in the adtech chain. Google now has 60 days to inform the Commission of its proposed measures. The Commission will assess Google’s proposed measures and, if they are insufficient, may impose further remedies.

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Commission accepts far-reaching commitments from Corning

European Commission, publication of 18 July 2025

The Commission has made Corning’s commitments binding, bringing to an end the abuse investigation into the American manufacturer of Alkali-AS glass (break-resistant glass for consumer electronics, among other things). The Commission found that Corning has a dominant position in the global market for Alkali-AS glass, with the exception of Apple products. The possible abuse would lie in the exclusive supply agreements with customers, such as manufacturers of portable consumer electronics. Corning has committed to refrain from exclusivity clauses in current and future agreements with customers not only for Alkali-AS glass but also for clear glass ceramics (as this type is expected to be used more frequently in the future). In addition, Corning will not apply purchase quotas at a reduced price (in the EEA) or oblige customers to purchase more than 50% of their demand from Corning (worldwide). The commitments are valid for a period of nine years and apply worldwide. As part of the commitments, Corning will publish a market communication in English and Mandarin, and a Mandarin-speaking monitoring trustee has been appointed.

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ACM launches investigation into major software supplier for suspected dominance abuse

Authority for Consumers and Markets, publication of 30 September 2025

The ACM has launched an investigation into a large, internationally active software supplier after being informed of suspected abuse in the pricing of certain software and in the conditions imposed by the company on customers in the Netherlands. The ACM has conducted a dawn raid, has requested information and will investigate in the coming period whether this company has violated competition rules. This is in line with the ACM’s efforts to ensure that markets in the digital economy function properly, as dependence on these companies is growing.

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Commission rejects Apple’s request to remove large part of the interoperability obligations for iPhones

European Commission, decision of 4 August 2025

On 4 August 2025, the Commission rejected a request from Apple to remove some of the interoperability measures imposed on it. The request concerned five of the nine specifications that the Commission imposed on Apple on 19 March 2025 in its Specification Decision to ensure  interoperability between iPhones running the iOS operating system and third-party devices. These specifications elaborate on the general interoperability obligation applicable to Apple as a gatekeeper under Article 6(7) of the Digital Markets Act.

The Specification Decision specifies measures relating to nine iOS features, namely: (i) iOS notifications, (ii) high-bandwidth peer-to-peer Wi-Fi connections, (iii) proximity-activated pairing, (iv) background execution, (v) short-range wireless file transfer solution features, (vi) automatic Wi-Fi connection, (vii) media casting features, (viii) automatic Bluetooth audio switching, and (ix) NFC controller in read/write mode.

In the Specification Decision, the Commission included an option to allow Apple, upon request, to deviate from certain obligations laid down therein (“Exemption Clause”). Such a request can only be granted if Apple demonstrates the existence of exceptional circumstances in which it is unable, for legal, technical or other reasons, to implement one or more of the measures imposed in the Specification Decision, in whole or in part.

The Commission examined Apple’s request in relation to each of the five measures individually. However, there were several aspects common to all five requests that led the Commission to conclude that none of the five requests were based on exceptional circumstances as required by the Exemption Clause. According to the Commission, Apple’s requests were too broad: the company requested the complete withdrawal of measures for more than half of the functions concerned, without providing concrete proposals to solve specific problems. The Commission argues that the Exemption Clause is not intended to remove entire obligations, but only to address exceptional and unforeseen implementation problems. Furthermore, Apple based its requests mainly on legal arguments that it had already raised previously and that are unrelated to the technical feasibility of the measures. The Commission emphasised that the Exemption Clause is not a means to reopen previous discussions or to challenge the decision again — a legal case is already pending before the General Court of the EU for that purpose. Finally, the Commission rejects Apple’s complaint that the company was not given sufficient time to respond: in its view, considering the deadline reasonable and Apple’s right to be heard fully respected.

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CBb refers questions CJEU on the interpretation PSO Regulation

Trade and Industry Appeals Tribunal, interim judgment of 9 September 2025

On 9 September 2025, the CBb decided to refer preliminary questions to the CJEU in the context of the appeal by various transport operators against the decision of 21 December 2023 of the State Secretary for Infrastructure and Water Management (“State Secretary”) to award the main rail network concession for the period 2025-2033 directly to Nederlandse Spoorwegen (“NS”) (see also our Update railway law: the 4^th European Railway Package and competition on European railway markets).

The introduction of the European Union’s Fourth Railway Package in 2016 changed the European regulatory framework for rail transport. The package aims to further open up the European rail market to competition. In this context, Regulation 1370/2007 on public passenger transport services by rail and by road (“PSO Regulation”) has been amended, limiting the possibilities for the authorities to directly award public service contracts and giving railway undertakings a so-called ‘right of access’ to the railway infrastructure.

The transport operators who have lodged objections to the award decision are of the opinion that, in making the decision, the State Secretary acted in contravention of the applicable transitional law under the PSO Regulation and, moreover, did not take sufficient account of the transport operators’ right of access in his decision-making on the imposition of a public service obligation. The State Secretary contests these views.

In light of the above dispute, the CBb has decided to refer preliminary questions to the CJEU. These preliminary questions relate to two key points:

1. the interpretation of the transitional law for the possibilities of private contracting under the PSO Regulation, and
2. the relationship between the State Secretary’s power to impose public service obligations on the one hand, and the right of access to the railways for railway undertakings on the other.

The CBb is withholding any further decision in this case until the CJEU has issued its ruling. However, the CBb has ruled as a provisional measure that the State Secretary must resume negotiations with Arriva on the Northern Lines with immediate effect and report the outcome thereof to the CBb by 8 December 2025 at the latest.

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PostNL will not receive subsidy for UPD

Preliminary relief judge of the Trade and Industry Appeals Tribunal, ruling of 5 September 2025

On 5 September 2025, the preliminary relief judge of the CBb ruled that the Minister of Economic Affairs (“Minister”) is not required to grant a subsidy to PostNL for the performance of the Universal Postal Service (Universele Postdienst, “UPD”). The UPD is PostNL’s legal obligation to provide a basic postal service throughout the Netherlands, such as the delivery of letters and parcels at uniform rates, including in sparsely populated areas. According to the judge, there is no urgency and no legal obligation for the Minister to provide financial support.

At the beginning of 2025, PostNL had applied to the minister for one-off subsidies of €30 million for 2025 and €38 million for 2026. The company argued that the postal market is shrinking structurally, while costs continue to rise. As a result, the implementation of the UPD would no longer be profitable. According to PostNL, the possibilities for cost savings have been exhausted, and the legislative process to relax the UPD obligations has been ongoing for six years without any concrete results. To prevent the postal service from coming under further pressure, the company asked the preliminary relief judge to suspend the minister’s decision to reject the subsidy and to grant an advance payment of €15 million per year for 2025 and 2026.

The preliminary relief judge ruled that the Minister is not obliged to grant PostNL a subsidy. According to the preliminary relief judge, the Minister has discretionary power under the Dutch Framework Act Subsidies of the Ministries of Economic Affairs and Climate Policy (EZK) and Agriculture, Nature and Food Quality (LNV) and the Dutch General Administrative Law Act (Algemene wet bestuursrecht, “Awb”) to grant incidental subsidies, and the EU Postal Services Directive does not impose any obligation to provide financial support. Although PostNL invoked Article 1 of the First Protocol to the ECHR, the preliminary relief judge doubts whether the statutory UPD obligation constitutes a violation of that right. Even if that were the case, the Minister has considerable discretion to determine whether and how compensation is provided, for example through measures other than subsidies. Furthermore, as it had not been demonstrated that PostNL’s financial situation was so dire that direct support was necessary. The preliminary relief judge has rejected the request for provisional relief.

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ACM postal market study: higher reliability but slower delivery speeds necessary

Authority for Consumers and Markets, publication of 24 April 2025

On 24 April 2025, the ACM published the results of its study into the Dutch postal market. The Ministry of Economic Affairs and Climate Policy commissioned this study as a building block for a new vision on postal services, which are under increasing pressure due to the decline in postal volumes. Between 2019 and 2023, the number of postal items sent fell by 22%. The ACM concludes that, without policy changes, the current postal service will become financially unsustainable in the long term. In its study, the ACM therefore also explored a number of options for changes to legislation and regulations.

The investigation covers all mail sent in the Netherlands. Approximately 15% of this falls under the UPD, which is mainly mail from the well-known orange postboxes. PostNL, designated as the operator of the UPD, must protect this mail in terms of reliability, delivery speed and affordability. Business mail, including mail from the government and the judiciary, is not covered by the UPD. One of the options ACM is considering is therefore to include business mail under the UPD.

Senders and recipients indicate that reliability – certainty that mail will arrive at the agreed time – is most important to them. However, the 95% reliability standard has not been achieved for years. In 2023, 89% of mail was delivered on time. In 2024, that percentage fell further to 86%. The ACM investigated several scenarios, with reducing the number of delivery days being mentioned as a logical adjustment. Currently, deliveries are made five days a week; this could potentially be reduced. However, the exact consequences of such adjustments for the financial position of the postal company – and thus for the affordability of the postal service – are difficult to predict.

In addition, the ACM investigated whether stimulating competition could contribute to an improvement in postal services. Although no new national competitor is expected to enter the market in the short term, the ACM does see a gradual shift towards a broader delivery market. Parcel services and leaflet distributors are also increasingly entering the field of postal delivery. In the long term, this could put further pressure on the traditional postal network, but for now, ACM considers policy adjustments to be the most appropriate means of ensuring sustainable postal services.

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ACM again rejects enforcement request against Lactalis

Authority for Consumers and Markets, decision of 29 July 2025

On 29 July 2025, ACM rejected a request from dairy farm Maatschap Selles to take enforcement action against Lactalis under the Unfair Commercial Practices in the Agricultural and Food Supply Chain Act (“Wet OHP Landbouw”) . Maatschap Selles (exclusively) supplies milk to Lactalis, which then processes the milk into cheese and exports it. Maatschap Selles is also chair of the Leerdammer Collectief Suppliers’ Association (“LVLC”).

This decision on the enforcement request follows a series of decisions in the dairy sector involving both Lactalis and LVLC. For example, on 23 September 2024, following (multiple) complaints from LVLC, the ACM decided that Lactalis had to adjust its pricing system or face a penalty. Both Lactalis and LVLC objected to this decision, but the ACM declared both objections unfounded. On 17 October 2024, the ACM declared ZuivelNL’s commitments binding, on the basis of which ZuivelNL adjusted its contribution collection system in line with the Unfair Trading Practices in Agriculture Act. This (commitment) decision also followed an enforcement request from LVLC against Lactalis in particular, which charged the contributions for ZuivelNL. On the same day, the ACM rejected LVLC’s complaint because the problems with the commitments had been resolved. LVLC then lodged an objection to the commitment decision, which the ACM declared unfounded on 10 April 2025. Subsequently, on 6 May 2025, the ACM decided not to disclose any documents about Lactalis’ new pricing system under the Dutch Open Government Act (Wet openbare overheid). The objection to that decision was also rejected by the ACM on 31 July 2025.

ACM has now also rejected the most recent enforcement request against Lactalis. This time, Maatschap Selles claimed that Lactalis is unilaterally changing the terms of delivery by terminating the delivery agreement between them. In addition, Maatschap Selles considers the termination to be a measure of commercial retaliation. Unilaterally changing the terms and conditions of delivery and taking retaliatory measures are contrary, respectively, to Article 2(1)(c) and (h) of the Wet OHP Landbouw.

The ACM concludes that there is no violation of the Wet OHP Landbouw. Lactalis was obliged to adjust its pricing system in response to the ACM’s order subject to a penalty. Maatschap Selles objected to this new pricing system, whereupon Lactalis (in compliance with the notice period) felt compelled to terminate the agreement. According to the ACM, this does not constitute a unilateral adjustment of the terms and conditions of supply. Nor does the ACM consider this to be a commercial retaliation measure. The termination of the supply agreement is the result of Maatschap Selles’ objection to the new pricing system. This is not, as Maatschap Selles claims, due to its role as chair of the LVLC. Moreover, Lactalis also terminated other supply agreements when suppliers objected to the new pricing system.

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Developments and risks in the agro-nutri sector

Authority for Consumers and Markets, publications of 12 and 18 September 2025

On 18 September, the ACM announced that it would launch an investigation into food prices in Dutch supermarkets in response to indications that the prices of some products in the Netherlands are higher than in neighbouring countries. The ACM is investigating the profit margins of both food suppliers and supermarkets. In addition, the ACM is seeking explanations for high or low margins and is indexing price differences with neighbouring countries. The results are expected to be published in the summer of 2026.

Research published by the ACM on 12 September 2025 has shown that cooperation in sustainability efforts can strengthen the earning capacity of primary food producers. The main advantage that identified in this research is the realisation of cost savings and certainty regarding the sale of products. Although cooperation can in some cases contribute to higher prices for sustainable products, this is limited by the considerable market power of downstream parties. The establishment of a Union of Producer Organisations (UPO) could potentially counterbalance this. This would involve several producer organisations working together, thereby strengthening their negotiating position. The risks of sustainability generally lie with the farmer, despite possible agreements on compensation or purchase guarantees. In addition, the ACM emphasises that stable government policy is an important condition for successful sustainability.

On 12 September 2025, the ACM also published the fourth Agro-Nutri Monitor. In the monitor, the ACM monitored the prices, costs and margins for regular, organic and other sustainable products and identified the obstacles and risks associated with sustainability for farmers. The results demonstrate that organic farmers are not always compensated for their sustainability costs, as the costs of organic products have risen faster than revenues. Although farmers with other sustainability labels are compensated for additional costs on average, 6 out of 10 consider the compensation insufficient. Cooperation between producers reduces costs and strengthens their negotiating position vis-à-vis buyers, while cooperation along the value chain helps to achieve a premium price and distribute production risks. Nevertheless, consumers’ limited willingness to pay and uncertainty about the government’s sustainability policy remain the main obstacles to further sustainability.

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ACM supplements reasoning withdrawal penalty orders against Dé VakantieDiscounter, Prijsvrij.nl and D-Reizen*

Authority for Consumers & Markets, decisions of 16 July 2025

On 20 December 2024, ACM withdrew three orders subject to penalty payments for an alleged violation of consumer law (and the corresponding publication decisions) it had imposed on virtual touroperators Dé VakantieDiscounter, Prijsvrij.nl and D-Reizen (“VTOs”) after these decisions had previously been suspended by the preliminary relief judge of the Rotterdam District Court (see also CF Q3 2024). Following objections from these VTOs to the withdrawal decisions, the ACM supplemented its reasoning for these decisions.

The ACM based the original withdrawal decisions on reasons of procedural economy. It considered the necessary further investigation in light of the preliminary relief judge’s ruling to be unfeasible in the context of an objection procedure and within a reasonable time period. The VTOs considered this reasoning to be incorrect and misleading. Following the VTOs’ objection, the ACM agreed that the original reasoning for the withdrawal decisions did not clearly demonstrate that the orders subject to penalty payments had been withdrawn because they had not been prepared with sufficient care and that, as a result, no violation on the part of the VTOs could be established.

The ACM added to its reasoning for the withdrawal decisions by stating that it had decided not to conduct a further investigation for reasons of procedural economy. It follows that, in view of the insufficiently careful preparation of the orders subject to penalty payments, the ACM was unable to establish any violations. The ACM upheld the rest of the withdrawal decision and finally proceeded to partially reimburse the VTOs for the legal costs they incurred.

* bureau Brandeis assisted the VTOs in these proceedings.

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ACM launches investigation into computer-controlled consumer prices aviation sector

Authority for Consumers and Markets, publication of 2 July 2025

Following the publication of its investigation approach for pet care (see also CF Q2 2025), the ACM has announced its approach to the market investigation into computer-controlled consumer pricing  in the aviation sector. ACM notes that consumer prices are increasingly being determined using data and algorithms (computer-controlled). This can take the form of dynamic pricing (the same price for everyone, but varying depending on the time) or personalised pricing (e.g. based on search history, location or type of device).

The ACM anticipates both positive and negative consequences and aims to use this market investigation to identify the specific effects on competition. Given that computer-controlled pricing is widely used for airline tickets and that the aviation sector is ‘socially relevant’ with a clear competitive structure, the ACM has specifically chosen the aviation sector for this investigation. Starting in July 2025, the ACM will engage in discussions with relevant market parties (particularly airlines) and request relevant data to better understand how pricing works in the aviation sector. The ACM will also conduct a consumer survey to gain insight into the decision-making process when purchasing airline tickets. The ACM expects to publish a preliminary report at the end of 2025.

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ACM’s carelessness leads to reduction of fine by CBb on appeal

Trade and Industry Appeals Tribunal, ruling of 16 September 2025

On appeal, the CBb ruled that ACM had rightly declared objections by Allfree B.V. (“Allfree”) to an order subject to penalty payments for non-compliance inadmissible. The case concerns an order subject to penalty payments imposed by ACM on 21 July 2021 for misleading commercial practices. The ACM had found that locksmith services were being offered on Allfree’s websites with misleading and incorrect information. In addition, certain mandatory information (such as the address of the establishment, VAT identification numbers and registration in public registers) was not provided.

After ACM sent the order subject to penalty payments to Allfree together with a draft press release, ACM received an email from Allfree on 2 August 2021 in which it objected to the content of the draft press release. It was not until 22 November 2021, after the objection period had already expired, that Allfree indicated that this first email was also intended as an objection to the order subject to penalty payments. However, according to the CBb, the email only refers to the draft press release and does not contain any grounds for objection to the penalty payment order, which means that the email cannot be regarded as a timely objection. Allfree’s objection of 22 November 2021 was therefore submitted too late. The ACM was therefore right to declare the objection inadmissible, according to the CBb.

The CBb then ruled that ACM rightly found violations on Allfree’s websites. ACM was therefore entitled to collect the forfeited penalty payments. However, the CBb ruled that there were special circumstances due to which collection should be partially waived. The ACM acted negligently by checking the same ten URLs repeatedly from 16 November 2021 onwards without informing Allfree of the violations it had identified, even though it was likely that Allfree would have remedied them if it had been notified of them. In doing so, ACM deprived Allfree of the opportunity to remedy the violations in a timely manner and did not take sufficient account of its willingness to comply with the order. In view of the above, the CBb reduced the recoverable amount by the ACM from €89,000 to €26,900.

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ACM publishes guidelines for fair price display

Authority for Consumers & Markets, publication of 19 September 2025

To help sellers present prices in a clear and fair manner, the ACM has published Guidelines regarding price indications and comparisons (“Guidelines”). In these Guidelines, the ACM establishes a number of rules of thumb for displaying prices based on the Dutch Product (Price Indications) Decree (Besluit prijsaanduiding producten) and the Commission’s Guidelines on consumer protection in the indication of the prices of products offered to consumers, provides a number of examples, and explains a number of exceptions and specific situations.

The basic principle is that a seller may compare its discounted retail price with the lowest retail price that the seller has charged in the 30 days prior to the discount. In concrete terms, this means that: (i) only the lowest price of the past 30 days may be crossed out; (ii) a price may only be displayed as a discount if the reference price is the lowest price of the past 30 days; (iii) prices may not be artificially inflated; (iv) the meaning of a reference price must be clearly stated directly next to the price; and (v) discount promotions may not last for an excessive period of time. When a seller uses a recommended retail price as a reference, they must be able to demonstrate that this price is not only recommended by the manufacturer, but is also actually charged by other sellers in the market.

The ACM also mentions a few exceptions to the above rules of thumb in these Guidelines. For example, the basic rule described above does not apply to perishable or new products. The ACM also clarifies that the price indication rules also apply to platforms that act as sellers and that platform providers must enable sellers on their platform to comply with the rules as described in these Guidelines. For example, a platform will have to refer to relevant laws and regulations on price display on the platform and design the platform in such a way that discount indications (can only) comply with current laws and regulations.

In the coming period, ACM will check whether the price indications of both physical and online sales channels comply with the rules as explained in these Guidelines.

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For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist.

Bas Braeken – Jade Versteeg – Lara Elzas – Timo Hieselaar – Demi van den Berg – Joost van Belois – Lisanne Kooijman

This is the Competition Flashback Q2 2025 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here).

Would you like to receive Competition Flashback by email in the future? You can subscribe to our mailing list here.

Overview Q2 2025

Merger control and FDI

• ACM approves DPG/RTL merger under strict conditions
• Licence required for acquisition of Unox by Zwanenberg
• BTI publishes Annual Report 2024
• ACM approves FincoEnergies’ acquisition of Klaas de Boer subject to conditions
• Merger highlights European Commission

Damages claims for competition law infringements

• Supreme Court asks preliminary questions on applicable law in case of damages claims following on EEA-wide single and continuous cartel infringements
• District court has relative jurisdiction in related WAMCA proceedings against Samsung and LG
• Consumer Association and foundation partly admissible in claims following on CRT cartels

Cartels and vertical restraints

• Commission fines car manufacturers €458 million for cartel in recycling end-of-life vehicles
• CJEU clarifies conditions for justification of exclusive distribution system
• Commission fines Delivery Hero and Glovo €329 million for participation in online food delivery cartel

Digital markets

• First DMA non-compliance fines of €500 and €200 million for Apple and Meta
• Rotterdam District Court: order subject to penalty payments Apple rightly imposed by ACM
• ACM launches online ‘DSA check’
• (Big) Tech in the spotlight: ACM publishes key priorities digital economy

Supervision and enforcement

• ACM not liable for damages following unlawful company visit
• Company visit lawful vis-à-vis GMB
• ECtHR confirms: transmission of intercept data to NMa justified
• General Court dismisses Symrise appeal against Commission dawn raid decision

Regulated markets

• ACM largely approves Schiphol’s new charges and conditions
• ACM declares VodafoneZiggo telemarketing commitments binding
• ACM publishes 2024 Postal and Parcel Markets Scan
• Objections to order subject to penalty payments Lactalis unfounded
• ACM outlines approach into market investigation veterinary practices
• CBb: MRN concession must be amended to protect MaaS providers

ACM approves DPG/RTL merger under strict conditions

Authority for Consumers and Markets, decision of 27 June 2025 (summary)

On 27 June 2025, the Dutch Authority for Consumers and Markets (“ACM”) conditionally approved the acquisition of RTL Nederland (“RTL”) by DPG Media (“DPG”). The ACM investigated the effects of the proposed concentration between DPG and RTL for the scope, quality and pluralism of general news content in the Netherlands (see also CF Q2 2024 for the announcement of the second-phase investigation). In its assessment, the ACM considered media plurality as a qualitative aspect, whereby a deterioration in news quality also results in a decrease in the diversity of opinions and perspectives in the media. The proposed merger would create a media company that operates across the entire spectrum of the Dutch media landscape, offering a broad range of media services through five linear and three digital TV channels, video streaming, radio, national and regional newspapers, weekly and monthly magazines, online news, and various other online services.

Regarding the online news market, the ACM considers that the acquisition of RTL by DPG – both significant players in that market – would significantly reduce competitive pressure in the market. The ACM considers it plausible that the proposed concentration could lead to a deterioration of news quality, media plurality and competition between editors, including through declining investments, political or commercial influence and reduced incentives to compete on journalistic quality.

DPG has offered a comprehensive package of commitments to address the ACM’s concerns, including the indefinite continued free provision of ‘RTL Nieuws’ and NU.nl (DPG will be able to request the ACM to lift or modify the measure in ‘the future’), strengthening editorial statutes and establishing independent foundations to monitor editorial independence. Also, the statutory rights of the Democracy & Media Foundation will be expanded, DPG commits to a Charter guaranteeing pluralism and independence, and RTL Nederland will be placed under Dutch supervision by the Dutch Media Authority within five years. The implementation of these measures will be closely monitored through reports to both the involved foundations and the ACM.

The ACM has also examined whether DPG and RTL could, post-merger, use their broad media channels to exclude competitors in the advertising market through bundled discounts, but considers this unlikely. The ACM further finds it improbable that the merger will result in lower pay or worsened conditions for (freelance) journalists, given the parties’ limited market share and the influence of trade unions. Finally, the ACM concludes that although the parties’ negotiating position towards news agencies such as ANP will become slightly stronger, this will not lead negatively impact the overall news supply.

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Licence required for acquisition of Unox by Zwanenberg

Authority for Consumers and Markets, decision of 5 June 2025

On 6 June 2025, the ACM announced its intention to conduct further investigation into the proposed acquisition of the iconic Dutch brand Unox and the Belgian brand Zwan by Zwanenberg Benelux. With this acquisition, Unox would, after nearly a century, be separated from its current parent company, Unilever. Zwanenberg produces and sells meat preserves (including smoked sausages) and ambient wet soups, particularly private-label products sold under supermarket house brands, as well as products under its own brands, such as Kips and Huls. The ACM is concerned that the acquisition of Unox could significantly strengthen Zwanenberg’s bargaining power vis-à-vis supermarkets. Unox is a well-established brand with loyal customers, who might switch to another supermarket to purchase it. In its further investigation, the ACM will examine the potential risks to competition in the national markets for canned-meat products (including cooking sausages, smoked sausages and other canned meat) and ambient wet soups.

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BTI publishes Annual Report 2024

Ministry of Economic Affairs (BTI), publication of 12 May 2025

On 12 May 2025, the Minister of Economic Affairs published the 2024 Annual Report of the Bureau for Investment Screening (“BTI” and “Annual Report”). The Annual Report provides insight into the impact of the Investment, Mergers and Acquisitions Security Screening Act (in Dutch: Wet Vifo, “Vifo Act”) and other sector-specific legislation on investment practices in the Netherlands and highlights several key developments.

One important development is the proposed expansion of the scope of the Vifo Act. The relevant proposal involves an amendment to the Decree on the Scope of Sensitive Technologies, which regulates which (highly) sensitive technologies fall within the scope of the Vifo Act. The proposal seeks to add biotechnology, artificial intelligence, advanced materials and nanotechnology, sensor and navigation technology and nuclear technology with medical use to the Decree (see also our Flash Forward 2025).  The public consultation for the proposed amendment closed on 31 January 2025.

The Annual Report also covers the number of screenings, their background, processing times, and transaction values.  In 2024, the BTI conducted a total of 83 screenings, and 69 new notifications were submitted. By comparison, in 2023, there were 34 screenings and 46 notifications (after the Vifo Act came into force on 1 June 2023). The majority of screenings were carried out under the Vifo Act (61). Screenings were also conducted under the Offshore Wind Energy Act (7), the Electricity Act 1998 (1) and the Telecommunications Act (1). Thirteen screenings were still ongoing at the end of 2024. In 48 cases the BTI gave unconditional approval. In four cases, the screening resulted in a review decision. Three cases were approved subject to conditions, while in one case the transaction was prohibited in full. The BTI reports that all screenings were completed within the statutory deadlines. In a quarter of cases, screenings were completed within 35 days, and half of all cases were concluded between 35 and 72 days. In 2024, the deadline was extended by up to six months on ten occasions.

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ACM approves FincoEnergies’ acquisition of Klaas de Boer subject to conditions

Authority for Consumers and Markets, decision of 3 April 2025

The ACM has conditionally approved FincoEnergies’ acquisition of oil trading company Klaas de Boer. Both companies are active in the supply of marine fuels and lubricants to business customers at various Dutch ports — a service commonly referred to as bunkering. Following its Phase I investigation, the ACM identified potential competition concerns regarding the supply of marine fuels — particularly gasoil — to port-related customers such as fishing companies, towage services, ferry operators, and offshore service providers. These concerns related specifically to the ports of Harlingen, Lauwersoog, Eemshaven-Delfzijl, IJmuiden and Den Helder (see also CF Q2 2024). The ACM concluded that, post-merger, few if any viable alternatives would remain for customers in these ports, raising the risk of price increases. As a result, the ACM determined that a merger license was required.

To address these competition concerns, the parties proposed a package of remedies during the Phase II investigation. They agreed to divest several business units to the GMB Group, which includes competing bunker fuel supplier Slurink. The divestment includes five bunker vessels, a fuel storage terminal in Harlingen, and Klaas de Boer’s port-related customer portfolio. GMB will continue supplying marine fuels under the Klaas de Boer brand in the ports of Harlingen, Lauwersoog, Eemshaven-Delfzijl, and Den Helder. For IJmuiden, the ACM concluded — following further market assessment — that no significant adverse effects were likely to occur after all. With these commitments in place, the ACM decided to approve the acquisition.

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Merger highlights European Commission

Universal Music Group/Downtown

The European Commission (“Commission”) has recently accepted a referral request from the ACM concerning the acquisition of Downtown by Universal Music Group. On 24 February 2025, the parties notified the proposed acquisition to the ACM. Shortly thereafter, the ACM received complaints from market participants regarding the proposed acquisition. As the ACM is concerned about the potential effects of the acquisition on both the Dutch and European markets for music services, it decided to refer the case to the Commission under Article 22 of the EU Merger Regulation.

More specifically, the ACM fears that the acquisition could lead to higher prices for artists, a reduced supply of music, and less innovation in services for labels and artists. These concerns are shared by the Austrian competition authority (“AFCA”), which therefore joined ACM’s referral request. The Commission will now conduct an investigation into the proposed acquisition.

Mars/Kellanova

On 25 June 2025, the Commission announced a second-phase investigation into the acquisition of Kellanova by Mars. Both undertakings have strong positions in different food product markets. The Commission has preliminary concerns that the merger will lead to higher prices for consumers due to the increased negotiation power Mars obtains through this acquisition vis-à-vis retailers. Both Mars and Kellanova offer products that consumers regard as essential, which may pressure retailers into accepting higher prices to avoid losing customers by no longer stocking these items. The Commission has until the end of October 2025 to complete its further investigation into the acquisition.

UniCredit/Banco BPM

On 19 June 2025, the Commission conditionally approved the acquisition of Banco BPM (“BPM”) by UniCredit. UniCredit and BPM offer overlapping corporate and retail banking services in the Italian market. At local level, the proposed transaction would raise competition concerns in the markets for deposits and loans for both retail consumers and small and medium-sized enterprises (SMEs) banking services, as BPM and UniCredits activities overlap significantly in this market. The Commission found no competition concerns on broader, regional level. Finally, the transaction does not raise concerns regarding possible risks of coordination in the Italian banking market, due to (i) the market’s fragmented and competitive nature; (ii) low transparency in consumer pricing; and (iii) limited monitoring by competitors of their respective market behaviour both at the regional and provincial level.

UniCredit has committed to divest 209 physical branches in local markets where a problematic overlap with BPM’s operations exists. According to the Commission, this commitment will limit the combined market share of UniCredit and BPM at the local level, thereby eliminating the competition concerns in the market for deposits and loans for both retail consumers and SMEs in Italy.

Liberty Media/Dorna

On 23 June 2025, the Commission unconditionally approved the acquisition of Dorna Sports (“Dorna”) by Liberty Media Corporation (“Liberty Media”) following a second-phase investigation. Liberty Media owns, among others, the Formula One Group, which holds the commercial rights to Formula 1. Dorna holds, among other things, the commercial rights to MotoGP. The Commission assessed whether the transaction would restrict competition in the licensing of broadcasting rights for sports content.

In its investigation, the Commission initially considered the market for all sports content but identified two criteria that could potentially lead to a narrower market definition. First, broadcasters often distinguish between regular sports broadcasts (such as annual soccer leagues) and irregular sports broadcasts (such as the Olympics). Second, a number of sports – depending on the Member State – are significantly more popular than others, leading to substantially higher licensing costs for those sports.

This could result in a distinction between premium and non-premium sports. Formula 1 and MotoGP would be part of the regular, non-premium sports market. The Commission left the precise market definition open and examined the impact of the acquisition in each Member State on the narrowest possible market (national regular, non-premium markets). The Commission found Liberty Media and Dorna not to be close competitors in any of these markets. Moreover, even after the acquisition, broadcasters would continue to have access to licensing opportunities for various other sports that attract audiences of at least comparable size. The Commission therefore concluded that the acquisition did not raise competition concerns.

Safran/Collins Aerospace

The Commission has conditionally approved the acquisition of part of Collins Aerospace’s aerospace and aviation actuation business by Safran. Prior to the acquisition, both companies were the leading suppliers of trimmable horizontal stabilizer actuator systems (systems that adjust the tailplane to keep the aircraft stable, “THSA systems”). The acquisition, as initially notified, would have significantly reduced competition in the market for THSA systems. To remedy this, Safran offered to divest all of its North American THSA activities. The Commission also assessed whether the transaction would have an impact in other related markets but found no competition concerns there.

The Commission concluded that, subject to full compliance with the commitments made, the acquisition would no longer raise competition concerns. An independent trustee will monitor compliance with the commitments. At the end of 2024, Safran reached an agreement with Woodward for the sale of the THSA activities. The suitability of Woodward as a purchaser is being assessed separately.

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Supreme Court asks preliminary questions on applicable law in case of damages claims following on EEA-wide single and continuous cartel infringements

Supreme Court, judgments of 20 June 2025

On 20 June 2025, the Dutch Supreme Court referred two sets of preliminary questions to the Court of Justice of the European Union (“CJEU”) on applicable law in two judgments. The first case concerns follow-on claims for damages arising from the trucks cartel; the second case concerns follow-on claims for damages arising from the air cargo cartel. With respect to both the trucks cartel and the air cargo cartel, the Commission concluded that there was a single and continuing infringement of competition law.

In both cases, the question arose whether such a single and continuous infringement should be classified as one tort (harmful event) leading to one claim for damages per injured party, or as a tort leading to a separate claim for damages per transaction. In doing so, the Supreme Court also questions whether this qualification is to be made pursuant to EU law or whether this is left to the national law of the Member States. In both judgments, the Supreme Court therefore poses the preliminary question of whether EU law, in particular the principle of effectiveness, entails that a single and continuous infringement of competition law per injured party must be classified as a single unlawful conduct giving rise to a single claim for damages, or whether Member States are free to determine whether each transaction separately gives rise to separate claims for damages.

In the case regarding the trucks cartel, the Supreme Court also raises further questions regarding the Conflict of Laws (Tort) Act (“WCOD”) – which temporally applies to harmful events that occurred up to 11 January 2009 – and the Rome II Regulation – which applies to such events occurring from that date onwards. The Supreme Court wishes to ascertain whether the Rome II Regulation or the WCOD applies temporally to the entire infringement period of the single and continuous infringement, which commenced before 11 January 2009 but ended after that date. In addition, the Supreme Court requests the CJEU to clarify how the affected market within the meaning of Article 6(3)(a) Rome II Regulation should be interpreted in case of follow-on damages claims arising from an EEA-wide cartel and where the cartelised products were purchased in multiple countries from multiple cartel participants. Finally, the Supreme Court seeks clarification on whether the possibility of unilaterally choosing the applicable law under Article 6(3)(b) Rome II Regulation is open only to injured parties who have suffered damages themselves or also to claimants who have been assigned the claims, such as foundations.

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District court has relative jurisdiction in related WAMCA proceedings against Samsung and LG

North Holland District Court, judgment of 16 April 2025

The District Court of North Holland has assumed (relative) jurisdiction over the claims against LG Electronics (“LG”) because there is sufficient connection with the claims against Samsung. Both cases are brought under the WAMCA.

Two foundations, Stichting Consumenten Competition Claims (“CCC”) and Stichting Eerlijke Prijzen & Marktwerking (“STEP”), brought collective claims against both Samsung and LG in relation to vertical price maintenance, for which the ACM previously imposed two separate fines (see the ACM decisions regarding Samsung and LG). In an earlier docket decision, the court had already ruled that CCC’s and STEP’s claims against LG relate to the same events. Pursuant to Article 1018d(3) of the Dutch Civil Code (Wetboek van Burgerlijke Rechtsvordering, “Rv”), such claims must be treated as one case in these circumstances.

In this case, LG claimed that not the District Court of North Holland but rather the District Court of Amsterdam has relative jurisdiction to rule on the claims against LG, pursuant to the main rule in Article 99 Rv, because LG has its registered office in Amsterdam. However, Article 107 Rv provides that if a court has relative jurisdiction over one joint defendant – in this case Samsung – it also has jurisdiction over the other defendant, provided there is sufficient connection between the claims.

Such a nexus was present, according to the court. An important factor in that respect was that STEP had sued both Samsung and LG with the same writ of summons. Moreover, Samsung and LG are accused of the same violation – resale price maintenance – in the same product market and in an overlapping infringement period. Crucially, the ACM itself had acknowledged in its decision vis-à-vis LG that “Samsung engaged in similar practices to LG” and that this “broader practice in the market” had to be taken into account in the assessment. For that reason, the court considers itself competent to hear not only STEP’s claims against Samsung but also STEP’s claims against LG, and by extension CCC’s claims against LG.

This ruling demonstrates that courts in WAMCA proceedings give weight to the importance of efficient and coordinated treatment of cases where practical. For plaintiffs in class actions, this is a positive development as it prevents fragmentation and conflicting judgments.

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Consumer Association and foundation partly admissible in claims following on CRT cartels

Court of Appeal ‘s-Hertogenbosch, judgment of 27 May 2025

On 27 May 2025, the ‘s-Hertogenbosch Court of Appeal declared partially admissible the claims of the Consumers’ Association (Consumentenbond) and an unnamed foundation. The Consumers’ Association and the foundation filed a class action against Philips following its participation in the cartels in the cathode ray tubes (“CRT”)-sector for which the Commission fined Philips, among others, in 2012. The claims are based on Section 3:305a (old) of the Dutch Civil Code and can be divided into two categories. One category of the claims relate to obtaining a declaratory judgment that Philips acted unlawfully towards all (groups of) customers of CRT equipment by participating in the CRT cartels. The remaining claims are also aimed at obtaining declaratory relief, but concern the existence and amount of overcharge and umbrella damages resulting from the cartel.

The court of appeal ruled that the Consumers’ Association and the foundation are admissible with respect to the first category of claims because these claims focus on obtaining a declaratory judgment on the illegality of Philips’ actions. In contrast, the second category of claims essentially relate to the determination of the (amount of the) actual overcharge and umbrella damages. The appeals court concludes that these are claims intended to establish the extent of Philips’ compensation obligations to individual customers. However, that is not possible under Article 3:305a (old) of the Dutch Civil Code. After all, only a declaratory judgment can be claimed pursuant to that provision – claims for damages cannot be initiated, as opposed to the current Article 3:305a of the Dutch Civil Code. With respect to these claims, the Consumers’ Association and the Foundation are therefore inadmissible.

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Commission fines car manufacturers €458 million for cartel in recycling end-of-life vehicles

European Commission, decisions of 1 April 2025

On 1 April 2025, the Commission imposed fines totalling €458 million on 15 major automobile manufacturers as well as the European Automobile Manufacturers Association (“ACEA”) for participating in a cartel for the recycling of end-of-life vehicles. The cartel involved a single and continuous infringement over a period of more than 15 years: spanning from 29 May 2002 to 4 September 2017. In addition to the ACEA, almost all major automobile manufacturers participated in the cartel: Mercedes-Benz, Stellantis, Mitsubishi, Ford, BMW, Honda, Hyundaik/Kia, Jaguar Land Rover, Mazda, Renault/Nissan, Opel, GM, Suzuki, Toyota, Volkswagen, and Volvo.

The car manufacturers agreed among themselves (i) not to pay car dismantlers for processing end-of-life vehicles (the so-called “Zero-Treatment-Cost” strategy) and (ii) not to promote  how much of an end-of-life vehicle can be recycled, recovered and reused and how much recycled material is used in new cars. In doing so, the cartel participants tried to prevent consumers from considering recycling information when choosing a (new) car.

As the first leniency applicant, Mercedes-Benz received immunity. Stellantis and Opel applied for leniency after Mercedes-Benz and received a 50% reduction on their respective fines. Mitsubishi and Ford respectively received 30% and 20% reductions on their fines. The amounts of the fines vary widely. For instance, ACEA was fined only €500,000 because of its facilitating role and the fact that all member automakers were also fined individually. Stellantis, despite the 50% discount, was still fined nearly € 75 million; Volkswagen received the highest fine of over € 127 million.

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CJEU clarifies conditions for justification of exclusive distribution system

Court of Justice of the European Union, judgment of 8 May 2025

In line with the opinion of Advocate General Medina, the CJEU has clarified the conditions under which an exclusive distribution system can be justified under the Vertical Block Exemption Regulation (“VBER”’). The CJEU confirmed that such a system requires that other buyers have, in some way, agreed not to actively sell into the exclusive territory.

The case arose from Belgian proceedings brought by exclusive distributor Beevers Kaas (“Beevers”) against Albert Heijn. Beevers accused Albert Heijn of infringing honest market practices by selling Beemster cheese in Belgium, despite knowing of the exclusive distribution agreement between Beevers and supplier and producer, Cono. Under the agreement, Beevers had been designated as the exclusive distributor for Belgium and Luxembourg. However, the agreement did not prohibit Beevers from selling outside that territory. Similarly, Albert Heijn had been appointed as exclusive distributor for the Netherlands, but was not contractually prevented from selling in other Member States, including Belgium and Luxembourg.

The question arose whether, under the old VBER, an exclusive distribution arrangement could benefit from the exemption if the agreement only allocated territorial exclusivity without also expressly restricting active sales by other distributors into the protected territory — a principle known as ‘parallel imposition’. The CJEU answered in the negative. It held that an exclusive distribution system is only effective — and thus eligible for exemption — if the supplier not only grants territorial exclusivity but also protects the distributor from active sales by other appointed buyers into that same territory. This principle is now explicitly codified in Article 4(b)(i) of the new VBER, but the CJEU has confirmed that it also applied under the old regulation by implication.

The Court then turned to how such ‘parallel imposition’ can be evidenced in the absence of an explicit contractual clause. Referring to the Super Bock judgment, the CJEU stated that there must be a concurrence of wills, which can be inferred not only from a direct of explicit contractual condition, but also from an express or tacit acquiescence. In this case, it must be shown that:
(i) Cono invited its buyer — in any form whatsoever — not to engage in active sales into the exclusive territory allocated to Beevers, and (ii) that the buyer expressly or tacitly acquiesced to that invitation. As this concerns an evidentiary issue, the CJEU left the assessment to the national court. However, it noted that the mere fact that no other customer (aside from Albert Heijn) made active sales in the territory cannot, on its own, provide proof that Cono invited its buyer to agree to the exclusivity. While this might indicate a tacit acquiescence, it could also reflect independent commercial decisions by other buyers. Without evidence of an express invitation by the supplier, such behaviour alone is insufficient to establish the existence of an agreement, the CJEU held.

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Commission fines Delivery Hero and Glovo €329 million for participation in online food delivery cartel

European Commission, decision of 2 June 2025

The Commission has fined Delivery Hero and Glovo a total of €329 million for participating in a cartel in the online food delivery sector. The cartel lasted four years and covered the entire EEA, during which the companies agreed not to actively solicit each other’s staff (so-called “no-poach”), exchanged commercially sensitive information, and agreed to divide geographic markets among themselves. This conduct was enabled and facilitated by Delivery Hero’s minority stake in Glovo, which incrementally expanded to full control in 2022. The Commission characterised the conduct as a single and continuous infringement of Article 101 TFEU.

Notably, this is the first time the Commission has adopted a cartel decision relating to anticompetitive behaviour in the labour market as well as the first time it penalised an anti-competitive use of a minority stake in a competitor. Both companies acknowledged their involvement and agreed to a settlement procedure, leading to a standard 10% reduction in the fines imposed.

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First DMA non-compliance fines of €500 and €200 million for Apple and Meta

European Commission, decisions of 23 April 2025

The Digital Markets Act (“DMA”) not only has teeth, it can actually bite. This was demonstrated by the Commission’s decisions of 23 April 2025 (Apple, Meta) to impose fines of €500 million and €200 million on Apple and Meta, respectively. These mark the first sanctions for a violation of the DMA and follow the initial non-compliance investigations launched by the Commission on 25 March 2024 (see also CF Q2 2024).

The €500 million fine on Apple concerns its core platform service (“CPS”) Apple App Store. According to the Commission, Apple violated the so-called anti-steering prohibition, enshrined in Article 5(4) of the DMA, by restricting how app developers could inform users within their apps about alternative distribution channels and (cheaper) payment methods outside the App Store. According to the Commission, Apple failed to show that the restrictions were objectively necessary and proportionate. Parallel to this investigation, the Commission conducted a second investigation into Apple’s possible non-compliance with the DMA regarding its iOS operating system. The Commission has since closed that investigation after a ‘constructive dialogue’ with Apple. This led to users now being able to more easily remove default apps from their devices and adjust the default settings of the iOS operating system. These decisions are separate from the specification decisions the Commission has recently taken on the measures Apple must take to meet the interoperability obligation of Article 6.7 of the DMA.

The fine of €200 million imposed on Meta relates to the ‘consent or pay’-model that Meta used from March 2024 – the date on which the DMA obligations became legally binding – until November 2024. The Commission examined whether this model violated the obligation of Article 5.2 of the DMA: companies must seek consent to combine or cross-link users’ personal data across different CPSs. Users who do not give consent must be given access to a less personalised but full-fledged alternative. The binary choice Meta offered – either pay or consent to data use – did not meet that requirement. At the same time as imposing the fine, the Commission decided to no longer classify Meta’s Marketplace service as a CPS, since the platform had fewer than 10,000 business users in 2024. As a result, it is no longer considered an important gateway for businesses to reach end users.

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Rotterdam District Court: order subject to penalty payments Apple rightly imposed by ACM

Rotterdam District Court, judgment of 16 June 2025

The order subject to penalty payments issued to Apple was lawfully imposed by the ACM, the Rotterdam District Court ruled on 16 June 2025. In 2021, the ACM found that Apple had infringed Article 24 of the Dutch Competition Act (Mededingingswet, “Mw”) and Article 102 TFEU by imposing unfair conditions on dating app providers. Back in 2021, the preliminary relief judge of the Rotterdam District Court suspended part of the order and reduced the maximum penalty Apple could incur (see also CF Q4 2021). In 2022, the ACM ruled that Apple had not fully or timely complied with the order and claimed penalty payments totalling €50 million. The Rotterdam District Court has now largely upheld the upheld the ACM’s enforcement order and ruled that the ACM was right to open proceedings to recover the incurred fine.

The case concerns the conditions Apple imposed on dating app providers, including the mandatory use of Apple’s in-app payment system (the so-called IAP-requirement), a 30% commission, and a ban on directing users to external payment methods (anti-steering). According to the ACM, Apple abused its dominant position because dating apps had no realistic alternatives for distribution and were dependent on Apple for broad user access.

The court ruled that the ACM correctly defined the relevant market. Alternative distribution channels such as Android app stores, websites, or Progressive Web Apps do not constitute realistic substitutes for the App Store. On that market – which consists solely of the App Store – Apple holds a 100% market share and thus a dominant position. The court further found that the ACM was right in concluding that Apple abused that dominant position by imposing unfair conditions on dating app providers. Apple failed to provide a convincing economic justification for its practices, while less intrusive alternatives were available. Moreover, Apple applies its conditions inconsistently, which undermines its arguments regarding user experience, security, and the value of its services, the court said.

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ACM launches online ‘DSA check’

Authority for Consumers and Markets, publication of 7 May 2025

On 7 May 2025, the ACM published an ‘informational tool’ that allows companies to check whether their websites and apps need to comply with the Digital Services Act (“DSA”): the “DSA check”. Since February 2024, new rules apply to providers of online services based on the DSA. Because the obligations under the DSA are layered, not all rules apply to every business. In addition, the rules may only apply to specific services offered by a company. In order to provide clarity on which rules apply to which services, the ACM developed the DSA check.

The tool functions as a digital decision tree, guiding businesses through a series of multiple-choice questions to determine which DSA obligations apply to them. For example, one question asks whether the website or app in question is used for conducting an economic activity; websites or apps not used for economic purposes do not fall under the DSA rules. The DSA Check is intended for webshops, online marketplaces, and websites or apps featuring user-generated content. With this tool, the ACM aims to help businesses easily and clearly identify which obligations they must comply with and for which services.

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(Big) Tech in the spotlight: ACM publishes key priorities digital economy

Authority for Consumers and Markets, publication of 12 May 2025

In recent years, the ACM’s remit in relation to the digital economy has expanded significantly. For example, a wave of (European) digital legislation has been added, such as the DMA, the DSA, the Platform to Business Regulation (“P2B Regulation”), the Data Act and the Data Governance Act. The ACM is also increasingly applying its existing powers, such as competition and consumer protection law, to the digital sector. By publishing its key priorities, the ACM brings together all its supervisory tasks into a coherent and integrated action plan for 2025.

The ACM has structured its focus around four pillars. The first of these is “fair access to online markets for people and businesses”, focusing on improving and protecting competition between large and small tech companies. The ACM states it will complete an investigation in 2025 into potential abuse of market power in the Netherlands by a specific online platform. It will also launch a new investigation into possible abuse of dominance by a software company. At the same time, and in coordination with the Commission, the ACM has launched two investigations into compliance with DMA rules.

The second pillar, “safe and accessible online environments: protecting online users”, concerns consumer protection. The ACM will focus on DSA compliance by web hosting services. It will also continue to take enforcement action against online consumer deception, including fake reviews, dark patterns and other generally misleading marketing techniques. The third pillar, “sharing data securely and reliably for innovation”, addresses responsible and reliable data practices by companies. With the fourth and final pillar, “collaboration in order to prevent gaps and overlap in oversight”, the ACM outlines how it intends to conduct efficient supervision in cooperation with other Dutch and European authorities.

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ACM not liable for damages following unlawful company visit

District Court of The Hague, judgment of 21 May 2025

In a judgment dated 21 May 2025, the District Court of The Hague ruled that the ACM (the State) is not liable for damages following the annulment of a fining decision that had been based on an unlawful company visit. As part of an investigation into compliance with consumer protection rules in the telemarketing of energy contracts, the ACM carried out a company visit in November 2021 at the premises of Global Marketing Bridge B.V. (“GMB”), an intermediary that acquires customers for energy suppliers by telephone. Prior to the visit, the ACM had already received indications — including from the landlord Regus — that operations at that address might have continued under a different company name: Sales Innovators B.V. (“SI”). Nonetheless, the ACM’s investigation mandate referred only to GMB and its affiliates. Upon arrival, ACM officials were informed that GMB was no longer operating at the location, and that SI was now based there. Despite this, the ACM chose to continue its inspection. The visit ultimately led to a fine being imposed on SI and its de facto director.

In subsequent interim relief proceedings, the interim relief judge held that for the purposes of defining the scope of the investigation, it is not decisive whether SI had factually taken over GMB’s activities. Since SI simply fell outside the group of companies identified in the ACM’s decision to conduct the visit, the inspection was found to have violated Article 8 ECHR and Article 7 of the EU Charter of Fundamental Rights. As the evidence supporting the fine had been obtained during the unlawful visit, the judge suspended both the fine and its publication (see also CF Q1 2024).

Following this, the ACM withdrew the fining decision. SI subsequently brought a civil claim seeking, among other things, compensation for legal costs incurred (i) during the preliminary phase (from the time of the company visit up to the fining decision), and
(ii) during the administrative phase (after the decision was issued). While the court acknowledged that, due to their withdrawal, the decisions were undisputedly unlawful, it found that the ACM would have investigated SI anyway, had the error in the investigation scope not occurred. Therefore, no causal link could be established between the unlawful visit and the preparatory legal costs. As for the costs incurred in the administrative proceedings, the court held that jurisdiction rests exclusively with the administrative courts, not the civil court. Accordingly, all claims — including those for non-material damages — were dismissed.

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Company visit lawful vis-à-vis GMB

District Court of Rotterdam, judgment of 19 June 2025

As regards GMB itself (see above), the Rotterdam District Court ruled in its judgment of 19 June 2025 that the ACM was justified in imposing fines on GMB and two of its executives for engaging in unfair commercial practices in the telemarketing of energy contracts. One of the executives was also held liable as a de facto director.

The fines were based in part on evidence gathered during the company visit discussed above. The court held that all evidence, including that obtained during the visit, had been lawfully acquired. Even if the ACM had acted unlawfully towards SI during the visit, this would not automatically render the ACM’s conduct towards GMB and its executives unlawful. The court pointed to the relativity requirement under Article 8:69a of the Dutch General Administrative Law Act (Algemene wet bestuursrecht, “Awb”), which stipulates that a party can only invoke legal provisions that are intended to protect its own interests. Accordingly, GMB and its executives could not rely on provisions that – in this case – are meant to protect SI. Furthermore, the court found that the ACM’s actions did not amount to a ‘fishing expedition’. The authority had already targeted GMB and its executives based on signals suggesting misconduct in its business operations. The ACM did not act arbitrarily or abuse its powers, as it had concrete information indicating that GMB was operating from the locations visited. It was only during the company visit that it became apparent GMB was no longer based there.

The court also rejected arguments that the fines were unlawful simply because the ACM had chosen not to fine other executives or contracting energy suppliers. The fines against GMB and the two individuals were, in the court’s view, lawful and justified. It further held that the fines imposed for de facto management of the violations were appropriate. The executives had received multiple signals indicating that energy contracts were being sold contrary to consumer protection laws, yet had failed to take adequate steps to prevent or stop the unlawful conduct.

Finally, the court ruled that the fines were both proportionate and necessary, and therefore upheld the fining decision. However, it did apply a 5% reduction to each fine ex officio, to the extent that the reduction did not exceed €5,000, due to the exceeding of the reasonable time limit.

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ECtHR confirms: transmission of intercept data to NMa justified

European Court of Human Rights, judgment of 1 April 2025

On 1 April 2025, the Grand Chamber of the European Court of Human Rights (“ECtHR”) confirmed its earlier judgment that the transmission of lawfully obtained evidence by means of wiretaps to the former Dutch Competition Authority (“NMa”) did not violate Article 8 of the European Convention on Human Rights (“ECHR”). The case concerns two Dutch cartel cases (i.e., Marine Waste and Limburg Construction), both of which stemmed from criminal proceedings primarily focused on fraud. In both cases, law enforcement authorities lawfully intercepted telephone conversations of company employees pursuant to judicial authorisation granted by the examining magistrate (rechter-commissaris). Upon reviewing the intercepted communications, the police discovered evidence of potential price-fixing in breach of Dutch and EU competition law. The transcripts of these conversations were subsequently forwarded to the NMa, which used them as key evidence in its infringement decisions of 29 October 2010 (Limburg Construction) and 16 November 2011 (Marine Waste).

After a long judicial process before the District Court of Rotterdam and the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven, “CBb”, see the final judgments here and here), the ECtHR in this judgment addresses the question of whether the transmission of information to the NMa was justified. First, it is undisputed that the transmission leads to an ‘interference’ with Article 8 ECHR that must be justified. The ECtHR subsequently examines whether, in addition to the initial tapping, the transfer in itself (i) is provided by law, (ii) pursues a legitimate aim, and (iii) is necessary in a democratic society (also called: proportional and a ‘pressing social need’). In doing so, the ECtHR introduces the following guidelines: (i) the intercepted material must have been obtained in accordance with the ECHR, (ii) the conditions for transfer must be clearly regulated by law, (iii) there must be adequate safeguards for the examination, use and storage and destruction of the material, and (iv) there must be effective legal protection.

The ECtHR found that the Dutch Judicial and Criminal Records Act (“WJSG”) provides a legal basis for the transmission of information to the NMa, referring specifically to Article 39f. The ECtHR considered that the fact the purposes of such transmission are described in broad terms, and that the NMa is not explicitly named as a potential recipient, does not undermine the foreseeability of the transfer under Article 8 ECHR. The Court further reiterated that Article 8 does not require the undertaking concerned to be informed in advance of the transmission, as such notification would risk compromising the confidential nature of criminal investigations. That said, in the Marine Waste case, where the undertakings involved were already aware of both the criminal proceedings (and probably the wiretaps) and the subsequent competition investigation, the ECtHR found it “regrettable” that they were not notified beforehand. Nonetheless, the Court emphasised that both the Rotterdam District Court and the CBb had reviewed the lawfulness of the authorities’ conduct under Article 8 ECHR in the administrative proceedings. In the ECtHR’s view, this provided adequate legal protection to challenge the legality and proportionality of the data transmission ex post, even though it was not a formal ‘decision’ within the meaning of the Awb. The Court also noted that civil proceedings had been available, and had indeed been pursued in the Limburg Construction case. In light of these procedural safeguards, the ECtHR also found no violation of Article 13 ECHR, which guarantees the right to an effective remedy.

Finally, the Court underlined the strong public interest in the effective enforcement of competition law, noting the importance of inter-agency cooperation between competition and criminal authorities. This is particularly relevant in cases such as the present one, where the infringements revealed by the intercept material (here: price-fixing arrangements) are “undoubtedly serious” and potentially capable of causing significant harm, especially in view of the high market shares held by the undertakings involved and the systematic and repeated nature of those violations. Accordingly, the ECtHR found no violation of the Convention and dismissed the actions.

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General Court dismisses Symrise appeal against Commission dawn raid decision

General Court of the European Union, judgment of 30 April 2025

In its judgment of 30 April 2025, the General Court of the European Union (“General Court”) dismissed the action brought by Symrise AG (“Symrise”) seeking annulment of a decision by the European Commission authorising an inspection of its business premises. Symrise is one of the world’s largest producers of fragrances. The Commission suspected that Symrise and three other fragrance manufacturers had exchanged commercially sensitive information and had coordinated their market behaviour, contrary to the cartel prohibition.

Consequently, the Commission decided to carry out an unannounced inspection (a ‘dawn raid’). On appeal before the General Court, Symrise argued that the inspection decision was arbitrary and disproportionate in relation to its right to privacy. In addition, it claimed that the decision lacked sufficient reasoning: the object and purpose of the inspection were allegedly stated too vaguely, and the reasoning was not expressed in clear and unequivocal terms.

The General Court held that the Commission is required to clearly identify the suspicions it intends to verify. This includes an obligation to explain the essential characteristics of the suspected infringement, including the degree of involvement of the undertaking concerned — in this case, Symrise. Although the Commission did not explicitly detail Symrise’s involvement, the Court found that this was nonetheless sufficiently evident from the text of the decision. Furthermore, the Court held that the Commission’s reasoning was sufficiently clear and unambiguous. At the preliminary stage of an investigation into suspected cartel conduct, the Commission cannot be expected to have a fully defined legal assessment. The General Court therefore dismissed the arguments concerning inadequate reasoning as unfounded.

Symrise’s objections regarding arbitrariness and proportionality in light of its right to privacy were also rejected. The Court found that the Commission’s suspicions were well-founded, partly because they were based on information from third parties, publicly available sources, and investigations by other competition authorities into the same set of facts. Moreover, the Court held that the duration of the on-site inspection was proportionate in light of Symrise’s right to privacy: the inspection lasted only three days, after which the collected data was examined at the Commission’s premises and at the offices of Symrise’s legal counsel. Accordingly, the General Court dismissed Symrise’s action in its entirety.

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ACM largely approves Schiphol’s new charges and conditions

Authority for Consumers and Markets, decision of 27 May 2025

By decision of 27 May 2025, the ACM largely approved the new charges and conditions proposed by Royal Schiphol Group (“RSG”) for the period 2025-2027. This decision followed RSG’s proposal of 31 October 2024 under which airport charges for airlines would increase by an average of 37%. In response, several airlines and representative organisations submitted a request to the ACM to assess the proposed charges and conditions against the requirements of reasonableness, cost-orientation, and non-discrimination under the Dutch Aviation Act (Wet luchtvaart, “Wlv”).* Consistent with its approach in the previous tariff period, the ACM adopted a relatively restrained standard of review. Once again, the ACM declined to uphold objections raised by the airlines concerning, inter alia, a lack of transparency and stakeholder consultation, insufficient efficiency incentives, inadequate justification for investment needs, and the unprecedented scale of the increase, partially attributable to COVID-19-related cost settlements. The ACM also rejected more general criticism regarding RSG’s significantly tightened differentiation of landing and take-off charges based on noise and emissions. According to the ACM, the Wlv does not require that such differentiation, in the context of environmental objectives, be strictly proportionate to actual noise or emissions levels.

However, in line with its earlier suspension decision, the ACM held that RSG’s proposed exclusion of certain ‘noisy’ aircraft types was incompatible with the Wlv. The ACM considered such a measure to constitute an operating restriction, which exceeds the powers of an airport operator under the Balanced Approach Regulation. It also conflicts with the (partially) negative opinion of the European Commission issued during the balanced approach procedure on the proposed capacity reduction at Schiphol. As the Minister for Infrastructure and Water Management has already restricted the ban on these aircraft types to night-time operations, based on the Commission’s advice, RSG is not authorised to implement a broader restriction (i.e. also covering daytime operations). According to the ACM, only once the relevant ministerial regulation enters into force may RSG incorporate the night-time ban into its charging conditions.

All other objections raised by the applicants were dismissed. RSG’s revised airport charges entered into force on 1 April 2025.

*Bas Braeken and Demi van den Berg represent TUI Airlines Netherlands in these proceedings

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ACM declares VodafoneZiggo telemarketing commitments binding

Authority for Consumers and Markets, decision of 12 June 2025

On 12 June 2025, the ACM declared the commitments offered by VodafoneZiggo legally binding. The commitments were submitted in the context of an investigation into the company’s compliance with Article 11.7 of the Dutch Telecommunications Act (Telecommunicatiewet, “Tw”), which requires that commercial telephone calls may only be made to consumers with their prior consent. Such consent must also be demonstrable upon request.

The ACM launched its investigation following signals that individuals were receiving unsolicited telemarketing calls promoting VodafoneZiggo’s services. The investigation focused on VodafoneZiggo’s compliance with its legal obligations in the context of outsourced telemarketing activities. The ACM found that VodafoneZiggo had failed to take adequate measures to ensure compliance with Article 11.7 Tw.

In the commitments now accepted by the ACM, VodafoneZiggo acknowledges its chain responsibility for all telemarketing activities by, or on behalf of, the company. VodafoneZiggo has offered a comprehensive list of commitments. These include the proper collection, recording, and storage of so-called ‘opt-ins’ (express consent to be contacted) and ‘opt-outs’ (requests not to be contacted). Additionally, VodafoneZiggo has committed to implementing an additional verbal verification step when contacting a consumer by phone for the first time after an opt-in has been registered. According to VodafoneZiggo, this measure satisfies the ACM’s request for a ‘pause’ in the process to confirm consumer consent. VodafoneZiggo also commits to ongoing structural monitoring of its telemarketing partners. This includes the preparation of call scripts, conducting audits, and the imposition of corrective measures where necessary — including, in extreme cases, the termination of contracts with non-compliant intermediaries.

The commitment decision applies for a period of two years, during which VodafoneZiggo must report to the ACM on three occasions regarding its compliance. As part of the commitments, VodafoneZiggo has also agreed to make a €25,000 donation to the National Elderly Fund (Nationaal Ouderenfonds). Taking this financial gesture into account, the ACM considers that the commitments are sufficient to eliminate the identified risks and to ensure future compliance.

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ACM publishes 2024 Postal and Parcel Markets Scan

Authority for Consumers and Markets, publication of 12 June 2025

The ACM has recently published its 2024 Postal and Parcel Monitor. This annual report, prepared on behalf of the Ministry of Economic Affairs, provides an overview of developments in the postal and parcel delivery sector. While the monitor covers the entire sector, the ACM is, by law, only authorised to supervise the quality of the Universal Postal Service (“UPS”). The UPS accounts for approximately 15% of all postal traffic. The remaining business mail — which constitutes around 95% of the national mail volume – and the parcel delivery market currently fall outside the scope of regulation.

The ACM reports that in 2024, the number of letters sent continued to decline, extending a downward trend that began in 2020. In addition to falling mail volumes and corresponding revenues, the reliability of mail delivery has also deteriorated significantly in recent years. In 2024, only 86% of mail was delivered the following day — well below the statutory norm of 95%. In 2023, the figure stood at 89%. The ACM notes that this trend is also reflected in the sharp rise in consumer complaints it has received.

By contrast, parcel volumes continue to grow. The ACM observes a 12% increase in the volume of international parcels in 2024, although revenue from these deliveries rose by only 5.7%. This discrepancy is attributed to the growing popularity of Asian e-commerce platforms, such as Temu and AliExpress, which frequently send low-cost parcels to Dutch consumers. While PostNL remains the largest operator in the parcel market with a market share of 45–50%, competitor DHL continues to close the gap. DHL’s market share rose from 35–40% in 2023 to 40–45% in 2024, according to the ACM.

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Objections to order subject to penalty payments Lactalis unfounded

Authority for Consumers and Markets, decision of 27 March 2025 (update April 2025)

On 27 March 2025, the ACM declared both the objections lodged by Royal Lactalis Leerdammer (“Lactalis”) and the Supplier Association Leerdammer Collective (“LVLC”) as unfounded.

The objections concerned the ACM’s decision of September 2024 to impose an order subject to periodic penalty payments on Lactalis for violating the Unfair Commercial Practices Act for the Agriculture and Food Supply Chain (“UCPAFS”). The ACM had issued the enforcement order following a complaint submitted by LVLC, which alleged that Lactalis had breached the statutory prohibition on unilateral amendments to pricing conditions, specifically relating to the milk price. As a result, Lactalis was ordered to revise its pricing terms.

In its objection, Lactalis maintained that it had not breached the UCPAFS, whereas LVLC claimed that Lactalis had committed additional violations beyond the milk price issue. The ACM found that Lactalis’ method for determining milk prices — whereby dairy farmers were not informed in advance of the price they would receive, how it was calculated, and had no opportunity to negotiate — did indeed constitute a violation of the UCPAFS. However, the ACM dismissed LVLC’s additional complaints and extended the compliance deadline, given the absence of further infringements and the need for Lactalis to consult with dairy farmers to implement a new pricing model.

In April 2025, Lactalis submitted revised supply terms to its milk suppliers — the members of LVLC — which included a new pricing mechanism. The ACM reviewed the updated terms and concluded that the system was sufficiently transparent and based on objective criteria. The ACM found that Lactalis now complies with the requirements of the UCPAFS.

The UCPAFS, which entered into force on 1 November 2021, aims to strengthen the negotiating position of farmers, horticulturalists, and fishers in dealings with larger and more powerful market players. However, ACM research indicates that many buyers and suppliers remain unfamiliar with the Act and its prohibitions, and that such unfair practices are often underreported. For example, many market participants are unaware that they can report late payments, unilateral contractual amendments, or last-minute order cancellations.

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ACM outlines approach into market investigation veterinary practices

Authority for Consumers and Markets, publication of 13 May 2025

Following its earlier announcement of a market investigation into veterinary services for pets, the ACM has now published its methodology and consultation memo. This document sets out the rationale for the investigation, the underlying hypotheses to be tested, and several initial directions for potential recommendations.

According to the ACM, it has received multiple indications that the market for veterinary services may not be functioning optimally. For instance, while the number of pets in the Netherlands has increased in recent years, the sector has simultaneously experienced growing pressure due to workforce shortages. In addition, pet owners have raised concerns about unnecessary treatments or referrals, high costs, lack of price transparency, and limited consumer choice — all of which could point to weakened competition between veterinary practices. The ACM will conduct a sector-wide analysis in 2025 to assess whether these concerns reflect structural market issues. The investigation will focus on three core areas, being (i) consumer decision-making and access to information, (ii) options for consumers in the area, and (iii) the business operations and strategies of providers.

As part of the third pillar, the ACM highlights the growing number of acquisitions by large investors, including private equity firms. These players, according to the ACM, often operate under profit-maximisation models and may integrate services such as pet food and pharmaceuticals across different business units, raising potential concerns about vertical integration and market power.

The ACM also outlines a number of possible regulatory responses, which may include enhanced transparency requirements, including partial price regulation (e.g. price ceilings for emergency care), stricter merger control, and/or measures to increase supply, such as making veterinary education more attractive. The ACM also indicates it may examine adjacent markets, including pet insurance, to explore whether a greater role for pet insurances is possible.

Stakeholders are invited to provide input on the proposed approach. The ACM aims to publish a draft report by the end of 2025.

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CBb: MRN concession must be amended to protect MaaS providers

Trade and Industry Appeals Tribunal, interim judgment of 30 June 2025

In its interim relief judgment of 30 June 2025, the CBb ordered the State Secretary for Public Transport and the Environment to amend aspects of the main rail network concession (“MRN concession”) in favour of providers of ‘Mobility as a Service’ (“MaaS”). MaaS services provide travellers with the possibility to travel door-to-door using a physical card or app (such as a public transport card with a subscription). Railway transport is an important component of such services. Several undertakings are active on the Dutch MaaS market, the largest of which is Nederlandse Spoorwegen (“NS”). NS also holds the MRN concession, which contains the exclusive right to operate the main railway network. NS is therefore not only a transport provider, but also a competitor of other MaaS providers. MaaS providers operate in the margin between the wholesale rates that NS offers them and the retail rates NS offers to, for example, consumers. To facilitate door-to-door travel, the MRN concession includes obligations that NS must comply with, such as the obligation to meet the so-called ‘MaaS-waardige bestekseisen’. The wholesale rate is generally determined based on a reference offer submitted by NS, which is then subject to assessment by the State Secretary. According to the MaaS providers, the MRN concession does not contain sufficiently strict and concrete obligations for NS and the State Secretary regarding the calculation and assessment of this reference offer. This creates a real risk that NS may abuse its dominant position under the MRN concession to distort competition in the MaaS market, thereby violating Article 106(1) TFEU and Article 102 TFEU.

The CBb concurs with the views of the MaaS providers. As the market for public railway transport is closely connected to the MaaS market, the way in which NS exercises its exclusive right under the MRN concession directly affects the extent to which MaaS providers can deliver their services. The fact that NS itself is active on the MaaS market further supports this conclusion. According to the CBb, the obligations in the MRN concession regarding the wholesale rate offered by NS to MaaS providers do not sufficiently mitigate the aforementioned risk.

In this interim judgment, the CBb orders the State Secretary to remedy these shortcomings in the MRN concession in the following ways. Firstly, the MRN concession must specify that the wholesale rate for MaaS providers must be transparent, non-discriminatory, and competitive, in order to ensure a level playing field between NS and other MaaS providers. These conditions will serve as the basis for the later assessment of the reference offer. Moreover, the concession must clearly specify the methodology used to calculate and assess the reference offer. Under the wholesale rate conditions, MaaS providers must be able to match NS’ retail rate in terms of both price and additional features. Finally, it must be ensured that any changes to the ‘MaaS-waardige bestekseisen’ that are disadvantageous to MaaS providers do not automatically carry over into the MRN concession.

The State Secretary must implement these changes no later than 1 September 2025 and must, by 1 October 2025, either approve NS’ reference offer or determine a wholesale tariff himself.

For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist.

Bas Braeken – Jade Versteeg – Lara Elzas – Timo Hieselaar – Demi van den Berg – Joost van Belois

This is the Competition Flashback Q1 2025 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here).

Would you like to receive Competition Flashback by email in the future? You can subscribe to our mailing list here.

Overview Q1 2025

• First application of ‘stringing beads’ theory of harm by ACM; licence granted for acquisition of Vierhouten & De With by Foresco
• ACM publishes guidance for car dealer mergers
• ACM approves KPN/Open Tower Company merger subject to conditions
• Overview highlights merger cases

• Rotterdam Court confirms infringement in egg cartel yet slightly reduces fines

• Google’s refusal to make competing app interoperable with own platform may constitute abuse
• ACM rightly rejected enforcement request concerning .nl internet domain
• Leadiant’s fine for abuse of dominance upheld on appeal and enforcement request against health insurers insufficiently substantiated by ACM
• ACM publishes commitment decision Ticketmaster
• ACM rejects enforcement request L-Mobi against KPN

This is the Competition Flashback Q4 2024 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here). Would you like to receive the Competition Flashback by email in the future? You can subscribe to our mailing list here.

For a preview of 2025, we would like to refer you to our Flash Forward 2025.

Overview Q4 2024

Merger control

• Prohibition joint venture Thyssenkrupp and Tata Steel upheld by CJEU

• Microsoft informs European Commission of ‘acqui-hire’ Inflection AI under DMA

• Appeal against approval of Vodafone’s takeover of Liberty Global dismissed

• Application Vifo Act extended to new sectors

• Overview highlights merger cases

Cartel damages

• Heineken jointly liable for abuse subsidiary based on concept of undertaking

• Amsterdam court clarifies damages calculation for air cargo cartel claims

Cartels & vertical restraints

• FIFA transfer rules in violation of free movement and competition rules

• Final ruling CBb in cold-storage cartel

• General Court confirms revised €12.1 million fine Pharol and Telefónica for market sharing

• Commission fines Czech and Austrian railway companies for collective boycott

• CJEU clarifies role of counterfactual in determining restriction of competition by effect

• Fashion house Pierre Cardin and licensee Ahler fined for restricting cross-border sales

• General Court dismisses appeal banks in bond cartel

• Commission allowed to take over cartel investigation into metal packaging sector from Bka

• General Court confirms € 31.7 million fine HSBC for participating in euro interest rate derivatives cartel

Abuse of a dominant position

• Final annulment of Intel fine for abusive exclusivity rebates

• € 800 million fine Meta for tying Facebook Marketplace and unfair trading conditions

Regulated markets & consumer law

• ‘Place order’ button insufficiently clear about consumer payment obligation

• Enforcement Revised Payment Services Directive

• ZuivelNL pledges to provide more insight into spending on contributions dairy farmers

Prohibition joint venture Thyssenkrupp and Tata Steel upheld by CJEU

Court of Justice of the European Union, judgment of 4 October 2024

On 4 October 2024, the Court of Justice of the European Union (“CJEU”) dismissed Thyssenkrupp’s appeal against the European Commission’s (“Commission”) decision prohibiting its proposed joint venture (“JV”) with Tata Steel. Thyssenkrupp and Tata Steel, both active in the production of steel products, had notified the Commission of their plans for the JV on 25 September 2018. The Commission blocked the proposed JV on the grounds that it would significantly impede effective competition. In particular, the JV threatened to restrict choice for business customers and increase prices of steel products for the automotive and packaging industries.

The General Court of the European Union (“General Court”) dismissed Thyssenkrupp’s appeal against this decision fully. Thyssenkrupp based its case on an earlier judgment of the General Court in the CK Hutchison case, which seemed to impose stricter requirements on the Commission for establishing a significant impediment to effective competition (the SIEC-criterion).

However, after Thyssenkrupp lodged its appeal, the CJEU delivered its judgement in the CK Hutchison case on appeal and reversed the stricter requirements imposed by the General Court. As a result, Thyssenkrupp’s argument – that the General Court had failed to adhere to the previously established stricter requirements – was undermined. The CJEU dismissed Thyssenkrupp’s appeal, leaving the Commission’s decision to block the joint venture firmly in place. What initially seemed like an opportunity to leverage a legal precedent turned out to be a misguided strategy, as the stricter standard had in the meantime already been rejected by the CJEU.

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Microsoft informs European Commission of ‘acqui-hire’ Inflection AI under DMA

European Commission, publication of 17 October 2024

On 17 October 2024, tech giant and gatekeeper Microsoft informed the Commission of its hiring of a significant part of the staff of Inflection AI, a US-based technology company specialising in machine learning and generative artificial intelligence. Under the Digital Markets Act (“DMA”), gatekeepers like Microsoft are required to inform the Commission about all mergers related to core platform services, other digital services or those enabling data collection to the Commission.

Microsoft’s notification stands out for two reasons. First, Microsoft believes that the transaction does not constitute as a ‘concentration’ under European competition law, as it involves only the acquisition of key personnel and a non-exclusive licensing agreement – commonly referred to as an ‘acqui-hire’. Despite this position, Microsoft opted to inform the Commission. Second, this acquisition had previously been referred to the Commission by several Member States under Article 22 of the Merger Regulation (“EUMR”). However, following the Illumina/GRAIL judgment of the CJEU (see our Competition Flashback (“CF”) Q3 2024), these referral requests were withdrawn.

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Appeal against approval of Vodafone’s takeover of Liberty Global dismissed

General Court of the European Union, judgment of 13 November 2024

On 13 November 2024, the General Court dismissed the appeals of Deutsche Telekom, Tele Columbus and NetCologne – three German telecom companies – against the Commission’s approval of Vodafone’s acquisition of certain Liberty Global activities in Germany, the Czech Republic, Hungary and Romania. The appellants argued that the Commission had made manifest errors in assessing the transaction’s impact on competition, particularly with regards to the German markets for the retail supply of TV signal transmission services, especially in view of Vodafone’s dominant position in those markets.

The General Court upheld the Commission’s decision, finding that the merging parties were neither actual (direct or indirect) nor potential competitors in the relevant markets before the transaction.  Consequently, the transaction did not weaken the competitive constraint exerted by their competitors. The Court stated that the mere fact that a concentration creates or strengthens a dominant position is not in itself sufficient to show that it is incompatible with the internal market. Although Vodafone was indeed dominant on the relevant markets, the Commission could rightly find that the acquisition did not result in a direct and significant impediment to effective competition.

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Application Vifo Act extended to new sectors

Ministry of Economic Affairs and Ministry of Justice and Security, consultation document of 19 December 2024

Since mid-December 2024, a legislative proposal is pending to expand the scope of the Dutch Wet veiligheidstoets investeringen, fusies en overnames (“Vifo Act”) to include new sectors and technologies. The Vifo Act, which came into force on 1 June 2023, enables the government to assess investments and acquisitions involving vital providers and providers of sensitive technologies for potential risks to national security (see also our first and second Competition Newsflash on the Vifo Act). The proposal concerns an amendment to the Besluit toepassingsbereik sensitieve technologie, which regulates which sensitive technologies fall within the scope of the Vifo Act. The minister proposes to add biotechnology, artificial intelligence, advanced materials and nanotechnology, sensor and navigation technology, and nuclear technology with medical applications to this list. The public internet consultation on the proposal will take place from 19 December 2024 to 31 January 2025.

A legislative amendment is also pending at EU level, specifically regarding the European investment screening mechanism – the Regulation establishing a framework for the screening of foreign direct investment into the Union (“FDI Regulation”). Among other things, this proposal aims to harmonise national rules and ensure all Member States implement effective screening mechanisms. Key elements of the amendment include:

1. Requiring Member States to adopt screening mechanisms that meet specific (procedural) standards.
2. Introducing a minimum sectoral scope to ensure key industries are covered in all Member States.
3. Extending the FDI Regulation to cover investments by investors based in EU ultimately controlled by individuals or entities outside the EU.

This proposal is currently under consideration by the European Parliament and national parliaments.

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Overview highlights merger cases

Heineken jointly liable for abuse subsidiary based on concept of undertaking

Amsterdam District Court, judgment of 23 October 2024

Pending the preliminary questions on the issue of jurisdiction, the Amsterdam District Court has handed down an interlocutory judgment on the merits regarding Heineken’s liability as the (grand)parent company of AB, which was fined by the Greek competition authority for abuse of dominance. The proceedings examine whether Heineken is jointly liable for the damage suffered by MTB as a result of AB’s infringement (see also CF Q1 2024, Q2 2023 and Q3 2022). The court answers this question in the affirmative on the basis of the concept of undertaking and in particular – as it concerns upward liability – on the basis of the ‘Akzo-presumption’ as was also elaborated by AG Kokott in her opinion in the preliminary reference proceedings.

First, the court clarifies that it is unnecessary to await the outcome of the preliminary proceedings on jurisdiction concerning Greek AB, as this issue only pertains to jurisdiction over the claim against AB. The court confirmed its jurisdiction over claims against Heineken, noting that Heineken is part of the same corporate group addressed in the infringement decision. It clarified that the Greek authority’s decision not to investigate Heineken’s role further does not preclude its liability.

Because Heineken (indirectly) owns almost all the shares in AB, the court finds that the Akzo presumption applies. The fact that it should be applied in a civil context in the same way as in a public law context is even an acte éclairé, according to the court. Heineken’s defence in which it claims not to have exercised decisive influence over AB’s abusive conduct is deemed irrelevant by the court. To rebut the presumption, Heineken needed to show it lacked decisive influence over AB in general, which it failed to do. The court highlighted factors such as Heineken’s ability to influence strategic decisions, the hierarchical reporting structure, and overlapping directors as evidence of its decisive influence. Consequently, Heineken was found jointly and severally liable for damages stemming from AB’s infringement. In the next step, Heineken (and AB if the court is found to have jurisdiction) must submit statements on the alleged damages.

Although upward liability is widely accepted in the public law sense, this judgment represents an important milestone for (Dutch civil) cartel damages law. It holds an unaddressed entity within a corporate group liable for damages arising from conduct committed by another group entity.

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Amsterdam court clarifies damages calculation for air cargo cartel claims

Amsterdam District Court, judgment of 6 November 2024

In its interlocutory judgment of 6 November 2024, the Amsterdam District Court set out how to calculate the damages suffered by victims of the air cargo cartel. The court instructed economists hired by the parties to issue a Joint Expert Statement, outlining their points of agreement and disagreement. The claim foundations representing the victims, SCC and Equilib, proposed a ‘one-step’ model. This approach calculates damages directly using transaction data from shippers (the victims represented by SCC and Equilib). The airlines, on the other hand, proposed a ‘two-step’ model, first determining whether the airlines charged an overcharge to their customers, the freight forwarders, and then whether and to what extent these freight forwarders passed on any overcharge. The court stressed that both models are accepted in the Commission’s practical guide on quantifying harm.

The court concluded that the one-step model delivers sufficiently reliable results, while the airlines failed to convincingly demonstrate that the two-step model would produce more accurate or reliable outcomes. Damages will be calculated solely using transaction data from shippers. The analysis will focus on the total price paid by shippers, rather than only the surcharges, as the airlines had proposed. This decision streamlines the process of calculating damages in cartel claims, favouring simpler and more direct methods when they meet reliability standards. The ruling provides clarity for future cases and reinforces the practicality of the one-step model in similar claims.

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FIFA transfer rules in violation of free movement and competition rules

Court of Justice of the European Union, judgment of 4 October 2024

The CJEU has issued another significant ruling on the intersection of sports and competition law, following its previous rulings on the International Skating Union and the European Super League. This latest case arose from a dispute initiated by footballer Lassana Diarra, who challenged various rules applied by FIFA regarding the international transfer system. Diarra complained that under FIFA rules, if a player terminates his employment contract without ‘just cause’ before the normal term, the new club is jointly and severally liable for any compensation due to the former club. Additionally, the new club may be prevented from registering new players in certain cases, and FIFA requires national associations to refuse to issue an International Transfer Certificate as long as the player and the former club are in dispute over the termination of the contract.

The CJEU ruled that these three rules are incompatible with EU law. First, these rules impede the free movement of workers (Article 45 TFEU), as they prevent professional football players from working for a new club in another Member State. The Court reasoned that the restrictions went beyond what is necessary to ensure the regularity of interclub football competitions or to maintain stability in the player rosters. Moreover, the CJEU finds that these rules violate the cartel prohibition laid down in Article 101(1) TFEU. The CJEU emphasises that the ability of football clubs to recruit professional players is an important parameter of competition. Restricting that possibility is similar to a non-compete or non-poach clause that has as its object the restriction of competition between clubs. Ultimately, the CJEU held that, subject to the final judgment of the Mons Court of Appeal (Belgium), these rules did also not appear to be necessary or indispensable for FIFA to achieve certain legitimate objectives.

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Final ruling CBb in cold-storage cartel

Trade and Industry Appeals Tribunal, judgment of 5 November 2024

On 5 November 2024, the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven, “CBb”) has delivered its final ruling on Samskip’s appeal against the € 901,000 fine imposed on the company for its involvement in the cold-storage cartel. The case, which dates back to 2015, saw the Dutch competition authority (Autoriteit Consument & Markt, “ACM”) fine several companies (including Samskip, Eimskip, Van Bon (now: H&S Coldstores) and Kloosterboer) for coordinating tariffs and/or exchanging competitively sensitive information related to fish storage in cold stores. The fining decision for Kloosterboer IJmuiden B.V. (“KBIJ”, a wholly-owned subsidiary of Samskip throughout the infringement) and Daalimpex Logistics B.V. (a wholly-owned subsidiary of Eimskip throughout much of the infringement) was annulled by the Rotterdam District Court in 2018. However, with the CBb’s ruling in 2020, this judgment was overturned, the ACM’s decision ‘revived’ and the case was referred back to the Rotterdam District Court.

In the present judgment, the CBb addresses Samskip’s grounds of appeal with regard to the attribution of the infringement and the calculation of the fine. Samskip mostly argued, both in relation to the rebuttal of the Akzo presumption and relating to various principles of good governance, that it was not Samskip, but the Kloosterboer group (from whom it had acquired KBIJ), that was responsible for determining KBIJ’s commercial policy during the relevant period. According to Samskip, the fine cannot therefore be attributed to it, or at least the ACM wrongly failed to take into account the links between KBIJ’s director and the Kloosterboer group when calculating the fine.

The CBb dismissed all Samskip’s material grounds of appeal, affirming the ACM’s conclusion that Samskip exercised decisive influence over KBIJ and was aware of the anti-competitive agreements entered into by KBIJ and failed to take any corrective action. It also rejects Samskip’s arguments regarding the scope of the ACM’s investigation, access to the case file and the proportionality of the fine, including the severity factor applied by the ACM and the mitigating circumstances that were recognised for other parties.

Nevertheless, the CBb does agree with Samskip’s argument that the case’s handling time – nine years and eight months – exceeds the reasonable time limit. As a result, the CBb reduced Samskip’s fine by € 45.000, accounting for nine six-month delays at € 5.000 each. This final ruling concludes the cold storage cartel case after nearly a decade, marking the end of a protracted legal saga.

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General Court confirms revised €12.1 million fine Pharol and Telefónica for market sharing

General Court of the European Union, judgment of 2 October 2024

On 2 October 2024, the General Court upheld the revised fine of € 12.1 million that the Commission imposed on Pharol (formerly Portugal Telecom) and Spanish company Telefónica in 2022 for engaging in a market-sharing agreement. The ruling stems from an earlier 2013 Commission fining decision, by which the two telecom companies were jointly fined € 79 million. That fine was based on a non-compete agreement between Pharol and Telefónica, which the Commission deemed an illegal market-sharing arrangement entered into during a merger between the companies. Although the 2013 decision was upheld on appeal, the General Court ordered the Commission to reassess the turnover figures and adjust the fines accordingly.

In its revised 2022 decision, the Commission reduced the fine on Pharol from € 12.3 million to € 12.1 million after correcting the turnover figures. In that decision, the Commission furthermore referred to “preparatory steps” the telecoms companies could take to enter each other’s markets, a point that was not explicitly mentioned in the original 2013 decision. According to Pharol, the Commission should therefore have adopted a supplementary Statement of Objections to allow the company to formally respond. Instead, Pharol was provided (only) with an accompanying letter of facts.

The General Court rejected this argument, stating that a supplementary Statement of Objections is only required when there are new charges or when there is substantially altered evidence, such as newly formulated grievances. In contrast, a letter of facts is sufficient when existing objections are corroborated by new evidence, as is the case here. The General Court underlines that merely the turnover values were recalculated and that the parties had the opportunity to comment on any new evidence mentioned in the letter of facts. This did not change the core nature of the original decision. With this judgment, the Court dismissed Pharol’s appeal and confirmed the revised fine of € 12.1 million.

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Commission fines Czech and Austrian railway companies for collective boycott

European Commission, publication of 23 October 2024

On 23 October 2024, the Commission announced that it had imposed fines totalling € 48.7 million on the Czech and Austrian railway companies České dráhy (“CD”) and Österreichische Bundesbahnen (“OBB”) respectively, for violating the cartel prohibition laid down in Article 101 TFEU. The Commission found that, between 2012 and 2016, the two companies jointly obstructed competitor Regiojet from entering and expanding in the Czech rail market and on the international route between Prague and Vienna. Specifically, CD and OBB coordinated (or: falsified) the sales procedures of OBB’s used train wagons to prevent Regiojet from acquiring them, thereby hindering its ability to compete with the two incumbents. Additionally, CD and OBB exchanged confidential information regarding the bids of other interested parties.

As part of the leniency program, OBB received a 45% reduction in its fine, which ultimately amounted to € 16.7 million. CD, however, did not cooperate with the investigation and was fined nearly € 32 million. The Commission had previously investigated CD for potential predatory pricing but closed this investigation in September 2022. Read more about the recent developments regarding the Dutch rail network in our blog.

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CJEU clarifies role of counterfactual in determining restriction of competition by effect

Court of Justice of the European Union, judgment of 5 December 2024

In response to preliminary questions from a Latvian court, on 5 December 2024, the CJEU once again clarified the difference between the analysis for a by object and by effect restriction under Article 101 TFEU, and the role of the counterfactual analysis in that regard.

In 2014, the Latvian competition authority fined the only authorised importer of KIA cars in Latvia for entering into anti-competitive agreements with dealers and authorised repairers. In particular, these agreements involved imposing certain warranty conditions on car owners. These conditions obliged them, during the warranty period, to have (i) any periodic maintenance and (ii) repairs not covered by the warranty carried out exclusively by these parties, always using KIA spare parts in order for the warranty to remain valid. This, according to the authority, had the effect of hindering the access of independent repairers and spare parts manufacturers to the Latvian market. At the same time, the Latvian authority stated that the negative effects on competition resulted from the nature of the restrictive clauses so that it was not necessary to demonstrate the actual effects. After a successful cassation appeal and a referral back to the first instance court, the Latvian court questioned this approach, prompting the CJEU’s clarification.

The CJEU reiterated that only when the conduct in question cannot be presumed to have an anti-competitive object is it necessary to examine whether it actually or potentially has the effect of restricting competition. To do so, it is necessary to examine competition within the factual framework in which it would occur in the absence of the agreement (the counterfactual). This scenario must be realistic and credible, but the Court stressed that potential effects can be considered, as long as they are appreciable. It is up to the national court to assess whether the authority has examined this correctly.

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Fashion house Pierre Cardin and licensee Ahler fined for restricting cross-border sales

European Commission, press release dated 28 November 2024

The Commission has fined fashion house Pierre Cardin and its largest licensee, Ahler, for a total of € 5.7 million for restricting cross-border sales of clothing bearing the Pierre Cardin brand. Based on its investigation, the Commission concluded that, between 2008 and 2021, the two companies had entered into agreements in breach of Article 101 TFEU. These agreements were aimed at restricting sales of Pierre Cardin clothing by other Pierre Cardin licensees, both offline and online, outside their assigned licensing territories and/or to discount retailers. The ultimate aim of these agreements was to provide Ahler with complete territorial protection in the countries covered by its licence agreement. This prevented retailers from freely sourcing products in Member States with lower prices and thus artificially dividing the internal market. Remarkable is that apart from the supplier (licensor Pierre Cardin), the buyer (licensee Ahler) also received a heavy fine.

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General Court dismisses appeal banks in bond cartel

General Court of the European Union, judgment of 6 November 2024

In its judgment of 6 November 2024, the General Court upheld the fines imposed on Crédit Agricole and Credit Suisse (now part of UBS), among others, for their participation in a cartel relating to the secondary market for US dollar-denominated supra-sovereign and sovereign bonds as well as bonds issued by government agencies. The two banks were fined a total of almost € 16 million. Deutsche Bank reported the cartel to the Commission and thus escaped a fine.

The banks argued on appeal that the Commission misunderstood the role of banks as ‘market makers’, claiming that exchanging information was necessary to cover certain trading risks. The General Court dismissed Credit Suisse’s appeal in its entirety. Crédit Agricole’s appeal was largely dismissed, but the General Court did annul the fine decision insofar as it concerned the duration of the infringement. According to the General Court, Crédit Agricole’s participation did not start on 10 January 2013, but one day later – on 11 January 2013. Nevertheless, the General Court upheld the amount of the fine.

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Commission allowed to take over cartel investigation into metal packaging sector from Bka

General Court of the European Union, judgment of 2 October 2024

On 2 October 2024, the General Court ruled that the Commission had jurisdiction to take over the investigation into cartel behaviour in the German metal packaging sector from the German competition authority (the ‘Bundeskartellamt’, “Bka”). The investigation, which started in 2015, involved several companies active in this sector, including Crown Holdings and Crown Cork & Seal Deutschland (collectively “Crown”). In 2018, the Bka requested the Commission to take over the investigation, a request that the Commission granted. Shortly thereafter, Crown submitted a leniency application, after which the Commission adopted the contested (settlement) decision in July 2022, imposing a fine of over € 7.6 million. Crown appealed this decision, arguing that the Commission did not have jurisdiction to take over the investigation in the first place, because the transfer was not made within the prescribed two-month period.

The General Court notes that the ‘Cooperation Notice’ (Commission Notice on cooperation within the Network of Competition Authorities), which outlines procedures for case referrals, merely prescribes that problems with a case referral are ‘usually’ resolved within two months. According to the Court, however, it is clear that this wording does not provide ‘precise certainty’ that these two months cannot be exceeded. Moreover, the principle of subsidiarity, which allows the Commission to act only when EU Member States cannot do so sufficiently themselves, had not been violated. The Court emphasises that the Commission acted at the express request of the Bka. This therefore does not infringe the rights of the Member States, the Court said.

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General Court confirms € 31.7 million fine HSBC for participating in euro interest rate derivatives cartel

General Court of the European Union, judgment of 27 November 2024

On 27 November 2024, the General Court upheld the € 31.7 million fine imposed by the Commission on HSBC for its participation in a cartel in the euro interest rate derivatives sector, together with Crédit Agricole and JPMorgan Chase. This ruling follows an earlier fine decision by the Commission of 7 December 2016 where HSBC had been fined € 33.6 million for participating in the cartel. However, the General Court annulled that fine in September 2019 due to insufficient reasoning by the Commission.

Following the annulment, both HSBC and the Commission lodged an appeal. However, the Commission adopted a new fining decision in June 2021 to remedy the situation following the annulment of the previous decision. In this new decision, the amount of the fine was adjusted to € 31.7 million. The Commission subsequently withdrew its appeal against the 2019 General Court judgment. On 12 January 2023, the CJEU rejected HSBC’s appeal against the original decision, but upheld the General Court’s judgment insofar as it concerned the annulment of the € 33 million fine. The new 2021 fining decision provided precisely for that annulment to be remedied.

The General Court’s November 2024 judgment refers to the last decision of June 2021. The General Court again rejected HSBC’s grounds of appeal against this decision. HSBC argued that the Commission had not imposed the (new) 2021 fine in time. However, the General Court held that the appeal to the CJEU lodged by the Commission had suspensory effect. The fact that the Commission took a new decision to comply with the 2019 General Court judgment does not mean that the Commission’s interest in its appeal lapsed. The fact that the Commission subsequently withdrew its appeal does not alter this, according to the General Court.

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Final annulment of Intel fine for abusive exclusivity rebates

Court of Justice of the European Union, judgment of 24 October 2024

On 24 October, the CJEU rejected the Commission’s appeal against the annulment of the € 1.06 billion fine it imposed on Intel. This puts a definitive end to the so-called Intel saga as regards the imposition of exclusivity discounts, after more than 20 years.

In the original 2009 fining decision, the Commission found that Intel abused its dominant position in the global market for microprocessors with an x86-architecture. Intel was accused of (i) offering exclusivity discounts to major computer manufacturers including Dell, HP, Lenovo, Acer, and IBM, and (ii) making payments to HP, Acer and Lenovo to delay or cancel the launch of products with processors manufactured by Intel’s competitor Advanced Micro Devices (“AMD”) (so-called ‘naked restrictions’).

The General Court upheld the fining decision in 2014. However, in 2017, the CJEU annulled the fine and referred the case back to the General Court. The General Court confirmed the annulment, against which the Commission appealed. Afterward, the Commission imposed a new fine of € 376 million in September 2023 for the ‘naked restrictions’ (see also CF Q3 2023). With this ruling, the CJEU now definitively rules that the Commission did not sufficiently prove that the exclusivity rebates applied by Intel could have anti-competitive effects and foreclosed competitor AMD.

The CJEU stresses several times in its judgment that it is for the Commission to prove that the exclusivity discounts could at least have had exclusionary effects, having regard to all the relevant factual circumstances. In doing so, the General Court is not required, despite any errors made by the Commission, to actively examine whether, on the basis of another reasoning, an infringement could possibly still be established when such reasoning as such is not part of the decision. All of the Commission’s grounds of appeal relating to the application of the ‘as efficient competitor’ test, standards of proof and infringement of defence rights are dismissed. Thereby, the fine imposed for applying exclusivity discounts is definitively off the table.

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€ 800 million fine Meta for tying Facebook Marketplace and unfair trading conditions

European Commission, press release dated 14 November 2024

The Commission has imposed a fine of € 797 million on Meta, the parent company of Facebook, for tying Facebook Marketplace to the online social networking service Facebook, and for unilaterally imposing unfair trading conditions on other online advertising service providers that advertise on Meta’s platforms. In doing so, Meta abused its dominant position (Article 102 TFEU) in the European market for social networking services and national markets for online advertising on social networking services, according to the Commission.

By tying its online advertising service Facebook Marketplace to Facebook, all Facebook users automatically have access to and interact with Facebook Marketplace, regardless of whether they want to. The Commission concludes that this may exclude competitors of Facebook Marketplace from the market, as the tying gives Facebook Marketplace a significant distribution advantage. The Commission also concludes that Meta has unilaterally imposed unfair trading conditions on other online advertising service providers that advertise on Meta’s platforms, particularly in relation to Facebook and Instagram. This allows Meta to use data generated by other advertisers exclusively for the benefit of Facebook Marketplace.

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‘Place order’ button insufficiently clear about consumer payment obligation

Supreme Court of the Netherlands, judgments of 4 October 2024

In October 2024, the Dutch Supreme Court (Hoge Raad, “HR”) issued two significant rulings on the legal consequences of unclear texts on order buttons in online transactions. Consumer protection law requires the text on an order button to make clear that the consumer is entering into an obligation to pay (see Article 6:230v (3) of the Civil Code).

In the first case, a consumer had ordered a number of items on the Dutch webshop bol.com. The district court sought clarification from the HR regarding whether the button text ‘place order’ met the legal requirements regarding an order button. In light of the wording of the provision and the legislative history, the HR held that a distinction must be made between the act of ‘placing an order’ on the one hand and ‘entering into an obligation to pay’ on the other. Texts such as ‘place order’ or ‘order’ do not make it sufficiently clear that a consumer enters into an obligation to pay when clicking the button. As a result, the HR ruled that if the text on the order button is inadequate, the consumer can annul the contract. As the consumer had not appeared before the court in the case at hand, the district court had to partially annul the contract, meaning that the consumer gets to keep the product but does not have to pay the full price.

The second case involved a consumer who had registered online for a course by clicking on a button with the text ‘register now’. According to the court, the text did not meet the legal requirements regarding the order button (Article 6:230v (3) of the Civil Code). Here, another question was submitted to the HR: despite the fact that the contract must be annulled on the grounds of violation of the order button provision and the transaction must be reversed, can a trader claim compensation for services rendered? The HR ruled that in cases of delivered performance, such as education, the trader can claim reasonable compensation for the value of the delivered performance if the contract is annulled.

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Enforcement Revised Payment Services Directive

Authority for Consumers & Markets, press release dated 11 October 2024

On 11 October 2024, the ACM took action against Rabobank for failing to comply with the Payment Service Directive II (“PSD2”, or the Revised Payment Services Directive). This legislation, which came into force in the Netherlands on 19 February 2019, was designed to enable payment institutions to access bank infrastructure, allowing them to offer payment services to both consumers and businesses. Specifically, under the PSD2, payment institutions are entitled to open business payment account and payment service providers are entitled to access payment systems. The ACM, as the designated supervisory authority, is responsible for enforcing the directive.

In 2022, the ACM requested that the legislature address a gap in the law, as it found that it could not effectively supervise Dutch banks that refused to offer payment accounts to payment institutions from other EU Member States. Since then, the ACM has enforced (publicly) only once against a bank that did not comply with the directive. Following the ACM’s intervention, Rabobank pledged not to impose barriers in the future when payment institutions want to open a bank account with Rabobank. Rabobank put such access applications ‘on hold’ or imposed unnecessary financial requirements (such as high turnover thresholds).

Although enforcement of the PSD2 has been limited in recent years, competition authorities have put the enforcement of a level playing field high on their agendas. For instance, the ACM championed a level playing field between Big Tech and other market participants and stressed the importance of access to NFC technology for the development of payment apps. Since March 2024, the DMA requires gatekeepers to give third parties access to hardware and software features, including NFC technology on mobile devices. Moreover, it enforced commitments from Apple in this area last summer.

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ZuivelNL pledges to provide more insight into spending on contributions dairy farmers

Authority for Consumers & Markets, decision of 17 October 2024

On 17 October 2024, the ACM declared binding commitments made by ZuivelNL – the chain organisation of the dairy sector in the Netherlands – on the spending of contributions paid to it by dairy farmers. ZuivelNL collects contributions to carry out, among other things, research, animal welfare and sustainability, food safety, education, export and market information. Dairy farmers do not pay this contribution directly to ZuivelNL; instead, they pay a contribution to the milk processors, such as FrieslandCampina or Royal Lactalis Leerdammer, who purchase their milk. The milk processors then pay contribution to ZuivelNL. On 5 July 2022, the ACM received an enforcement request from a supplier association of dairy farmers, accusing ZuivelNL of using the received contribution for activities not related to the sale of milk. This allegedly violated the Unfair Trade Practices in Agriculture and Food Supply Chain Act (“Wet OHP”). Indeed, Article 2(1)(d) of that act prohibits a buyer from requiring the supplier to make payments unrelated to the sale of the supplier’s agricultural and food products.

The concern among dairy farmers was that they lacked transparency regarding how their contributions were being spent, leading to confusion about whether the funds were being used for activities tied to milk sales. To address this, ZuivelNL committed to making the link between the contributions and milk sales-related activities more visible in its budgets and annual accounts. The organisation also pledged to publicly disclose this information and have its annual accounts audited by an independent accountant. Furthermore, ZuivelNL agreed to review and adjust the contribution levels every three years. The ACM considered these commitments to be effective in ensuring that dairy farmers are only required to pay dues that are relevant to the milk supply chain. As a result, the ACM declared the commitments binding.

The Wet OHP, which came into force on 1 November 2021, aims to strengthen the bargaining power of farmers, growers and fishermen against larger and concentrated market players. Research by the ACM shows that many buyers and suppliers are not yet fully aware of the new law. This lack of awareness is a significant issue, as many parties are not yet reporting violations.

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For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist.

Bas Braeken – Jade Versteeg – Lara Elzas – Timo Hieselaar – Demi van den Berg – Joost van Belois

This is the Competition Flashback Q3 2024 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here).

Would you like to receive Competition Flashback by email in the future? You can subscribe to our mailing list here.

Overview Q3 2024

Merger control

• Overview highlights merger cases
• Greater legal certainty in M&A transactions: Court of Justice strikes down Article 22 referrals in Illumina v Grail

Regulating digital markets (DMA)

• General Court dismisses ByteDance’s appeal against Commission decision to designate TikTok as gatekeeper under DMA
• Apple’s ecosystem under fire: third-party access to contactless payments on iPhone devices

Cartels and vertical restraints

• CJEU clarifies framework object restrictions in case of information exchanges
• Price parity clauses Booking.com violate EU competition law

Abuse of a dominant position

• CJEU confirms abuse of Google by favouring its own product comparison service
• General Court confirms Qualcomm’s predatory pricing strategy of UMTS chipsets for Huawei and ZTE
• General Court overturns Google AdSense decision due to inadequate investigation Commission
• Gazprom commitments upheld on appeal

Damages claims for competition law infringements

• Concept of undertaking cannot be used for service of summons on subsidiary entities that are not sued
• Concept of undertaking cannot be used on victim’s side in jurisdiction assessment based on Erfolgsort
• Amsterdam court assumes jurisdiction over US pharmaceutical AbbVie due to existence of economic unity with Dutch anchor defendant

Aviation

• Supreme Court overrules Amsterdam Court of Appeal and Minister I&W; flight reduction at Schiphol should first go past Brussels

State aid and FSR

• Commission approves six Dutch aid measures for innovation, pharma and energy transition of several billion euros
• Nuctech may not hide behind Chinese servers in Commission dawnraid
• CJEU upholds Commission decision and orders Ireland to recover € 13 billion from Apple

Consumer law

• Tied up cash? ACM investigates Dutch savings market
• Volkswagen guilty of misleading business practices in diesel scandal
• CJEU shines light on conditions for price indications of products
• Rotterdam Court suspends orders subject to penalty payments for travel agents

Overview highlights merger cases

The Commission announced on 24 September 2024 its conditional approval of e&’s acquisition of PFF Telecom under the Foreign Subsidies Regulation (“FSR”).  This is the first time a merger notification under the FSR has been approved after an in-depth investigation by the Commission. In June 2024, the Commission launched its investigation into this acquisition due to indications that e& (based in the United Arab Emirates) had received foreign subsidies distorting the internal market (see also our CF Q2 2024). The Commission found that e& had indeed received foreign subsidies in the form of an unlimited guarantee, loans, grants and other debt instruments. While these subsidies did not lead to reduced competition in the acquisition, as e& itself had the funds to do so and there were no other bidders, the subsidies could lead to a distortion of competition in the market after the acquisition. The subsidies could potentially artificially strengthen the position of e& and PPF Telecom in the telecoms market relative to their competitors. e& has offered to waive the unlimited guarantee and not to use e&’s funding for PPF’s EU operations, despite PPF Telecom not being active in the whole of the EU. Moreover, e& has agreed to notify future acquisitions not falling under the FSR notification obligation to the Commission.

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Greater legal certainty in M&A transactions: Court of Justice strikes down Article 22 referrals in Illumina v Grail

This is the Competition Flashback Q2 2024 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here).

Would you like to receive Competition Flashback by email in the future? You can subscribe to our mailing list here.

Overview Q2 2024

Merger control, FSR and FDI

Overview highlights merger cases

Cooper/Viatris

On 26 June 2024, the European Commission (“Commission”) has conditionally approved the acquisition by Cooper of Viatris’ over-the-counter medicine business. These are medicines that can for example be bought at pharmacies and drugstores without a prescription. The Commission concluded that the acquisition would reduce competition in the markets for laxative enemas for infants in Portugal and earwax removal products in Germany. To address these concerns, the parties proposed to divest Cooper’s rights, title and interests in its laxative medicine Bebegel in Portugal. In addition, Cooper is divesting its rights, title and interests in its earwax removal product Otowaxol in Germany. Subject to these commitments, the Commission concluded that the transaction would no longer raise competition concerns.

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ACM intensifies merger supervision: three new in-depth investigations in three weeks

Authority for Consumers and Markets, decisions of 29 April, 8 May and 16 May 2024

In the second quarter of 2024, the Dutch competition authority (Autoriteit Consument & Markt, “ACM”) decided to open in-depth investigations in three different mergers. On 29 April 2024, the ACM decided that further investigation is needed into Foresco’s takeover of pallet suppliers Vierhouten Pallets and De With Pallets.* The ACM is concerned that the acquisition may have adverse effects on buyers of new wooden pallets in the Netherlands, as it further strengthens Foresco’s position on the market. According to the ACM, the acquisition of Vierhouten and De With Pallets is part of a bigger strategy on the part of Foresco to remove competitors from the market through small(er) acquisitions that the ACM is not able to review given that they often fall below the turnover thresholds. This is the first time that the ACM is investigating the theory of harm involving so-called ‘roll up acquisitions’. In an earlier blog, board chairman Martijn Snoep already pointed out the potential competition problems arising from small acquisitions like ‘stringing together beads’.

Less than a week and a half later, on 8 May 2024, the ACM decided that a licence is required for the acquisition of Klaas de Boer by FincoEnergies. Both parties operate as suppliers of bunker marine fuels (especially gasoil) and lubricants to business end-users. Based on its initial investigation, the ACM sees indications of the existence of separate markets for the supply of gas oil to ‘port-bound buyers’ such as fishermen, marine towing services, passenger/ferry services and off-shore activities. The ACM comes to the preliminary conclusion that the parties have a high combined market share in the ports of Harlingen, Lauwersoog, Eemshaven-Delfzijl, Amsterdam-IJmuiden and Den Helder (in Lauwersoog even rising up to 90-100%) and that customers in these ports have no or few fall-back possibilities. In the licensing phase, the ACM will further investigate the need to differentiate by customer type, and whether there are possible substitutes for customers and possible buying organisations, for example by diverting to other ports or delivery by trucks instead of bunker boats.

Finally, the ACM decided on 16 May 2024 to not yet approve DPG’s takeover of RTL. Earlier, the ACM already prohibited the acquisition of Talpa by RTL because it would lead to higher prices for television ads and the distribution of television channels through telecom companies, to the detriment of consumers. With the acquisition of RTL by DPG, the ACM again fears the creation of an overly powerful company in the Dutch media landscape. More specifically, the ACM foresees a possible reduction of the quantity, quality, and pluralism of the general-news landscape for consumers. It also foresees possible negative consequences for advertisers, journalists and specifically for news agency ANP and the media companies that purchase from it. The ACM will investigate this further in a possible licensing phase.

* bureau Brandeis is involved in the second-phase investigation of this proposed acquisition.

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Rotterdam court suspends order to notify 2021 transaction to the BTI under Vifo Act

Rotterdam District Court, judgment of 25 April 2024

On 25 April 2024 the Rotterdam District Court suspended the decision of the Minister of Economic Affairs and Climate (“Minister”) based on which Anteryon was required to file a notification with the Investment Screening Bureau (“BTI”) under the Act on security screening of investments, mergers and acquisitions (“Vifo Act”) with retrospective effect.

In 2019, Chinese Jingfang  Optoelectronics (“Jingfang”) acquired 70% of the shares in Eindhoven-based Anteryon, a company specialising in (micro)optical components for semiconductors. Despite its minority stake (33%), China Wafer already held all voting rights in Jingfang at that time. In 2021, China Wafer acquired the remaining 66% in Jingfang. By decision of 15 June 2023, the Minister ordered Anteryon to file a notification with the BTI under Article 58 Vifo Act. According to that provision, an acquisition activity that took place between 8 September 2020 and 1 June 2023 must still be notified at the Minister’s request if there is a reasonable suspicion that it leads to a risk to national security. Anteryon lodged an appeal against this decision and requested the interim relief judge to suspend the decision until the appeal was decided. According to China Wafer, there was no acquisition activity within the meaning of the Vifo Act because it had already held all voting rights since 2019.

The preliminary relief judge ruled that the reasonable presumption of Article 58 Vifo Act does not refer to the existence of an acquisition activity, but to the risk to national security. Before imposing the obligation to notify, the Minister should thus first have determined whether there was an acquisition activity within the meaning of the Vifo Act. According to the preliminary relief judge this was evidently not the case, as no voting rights were transferred in the 2021 transaction. The decision is therefore suspended until it is decided on appeal.

Another relevant aspect as regards the Vifo Act  is the new policy rule published on 18 June 2024 clarifying and explaining the definition of a ‘manager of a corporate campus’ as referred to in Article 1 Vifo Act (read more about the Vifo Act in our earlier newsletter and blog).

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Excessive request for communications in gun-jumping investigation possibly unlawful after all

Vice-President of the Court of Justice, order of 11 April 2024

The Vice-President of the Court of Justice recently set aside the decision of the General Court to reject Vivendi’s request for interim measures in light of the Commission’s extensive request for information (“RFI”) in the course of its investigation into the early implementation of the acquisition of Lagardère. This acquisition was notified to the Commission on 24 October 2022 and approved subject to conditions on 9 June 2023. A month later, the Commission announced the initiation of a formal investigation into potential violation of the standstill-obligation and subsequently requested a broad set of information and communications from Vivendi. This included all exchanges of information via, for example, email, SMS and instant messaging between some of Vivendi’s employees and company agents over a period of several years, including private email boxes where they were used at least once for professional communications. In November 2023, Vivendi submitted an application for interim measures to the General Court seeking to suspend the decision. It argued that the disclosure of all requested information would result in a large-scale breach of the right to privacy (in violation of the right to private life), which would also be incompatible with the rules of French civil and criminal law.

The General Court essentially ruled that the Commission had taken procedural safeguards in relation to sensitive personal data within the meaning of the General Data Protection Regulation, and had therefore taken sufficient steps to prevent the risks pleaded by Vivendi from occurring. As the Commission is furthermore bound by strict obligations of professional secrecy, the General Court found that Vivendi’s application lacked a sense of urgency and rejected its application.

On appeal, the VP first held that the General Court interpreted Vivendi’s arguments regarding the nature of the data at issue too narrowly, and thereby already concluded that the General Court’s order should be set aside. Given the very broad scope of the request – both material and temporal – the VP considers it “highly likely” that the Commission would be provided with information about the private life of the persons concerned. For example, the request also covered private email boxes and the Commission asked for all emails and documents in the same ‘chain’ as the email that surfaced based on keywords of a somewhat general nature. According to the VP, this potentially leads to a breach of privacy and a criminal offence under French law so that the urgency to the request is given. The fact that the Commission is bound by strict rules of professional secrecy (towards third parties) does not alter this conclusion and the potential criminal responsibility, as this personal data still ends up with agents of the Commission.

The VP then notes that, in the context of the need to conduct an efficient and effective investigation, it may be necessary (and thus: lawful) for the Commission to review certain (personal) data. Contrary to the Commission’s submission, however, this point is not relevant in the context of urgency, but only in the substantive assessment of the request in which the prima facie legality of the decision is examined. As this assessment was not made at first instance, the VP refers the case back to the General Court to rule on the condition relating to the establishment of a prima facie case.

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Commission takes action with FSR; first dawn raids at Chinese companies and a trio of in-depth investigations in the solar panel and telecoms sectors

European Commission, press releases of 23 April and 10 June 2024

In the previous quarter, the Commission opened four investigations under the Foreign Subsidies Regulation (“FSR”) in which it examines whether companies received subsidies from non-European governments (“foreign subsidies”) in the context of a takeover or tender that distort the internal market.

On 3 April 2024, the Commission opened in-depth investigations into two consortia active in the solar panel sector. One of the consortia consists of subsidiaries of Shanghai Electric Group Co. Ltd, a state-owned enterprise of China. The other consortium, LONGi Green Energy Technology Co., Ltd, listed on the Hong Kong Stock Exchange, is involved through a German subsidiary. The investigations focus on the potentially market-distorting role of foreign subsidies given to bidders in a Romanian public procurement procedure for a photovoltaic park. The Commission will assess whether the companies concerned received unfair advantages to win tender procedures in the European Union (“EU”).

The Commission subsequently announced that it had conducted unannounced dawn raids at premises of a company active in the manufacture and sale of security equipment. It soon became clear that the target of the raid was Nuctech, a Chinese company based in the Netherlands and Poland and active in the manufacture and sale of inspection equipment for (air)ports. The Commission cooperated with the national competition authorities of the Netherlands (ACM) and Poland (UOKiK) for the execution of the unannounced inspections. The Commission has not yet announced whether it will open an in-depth investigation following the dawn raid.

Finally, on 10 June 2024, the Commission opened an in-depth investigation into the proposed acquisition of PPF Telecom (active in Bulgaria, Hungary, the Czech Republic, Serbia and Slovakia) by telecoms company e& (based in the United Arab Emirates, “UAE”). According to the Commission, there are indications that e& has received foreign subsidies that distort the internal market. These include an unlimited UAE guarantee and a loan from UAE-controlled banks facilitating the transaction. e& is the first non-Chinese company to be the subject of an FSR investigation by the Commission. Moreover, this is the Commission’s first in-depth investigation into a (proposed) merger: all previous in-depth investigations concerned tenders. For more on the FSR, see our earlier blog.

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Commission designates Booking.com and Apple’s iPadOS as core platform services under the DMA

European Commission, press releases of 29 April and 13 May 2024

On 29 April, the Commission designated Apple as a gatekeeper under the Digital Markets Act (“DMA”) with regard to the operating system for its iPads, iPadOS. Although Apple does not meet the quantitative thresholds for this core platform service (“CPS”) it qualifies as a gatekeeper based on the qualitative criteria of Article 3(1) DMA. In particular, the Commission mentions that end users are locked-in to the “Apple ecosystem”, which is used by Apple to discourage end users from switching to other tablet operating systems.

Furthermore, on 13 May, the Commission designated Booking.com as a gatekeeper with respect to its online intermediary service for holiday accommodations. Booking.com reported itself to the Commission as it exceeds the end-user and business user thresholds in the DMA to qualify as a gatekeeper. Two other companies also reported themselves to the Commission as (potential) gatekeepers, namely X (for X Ads) and TikTok (for TikTok  Ads). However, the Commission decided that they do not qualify as gatekeepers with regard to these CPSs because they do not qualify as important gateways between business users and consumers. However, the Commission is further investigating the possible designation of X’s online social networking service as a CPS.

Apple and Booking.com have six months to comply with the obligations now resting on their CPSs. For more information on the adjustments the other gatekeepers have already made to comply with the DMA, see our earlier blog.

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Commission opens first DMA non-compliance investigations into Alphabet, Apple and Meta

European Commission, press release of 25 March

On 25 March 2024, the Commission opened multiple investigations into the possible non-compliance with the DMA by Alphabet, Apple and Meta. The investigations focus on the adjustments the three gatekeepers have made to their CPSs to comply with obligations under the DMA.

In the case of Meta, the Commission is looking into the “pay or consent” model, under which consumers must either consent to Meta’s use of their data or pay for Meta’s services. Alphabet is subject to two Commission investigations. The first investigation concerns whether or not Alphabet treats its own services on Google Search more favourably than similar third-party services. The second investigation concerns the ability of app developers to offer alternative payment methods to consumers.

Apple is also under investigation for its rules on alternative payment methods in its Apple App Store. On 24 June 2024, the Commission published its preliminary findings, concluding that Apple does not give app developers enough leeway to inform consumers about alternative payment methods. For instance, app developers are only allowed to direct consumers to alternative payment methods via a link to a website outside the app. In addition, according to the Commission, the fees Apple charges for payments outside its App Store go beyond what is strictly necessary. At the same time, the Commission announced that it has also launched an investigation into Apple’s contractual terms for app developers to access new features Apple was required to implement under the DMA, such as the possibility of offering alternative app stores.

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CJEU clarifies scope and limitation period of Cartel Damages Directive

Court of Justice of the European Union, judgment of 18 April 2024

On 18 April 2024, the Court of Justice of the European Union (“CJEU”) shed more light on the temporal scope of the Cartel Damages Directive (“CDD”) and the question of when a claim for damages for an infringement of competition law is time-barred under the CDD. The trigger for this ruling was a Czech case concerning the abuse of dominance by Google and Alphabet regarding Google Shopping.

On 27 June 2017, the Commission found that Google abused its dominant position in the (national) markets for online search services by positioning and displaying its own product comparison service, Google Shopping, more favourably in search results compared to competing product comparison services. The summary decision was published in the Official Journal of the European Union on 12 January 2018. Subsequently, Heureka, a Czech price comparison website, filed a damages claim against Google on 26 June 2020. On 27 May 2014, Heureka already stated in a press release that it considered the commitments proposed by Google in 2013 to be insufficient. For this reason, according to Google, Heureka’s claim is time-barred; Heureka already had knowledge of the damages it suffered and Google’s identity in 2014, the limitation period had already started to run at that time.

The CJEU first recalls that the limitation period does not begin to run until the infringement has ceased and the injured party is aware of the existence, extent and duration of the infringement, as well as the extent of the harm caused by the infringement and the causal link between that harm and that infringement. According to the CJEU, this coincides, in principle, with the date of publication of the (summary) decision in the Official Journal. However, it cannot be ruled out that, prior to such publication, a person may have knowledge of the necessary elements to bring a claim for damages, which is for the defendant to prove.

Since the infringement had not ended when the decision was adopted, the limitation period for Heureka’s claims began to run at the earliest on 27 June 2017. Therefore, the limitation period had not expired at the time of filing the claim for damages.

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CJEU upholds illegality of ‘pay-for-delay’ agreements in pharmaceutical markets

Court of Justice of the European Union, judgments of 27 June 2024

On 27 June 2024, the CJEU handed down a number of judgments in which it addressed the legality of so-called pay-for-delay agreements in the pharmaceutical sector. French pharmaceutical company Servier developed and marketed a drug for the treatment of certain heart diseases (perindopril). It filed a (process) patent for this drug in 2004, which was subsequently challenged by a number of generic manufacturers. Servier entered into settlement agreements with some of those generic manufacturers, such as Niche/Unichem, Matrix (now Viatris), Teva, Lupin and Krka. Under those agreements, the generic manufacturers would refrain from challenging the patent and entering the market for perindopril in exchange for compensation from Servier.

The Commission ruled in 2014 that two types of competition law infringements had taken place. First, the settlement agreements restricted competition as the parties agreed to keep (potential) entrants, i.e. the generic manufacturers, out of the market (violation of Article 101 TFEU). Second, Servier abused its dominant position by pursuing an exclusionary strategy in entering into the agreements (violation of Article 102 TFEU). The Commission imposed a fine on Servier of €330 million and a fine totalling about €97 million on the generic manufacturers, which was appealed by the pharmaceutical companies.

The General Court partially upheld the Commission’s decisions. As regards the infringements of Article 101 TFEU, the General Court annulled only the part relating to the agreements between Servier and Krka. In addition, the General Court annulled in its entirety the Commission’s finding that Servier had infringed Article 102 TFEU. According to the General Court, the Commission had not sufficiently established that the market comprises only of the drug perindopril, which meant that it was not established that Servier was actually dominant. Nine separate appeals were brought against the judgment of the General Court by Servier, Krka, the other generic manufacturers and the Commission.

Regarding Servier’s abuse of dominance, the CJEU held that the General Court was wrong to rule that the relevant market as defined by the Commission was inadequate. Contrary to the General Court’s finding, the absence of price elasticity is indeed a relevant indicator for establishing a separate market for perindopril. As regards the settlement agreements between Servier and Krka, the CJEU held that the General Court incorrectly assessed whether the agreements had the object or effect of restricting competition. Therefore, the CJEU annulled the General Court’s judgment and referred the case back to the General Court for further assessment.

The appeals of the other generic manufacturers were dismissed in their entirety by the CJEU. The judgments of the General Court in relation to those parties were thus fully upheld by the CJEU.

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Court Den Bosch confirms that centralisation of prize management in cycling by UCI/CPA does not violate competition law

Gerechtshof ‘s-Hertogenbosch, judgment of 19 March 2024 (published 12 April 2024)

In the first Dutch civil sports case after the CJEU’s ISU and Super League judgments of 21 December 2023 (see Competition Flashback, Q4 2023), the Den Bosch Court of Appeal upheld the judgment of the District Court of Zeeland-West Brabant in a dispute between Dutch Cycling Service against the International Cycling Union (“UCI”) and its affiliated Association for Professional Cyclists (“CPA”).

Cycling Service is a provider of agency services relating to the payment of prize money in cycling. Cycling Service argued that the centralisation of prize management in men’s cycling (through the CPM platform), as mandated by the 2019 UCI Regulations, violates competition law. The District Court ruled that, although UCI and CPA should be considered an association of undertakings and undertaking respectively, their behaviour does not qualify as an object restriction. Moreover, insufficient evidence has been adduced by Cycling Service to assess whether there is a restriction by effect or an abuse of a dominant position.

The Den Bosch Court of Appeal examined whether (i) UCI’s decision on the mandatory use of the CPM platform has the object or effect of restricting competition, and whether (ii) CPA abuses a dominant position since it entered the market in which Cycling Service was already active. In its judgment, the Court attaches great importance to the fact that the CPM platform leaves space for competing agents – such as Cycling Service, which continued to be active in the market – as well as the fact that a tender was held to determine which company would set-up and manage the CPM platform, in which Cycling Service participated. On this basis, the Court considered that there is no object restriction. Again, it was ruled that insufficient evidence was put forward to assess the existence of a restriction by effect.

The Court of Appeal did (also) not assess a possible dominant position, as (also on appeal) not enough had been stated by Cycling Service to define the market. The Court only briefly addressed Cycling Service’s grievance concerning the impact of the CPM platform on Cycling Service’s profitability. According to the Court, the fact that it would have to drop 50% in price to compete with the CPM platform is insufficient to substantiate the existence of predatory pricing. Moreover, Cycling Service did not provide any insight into revenue losses, for example through annual reports.

The question arises whether the strict test as applied by the Court is in line with European case-law in this area. Recently, in his opinion in relation to preliminary questions on FIFA’s Transfer Rules, Advocate-General Szpunar stated that market-wide anti-competitive arrangements, by their nature, must be assumed to negatively affect competition and should be regarded relatively quickly as object restrictions.

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Commission fines Mondelēz €337.5 million for impeding cross-border trade in chocolate, biscuits and coffee products

European Commission, press release of 23 May 2024

On 23 May 2024, the European Commission fined food conglomerate Mondelēz International, Inc. (“Mondelēz”) €337.5 million for (i) entering into 22 anti-competitive agreements or concerted practices aimed at restricting the cross-border trade of its products, and (ii) abusing its dominant position in the German and Dutch markets by refusing to supply its products. Mondelēz’s portfolio includes the brands Côte d’Or, Milka, Oreo and Toblerone.

Between 2012 and 2019, Mondelēz restricted the territory within and the customers to which wholesale distributors were allowed to sell Mondelēz’s products. In addition, between 2006 and 2020, Mondelēz prohibited ten exclusive distributors from responding without prior authorisation to sales requests from customers based in another Member State, in violation of the cartel prohibition.

According to the Commission, Mondelēz also abused its dominant position in two occasions between 2015 and 2019. First, Mondelēz refused to supply a German intermediary dealer to prevent its chocolate bars from being resold in Austria, Belgium, Bulgaria and Romania. In addition, Mondelēz stopped supplying its chocolate bars in the Netherlands to prevent them from being exported to Belgium where Mondelēz charged higher prices for its products.

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IFF fined €15.9 million for deleting WhatsApp messages during Commission raid

European Commission, press release of 25 March 2024

On 24 June 2024, International Flavors and Fragrances (“IFF”) was fined by the Commission for deleting WhatsApp messages during a dawn raid. The unannounced inspection, which took place in March 2023, is part of a wider Commission investigation into the fragrance industry. The current state of that investigation is unknown at the moment.

The Commission is authorised to search cabinets, desks as well as mobile phones during unannounced inspections. In this case, the Commission reviewed mobile phones of some of IFF’s employees when it found out that an employee had deleted messages he had exchanged with a competitor via WhatsApp. The messages contained business information and had been deleted after the employee was informed about the unannounced visit. IFF immediately cooperated with the investigation and helped restore the data. Thanks to the full admission of its guilt and its immediate cooperation, IFF was granted a 50% reduction in the fine, which ultimately amounted to 0.15% of IFF’s total annual turnover, i.e. € 15.9 million. This is the first time the Commission has issued a fine for deleting messages exchanged through social media on a mobile phone.

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ACM dismisses enforcement requests DHL and GLS over exclusive PostNL service points

Authority for Consumers and Markets, decisions of 5 April 2024

In its decisions of 5 April 2024, the ACM rejected DHL and GLS’ requests for enforcement action against PostNL. Both parties complained to the ACM about PostNL’s exclusivity provisions with certain parcel service points. These exclusivity arrangements prevent a retailer acting as a PostNL service point from handling parcels from other providers. According to the parcel carriers, the exclusivity arrangements make it impossible for them to access certain key retail points at so-called A-locations, thereby foreclosing competing parcel carriers from the market in violation of Article 6 and/or Article 24 of the Dutch Competition Act.

Following these enforcement requests, the ACM commissioned research bureau Panteia to conduct a study into the relevant factors on how consumers and online shops choose a parcel carrier and the importance of service points in particular. The research shows that having a good (nationwide) service point network is very important for online shops, especially in the B2C segment. Especially the short distance to a parcel point is relevant, not so much the ‘quality’ of the location itself. The ACM therefore does not follow DHL’s suggested distinction between parcel points at A-locations and other locations, and thus looks at a broad market for (the procurement of) parcel service points.

In this market, the ACM notes that the four largest parcel carriers (PostNL, DHL, GLS and DPD) each have a successful nationwide network of service points. DHL, like PostNL, has a share of around 30-35% in this market. As the largest parcel carriers have all grown in number of service points in recent years (in most cases relatively more than PostNL), the ACM considers it unlikely that PostNL has a dominant position on the market for (the procurement of) service points.

Whether PostNL holds a position of economic dominance in the (downstream) parcel delivery market(s) is ultimately left open by the ACM. With the rise of DHL’s position at the expense of PostNL in recent years (both in a general sense and on the B2C- and C2X-segment), there is no evidence that the exclusivity applied by PostNL actually leads to market foreclosure (and thus no abuse of dominance). Given these developments, the ACM also believes that there is no violation of the cartel prohibition. The ACM moreover states that the parcel service point contracts in which exclusivity is applied can be terminated annually, and that the entry barriers for retailers to act as a parcel service point are low. As a result, there are sufficient alternatives for other parcel carriers, the ACM concludes.

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State aid for European billion-dollar projects relating to hydrogen and pharmaceuticals

European Commission, decisions of 28 May 2024

The Commission has approved two Important Projects of Common European Interest (IPCEI) under EU state aid rules. The Commission has concluded that the projects are in line with state aid law because they contribute to EU objectives, aim to develop technologies beyond what the market currently offers and are necessary to generate private investment.

One of the IPCEIs concerns a joint support plan of six Member States (Belgium, France, Hungary, Italy, Slovakia and Spain) called Med4Cure and aims to support research, the first industrial application of health products and innovative manufacturing processes of pharmaceutical products. Med4Cure aims to accelerate drug discovery as well as develop innovative and more sustainable manufacturing processes for pharmaceutical products. This contributes to the goals of the European Health Union and the Green Deal. Member States are providing up to €1 billion in support. This is expected to then generate nearly €6 billion in private investment. Pharmaceutical and biotech companies such as Sanofi, Biotalentum and Sylentis are participating in Med4Cure.

The second IPCEI, called Hy2Move, concerns the hydrogen value chain and follows three previous IPCEIs in favour of hydrogen technology. In 2022, it already approved two projects: Hy2Tech, aimed at developing hydrogen technologies for end users, and Hy2Use, focused on hydrogen applications in the industrial sector. In February 2024, Hy2Infra was approved, which concerns infrastructure investments in favour of hydrogen. This fourth IPCEI, Hy2Move, concentrates exclusively on the application of hydrogen technology in mobility and transport applications. Seven Member States, including the Netherlands, are investing up to about €1.4 billion, which is expected to attract a further €3.3 billion in private investment.

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State aid decision for Condor quashed once again

General Court of the European Union, judgment of 8 May 2024

On 8 May 2024, the Commission’s approval of state aid to airline Condor was annulled by the General Court. Thereby, Ryanair has once again successfully challenged a state aid measure in the aviation sector (see also our earlier blog on state aid in the aviation sector).

The aid measure covered by the approval decision concerns the partial write-off of debt resulting from loans granted by the German government under (previous) aid measures relating to the COVID-19 pandemic. However, this write-off constituted restructuring aid relating to the bankruptcy of Thomas Cook. The General Court annulled the contested decision because the Commission had not examined whether the German authorities had sufficiently ensured that they would receive a reasonable share of future gains in Condor’s value, as required under the Rescue and Restructuring Guidelines. This means that in reconsidering the aid, the Commission may further investigate the aid measure in question. In such a procedure, Ryanair and other interested parties have the opportunity to submit their views. At the end of this investigation, the Commission may then still conclude that the State aid to Condor is lawful.

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General Court annuls Commission state aid decision due to partiality

General Court of the European Union, judgment of 10 April 2024

The General Court ruled on 10 April 2024 that the Commission’s decision that a Danish measure did not constitute state aid was void because the Commission had violated its objective impartiality. The case concerned a 2013 complaint by Danske Slagtermestre, a trade association for, among others, small Danish butchers and slaughterhouses, against state aid granted by the Danish government to large slaughterhouses in the form of reduction of purification levies for wastewater. In 2018, the Commission decided that no state aid was involved because it did not confer any particular advantage on certain companies. After Danske Slagtermestre was first declared inadmissible by the General Court, the CJEU set aside the judgment and referred the case back to the General Court for further assessment.

Danske Slagtermestre argued that the Commission violated Article 41 of the Charter by failing to ensure an impartial hearing of its case. The reason for this was that the Commissioner who ruled on the complaint and the subsequent decision had previously been the Danish Minister for Economic and Internal Affairs and Deputy Prime Minister of Denmark which was responsible for the introduction of the system of levies in question. In addition, the Commissioner in question had publicly and explicitly taken a position at national level in favour of the reduction of the purification levies opposed by Danske Slagtermestre. This Commissioner was also the sole signatory of the contested decision.

In view of this, the General Court held that the Commissioner in question had an interest in ensuring that the unlawfulness of the purification levy was not called into question. The Court continued that the organisation of the administrative procedure within the Commission did not provide sufficient guarantees to exclude that interest from affecting the administrative procedure. Lastly, the General Court concluded that the Commission misapplied the private operator principle. As a result, the Commission also infringed Article 107 TFEU by concluding that it did not confer an advantage on the treatment levy. For these reasons, the decision was annulled.

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ACM fines Epic for unfair commercial practices targeting children in Fortnite

Authority for Consumers and Markets, decision of 18 December 2023 (published 14 May 2024)

In its decision of 18 December 2023, the ACM fined game developer Epic Games International (“Epic”) €1,125,000 and imposed on it a binding instruction. Epic pleaded guilty to three unfair commercial practices targeting children in the game Fortnite. When assessing whether commercial practices are unfair, a fictitious ‘average consumer’ is taken as the benchmark. In the case of Fortnite, that average consumer is a person up to the age of 18. According to the ACM, children are more vulnerable to certain commercial practices due to their age, in part because they are more susceptible to impulse purchases.

First, Fortnite contained deceptive suggestions of scarcity in the sense of Article 6:193g(g) of the Dutch Civil Code (“DCC”). Fortnite’s webshop contained a 24-hour countdown timer that reset each day, while some of the offers promoted in the webshop were actually available for longer than 24 hours. According to the ACM, it is plausible that a child playing Fortnite would expect such a timer to indicate the actual time within which those products could be purchased. Secondly, Fortnite directly encouraged children to make purchases, including with texts such as ‘Get it now’ or ‘Buy now’, in violation of Article 6:193i(e) DCC. Last, according to the ACM, the entirety of these practices taken together violated the requirements of professional diligence under Article 6:193b DCC.

Epic received fines for the first two offences while the ACM is imposing a binding instruction on Epic for the last offense. Epic must bring its digital offer in Fortnite’s online store into compliance with Article 6:193b DCC by 10 June 2024.

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For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist.

Bas Braeken – Jade Versteeg – Lara Elzas – Timo Hieselaar – Demi van den Berg – Coen Vermeij – Joost van Belois

This is the Competition Flashback Q1 2024 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here).

Would you like to receive Competition Flashback by e-mail in the future? You can subscribe to our mailing list here.

Overview Q1 2024

• ACM unconditionally clears acquisition of Youfone by KPN 

• Holiday accommodation owners are not considered interested parties in relation to Roompot/Landal merger decision

• Overview highlights merger cases

• District court decides on publication of ACM decisions on egg cartel; ACM publishes decision on objection

• CJEU confirms that object restrictions cannot be justified under the Wouters-doctrine

• ACM not liable to pay additional compensation to auction dealers for annulled cartel decision

• CJEU provides definitive answer in hybrid cartel procedures; settlement and normal procedure may be settled by same EC case team

• CBb upholds bid-rigging fine for roofing contractor

• Commission accepts commitments from Renfe to promote competition in online train ticketing services in Spain

• Supreme Court quashes ruling on abuse of dominance by Buma/Stemra

• Amsterdam District Court applies irrebuttable presumption of illegality to Greek competition authority’s infringement decision

• Court of Appeal holds Otis and Kone liable for lift cartel and refers to follow-up proceedings for the determination of damages

• Turkse Turkish manufacturer of television and computer screens gets awarded € 648 million in damages in default judgment over CRT cartel

• Court of appeal holds prestressing steel companies liable for cartel damages Deutsche Bahn

• Amsterdam Court of Appeal declares foundation admissible in class action against Rabobank and foreign banks

• Additional written round needed to meet burden of proof in follow-on truck cartel case

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Holiday accommodation owners are not considered interested parties in relation to Roompot/Landal merger decision

Rotterdam District Court, judgment of 19 February 2024

The Rotterdam District Court recently declared  inadmissible the appeal against the ACM’s decision in the Roompot/Landal merger by two owners of various holiday accommodations at Landal holiday parks. On 12 April 2023, the ACM granted a licence for the acquisition of Vacation Rental B.V. (“Landal”) by Sandy HoldCo B.V. (“Roompot”) under the condition that Landal and Roompot divest two holiday park brands and thirty holiday parks to Dormio Group B.V. (“Dormio”). Part of the package to be divested included the parks where the appellants’ accommodations are located. According to the appellants, the competition problems identified by the ACM were not sufficiently addressed by the accepted remedies.

The court concluded that the two owners cannot be regarded as interested parties in relation to the decision granting the merger licence, as they are one of many customers of Landal’s services and do therefore not have a sufficiently distinct and personal interest in the ACM’s decision. Furthermore, as the agreements between the owners and Landal run until 2031 and the ACM generally uses a period of no more than five years to assess the effects of a proposed concentration, the court also held that they do not have an actual and sufficiently certain interest. The court thus declared the appeal to be inadmissible.

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Overview highlights merger cases

This is the Competition Flashback Q4 2023 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here).

Would you like to receive Competition Flashback by e-mail in the future? You can subscribe to our mailing list here.

Overview Q4 2023

Merger control & FDI

• Commission orders Illumina to unwind acquisition of GRAIL
• CJEU largely upholds fine for Altice for gun-jumping
• Overview highlights merger cases
• BTI publishes new guidelines for application of Vifo Act

Cartels & vertical restraints

• Rotterdam court upholds fine for resale price maintenance by Samsung
• CJEU paves the way for qualifying cross-market non-competes as object restrictions
• General Court upholds fine for participation in purchasing cartel imposed on Clariant in settlement proceedings
• General Court upholds fine on Cephalon and Teva for pay-for-delay agreement
• Rabobank fined for participating in cartel in (government) bond trading
• ACM allows sustainability agreements between waste collectors to promote recycling
• Commission hands out first price-fixing fine in the pharma industry

Abuse of a dominant position

• General Court annuls entire fine for Bulgarian gas company for lack of evidence and procedural flaws
• Apple objections to App Store decision rejected by ACM

Sport & competition

• CJEU upholds infringement by ISU and criticises exclusive CAS arbitration
• Groundbreaking CJEU rulings redefine limits to UEFA and FIFA powers

Damages claims for competition law infringements

• Amsterdam Court refers preliminary questions to Supreme Court about applicable law on damages claims in truck cartel
• Court of Appeal confirms that non-compete and no-poach agreements lose effect after their expiry

Railway & competition

• ACM rejects NS and Ministry’s requests in battle over main rail network
• ProRail withdraws request for approval of calculation method for infrastructure charge

State aid

• General Court orders Commission to re-examine possible state aid resulting from exclusive licences of Dutch gambling companies
• General Court overturns state aid approval decision to Air France/KLM

Commission orders Illumina to unwind illegal acquisition of GRAIL

European Commission, press release of 12 October 2023

The European Commission (“Commission”) has imposed restorative measures on biotech company Illumina in order to fully unwind its completed acquisition of GRAIL. This marks a new chapter in the saga in which Illumina prematurely and unlawfully implemented the acquisition of GRAIL. The saga began with an Article 22 referral by several Member States, after which the Commission decided to prohibit the acquisition. In July 2023, the Commission imposed on Illumina a record fine of € 432 million for implementing the acquisition despite the prohibition decision. In October 2021 and October 2022, the Commission already imposed interim measures, which are now being replaced by these restorative measures. For a full overview, see our Competition Flashback (“CF”) Q3 2022 and Q3 2023.

The restorative measures include both divestment measures and certain transitional measures. For the divestment of GRAIL, Illumina must propose to the Commission a concrete plan to restore GRAIL’s independence from Illumina within strictly defined deadlines, with the aim of making GRAIL as economically viable and competitive as it was before the acquisition. Until the transaction is dissolved, the transitional measures imposed by the Commission will apply. These measures prohibit any further integration of GRAIL into Illumina. At the same time, the measures require Illumina to continue funding GRAIL so that the latter can continue the development of its early cancer detection test. Taken together, the divestment and transitional measures aim to restore the situation prevailing before the implementation of the transaction.

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CJEU largely upholds fine for Altice for gun-jumping

On 9 November 2023, the Court of Justice of the European Union (“CJEU”) largely upheld the Commission’s gun-jumping fine for the multinational cable and telecommunications company Altice Group Lux Sàrl (“Altice”). In its decision of 24 April 2018, the Commission imposed on Altice two separate fines of € 62.25 million each; one for implementing its acquisition of PT Portugal before it had been cleared, in violation of Article 7(1) of the EU Merger Regulation (“EUMR”), and one for implementing the acquisition before it had been notified, in violation of Article 4(1) EUMR. On 5 July 2018, Altice appealed the Commission’s decision before the General Court of the European Union (“General Court”). The General Court largely upheld the Commission’s decision, but reduced the fine imposed for the breach of Article 4(1) EUMR to € 56 million. Altice brought an appeal against the General Court’s judgment.

First, Altice argued that Articles 4(1) and 7(1) EUMR are redundant as they pursue a single legal interest, and are therefore unlawful. The CJEU rejects this argument and holds that, while there is some overlap between the provisions, they pursue autonomous objectives, impose separate obligations, and result in infringements of a different nature. The imposition of two separate fines does also not violate the principle of proportionality and the principle of the prohibition of double punishment (ne bis in idem). Secondly, Altice opposed the General Court’s finding that the pre-closing covenants, including agreements on veto powers over strategic business decisions and pricing policy, constituted an implementation of the merger within the meaning of Articles 4(1) and 7(1) EUMR. The CJEU disagrees. According to the CJEU, an acquisition can be (partially) implemented if the acquiring party, for example as a result of signing a share purchase agreement, already has the possibility to take certain measures leading to a lasting change in control. It is not required that each of those measures are individually necessary to bring about a lasting change in control. Even if measures are of a temporary or preparatory nature, they can already contribute to the lasting change in control, the CJEU rules.

Finally, Altice argued that the General Court erred in finding that the Commission did not infringe its obligation to state reasons under Article 296 of the Treaty on the Functioning of the European Union (“TFEU”) when imposing the two fines. According to Article 14(3) EUMR, the Commission must, in setting the amount of the fine, take into account the nature, gravity and duration of the infringement. The CJEU agrees with Altice and finds that the Commission did not adequately justify the fine imposed for the breach of Article 4(1) EUMR. The CJEU annuls this part of the decision, and imposes a fine of € 53 million instead. The fine of € 62.25 million for the breach of Article 7(1) EUMR remains unchanged.

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Overview highlights merger cases

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BTI publishes new guidelines for the application of the Vifo Act

On 13 December 2023, the Investment Screening Bureau (in Dutch: Bureau Toetsing Investeringen, “BTI”) published three guidelines (only available in Dutch) providing guidance on the application of the Act on Security Screening of Investments, Mergers and Acquisitions (in Dutch: Wet Veiligheidstoets investeringen, fusies en overnames, “Vifo Act”). The Vifo Act introduces a notification system for the acquisition of Dutch-based vital providers, managers of corporate campuses and providers of sensitive technology for the purpose of protecting national security (read more about the Vifo Act in our previous blog). Each guideline clarifies a specific criterion from the Vifo Act.

In the ‘Guideline on Assets’, the BTI elaborates on the application of the Vifo Act when acquiring only part of a company or certain assets. It clarifies that the Vifo Act only applies to the acquisition of assets if those acquired assets enable the company to function as a vital provider or a provider of sensitive technology. Such assets can include knowledge and know-how, intellectual property rights, essential personnel, trade secrets, equipment, raw materials, or even a portfolio of supplier and/or customer contracts.

In its ‘Guideline on Internal Restructuring’, the BTI provides further guidance on when an internal restructuring qualifies as an acquisition activity under the Vifo Act. Due to a restructuring, control in a holding company, in which shares are owned by the capital providers, may shift to another holding company in another jurisdiction. If restructuring involves a change of control or an acquisition of significant influence by a shareholder, the internal restructuring will qualify as an acquisition activity under the Vifo Act.

In the third and last Guideline, the BTI clarifies what ‘being active in’ the field of (highly) sensitive technology entails. The BTI clarifies that a supplier is not in itself active in the field of sensitive technology if its products, know-how or services do not independently qualify as sensitive technology under Article 8 of the Vifo Act. According to the BTI, this is different for suppliers of highly sensitive technology, since parties with such products are usually very closely involved in the production process. Finally, intermediaries, end-users, wholesalers and retailers are in principle not caught by the Vifo Act, as they usually do not have the production facilities, expertise or necessary legal rights to improve or change the relevant sensitive technology.

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Rotterdam court uoholds fine for resale price maintenance by Samsung

On 13 November 2023, the Rotterdam District Court dismissed Samsung’s appeal against the fine imposed by the Authority for Consumers and Markets (in Dutch: Autoriteit Consument en Markt, “ACM”). In 2021, the ACM fined Samsung as it found that Samsung coordinated the retail prices of Samsung televisions with various retailers, to be in violation of Article 101(1) TFEU. Samsung’s modus operandi involved setting recommended prices and closely monitoring whether retailers adhered to those prices to ensure compliance. Samsung did this by using so-called ‘spider-software’, price comparison websites, and tips of retailers. If Samsung found retailers pricing below the recommended level, it contacted the retailers, urging them to adjust their retail prices. The ACM argued that Samsung’s tactics distorted competition at the retail level, resulting in higher prices for consumers. Read more about the ACM’s decision in our CF Q3 2023.

Upon appeal, Samsung contested the existence of a concerted practice, asserting that there was no concurrence of wills between Samsung and the retailers. According to Samsung, it is a common market practice for retailers to constantly engage in negotiations over retail prices, and to stay up to date on retail prices of competitors in order to improve their own position in the market. This provides a legitimate reason to regularly remind retailers of the recommended retail price, Samsung said. The court rejected this argument. It held that there was in fact a concurrence of wills, considering the communications of the competing retailers, the persistent pressure applied by Samsung to lower retail prices,  and the retailers’ willingness to lower their prices.

Samsung also challenged the characterisation of the conduct as a restriction of competition by object, arguing that its price recommendations were non-binding and lacked coercion or financial incentives. The court also dismissed these claims. The absence of contractual coercion, sanctions or financial incentives does not prevent the ACM from establishing an infringement under Article 101 TFEU. The court noted that retail price maintenance is explicitly prohibited in that provision, and that it qualifies as a hardcore restriction in the Vertical Agreements Block Exemption and Guidelines on Vertical Agreements. The court then found that it follows from the Super Bock judgment that, even in the case of a hardcore restriction, it must be assessed whether the agreement is sufficiently harmful to competition. The court considers this to be the case, since this specific agreement affected the freedom of retailers to set their own retail prices. The decisive factor for this judgment was that the reciprocal requests and the follow-ups created an agreement or concerted practice whereby the retailers no longer set their own resale prices.

Samsung’s arguments relating to the absence of a single and continuous infringement and the amount of the fine were also rejected by the court. The court therefore completely dismissed Samsung’s appeal and upheld the ACM”s fine of nearly € 40 million.

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CJEU paves the way for qualifying cross-market non-competes as object restrictions

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General Court upholds fine for participation in purchasing cartel imposed on Clariant in settlement proceedings

In its recent judgment, the General Court has declared Clariant’s appeal against the Commission’s infringement decision unfounded. In 2020, the Commission fined Clariant and two other undertakings for exchanging sensitive commercial and pricing-related information related to the purchases of ethylene. After the cartel was uncovered in 2017 by a fourth cartel participant, Clariant applied for a fine reduction under the Commission’s Leniency Notice. Several settlement discussions between Clariant and the Commission followed, based on the Commission’s Notice on the conduct of settlement procedures.

Although the Commission reduced the fine by 30% based on its leniency policy, and by 10% due to Clariant’s cooperation during the settlement procedure, it in turn increased the fine based on other grounds. For example, the Commission decided to increase the fine by 50% because Clariant had already been fined for a similar cartel in 2005 (see also point 28 of the Commission’s Fining Guidelines). Moreover, the Commission applied a further increase of 10% to the fine in order to create a deterrent effect.

On appeal, Clariant argued that the Commission wrongly increased the basic amount of the fine under point 28 (recidivism) and point 37 (deterrence) of the Fining Guidelines. According to Clariant, the increases were not proportionate and were not properly justified. In response, the Commission requested the General Court to revoke Clariant’s 10% fine reduction that it received for its cooperation during the settlement procedure. The Commission argued that, by contesting the amount of the fine before the General Court, Clariant disputed an essential part of the settlement.

The General Court rejects both arguments and holds that the Commission correctly applied the Fining Guidelines. At the same time, it does not revoke the 10% reduction in the fine for cooperation during the settlement procedure. The General Court stresses that final decisions adopted after a settlement procedure are subject to judicial review under Article 263 TFEU. As a settlement procedure is essentially (only) an admission of liability and a commitment to settle, the amount of the fine, the method of calculation of the fine and the Commission’s reasoning can still be appealed, the General Court ruled.

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On 18 October 2023, the General Court upheld the fines imposed by the Commission on pharmaceutical companies Cephalon and Teva of € 30 million and € 30.5 million respectively for entering into a so-called pay-for-delay agreement. The infringement comprised of a set of agreements to compensate Teva for not entering the market for sleep disorder treatment (“modafinil market”) with its own drug. The Court upheld the Commission’s finding that the agreement had as its object the restriction of competition.

In 2005, Teva agreed with Cephalon not to enter the modafinil market independently and not to launch its own, competing modafinil product until 2012. According to the Commission, and confirmed by the General Court, several commercial transactions occurred between Cephalon and Teva to compensate for this delay. For instance, Cephalon bought Teva’s intellectual property rights (“IPR”) in relation to modafinil for € 92.9 million. According to the Commission, Cephalon had no real need for or interest in buying the IPR for that amount (prior to the negotiations). Likewise, the General Court ruled that the amount of almost € 93 million could only be explained by the fact that it served as a quid pro quo for Teva not entering the market. Moreover, Cephalon entered into a supply agreement with Teva for a period of five years, giving Teva a stable source of revenue.

In order to determine whether an agreement qualifies as an object restriction, the General Court stated it is sufficient to show that the agreement reveals, by its very nature, a sufficient degree of harm to the proper functioning of normal competition. To demonstrate this, it is necessary to analyse the content of the agreement, its objectives and the economic and legal context in which it was concluded. The General Court established that, prior to the conclusion of the agreement, Teva was Cephalon’s biggest potential competitor on the modafinil market. The General Court also found that the agreement delayed Teva’s entry by almost seven years, and guaranteed that Cephalon would not face any competition from Teva during that period. The General Court considers this to be a pay-for-delay agreement that restricts competition by object, and dismisses Cephalon and Teva’s appeal.

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In November 2023, the Commission imposed a € 26.6 million cartel fine on Rabobank for participating in a cartel with Deutsche Bank concerning the trade of certain Euro-denominated bonds between 2006 and 2016. During the cartel period, several traders from the two banks, operating from Frankfurt and London, interacted with each other through online chatrooms and emails on the Bloomberg platform. In their interactions, the banks exchanged commercially sensitive information and coordinated their trading and pricing strategies. This included the prices and volumes of current and future trading positions as well as the identity of counterparties. Rabobank and Deutsche Bank also gave mutual warnings when the indicative prices of one of them were considered too high or too low.

Deutsche Bank escaped a € 156 million fine by revealing the existence of the cartel to the Commission. Although Rabobank cooperated in a settlement procedure, the settlement negotiations between the bank and the Commission were unsuccessful. Subsequently, the Commission decided to follow the standard procedure and fine Rabobank.

This fine followed a series of previous cartel fines relating to bonds. For instance, in April 2021, Crédit Agricole, Bank of America Merill Lynch and Credit Suisse were already fined a total of over € 28 million for their participation in a cartel concerning the trading of Dollar-denominated bonds. In May 2021, Unicredit, RBS (now NatWest) and UBS, among others, were fined € 371 million for a similar cartel regarding Euro-denominated bonds.

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In a press release dated 4 October 2023, the ACM announced that collectors of commercial waste are allowed to collaborate to promote waste-recycling. In its assessment, the ACM applied its new Policy Rule on Oversight on Sustainability Agreements (in Dutch: Beleidsregel Toezicht ACM op duurzaamheidsafspraken, “Policy Rule”) for the first time. The Policy Rule provides guidance on the types of agreements undertakings may conclude to promote sustainability without violating Dutch competition law.

The Dutch Waste Management Association (“DWMA”) had requested the ACM for an informal assessment of the proposed agreements. The ACM informed the DWMA – via a published letter – that it will not take action against the recycling initiative since the purpose of the agreements is solely to encourage compliance with a legal sustainability standard. If a company is uncertain whether an agreement is permissible under Dutch competition law, it can similarly request the ACM to provide informal guidance.

Sustainability agreements have received increasing attention on a European level as well. On 1 July 2023, the new Horizontal Block Exemption Regulations and the accompanying Horizontal Guidelines entered into force. Chapter 9 of the new Horizontal Guidelines is specifically dedicated to sustainability agreements. It states that agreements which have as their purpose to comply with legally binding (international) agreements, fall outside the scope of Article 101 TFEU, provided that the agreements are not already fully implemented or enforced by the Member State itself. This includes agreements by which companies aim to comply with their due diligence obligations on sustainability under national or EU law. The ACM follows the Commission’s standard in its new Policy Rule.

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The Commission has recently imposed a total fine of € 13.4 million on pharmaceutical companies Alkaloids of Australia, Alkaloids Corporation, Boehringer, Linnea and Transo-Pharm for participating in a cartel around pharmaceutical ingredient N-Butylbromide Scopolamine/ Hyoscine (“SNNB”). SNBB is an important input material to produce the abdominal antispasmodic drug Buscopan and its generic versions. The cartel participants agreed to set minimum prices for sales of SNNB to distributors and manufacturers of generic drugs, and exchanged commercially sensitive information.

The cartel existed continuously from 2005 to 2019 and was revealed by a sixth cartel participant, C2 PHARMA, which applied for leniency in 2019 and enjoyed full immunity. As Transo-Pharm and Linnea were the second and third parties to apply for leniency, their fines were reduced by 50% and 30% respectively. The Commission reduced the fine by 10% for all cartel participants for the acknowledgment of their participation in the cartel and of their liability in that respect, in line with the Commission’s 2008 Settlement Notice. In determining the amount of the fine, the Commission in particular took into account the nature of the infringement, its multifaceted features, its geographic scope and its duration.

This is the first time the Commission has imposed a fine for coordinating prices for an active pharmaceutical ingredient. In its press release, the Commission stresses that healthy competition is essential to provide access to affordable medicines.

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General Court annuls entire fine for Bulgarian gas company for lack of evidence and procedural flaws

General Court, judgment of 25 October 2023

In its judgment of 25 October, the General Court has annulled the € 77 million fine imposed on state-owned gas company Bulgarian Energy Holding (“BEH”). In 2018, the Commission decided that, between 2010 and 2015, BEH abused its dominant position by denying third parties access to (i) the gas transmission network, (ii) the gas storage facility in Chiren (Bulgaria), and (iii) a key transit pipeline for transporting Russian gas to Bulgaria, which BEH operates under an exclusive agreement with Romanian Transgaz (also: the Romanian Transit Pipeline). According to the Commission, the pipeline constitutes an essential facility, and the refusal to grant access to third parties amounted to an abusive refusal to supply within the meaning of Article 102 TFEU.

With respect to the pipeline, BEH argues before the General Court that it cannot be held accountable as it is not BEH, but Transgaz that owns the infrastructure. The General Court does not follow this reasoning. Although BEH is not the owner, it (de facto) controlled third-party access to the pipeline on the basis of the exclusive agreement with Transgaz. At the same time, it rules that this exclusivity is, in itself, not sufficient to constitute an abuse of dominance. Instead, the Commission has to show that the specific requirements of the essential facilities doctrine are met, including that the exclusionary effects are not merely hypothetical, but that BEH’s conduct actually resulted in a restriction of competition.

In light thereof, the General Court concludes that the Commission has not sufficiently substantiated that other parties were effectively prevented from entering the Bulgarian gas supply market. For instance, the file does not show that Transgaz itself intended to (re)use the pipeline and compete with BEH. Referring to Generics and Lundbeck, the General Court emphasises that Transgaz should have taken sufficient preparatory steps to enter the market in order to qualify as a potential competitor. Any preliminary requests or purely exploratory steps are insufficient in that regard. Moreover, it appeared from the file that Transgaz unilaterally rejected Overgas’ requests and did not inform BEH of the existence of any third party requests during the alleged infringement period.

Since there were no concrete intentions to enter the market (known to BEH), the General Court held that it could not be established that, without BEH’s refusal, there would have been (more) competition on the market (counterfactual). The Commission did therefore not sufficiently demonstrate that BEH’s conduct actually restricted competition on the Bulgarian gas market. The same goes for the transmission network and the storage facility, where, after a detailed analysis of the negotiations between BEH and third parties, the General Court characterises BEH’s conduct not as abusive, but rather as ‘constructive’ towards third parties.

In addition, the General Court found that the Commission wrongfully failed to document certain interviews it held with Overgas and wrongly denied BEH access to potentially exculpatory evidence (which later proved essential to BEH’s defence). The Commission thereby infringed BEH’s rights of defence. The General Court decided to annul the Commission’s fine in its entirety.

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Apple objections to App Store decision rejected by the ACM

On 2 October 2023, the ACM announced in its press release that it has rejected Apple’s objections against the order subject to periodic penalty payments. In its decision of 24 August 2021, the ACM held that Apple abused its dominant position by imposing unreasonable conditions on dating app providers for access to its App Store. The ACM determined that Apple’s conditions restricted dating app providers’ freedom of choice by requiring them to use Apple’s in-app purchase system (“IAP-obligation”) and by prohibiting reference to other payment methods outside the App Store (“anti-steering condition”). The ACM considered these conditions to be unreasonable, and imposed an order subject to a penalty payment (read more about this in our CF Q4 2021). Apple eventually paid a total of  € 50 million in penalty payments for failing to comply with the order in time.

Apple’s objections included several points. The ACM rejects almost all arguments and supplements its reasoning with this decision on objection. First, Apple complains about the ACM’s market definition. Contrary to Apple’s arguments, the ACM sees no reason to expand the market to include other ways of offering apps (such as with ‘Progressive Web Apps’), other operating systems (such as Android), or other apps than dating apps. The ACM stresses that the relevant market involves the market for app store services on the iOS operating system. Second, Apple argues that it does not enjoy a dominant position on that relevant market. The ACM does not follow this argument either, as data app providers depend on Apple’s App Store to reach iOS users and there are thus no alternative routes. In addition, the ACM considers that Apple’s market power is not weakened by, for example, the threat of future competition or consumer power. Third, the ACM also rejects Apple’s arguments that its conditions are unreasonable, noting that the IAP-obligation and anti-steering condition limit app providers’ ability to provide customer service and carry out anti-fraud activities. Finally, Apple argues to no avail that the order was not an appropriate measure for ending Apple’s abuse, and that the order had been complied with in time. Although fully rejecting Apple’s objections, the ACM does see reason to suspend the compliance deadline of the order regarding a third – currently confidential – condition, should Apple file an appeal on this subject.

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CJEU upholds infringement by ISU and criticises exclusive CAS arbitration*

On 21 December 2023, the CJEU delivered its landmark judgment concerning the cartel practices by the International Skating Union (“ISU”). The case dates back to 2017 when the Commission found a pre-authorisation system for third parties that organise speed skating events (“prior authorisation rules”), and eligibility rules that penalise speed skaters for participating in unauthorised speed skating events (“eligibility rules”), to constitute a restriction of competition by object. Following the confirmative ruling of the General Court, the CJEU now rejects ISU’s appeal.

The CJEU’s judgment sets clear boundaries for international sports federations in their regulation of sporting events organised by third parties. The CJEU stated that, in principle, the organisation of such events and the rules regarding the participation of (semi-)professional athletes in those events qualify as economic activities. Additionally, it clarifies that the Meca Medina-doctrine – which excludes restrictions that are necessary and proportionate to achieve legitimate sporting objectives from the cartel prohibition – does not extend to object restrictions. It thereby deviates from AG Rantos’ conclusion, who suggested that the pursuit of sports objectives as such excludes the behaviour of a sports federation from qualifying as an object restriction.

Moreover, the CJEU emphasised that an international sports federation that is able to regulate market access, without being subject to restrictions, obligations and judicial review by definition violates Article 102 and 106 TFEU. On top of that, the CJEU stated that such powers may, by their very nature, restrict competition within the meaning of Article 101 TFEU.

The CJEU stressed that the prior authorisation and eligibility rules must be transparent, clear, and precise. These rules must be applied in a non-discriminatory manner, and clearly set out in an accessible form prior to any implementation of the rules. Any sanctions that may be imposed must be objective and proportionate, i.e. correspond to the nature, duration and severity of the infringement found. Procedures must be transparent and provide effective judicial review of decisions. Lack of restrictions or oversight on the powers of international sports federations renders pre-authorisation and eligibility rules as unjustifiable restrictions by object. The CJEU upholds the judgment of the General Court, and thereby, the Commission’s decision.

In the cross-appeal issued by the complainants, the CJEU found that the issue of exclusive arbitration before the Court of Arbitration for Sport (“CAS”) is an aggravating circumstance. While the General Court previously annulled this aspect of the Commission’s decision, the CJEU overturned this ruling. It emphasised that EU law disputes within EU territory demand access to effective judicial protection within the EU legal order, which is not sufficiently guaranteed by exclusive arbitration at CAS. Arbitral awards of the CAS can only be appealed at the Swiss Federal Court, which is located outside the EU legal order. The CJEU thereby confirms the entire Commission decision, and ISU must still adjust its arbitration rules.

* Bas Braeken, Jade Versteeg, Timo Hieselaar and Demi van den Berg represented skaters Mark Tuitert, Niels Kerstholt, and the European Elite Athletes Association in these proceedings.

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Groundbreaking CJEU rulings redefine limits to UEFA and FIFA powers

Simultaneously with the ISU judgment, the CJEU handed down a preliminary judgment in answer to questions of the Spanish court on measures taken by FIFA and UEFA against the intention of the European Super League Company (“ESLC”) to set up its own football league: the Super League. The questions revolve around the (in)compatibility of certain authorisation and marketing rules employed by FIFA and UEFA on football players and clubs, with competition law (Articles 101 and 102 TFEU) and the provisions on free movement (Articles 45, 49, 56 and 63 TFEU).

The CJEU first notes that sports matters are not exempted from the application of primary EU law, despite the fact that Article 165 TFEU requires sport policy to be promoted within the EU. The CJEU further confirms that FIFA and UEFA are undertakings insofar as they engage in the organisation of interclub football competitions and the exploitation of related rights. Despite the different purposes pursued by Articles 101 and 102 TFEU, they can apply simultaneously to the conduct of FIFA and UEFA.

As regards abuse of dominance, the CJEU ruled that the (exclusive) powers of dominant undertakings such as FIFA and UEFA to regulate market access create conflicts of interest. Such a practice contrasts with a sporting culture based on ‘sporting merit’.  The CJEU emphasised the necessity for a level playing field among undertakings to ensure undistorted competition. Regulatory powers of organisations such as FIFA and UEFA must by definition be restricted to prevent an abuse under Article 102 TFEU. While an authorisation system as such can be legitimate in the context of professional football, the rules must be subject to a framework of substantive criteria and detailed procedural rules that ensure that they are transparent, objective, non-discriminatory and proportionate. If not, such rules are abusive per se.

Regarding the cartel prohibitions, the CJEU similarly finds that FIFA’s and UEFA’s current authorisation rules qualify as an object restriction. Moreover, the relevant participation rules and associated sanctions reinforce the anti-competitive object of FIFA’s and UEFA’s pre-authorisation systems. These could only be exempted from the cartel prohibition under Article 101(3) TFEU. In that context, it is for the referring court to assess whether the rules of FIFA and UEFA actually lead to quantifiable efficiencies and allow for sufficient residual competition. Finally, the CJEU finds that the FIFA and UEFA rules create an obstacle to the free movement of services as laid down in Article 56 TFEU, and cannot be justified on the basis of a public interest.

In the Home-grown Talent judgment, also delivered on 21 December 2023, the CJEU addressed preliminary questions regarding the (in)compatibility of rules of UEFA and the Belgian Football Association. These rules required professional football clubs in Belgium to include a number of players that have been trained at Belgian clubs – so called home-grown players. The CJEU found the home-grown talent rules to infringe Article 45 TFEU on the free movement of workers as they create a clear distinction among players based on ‘national’ affiliation. It is for the referring court to decide whether such rules are necessary, suitable and proportionate to the legitimate aim of attracting and training young players.

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Amsterdam Court refers preliminary questions to Supreme Court about applicable law on damages claims in truck cartel 

On 8 November 2023, the Amsterdam District Court referred several preliminary questions to the Dutch Supreme Court in a civil damages case arising from the truck cartel. The cartel took place from 1997 to 2011 and constituted a single and continuous infringement (“SCI”) of Article 101 TFEU, according to the Commission. The questions of the court revolve around whether the infringement should be qualified as unlawful conduct under Dutch law, giving rise to separate claims for damages at the moment the damage is incurred, or whether it results in one single damages claim per injured party. In that context, the court also requests the Supreme Court for some guidance as to the decisive moment for determining the applicable rules in cartel damages.

In a previous ruling, the Amsterdam Court of Appeal held that, given the direct effect of EU law, a SCI of Article 101 TFEU constitutes one single damages claim per individual claimant. Considering there exists only one claim for the entire cartel period of 1997 to 2011, it must be determined which regime of law applies: either the old regime of the Act on the Conflict of Tort Law (“WCOD”) or the Rome II Regulation (“Rome II”), which entered into force in 2009. To determine which regime applies, the claimants argue that the crucial factor should be the date at which the infringement was terminated, leading to the applicability of Rome II.

Article 6(3)(b) Rome II contains a special regime for liability as a result of competition law infringements. This article allows an aggrieved party, under certain conditions, to base its claim on one legal system, even if the cartel extended across multiple markets in several Member States. The court nevertheless questions this interpretation, and therefore submits a number of preliminary questions to the Supreme Court to clarify these issues.

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Court of Appeal confirms that non-compete and no-poach agreements lose effect after their expiry

On 13 June 2023, the Amsterdam Court of Appeal upheld the ruling of the interim relief judge of the District Court of Amsterdam. In essence, it held that companies are allowed to compete again and recruit staff members after the expiry of a non-compete clause and/or no-poach agreement.

The case involved the sale of Twinlock to Tesa in 2018, which included a three-year non-compete and no-poach clause stipulated in the purchase agreement. After these three years, Twinlock started a competing business and hired some of Tesa’s employees. Tesa argued that the seller breached the non-compete clause(s) and engaged in unlawful competition. The Court of Appeal disagreed. Since the non-compete clause had already expired when Twinlock started the new business, there was no breach of contract. Moreover, Twinlock did not violate the no-poach clause, as the hiring of Tesa’s employees occurred after the agreed-upon period. The fact that Twinlock had regular interactions prior to the expiration of the contractual clauses, does not alter this conclusion, according to the court. For more insights into no-poach agreements and other possible restrictions of competition in the labour market, please find our earlier blog.

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ACM rejects NS and Ministry’s requests in battle over main rail network

In its decision of 7 November 2023, the ACM declared the applications of the Dutch Railways (in Dutch: Nederlandse Spoorwegen, “NS”) and the Ministry of Infrastructure and Water Management (“Ministry”) for an economic equilibrium test (in Dutch: toets economisch evenwicht, “EET”) to be inadmissible. This is another mark in the opening up of the Dutch Main Rail Network (in Dutch: Hoofdrailnet, “HRN”). Through an EET, the ACM assesses whether the economic balance of an existing concession will be maintained when competing railway operators would introduce train services that fall within the area for which the concession is granted. Railway operators Qbuzz and Arriva submitted notifications to the ACM in September and October 2023 for several new train services, so-called “open access services”. Railway operators are required by law to notify the ACM of new passenger services, after which the ACM conducts the EET. The EET can be requested by, inter alia, concession holders and providers.

Until 2025, open access is prohibited on the HRN, as the NS still has an exclusive concession. After the concession expires in 2025, Qbuzz and Arriva intend to offer new train services on a number of rail routes on the HRN. Following the notifications of the railway operators, the NS and the Ministry requested the ACM to conduct an EET test.

The ACM finds the NS and Ministry have no cause of action in this case, as they request an EET for a concession that has yet to be granted (2025-2033). Under European regulations, the ACM can only conduct an EET if the concession in question has already been granted at the time of the notification. This is not the first time the ACM has declared the NS and Ministry inadmissible in such cases. For an overview on the developments in railway liberalisation, read our previous blog.

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ProRail withdraws request for approval of calculation method for infrastructure charge

In its draft decision of 20 May 2023, the ACM decided not to grant approval for Dutch network infrastructure manager ProRail’s draft method for the calculation of the infrastructure charge to railway operators (in Dutch: methode extra heffing, “Method”). On 1 March 2023, ProRail applied for approval of its Method for the period 2025 – 2029. Via this commonly used Method, ProRail can charge railway operators a usage fee to recover (part of) its fixed costs. Different usage fees apply to each market segment, for which ProRail drafts up a specific Method, subject to the ACM’s approval. In its request, ProRail proposed a method by which market segments with low price sensitivity would have to pay a relatively high additional charge, and vice versa. The ACM declined ProRail’s proposal, as it found the price elasticity for the freight transportation market segment included in the Method to be unreliable. The ACM stated that it could not establish that the calculation accurately reflect the relative capacity of the different market segments. After consultation with the ACM, ProRail withdrew the application on 13 December 2023. ProRail has indicated its intention to submit a new Method for the period 2026 – 2029 in 2024.

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General Court orders Commission to re-examine possible state aid resulting from exclusive licences of Dutch gambling companies

The General Court has annulled a Commission decision following an appeal by the European Gaming and Betting Association (“EGBA”). The case revolved around the extension of gambling licences in the Netherlands as regards Lotto and the Staatsloterij. The Commission decided that the extension of these licences did not qualify as state aid since the acquirers were only granted licences if the revenues from their gambling activities were paid to organisations acting in the public interest (“charity organisations”). EGBA appealed against this decision.

In its complaint, the EGBA essentially argued that the previous policy rules of the Dutch government for the granting and extension of gambling licences qualify as unlawful state aid. It claimed that the gambling licences were renewed on an exclusive basis without the Dutch government requesting payment of remuneration at market rate. Furthermore, it argued there was no open, transparent and non-discriminatory procedure for the award of the licences. EGBA also argued the licences provided charity organisations with an indirect advantage, since the companies that were awarded the gambling licences, including Lotto and Staatsloterij, donate their revenue from gambling activities to these charity organisations. The Commission objects that EGBA did not bring forward this last argument in its initial complaint before the Commission. The Commission argues it is not required to seek, on its own initiative and in the absence of any evidence to that effect, all information which might be connected with the case before it, even where such information was in the public domain.

The General Court disagreed with the Commission on two critical grounds. First, the Commission’s decision (which denied to qualify the granting of licences as state aid) was based partly on the fact that the licence holders had to channel their profits to charity organisations. This indicated the Commission’s awareness of the scheme. Secondly, the General Court cited the Commission’s own State Aid Notice (paragraph 115), which states that an advantage under State aid law can extend to entities beyond those directly receiving state resources. Therefore, the General Court ruled that the Commission should have examined whether the charity organisations qualified as undertakings within the scope of state aid law. According to the General Court, the Commission should also have assessed whether the previously applicable policy rules indirectly conferred an advantage upon these organisations. The General Court therefore annulled the Commission’s decision.

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General Court overturns state aid approval decision to Air France/KLM

On 20 December 2023, the General Court annulled the Commission’s decision in which it approved the state aid of France to Air France/KLM. On 4 May 2020, the Commission approved France’s € 7 billion aid measure to Air France under the Temporary Framework for State aid measures. The Commission identified Air France and the subsidiaries it controlled as the sole beneficiaries of the aid measure. It excluded the holding company, Air France-KLM and its other subsidiaries, including KLM, from the scope of the beneficiaries.

The General Court, however, found that the Commission erred by limiting the beneficiaries of the measures to Air France and its subsidiaries, overlooking the potential beneficiaries of the holding company Air France-KLM, including KLM. The General Court holds that, where there are grounds to fear the effects on competition of an accumulation of State aid within the same group, the Commission must carefully examine the links between the various companies belonging to that group. It must examine the capital, organisational, functional and economic links between the undertakings, the contractual framework on the basis of which the different aid measures were granted, the type of aid granted and the context in which it was granted. Read more about state aid in the aviation sector here.

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For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist.

Bas Braeken – Jade Versteeg – Lara Elzas – Timo Hieselaar – Demi van den Berg – Coen Vermeij – Gayle Lutchman

This is the Competition Flashback Q3 2023 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here).

Would you like to receive Competition Flashback by e-mail in the future? You can subscribe to our mailing list here.

Overview Q3 2023

Merger control

• Commission fines seller (Grail) for the first time for gun-jumping, buyer (Illumina) receives record fine of € 432 million
• Rotterdam court confirms ACM’s ban on PostNL takeover of Sandd
• CJEU nuances SIEC-test in appeal CK Telecoms/Hutchison and refers back to General Court
• CJEU clarifies scope of FDI Screening Regulation and possible restrictions of freedom of establishment
• Overview highlights merger cases

Cartels and vertical restraints

• Rotterdam court upholds € 82 million cartel fine for cigarette manufacturers
• Television manufacturer LG receives a fine of nearly € 8 million for resale price maintenance
• Court confirms multi-million fine for Valve over geo-blocking
• ACM fines traffic sign cartel
• Commission imposes € 1.2 million fine on Diehl for participating in hand grenade cartel
• Jan Linders becomes franchisee of Albert Heijn subject to commitments

Abuse of a dominant position

• ACM reduces fine Leadiant for excessive pricing of CTX-drug by over € 2.5 million
• European Commission re-imposes fine on Intel after annulment by General Court
• Breach of data protection rules can be taken into account when assessing competition law infringements

Damage claims for competition law infringements

• Court assumes international jurisdiction against Apple and declares a foundation inadmissible

Regulated markets and consumer law 

• European Commission designates six gatekeepers under the DMA
• American Express and Visa appeal over interchange fees inadmissible
• Outsourcing to call centres does not preclude liability for unfair trading practices during marketing calls

Commission fines seller (Grail) for the first time for gun-jumping, buyer (Illumina) receives record fine of € 432 million

On 12 July 2023, the European Commission (“Commission”) imposed a record fine of € 432 million on biotech company Illumina for prematurely implementing the acquisition of Grail.

The Commission launched an in-depth investigation into this transaction in 2021 based on a referral from several European Member States under Article 22 of the EU Merger Regulation (“EUMR”) (see our blog on Article 22 here). The General Court of the European Union (“General Court”) had already confirmed, in its judgment of 13 July 2022, that the Commission was entitled to exercise this power under Article 22 EUMR. Subsequently, the Commission decided to prohibit the transaction in its entirety (for more on this, see Competition Flashback (“CF”) Q3 2022).

In parallel with the substantive assessment of the transaction, the Commission opened an investigation into a possible violation of the standstill obligation by Illumina in 2021 and already imposed interim measures at that time. During the Commission’s investigation, Illumina publicly announced that it had completed its acquisition of Grail. In its decision of 12 July 2023, the Commission confirmed its preliminary view that Illumina and Grail knowingly breached the standstill obligation.

According to the Commission, there was a deliberate strategy on Illumina’s part, as it strategically weighed the risk of a gun-jumping fine against the risk of paying a considerable breakup fee if it did not acquire Grail. The Commission considered this to be an unprecedented and very serious infringement that undermines the effective functioning of the European merger control system. Therefore, a high and deterrent fine is justified. Additionally, the Commission decided to impose a symbolic fine of € 1,000 on target Grail for its active role in the infringement. This marks the first time that a target in a transaction has been fined by the Commission for violating the standstill obligation (read more here).

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Rotterdam court confirms ACM’s ban on PostNL takeover of Sandd

On 29 September 2023, the Rotterdam District Court ruled that the Dutch Authority for Consumers and Markets (Autoriteit Consument en Markt, “ACM”) rightly decided not to grant postal operator PostNL a licence to acquire rival postal operator Sandd in 2019. At the time, the ACM refused to grant a licence because PostNL’s takeover of Sandd would strengthen PostNL’s dominant position. The ACM also expected a price increase for business mail of 30% to 40% after the transaction. The ACM’s market investigation also showed that, although the volume of physical mail will decrease, there will still be a substantial demand for physical mail in the long term.

PostNL requested the Minister of Economic Affairs and Climate Policy (“Minister”) to still grant a licence under Section 47(1) and (2) of the Dutch Competition Act and also appealed the ACM’s decision. The hearing of that appeal was suspended until the licence application was irrevocably decided by the Minister. On 27 September 2019, the Minister granted a licence, which was subsequently reversed by the court of first instance and on appeal (see also CF Q2 2022). With that, PostNL’s appeal against the ACM’s decision revived, which has now been decided by the court.

The court declared PostNL’s appeal unfounded. The court ruled that the ACM had correctly defined two national markets for consumer mail and business mail. Contrary to PostNL’s argument, the ACM was indeed allowed to use data from its quantitative and qualitative research as well as internal PostNL documents, as PostNL also used these itself in its strategic documents and forecasts. In addition, the court held that the ACM correctly assumed the counterfactual that PostNL would remain profitable in the short and long term, whilst Sandd would continue to exert competitive pressure if the acquisition did not take place.

The possible horizontal effects of the merger on the markets for business mail and consumer mail – such as the elimination of the only competitor with a national network and an increase in the price for bulk mail – have also been made sufficiently plausible by the ACM. The same applies to the vertical effects for business mail, namely the ability and incentive for PostNL to foreclose competitors from its delivery network. According to the court, the efficiency defence raised by PostNL was also thoroughly examined and rightly rejected by the ACM. Finally, the court agreed that PostNL had not convincingly demonstrated that it could not perform the universal postal service (profitably) absent the merger. The court thus fully upheld the ACM’s decision not to grant a licence.

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CJEU nuances SIEC-test in appeal CK Telecoms/Hutchison and refers back to General Court

This summer, the Court of Justice of the European Union (“CJEU”) overturned the General Court’s controversial judgment in CK Telecoms v Hutchison, which set a high standard of proof and strict requirements for prohibiting mergers in oligopolistic markets. In 2020, the General Court annulled the Commission’s decision to prohibit the merger between the two mobile network operators in the United Kingdom. In 2016, the Commission found that the 4-to-3 merger would lead to a significant impediment to effective competition (“SIEC”) in three different markets. Upon appeal, the General Court held that the Commission had not applied the SIEC-test correctly and that its analysis could not support the conclusions in the prohibition decision.

The CJEU overturns the General Court’s judgment. It ruled that the same standard of proof applies to both the prohibition and the approval of a merger. Given the inherent uncertainty of prospective analyses, it is sufficient for the Commission to demonstrate that it is more likely than not that a merger will lead to a restriction of competition. The SIEC-test has no specific, cumulative requirements. With regard to the concepts of ‘important competitive force’ and ‘close competitors’ as included in the Horizontal Merger Guidelines, the CJEU agrees with the Commission that the General Court applied too strict a standard. The General Court ruled that (one of) the merging parties must hold a special position, for example by a particularly aggressive pricing policy, and that the parties should be ‘particularly close competitors’. However, within an oligopolistic market, several companies can actually exert significant competitive pressure, and not only with regard to prices, the CJEU states. Furthermore, the General Court disregarded the function of efficiency benefits in merger control when it ruled that the Commission should automatically take them into account in its assessment. The CJEU emphasises that concentrations do not automatically lead to efficiency benefits and it is up to the merging parties to substantiate these. Assuming that efficiency benefits (can) occur would wrongly lead to a reversal of the burden of proof.

Lastly, the CJEU finds that the General Court failed to fully weigh all the Commission’s evidence before annulling the prohibition decision. Due to the gross disregard of the law and the failure to discuss various grounds at first instance, the CJEU refers the case back to the General Court.

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CJEU clarifies scope of FDI Screening Regulation and possible restrictions of freedom of establishment

In response to a preliminary reference from a Hungarian court, the CJEU clarifies that Regulation 2019/452 (“FDI Screening Regulation”) applies only to direct investments by foreign companies, and determines that a prohibition decision based on a broad screening mechanism may violate the freedom of establishment. In 2020, the Hungarian Minister of Innovation and Technology prohibited the acquisition of the raw materials extraction company Janes es Tarsa (“JeT”) by construction materials company Xella Magyarország (“Xella”). Since Xella is indirectly owned by a top holding company registered in Bermuda, the acquisition was seen as a risk to the security of supply of these strategic raw materials, as stated by the minister. Xella challenged this prohibition decision before the national court, which had to assess whether there this infringes the FDI Screening Regulation and/or the provisions on free movement.

First, the CJEU determines that the FDI Screening Regulation does not apply in this case, as it only covers foreign direct investments and Xella is a Hungarian undertaking. Although the regulation provides that the ownership structures of the acquiring party can be taken into account, the CJEU clarifies that this pertains to whether the investor is (in)directly controlled by the government of a third country.

Since Xella, as a Hungarian undertaking, is prohibited from acquiring a shareholding in another EU company, the CJEU concludes that there is a restriction on the free movement of establishment. Such a restriction is only permissible if justified. According to the CJEU, the protection of public order and/or public security can serve as justification only in the case of a genuine and sufficiently serious threat to a fundamental interest of society. The CJEU has previously found justifications in cases involving companies providing public services in the petroleum, telecommunications, and energy sectors. In the case at hand, the CJEU finds that the objective of ensuring the security and continuity of supply to the construction sector does not constitute a public security reason. Moreover, the CJEU does not consider the risks outlined by the minister to be plausible, as Xella already purchases 90% of JeT, and the market value of these raw materials is relatively low compared to the transport costs, so that it is unlikely they would be withdrawn from the Hungarian market.

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Overview highlights merger cases

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Rotterdam court upholds € 82 million cartel fine for cigarette manufacturers

On 18 July 2023, the Rotterdam District Court declared the appeals of Philip Morris, JT International, British American Tobacco and Van Nelle Tabak against the tobacco cartel decision of the ACM, unfounded. In 2020, the ACM imposed fines on the four cigarette manufacturers for exchanging information on future prices of cigarette packs through wholesalers. By asking wholesalers for future price information from competing manufacturers and/or not objecting to receiving this information, the ACM found there was a concerted practice aimed at restricting competition in the Dutch cigarette market.

In their appeals, the manufacturers challenge, inter alia, the existence of a concerted practice, a single and continuous infringement, and a restriction of competition by object. According to the manufacturers, the excise tax system makes the market highly regulated and transparent, and there was a legitimate reason to provide the future price lists to wholesalers. The court rejects all of these arguments and endorses the ACM’s view that this does not prevent the qualification of a restriction of competition by object and the seriousness of the violation. According to the ACM and the court, the core of the infringement consists of maintaining a practice of indirect information exchange, thereby removing uncertainty in the market.

The manufacturers also objected against the amount of the fine imposed by the ACM and the way the ACM conducted its investigation. The court does not follow these arguments either. However, the manufacturers’ argument that the ACM wrongly applied the 2009 Fining Guidelines when the 2007 Penalty Code was in force for part of the infringement period does succeed. Since the application of the old policy rules would nevertheless not have led to a more favourable result for the manufacturers, the court still declared the manufacturers’ appeal unfounded in its entirety.

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After Samsung, the ACM has now also decided to impose a fine of nearly € 8 million on television manufacturer LG  for influencing resale prices of seven large retailers of LG televisions. LG provided retailers with a recommended price and monitored whether retailers adhered to the recommendation. It did this partly by monitoring retailers’ price comparison websites and web shops. LG was also tipped off by competing retailers. When a retailer maintained a lower price than the recommended price, LG contacted the relevant retailer via email or Whatsapp and urged him to adjust the different price to LG’s desired level. According to the ACM, LG hereby coordinated the consumer price level for LG televisions in the Netherlands and tried to prevent price drops.

According to LG, the price recommendations were in fact, only recommendations. LG also argued that it did not exercise coercion and did not offer incentives to actually adjust the price to the recommended price. The ACM nevertheless held that exercising coercion and giving incentives are not imperative in order to induce retailers to adhere to the ‘recommended price’, as they trusted other retailers to do the same. This secured their margins.

When calculating the fine, the ACM took into account as an aggravatig circumstance that LG systematically and frequently intervened in the pricing of televisions over a long period of time; almost three years. As a mitigating circumstance, the ACM does consider the lack of coercion and/or incentives and that it has not previously imposed a fine for resale price maintenance during the infringement period. While Samsung was fined for a similar infringement in 2021, LG’s infringement period had already ended by then. Finally, the ACM sees reason to further mitigate the fine due to the particularly long period (almost two years) between the investigation report and the fining decision. This eventually resulted in a fine of € 7.9 million.

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The General Court recently confirmed the fine imposed by the Commission in 2021 on Valve – the company behind the video game platform Steam – for engaging in geo-blocking practices with five game publishers: Bandai Namco, Capcom, Focus Home, Koch Media (now Plaion) and ZeniMax. The fines in total amount to almost € 8 million. The game publishers decided not to challenge their fines.

According to the Commission’s decision, these game developers restricted cross-border sales of PC video games by placing territorial restrictions on certain PC games. By doing so, they tried to prevent PC games from being bought in countries where prices were lower, notably the Baltic States and some countries in central and eastern Europe, while subsequently being played elsewhere.

According to the General Court, the Commission correctly concluded that there was an agreement or concerted practice having the object of restricting trade between Member States. The geo-blocking therefore did not pursue an objective of protecting the copyright of the game publishers, as Valve argued. The General Court stressed that although copyright intends to ensure that the holders thereof can commercially exploit their protected material – for example, by licensing it – it does not guarantee them the opportunity to claim the highest possible remuneration or to artificially create price differences by partitioning national markets. That is irreconcilable with the internal market. The General Court dismisses the action brought by Valve.

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On 20 July 2023, the ACM fined traffic sign manufacturers Brimos and Agmi for fixing prices in four different tenders for the production of traffic signs. The National Guide Signing Service (an alliance of the different government bodies in the Netherlands, in Dutch: Nationale Bewegwijzeringsdienst) regularly calls for tenders from a number of companies to produce traffic signs. In 2020, Brimos and Agmi agreed on the prices they would charge in their tenders prior to submitting them. They also discussed who should win which tender.

Brimos reported the agreements to the ACM through a leniency application and was therefore granted a complete exemption from a fine of € 135,000. Following dawn raids by the ACM, Agmi also submitted a leniency application and cooperated in a simplified settlement procedure. Agmi was therefore granted a 60% reduction of the fine and ended up paying € 56,000.

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The Commission has imposed a € 1.2 million fine on defence company Diehl for participating in a cartel in military hand grenades. Diehl and competitor RUAG entered into market-sharing agreements for 14 years, and sought mutual consent to conduct business within each other’s territories. This fine is the first in the defence sector, serving as a clear signal that cartelisation will not go unpunished, even within strategic sectors amidst shifting geopolitical dynamics. Notably, the Commission has deviated from the standard method of calculation in its Guidelines, and has imposed a higher fine to create a stronger deterrent effect.

The investigation into this cartel began after RUAG applied for leniency with the Commission in mid-April 2021. After the Commission conducted a dawn raid on Diehl on November 13, 2021, Diehl also applied for leniency. As RUAG was the first to file a leniency application, it escaped a fine of approximately € 2.5 million. Diehl received a 50% reduction. This is a significant reduction, but justified by the timing of Diehl’s cooperation and the extent to which it provided essential evidence, according to the Commission. Moreover, the Commission reduced the fine by 10% due to the acknowledgement of involvement and liability by both cartel participants in this regard. This is in line with its Notice on Settlement Proceedings in Cartel Cases.

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Jan Linders becomes franchisee of Albert Heijn subject to commitments

ACM, decision of 31 August 2023

In its decision of 31 August 2023, the ACM declared the commitments of Albert Heijn and Jan Linders, relating to a proposed cooperation, binding. The two supermarket chains entered into a cooperation agreement on 13 December 2022 as a result of which Jan Linders will operate its stores as a franchisee of Albert Heijn. Additionally, Jan Linders will sell its distribution centre to Albert Heijn. Furthermore, as part of the franchise agreement, Albert Heijn is selling ten shops to Jan Linders to be operated as Albert Heijn franchises; this acquisition has already been approved by the ACM.

During the informal investigation into the cooperation agreement, the ACM raised potential competition risks in several local markets within the catchment areas surrounding five Jan Linders supermarkets. For the purpose of a quick resolution and to avoid further investigation, Jan Linders agreed to sell the five supermarkets in question to competitors. Moreover, Jan Linders and Albert Heijn will not operate these divested supermarkets for a period of ten years. One of these shops will continue as a Spar franchise, the sale of the remaining four shops to Jumbo has already been approved by the ACM.

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ACM reduces fine Leadiant for excessive pricing of CTX-drug by over € 2.5 million

In its decision on objection of 22 June 2023, the ACM reduced the fine imposed on pharmaceutical company Leadiant by over € 2.5 million. In 2021, the ACM fined Leadiant over € 19.5 million for charging excessive prices for its drug ‘CDCA-Leadiant,’ which is a life-saving drug for patients suffering from the rare metabolic disease cerebrotendinous xanthomatosis (“CTX”). Where the first CDCA-based drug (Chenofalk) was sold by Leadiant for € 46 per package in 2008, the price for the CDCA-Leadiant launched in 2017 amounted to € 14,000 per package (representing € 153,300 per patient per year). As Leadiant was granted the exclusive right to supply a CDCA-based drug in the European market from June 2017 to December 2019, and no alternative medicines were available during that period, the ACM concluded that Leadiant held a dominant position, and had abused this position by the excessive and unfair price of € 14,000 per package.

In its objection, Leadiant argues, inter alia, that there was a collective boycott on the part of health insurers, that the ACM used incorrect calculation methods, and that the ACM wrongly included the prices of the earlier versions of the CTX-drug in its assessment. The ACM did not accept these arguments. Although the ACM took into account the required investments and financial risks involved with Leadiant’s exclusive right, it concludes that any calculation method would result in an excessive and unfair price. The ACM does, however, accept the argument that between 1 April 2018 and 26 July 2018, a magistral (pharmacy-prepared) version of the CDCA-drug was also available in the Netherlands, which means that Leadiant was not dominant during that period. This leads to an adjustment of the established infringement period, and thus, the total amount of the fine.

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European Commission re-imposes fine on Intel after annulment by General Court

The Commission has re-imposed a fine on Intel for the company’s abuse of its dominant position in the market for computer chips. Intel, one of the largest producers of computer chips, gave rebates to computer manufacturers on the condition that they would buy (almost) all of Intel’s chips. In addition, Intel paid them to halt or delay the launch of specific products containing chips of competitors, so-called ‘naked restrictions’.

The abuse was previously identified and fined by the Commission: it already fined Intel for € 1.09 billion in 2009. However, this decision was overturned by the General Court in January 2022. The General Court held that the Commission had made an incomplete analysis regarding the conditional rebates so that it could conclude that this practice brought about (potential) anticompetitive effects. The General Court subsequently held that, because of the partial annulment of the decision in so far it relates to the conditional rebates, it was not in a position to establish the amount of the fine relating to the ‘naked restrictions’. The General Court therefore annulled the fine in its entirety.

The Commission has now imposed a new fine on Intel of € 376 million which only relates to the ‘naked restrictions’. The appeal against the General Court’s judgment annulling the decision on the conditional rebates is still pending before the CJEU.

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Breach of data protection rules can be taken into account when assessing competition law infringements

In response to preliminary questions referred by a German court, the CJEU rules that a (national) competition authority must take into account any decision or investigation by the competent data protection authority. In 2019, the German competition authority, the Bundeskartellamt (“Bka”), decided that Meta Platforms Ireland (“Meta”) abused its dominant position on the market for social networks by collecting and combining data about Facebook users’ activities inside and outside its social network. Users had to accept these terms and conditions in order to use Facebook. By collecting, using and merging this data, Meta violated the General Data Protection Regulation (“GDPR”) and also abused its dominant position, according to the Bka. Meta contested this decision before the German court, who questioned whether the Bka – as part of its investigation into the abuse of dominance – was entitled to test whether the data processing violated the GDPR.

The CJEU ruled that a competition authority, in this case the Bka, may be required to check whether certain conduct complies with legal standards other than those concerning competition law, including the GDPR. In doing so, the Bka does not take the place of the authority supervising the GDPR, as it only assesses the compliance with the GDPR to determine whether there is an abuse of dominance. However, the CJEU stresses that consultation and sincere cooperation between competition and data protection authorities is crucial. If the data protection authority has already taken a decision on the conduct in question, the competition authority should not deviate from it.

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Court assumes international jurisdiction against Apple and declares a foundation inadmissible

The District Court of Amsterdam intends to refer preliminary questions to the CJEU on the relative jurisdiction of national courts in situations where different national courts have relative jurisdiction at the same time. In this case, foundations RCJ, ASC and CCC brought collective actions, so-called WAMCA claims, against Apple for charging (too) high commission rates in the Apple App Store and the fact that in-app payments could only be made through Apple’s own payment system. According to the foundations, these practices violate Articles 101 and 102 TFEU.

RCJ, ASC and CCC represent the interests of consumers and/or app developers. RCJ was the first to issue its writ of summons on 4 October 2021, which initiated the three-month period for filing a competing class action. The second foundation, ASC, and third foundation, CCC, issued their writs of summons later, after those three months. Only ASC, however, had requested an extension of the three-month period. The court held that this extension did not have general effect, so that it could therefore not be invoked by CCC. The court consequently held that CCC had no cause of action.

The court further assumed international jurisdiction based on the Handlungsort and the Erfolgsort, because the place of the harmful event could be located in the Netherlands. Although commission fees are charged in the App Store worldwide, the existence of a Dutch App Store demonstrates that there is a Dutch market. Even if the geographical market in which the abuse of dominance is implemented is broader than (just) the Netherlands, the Dutch court has jurisdiction as part of that market, the court said. Moreover, Apple deliberately targeted the Dutch market by setting up several storefronts, including the one in the Netherlands (Handlungsort). The place where the damage occurred is also in the Netherlands for Dutch consumers (Erfolgsort).

The court is, however, less certain about its relative jurisdiction. The underlying consumers represented by the foundations are spread all over the Netherlands and there is no concrete indication pointing to a single district court. Since Article 7(2) of the Brussels I bis Regulation simultaneously designates the absolute and relative competent court, this would mean that possibly every district court in the Netherlands would have relative jurisdiction, which would not benefit procedural economy and efficiency. The court is therefore considering asking the CJEU for some guidance on this issue.

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European Commission designates six gatekeepers under the DMA

On 6 September, 2023, the Commission officially designated six gatekeepers under the Digital Markets Act (“DMA”). Under the DMA, gatekeepers are companies that have consistently provided a core platform service over at least the past three years, that serves as an important gateway for business users to reach end users. This is presumed to be the case if the undertaking has at least 45 million monthly active end users and 10,000 yearly active business users within the EU. Additionally, a gatekeeper must have a size that impacts the internal market, which is presumed at an annual turnover in the EU of € 7.5 billion, or a market value of € 75 billion, while also providing a core platform service in at least three Member States. Core platform services include, for example search engines, online social networking services, web browsers, operating systems and online intermediation services such as app stores.

Alphabet, Amazon, Apple, ByteDance (TikTok), Meta and Microsoft have all been designated as gatekeepers for various core platform services. Collectively, they offer a total of 20 core platform services that must comply with the DMA’s rules of conduct and obligations. The primary goal of these rules is to foster an open and fair European digital market (outlined in our blog of 22 December 2022). The DMA imposes both positive obligations, for example in the context of interoperability and data portability, as well as negative obligations, including bans on self-preferencing and the combining of personal data. Also, gatekeepers must inform the Commission of any proposed concentration in the digital sector. These designated gatekeepers have until 6 March 2024 to align their services and behaviour with the provisions of the DMA.

It’s worth noting that the Commission decided not to classify Apple and Microsoft as gatekeepers in relation to Apple’s messaging service (iMessage) and Microsoft’s web browser (Bing), following protests by the two tech giants. The Commission initiated market surveys to further assess the arguments presented by Apple and Microsoft in that regard. Furthermore, the Commission is investigating whether Apple should be designated as a gatekeeper for its iPadOS, despite that this service does not meet the quantitative criteria from the DMA mentioned above.

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American Express and Visa appeal over interchange fees inadmissible

The Trade and Industry Appeals Tribunal (“CBb”) recently declared American Express’ and Visa’s appeal against the annulment of the order subject to penalty payments imposed on Mastercard and ICS inadmissible. By decision of 22 October 2020, the ACM imposed an order subject to penalty payments on Mastercard and ICS for charging excessive interchange fees for handling transactions within a four-party payment card scheme with co-branding partner Bijenkorf. In first instance, the court ruled that the interchange fees paid by ICS to Bijenkorf and Mastercard to ICS were not covered by the Regulation on interchange fees for card-based fees and therefore did not have to comply with the maximum fee of 0.3% of the transaction value per transaction set by that regulation. Since this case involved four parties as well as a co-branding partner, the Regulation was not applicable as such, and exceeding the 0.3% limit for payments to co-branding partners did in this case not lead to consumer harm, the court said.

American Express and Visa appealed the annulment of the order subject to penalty payments. In its recent ruling, the CBb declared the appeal inadmissible as the Bijenkorf Card had since then been cancelled and, thus, there was no longer a violation. Enforcement action is therefore no longer possible, according to the CBb.

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Outsourcing to call centres does not preclude liability for unfair trading practices during marketing calls

The Rotterdam District Court recently upheld the € 400,000 fine imposed by the ACM on energy supplier DGB for conducting unfair trading practices during phone calls made by call centres on behalf of DGB. In an attempt to recruit more consumers, DGB decided to actively target sales to consumers through telemarketing calls. The court agreed with the ACM that essential information was not provided during these call, or was provided too late. For example, the commercial purpose of the call was not always disclosed. Also, it was not always clear on whose behalf the call centre agent was calling and information regarding the product, any associated actions, and the right of withdrawal was not provided or was provided too late. All this information should be provided to the consumer right at the beginning of the marketing call, and telemarketers should not slowly entrap consumers by providing faulty information, the court said.

DGB argued that the ACM wrongly attributed the conduct of the commissioned call centres to DGB. The court disagreed and ruled that DGB was aware of the practice, or in any case, could have been aware. Moreover, as could reasonably be required of a legal person, DGB enjoys a duty of care to supervise the call centres and prevent the conduct in question. The fact that DGB had outsourced customer acquisition to a call centre does not affect DGB’s liability under the Dutch Drijfmest-criteria, the court said.

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For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist.

Bas Braeken – Jade Versteeg – Lara Elzas – Timo Hieselaar – Demi van den Berg – Coen Vermeij – Gayle Lutchman

This is the Competition Flashback Q2 2023 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here).

Would you like to receive Competition Flashback by e-mail in the future? You can subscribe to our mailing list here.

Overview Q2 2023

Merger control

• ACM bans acquisition of waste processor AEB by AVR
• Conditional approval for acquisition of Landal by Roompot
• Rotterdam court overturns two merger prohibition decisions in healthcare sector in short order
• Overview highlights merger cases European Commission

Cartels, vertical restraints and abuse of a dominant position

• Fining decision on egg purchasing cartel may be published
• CJEU clarifies qualification of resale price maintenance as by-object restriction
• Parallel proceedings in Italy and rest of EEA tot Amazon Buy Box permissible according to CJEU

Follow-on competition damages claims

• CJEU clarifies burden of proof and confirms principle of partial nullity for competition law infringements
• Amsterdam court assumes jurisdiction over damages claims against Google based on anchor defendant rule
• Supreme Court refers preliminary questions on parent company liability for cartel damages in AB and Heineken/MTB
• Amsterdam Court of Appeal asks CJEU to clarify anchor defendant rule in power cable and cardboard cartel cases
• Gran Petro claims foundation abuses procedural rights by commencing proceedings in the Netherlands
• SCC and Equilib foundations only partially meet burden of proof: part of underlying parties drops out in air cargo cartel damages action

Investigation and enforcement powers

• ACM may expand research objective after reviewing incriminating documents during dawn raid
• ECtHR narrowly approves Dutch system of transferring intercepted information between regulatory authorities
• ACM’s prioritisation policy clarified: sustainability, privacy, security and other public interests may be taken into account
• CJEU stresses wide discretion of Commission to request information during investigation

State aid and regulated markets

• German aid approval to Lufthansa of € 6 billion undercut at General Court
• Verbal agreement with NS does not suffice: ProRail must grant third party access to railway sidings

ACM bans acquisition of waste processor AEB by AVR

ACM, decision of 13 June 2023

In its decision of 13 June 2023, the Dutch Authority for Consumers and Markets (“ACM”) prohibited the acquisition of waste processor AEB by competitor AVR. In 2021, the municipality of Amsterdam decided to privatise municipal waste processor AEB. After several bids, Rotterdam competitor AVR emerged as the buyer. The ACM concluded that the merged entity would become by far the largest waste generation company in the Netherlands, with twice as much processing capacity as the second largest party. This would lead to price increases for municipalities in the provinces of North Holland, South Holland and Utrecht, which would in turn pass these price increases on to their residents. Prices would also rise for customers in the market for lightly contaminated hazardous waste treatment, such as commercial waste collectors. The parties tried to address the ACM’s concerns by offering remedies, but these appeared insufficient to fully address the ACM’s competition concerns.

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Conditional approval for acquisition of Landal by Roompot

ACM, decision of 12 April 2023

Following the first phase decision (see our Competition Flashback Q4 2021), the ACM granted a conditional licence for Roompot’s acquisition of Landal after a (lengthy) second phase investigation. The two providers of accommodation on holiday parks, which are also each other’s closest competitors, will together become by far the largest provider in the Netherlands post-transaction. According to the ACM’s investigation, this is likely to increase rental prices of holiday homes. Apart from the market for the provision of holiday park accommodation, the ACM also found anti-competitive effects on the market for the provision of rental intermediary and marketing services to owners of (accommodation on) holiday parks. According to the ACM, these competition concerns are sufficiently removed by the divestment of 30 holiday parks to Dormio Group. Subject to this divestment package, the transaction got the green light from the ACM.

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Rotterdam court overturns two merger prohibition decisions in healthcare sector in short order

District Court of Rotterdam, judgments of 24 March 2023 and 12 May 2023

The District Court of Rotterdam overturned two merger prohibition decisions by the ACM in the healthcare sector in two months’ time. After the court annulled the ACM’s decision not to license Mediq‘s  acquisition of Eurocept Homecare on 24 March, it has on 12 May 2023 also annulled the ACM’s decision to ban the acquisition of Mauritskliniek by Bergman Clinics. In both cases, the court ruled that the ACM did not provide decisive evidence to prohibit the mergers based on the qualitative studies it had conducted.

In Bergman Clinics/Mauritskliniek, the ACM  blocked the merger because it would further strengthen Bergman Clinics’ bargaining position. According to the ACM, Bergman Clinics would thereby become an indispensable contracting partner for health insurers. The ACM based this on its market research among major health insurers and a price survey. In doing so, the ACM pointed to research that showed that prices at Bergman Clinics increased relatively more than at comparable healthcare providers after its merger with NL Healthcare Clinics in 2018. In view of the ACM, this is predictive of a comparable outcome for the acquisition of Mauritskliniek.

The court first looked at the evidence presented by the ACM regarding the indispensability of Bergman Clinics as a healthcare provider. According to the court, the surveys showed that, although the full or partial transfer of care to other providers was generally considered difficult by health insurers, it was not impossible. Moreover, the court did not consider selective contracting to be unrealistic, especially now that Bergman Clinics itself had indicated that it was open to this. As the indispensability of Bergman Clinics had not been demonstrated, the ACM’s decision could not be upheld. According to the court, the price study was insufficient to establish that there was a significant restriction of competition.

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Overview highlights merger cases European Commission

Microsoft/Activision Blizzard

Following a Phase II-investigation, the European Commission (“Commission”) has conditionally approved Microsoft’s acquisition of game developer Activision Blizzard. Activision Blizzard develops, among others, the PC game World of Warcraft and cross-platform games such as Call of Duty. In addition to the concerns identified in the first phase investigation (see also Competition Flashback Q4 2022), the Commission is concerned that the acquisition restricts the development of and access to the market for cloud gaming (as a distribution channel). For example, as a result of the acquisition, Microsoft could choose to offer Activision Blizzard’s games solely via its own cloud ‘Game Pass Ultimate‘. To address these concerns, Microsoft has agreed to allow consumers in the European Economic Area (“EEA”) to stream all current and future Activision Blizzard’s PC and console games via any cloud gaming streaming service for ten years. Vice versa, cloud gaming streaming service providers will be given a licence to offer Activision Blizzard’s PC and console games in their cloud. In addition, Microsoft has pledged to allow Activision’s games to continue to function on operating systems other than Microsoft. Earlier this year, these commitments proved insufficient for the Competition and Markets Authority (“CMA”), which banned the acquisition in the UK.

Viasat/Inmarsat

On 25 May 2023, the Commission approved the acquisition of UK-based Inmarsat by its US rival Viasat. The approval follows a Commission investigation into the two undertakings that provide in-flight connectivity services (see also Competition Flashback Q1 2023). As the in-flight internet connectivity market is developing, new market entrants are expected to exert significant competitive pressure on the newly merged entity. According to the Commission, other markets do not overlap enough to raise competition concerns.

Vivendi/Lagardère

The Commission has conditionally approved Vivendi’s acquisition of Lagardère. The concentration between the two major French multimedia groups could restrict competition in the markets for the purchasing of authors’ rights and for the distribution, marketing and sales of French-language books. Due to the existence of strong vertical links and a limited number of competitors, the concentration would also have led to higher prices for French press magazines, according to the Commission’s investigation. As a remedy, Vivendi will divest its press magazine Gala and its entire publishing business. The Commission is currently assessing the suitability of potential buyers that Vivendi has put forward.

A week after the approval, it emerged that the Commission is also investigating whether Vivendi completed the acquisition prematurely, before the Commission gave its approval. So-called ‘gun-jumping’ can lead to fines of up to 10% of turnover under the Merger Regulation (read more here).

Hydro/Alumetal

The Commission has decided to approve the takeover of Polish producer of aluminium foundry alloys for the automotive industry Alumetal by Norwegian aluminium giant Norsk Hydro. According to the Commission’s second phase investigation, there will be sufficient alternative suppliers post-transaction, including parties that, like Alumetal, work with recycled materials. The Commission found that Alumetal and Norsk Hydro are not close competitors, and possible vertical links between Alumetal as a producer and Hydro as a purchaser of aluminium foundry alloys do not raise competition concerns.

Orange/MasMovil

On 3 April 2023, the Commission opened an in-depth investigation into the proposed joint venture of mobile network operators Orange and MasMovil. Orange and MasMovil are the second and fourth largest mobile operators in Spain. The Commission examined the proposed merger and concluded that the number of network operators would be reduced, and that the parties would have both the ability and incentive to deny other mobile providers access to their networks. These concerns could lead to higher prices for consumers in Spain, especially considering the parties are close competitors, and MasMovil has proven to be an effective and innovative challenger to market leader Orange in recent years. The Commission sent the parties its formal statement of objections on 27 June 2023.

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Fining decision on egg purchasing cartel may be published

District Court of Rotterdam, judgment of 8 May 2023

The District Court of Rotterdam ruled that the ACM may (to a large extent) publish its infringement decision regarding the industrial egg cartel. On 22 December 2022, the ACM imposed fines on Interovo, Wulro and Global for their participation in the ‘egg cartel’. The three companies purchase industrial eggs and process these into liquid and powdered egg products to be sold to food processing industries such as sauce manufacturers and patisseries. Between April 2015 and August 2016, Wulro and Interovo entered into market-sharing agreements (largely via WhatsApp) and deliberately kept purchase prices at farmers low. Wulro and Global had similar arrangements in the period March 2016 to August 2019. According to the ACM, these constituted continuous infringements that aimed to restrict competition in the Netherlands, Belgium and North West Germany.

Wulro and Global sought to prevent the disclosure of the fining decision. To this end, they argued that the ACM acted in violation of the presumption of innocence and the requirement of segregation of duties. After the Directorate of Competition (“DM”) published its investigation report, the Directorate of Legal Affairs (“DJZ”) informed DM that the market definition was deficient and gave DM the opportunity to supplement its market investigation. This also meant that the statutory decision period of 13 weeks was not met. Previously, the Rotterdam District Court already ruled in this case that this deadline (Article 5:51 Awb) is a period of order, and exceeding it does not deprive the ACM of its possibility to impose a fine. The court now adds that there is no provision that prevents the ACM from conducting a supplementary investigation. The fact that DJZ gave DM the opportunity to issue a second report does not mean that there is a violation of the presumption of innocence, the principle of separation of duties, and/or Article 6 of the European Convention on Human Rights (“ECHR”), according to the court.

The substantive contentions of the producers were also unsuccessful, for example as regards the wrongful definition of the relevant market, the position of the producers thereon, and the absence of a restriction of competition by object. The court does also not follow the argument that the (prolonged) interruption in the contact moments affected the existence of a single and continuous infringement, nor did it establish that the agreement was exempted under Article 7 of the Dutch Competition Act (in Dutch: bagatel).

However, the court does have doubts as to the calculation of the turnover and the fines. For instance, the ACM imposed two fines on Wulro, without reflecting the two different yet related infringements into the total amount of the fine. According to the court, it is also unclear whether the relationship between the producers is adequately reflected in the fine calculation. The court therefore rules that the amount of the fines may not be disclosed for the time being.

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CJEU clarifies qualification of resale price maintenance as by-object restriction

Court of Justice of the European Union, judgment of 29 June 2023

In its judgment of 29 June 2023, the Court of Justice of the European Union (“CJEU”)  elaborated upon the question whether imposing minimum selling prices on distributors qualifies as a restriction of competition by object. Super Bock, a Portuguese beer and water manufacturer, sent minimum price lists to its on-trade distributors between 2006 and 2017. Through a monitoring system and mandatory price reports from the distributors, it kept an eye on the compliance with the price agreements. If the distributors deviated from the minimum selling prices, discounts or stocks were withheld. Super Bock was fined by the Portuguese competition authority for this behaviour. On appeal, the Portuguese court wonders whether such a (factual) vertical price-fixing agreement (automatically) constitutes a restriction of competition by object, and whether it constitutes an agreement within the meaning of Article 101(1) TFEU.

The CJEU considers that, according to settled case-law, a by-object restriction must have a sufficiently serious effect on competition, which must be assessed in the light of its wording, objectives, as well as its economic and legal context. The fact that minimum selling prices constitute a ‘hardcore restriction’ within the meaning of the Vertical Block Exemption Regulation does not eliminate the need of such assessment. The Court emphasises that a hardcore restriction is not equivalent to a by-object restriction.

Furthermore, according to the CJEU, an agreement exists if there is a concurrence of wills between the parties, regardless of its form. While the sending of minimum price lists, monitoring and retaliatory measures indicate unilateral conduct, compliance with those price lists (despite complaints about the prices) by catering distributors may indicate (tacit) consent and hence, a concurrence of wills.

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Parallel proceedings in Italy and rest of EEA to Amazon Buy Box permissible according to CJEU

Court of Justice of the European Union, judgment of 20 April 2023

On appeal against the judgment of the General Court of the European Union (“General Court”) of 14 October 2021, Amazon is again seeking to discard the administrative proceedings surrounding abuse of dominance in Italy. In April 2019, the Italian competition authority launched an investigation into Amazon’s strategy to preference its own retail offers and those of third-party sellers using Amazon’s logistics and delivery services (via the so-called Buy Box). On 10 November 2020, the Commission initiated a similar investigation with regard to the rest of the EEA (excluding Italy). According to Amazon, the Commission’s decision to exclude Italy from the scope of its investigation, and thereby allow the Italian competition authority to continue its investigation, was contrary to Article 11(6) of Regulation 1/2003. Amazon submits to the CJEU that the General Court erred in law by finding that this provision of Regulation 1/2003 does not protect undertakings from being subject to parallel investigations.

The CJEU clarifies that the purpose of Regulation 1/2003 is to ensure an efficient allocation of the competences of competition authorities when applying EU competition rules. To the extent that Article 11(6) seeks to prevent parallel investigations, this protection extends only to investigations involving the same undertakings, in respect of the same alleged anti-competitive conduct, during the same period and in relation to the same product and geographic market. As the Commission did exclude Italy from the scope of its investigation, the protection against parallel investigations does not apply. Moreover, the Commission enjoys a wide discretion in determining the scope of its investigation and has no obligation to include Member States in which an investigation is already ongoing, the CJEU ruled.

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CJEU clarifies burden of proof and confirms principle of partial nullity for competition law infringements

Court of Justice of the European Union, judgment of 20 April 2023

In its answer to preliminary questions from the District Court of Madrid, the CJEU clarifies that the irrebuttable presumption regarding the existence of an infringement of competition law following a final decision of a competition authority does not automatically apply in a national action for annulment. In Spanish proceedings between oil company Repsol and heirs of petrol station operator KN, the question arises whether the exclusive purchasing agreements concluded between those parties are automatically void on the basis of previous infringement decisions by the Spanish competition authority in respect of similar exclusive purchasing agreements between Repsol and other parties.

The CJEU considers that, since Article 9 of the Cartel Damage Directive refers only to actions for damages, the irrebuttable presumption of illegality of an infringement following a decision of a (national) competition authority does not apply in a national action for annulment. In light of Article 2 of Regulation 1/2003, it is in principle up to the applicant to prove the existence of an infringement. The CJEU rules, however, that a previously established infringement in respect of similar agreements can have probative value in the context of an action for annulment. In that case, the infringement should be presumed to have been proved by the applicant, subject to proof to the contrary. This is conditional upon the finding that the scope of the alleged infringement and the infringement established in that decision coincide. Subject to the principles of equivalence and effectiveness, it is up to the national court to assess whether such is the case.

Next, the CJEU underlines that the nullity described in Article 101(2) TFEU extends only to the parts of the agreement that are prohibited under the first paragraph. The entire agreement is void only if those parts are not severable from the agreement itself. With this premise, the CJEU seems to go a step further than the Dutch Supreme Court, which previously held in BP v Benschop that only the prohibited provision is struck with nullity if a meaningful arrangement remains for both parties. Partial nullity is nevertheless always the starting point, the CJEU states.

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Amsterdam court assumes jurisdiction over damages claims against Google based on anchor defendant rule

District Court of Amsterdam, judgment of 31 May 2023

In its ruling of 31 May 2023, the District Court of Amsterdam assumed jurisdiction to rule on Wolfson Capital Limited’s (“Wolfson”) claims for damages against Google. In these proceedings, Wolfson claims damages from Google as a result of the latter’s abuse of dominance where Google favoured its own comparison shopping service, Google Shopping, over competitors for years. Wolfson claims these damages from both Google and Alphabet (addressees of the Commission’s decision) as well as Google Netherlands: the Netherlands-based subsidiary of Google and (ultimately) Alphabet which itself was not directly involved in the infringement. According to Wolfson, Google Netherlands can be used as an anchor defendant because it is part of the same undertaking as Google and Alphabet, and is therefore jointly and severally liable for the infringement. This would satisfy the required close connection between the claims against the defendants.

The court agrees with Wolfson. It holds that a subsidiary can be held liable if (i) there are economic, organisational and legal links between that subsidiary and its parent company and (ii) there is a concrete link between the economic activity of the subsidiary and the object of the infringement for which the parent company is held liable (see our blog). The first criterion was not disputed by Google and Alphabet. Regarding the second point, the court ruled that it is not required that the subsidiary itself commits or is involved in the infringement: what matters is the object of the infringement. Although Google Netherlands was not involved in the favouring of Google Shopping (the infringement), it was involved in selling the Google Shopping ads by providing support services (the object of the infringement). Thus, the requirement of a concrete link is also met, meaning that Google Netherlands, Google and Alphabet form one economic entity for the purpose of these proceedings. This triggers the joint and several liability of Google Netherlands for the infringement, fulfilling the required nexus between the claims.

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Supreme Court refers preliminary questions on parent company liability for cartel damages in AB and Heineken/MTB

Supreme Court, judgment of 23 June 2023

On 23 June 2023, the Dutch Supreme Court referred preliminary questions to the CJEU in the case of Macedonian Thrace Brewery (“MTB”) against Greek Athenian Brewery (“AB”) and its Dutch parent company Heineken. In 2014, AB was fined by the Greek competition authority for abusing its dominant position on the Greek beer market. The proceedings currently solely concern the question whether the Dutch court has jurisdiction to rule on MTB’s claim for damages against AB and Heineken.

Article 8(1) of Brussels I-bis provides that in the case of multiple defendants, a defendant (here: AB) may also be sued in the courts of the domicile of a co-defendant (the anchor defendant, here: Heineken), as long as there is a ‘close connection’ between the claims against them. It is important in that regard that, according to MTB, Heineken and AB constitute one undertaking, given that Heineken holds almost the entire share capital of AB, which entails a presumption of ‘decisive influence’ of Heineken over AB. That undertaking as such is liable for the infringing conduct.

The Supreme Court is unsure whether and, if so, to what extent this rebuttable presumption of decisive influence – which is relevant to Heineken’s liability for AB’s infringing conduct – should already be taken into account in the jurisdictional assessment, where substantive (liability) issues are in principle not (yet) to be addressed. The Supreme Court decided to stay proceedings until the CJEU has delivered its judgment on this matter.

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Amsterdam Court of Appeal asks CJEU to clarify anchor defendant rule in power cable and cardboard cartel cases

Court of Appeal of Amsterdam, judgment of 25 April 2023

The Amsterdam Court of Appeal has expressed its intention to refer almost identical preliminary questions to the CJEU in two cartel damages cases. In the first case, a number of utility companies based in the Gulf States claim damages following a cartel regarding power cables as established by the Commission. In the second case, Unilever seeks damages following a decision by the Italian competition authority regarding cartels in the Italian cardboard market. The plaintiffs in both cases argue that the Dutch court should assume jurisdiction because the existence of a close link is given (as required by Article 8(1) Brussels I-bis), since – in line with the European law concept of undertaking – the sued Dutch anchor defendants are liable for the damages resulting from the respective cartels as they form an undertaking with their parent companies: the respective cartel participants. In both cases, the court questions whether the Dutch subsidiaries, which were not directly involved in the anticompetitive conduct, can be held liable for the conduct of the foreign parent companies and to what extent this should feed into the jurisdictional assessment.

The Amsterdam Court of Appeal decides to refer a total of five questions. These concern (i) the existence of a close link between the claims against the addressees of the infringement decisions and the anchor defendant(s) who did not actually participate in the cartel, (ii) the foreseeability of the claim for damages for the defendants, (iii) the relevance of the assignability of the claims against the anchor defendant (iv) the right to damages for legal entities domiciled outside the EEA, (v) the possibility of the existence of multiple anchor defendants, and finally (vi) the possibility of internal referral to another competent court within a Member State under Article 8(1) of Brussels I-bis. The parties to these proceedings may now comment on the proposed questions.

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Gran Petro claims foundation abuses procedural rights by commencing proceedings in the Netherlands

District Court of The Hague, judgment of 17 May 2023

The District Court of The Hague has declined jurisdiction to rule on the claims brought by the foundation Stichting Claim Gran Petro (the “Foundation”) against Brazilian company Raízen and its Dutch parent companies Shell Brazil Holding B.V. (“Shell Brazil”) and Royal Dutch Shell plc (“Shell”, still domiciled in the Netherlands at the time the claims were brought). The Foundation claimed damages as a result of a violation of Brazilian competition law by Raízen.

The court first stated that it strongly appears as if the Foundation does not want to litigate in Brazil – as this can take very long – and therefore seeks refuge in the Netherlands, using the seat of the Dutch co-defendants as a justification for the jurisdiction of the Dutch court. The court ruled that the Foundation failed to (sufficiently) substantiate that the Dutch co-defendants were also themselves involved in the infringement of (Brazilian) competition law. The Foundation’s argument that Shell and Shell Brazil are jointly liable with Raízen, the infringer, because they belong to the same undertaking, cannot be maintained. Such joint and several liability cannot be inferred from Brazilian competition law; moreover, the legal basis for liability in Brazilian private law on which the Foundation relies, only applies in relation to infringers who have themselves acted unlawfully. Thus, according to the court, the Foundation brought its claims before the Dutch courts solely to keep Raízen away from the courts of Brazil, which constitutes an abuse of process.

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SCC and Equilib foundations only partially meet burden of proof: part of underlying parties drops out in air cargo cartel damages action

 District Court of Amsterdam, judgment of 24 May 2023

In a follow-on cartel damages case involving the airfreight cartel, the District Court of Amsterdam set out and applied the framework around the obligation to furnish facts. Foundations SCC and Equilib had to substantiate for each underlying party that it had purchased at least one air cargo transport service in the relevant (cartel) period. The court indicated such a purchase is only demonstrated when it is clear that the underlying party paid for the airfreight service itself, even if the service was purchased indirectly, for example through a freight forwarder. Otherwise, no damage is suffered by the underlying party and it should be dismissed for the remainder of the proceedings.

In light of the clandestine nature of the cartel and the time that had already passed between the cartel and these proceedings, the court held that the foundations did not have to provide evidence from a direct source – such as invoices or airway bills – for each underlying party, but they did have to give tangible substance to their claims. Of particular importance here is the ‘duty of guidance’: the foundations have to lead the way and show the damage from the relevant documents. Referring to documents/dates without indicating which (passages in those) documents/dates exactly are concerned is insufficient. In almost all cases, the failure to comply with this duty to guide was the (main) reason why the obligation to furnish facts was not met and the underlying parties had to be dismissed. The court concluded in its judgment with regard to several underlying parties that the foundations did in fact bring a sizeable amount of documents/data into the proceedings, but failed to point out which (passages in those) documents/which data were relevant. In many cases, the court considers this not only insufficient, but also incomprehensible at this (already advanced) stage of the proceedings and especially in light of the specific instruction to prove that at least (only) one air cargo transport service was purchased. The court emphasises that it is not up to the court (or the defendants) to search through the relevant documents for actual transactions and to piece together the necessary data.

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ACM may expand research objective after reviewing incriminating documents during dawn raid

Court of Appeal of The Hague, judgment of 24 January 2023 (publication: 19 May 2023)

Earlier this year, the Court of Appeal of The Hague upheld the District Court’s ruling that the ACM did not act unlawfully by expanding the objective of the investigation after reviewing incriminating documents during unannounced inspections. Upon signals from the market, the ACM conducted three dawn raids in 2019. The purpose of the inspection was related to a possible violation of the cartel prohibition, consisting of fixing purchase prices. Following the inspection of various emails and WhatsApp-messages, the ACM expanded the investigation to also include the coordination of selling prices. According to the undertakings concerned, the ACM thereby acts in violation of its Procedure for the inspection of digital data by conducting investigations into the seized material beyond the purpose of investigation. In doing so, the ACM acts unlawfully, the appellants claimed.

After an extensive analysis of the specific messages and emails that led to the expansion of the investigation purpose, the Court of Appeal concluded in summary proceedings that it had not become plausible that the ACM had stepped out of line in doing so. The Court of Appeal considers that the ACM has sufficiently explained and substantiated that it was reasonably entitled to take the messages it found as indicative of a sales cartel by a cursory perusal. It did not consider it plausible that the ACM searched the chats again after exporting them. The extension of the infringement period and the involvement of other appellants is also not unlawful (on a prima facie basis), the Court of Appeal ruled.

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ECtHR narrowly approves Dutch system of transferring intercepted information between regulatory authorities

European Court of Human Rights, judgments of 16 May 2023

The European Court of Human Rights (“ECtHR”) has, by a narrow majority, ruled in favour of the Dutch State in a trio of cases concerning the exchange of intercepted information between different regulatory bodies. In 2010 and 2011, collectors of shipping waste in the port of Rotterdam were fined by the then-called Dutch Competition Authority (“NMa”) for entering into illegal price agreements. However, the evidence for this had been obtained through (approved) interceptions by the investigation service of the Ministry of Housing, Spatial Planning and the Environment for suspected illegal wastewater discharges, and was subsequently forwarded to the competition authority. The collectors complained before the ECtHR that the forwarding of information from the Ministry to the NMa violated Article 8 of the European Convention on Human Rights (“ECHR”) which includes the right to respect for private and family life.

The ECtHR applied the standards it has developed regarding secret surveillance measures (see also this Dutch blog). This means, among other things, that the intercepted parties did not have to be informed of the transfer. The ECtHR concludes that the Ministry was allowed to transmit the information to the NMa without informing the complaining parties. According to the ECtHR, the legal basis for sharing investigation data in the Netherlands is clear and predictable and backed by sufficient safeguards. Adequate (civil) legal protection is in place, and the transfer had a legitimate purpose, namely the protection of the economy.

In a dissenting opinion, three of the seven ECtHR judges argue that the Dutch legal system possesses serious shortcomings and Article 8 ECHR is not adequately safeguarded, as the NMa itself does not have the authority to tap and the cartel infringement proceedings were too far removed from the original environmental case in which the wiretapping practices were approved.

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ACM’s prioritisation policy clarified; sustainability, privacy, security and other public interests may be taken into account

ACM, Policy on enforcement prioritisation of 25 May 2023

The ACM recently revised its policy for prioritising enforcement requests. For quite some time, the ACM has used three prioritisation criteria to determine whether or not it will further investigate complaints, namely (i) the harmfulness of the conduct, (ii) the public interests involved, and (iii) the possibility of effective and efficient enforcement.

With its new prioritisation policy, the ACM clarifies that it looks at harm in a broad sense when considering the criterion of “harmfulness”. Not only financial damage, but also damage to quality and innovation, long-term damage and indirect damage, e.g. the effect that the conduct may have on consumers’ and companies’ confidence in markets can be relevant. Another aspect that may weigh in is whether the conduct affects vulnerable groups of consumers or businesses. In the context of ‘public interest’, the ACM states that it looks at various public interests, not just interests that the legislator has attributed to the ACM. Examples include sustainability, economic resilience, quality of healthcare, privacy and safety. The ACM shall also take into account whether the conduct falls within one of the strategic objectives on the ACM Agenda.

Furthermore, the ACM states in its policy that the criterion ‘effective and efficient enforcement’ includes possible synergy with already ongoing investigations and a balanced allocation of enforcement capacity across different topics. With its amended policy, the ACM is trying to improve its external communication and accountability on policy choices.

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CJEU stresses wide discretion of Commission to request information during investigation

General Court of the European Union, judgment of 24 May 2023

Meta Platforms lost the appeal against the Commission’s request to produce internal documents in the context of an ongoing investigation. The Court found that the Commission has sufficiently substantiated the purpose of the request, also in light of the suspected infringements the Commission is investigating. The fact that the investigation covers numerous activities and has a wide geographical scope does not mean that the Commission has breached its duty to state reasons.

The Court also ruled that the Commission did not infringe the principle of necessity. The Commission’s broad powers of investigation imply that it has wide discretion to assess whether certain information requests, in particular specific terms to search through internal documents, are necessary. For similar reasons, Meta Platforms’ defence rights were also not infringed, the General Court ruled.

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German aid approval to Lufthansa of € 6 billion undercut at General Court

General Court of the European Union, judgment of 10 May 2023

The General Court recently ruled that the Commission committed several errors in approving Germany’s aid measure to German airline Lufthansa. Due to the effects of the COVID-19 crisis on the aviation sector, Germany notified a proposed aid package to the Commission pursuant to which Lufthansa would receive a total of € 6 billion in recapitalisation aid. The Commission approved the aid measure with reference to its Temporary Framework for state aid around the COVID-19 crisis. Competitors Ryanair and Condor appealed against this approval decision before the General Court.

The court found that the Commission did not examine whether Lufthansa could also have obtained the relevant financing – or at least a significant part of it – on the private market. It is in that regard irrelevant that Lufthansa would probably not have been able to cover the full amount of aid on the private market. Second, the Commission erred by failing to impose any or no effective incentive mechanisms on the basis of which Lufthansa would repay or buy out the German State more quickly. Thirdly, the Commission failed to recognise that Lufthansa enjoys significant market power on the airports of Düsseldorf and Vienna, thereby also failing to include in the aid measure adequate safeguards to maintain competition in those markets. The General Court therefore annuls the Commission’s decision. If these errors cannot be remedied by adopting a new approval decision, Germany will have to recover (part of) the aid.

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Verbal agreement with NS does not suffice: ProRail must grant third party access to railway sidings

ACM, decision of 18 April 2023

In its decision of 18 April 2023, the ACM determined that ProRail had made non-transparent agreements with NS regarding the allocation of tracks at the Westhaven yard, a service facility on which passenger sidings are being developed. Under the relevant railway legislation, the operator – in the Netherlands: ProRail– is obliged to grant railway undertakings non-discriminatory access to such sidings. Train Charter Services (“TCS”)  submitted a request for access to track 45 of the site, but this request was rejected by ProRail. ProRail pointed to an alleged verbal agreement with NS regarding track allocation.

TCS subsequently filed a complaint with the ACM, which concluded that track 45 was never explicitly allocated to NS, as ProRail did not submit any evidence regarding the existence of the alleged verbal agreement. This agreement is therefore not transparent. According to the ACM, ProRail should not have refused TCS’s application and should grant it in accordance with the ACM’s decision.

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For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist.

You can reach us via the links below.

Bas Braeken – Jade Versteeg – Lara Elzas – Timo Hieselaar – Demi van den Berg

This is the Competition Flashback Q1 2023 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here).

Would you like to receive Competition Flashback by e-mail in the future? You can subscribe to our mailing list here.

Overview Q1 2023

Merger control

• ACM blocks acquisition of Talpa Network by RTL Group
• Court overturns ACM veto of Mediq/Eurocept due to insufficient investigation and reasoning
• Overview highlights merger cases European Commission

Cartels and vertical restraints

• CJEU declares Commission dawn raids in French supermarket sector unlawful due to insufficient evidence
• CJEU calls General Court to order, but considers hybrid cartel decision (Euribor) lawful

Abuse of a dominant position

• Non-notifiable mergers may constitute abuse of dominance
• Partial removal of railway by Lithuanian rail operator constitutes abuse of dominant position
• CJEU clarifies burden of proof of anti-competitive effects of exclusivity clauses and liability of conduct of distributors in Unilever
• Commission revises guidelines on Article 102 TFEU and abandons ‘more economic approach’

Follow-on competition damages claims

• Judgment in Regiojet provides wide access to evidence in cartel damages proceedings, also pending (suspended) investigation
• Estimation of damages in follow-on cartel damages cases impossible after ‘inaction’ claimant 

State aid

• Discounts on airport fees for Wizz Air may constitute state aid
• Commission adopts new Temporary Crisis and Transition Framework and amends General Block Exemption Regulation to speed up green transition

Public Enterprises (Market Activities) Act

• Free provision of source code by municipality not in violation of M&O Act

ACM blocks acquisition of Talpa Network by RTL Group

ACM, decision of 3 March 2023

The Dutch Authority for Consumers and Markets (in Dutch: Autoriteit Consument en Markt, “ACM”) decided on 3 March 2023 to definitively block the acquisition of media company Talpa Network (“Talpa”) by rival company RTL Group (“RTL”). According to the ACM, the concentration would render RTL/Talpa the largest provider of television channels, thereby gaining too much market power in both the television advertising market and the market for the distribution of television channels to parties such as KPN and VodafoneZiggo. Previously, the ACM decided on similar grounds that the concentration required a merger licence (see also CF Q1 2022). In the prohibition decision, the ACM confirms the concerns earlier identified.

In addition, the ACM examined whether the merging parties could leverage their market power in the television advertising market to the online advertising market (conglomerate effects). In the end, no such risks were identified. Finally, the ACM investigated the market for the purchase of TV-content, as RTL/Talpa could potentially gain an important buying position in some segments. Ultimately, the ACM left open whether this would be the case, as the acquisition was already blocked due to competition risks in the aforementioned markets.

RTL and Talpa tried to convince the ACM with various remedy proposals, yet without success. For instance, they offered to fully and exclusively transfer the sale of advertising space on Talpa channels to Mediahuis for a period of ten years. However, based on the market test, the ACM concluded that the proposed remedy would not allow Mediahuis to compete autonomously and independently from RTL/Talpa. In addition, the parties offered to separately and independently negotiate with TV-distributors on (the fees of) their channel packages for five years. According to the ACM, this behavioural remedy would also not eliminate the problems identified, as the proposed duration is insufficient and RTL and Talpa could still align their negotiations.

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Court overturns ACM veto of Mediq/Eurocept due to insufficient investigation and reasoning

Rotterdam District Court, judgment of 24 March 2023

On 24 March 2023, the Rotterdam District Court overturned the ACM’s decision to block the merger of Mediq and Eurocept. The ACM decided to refuse the merger licence because the merging parties would obtain a very strong market position on the market for the provision of ambulatory infusion pumps for domestic use. Mediq’s appeal mainly focused on this very specific market definition.

Besides ambulatory infusion pumps, the product group includes elastomeric pumps and stationary infusion pumps. Following its market investigation, the ACM concluded that elastomeric pumps and stationary infusion pumps are not interchangeable with ambulatory infusion pumps. The court ruled that the ACM had not sufficiently investigated the variety of medication that can be administered by the ambulatory infusions pumps and the elastomeric pumps. Therefore, it could not be concluded that these products are not interchangeable. In addition, the court did not follow the ACM’s statement that stationary infusion pumps are only rarely used in domestic situations, as other market players had stated that stationary infusion pumps are, in fact, suitable for domestic use.

Since the ACM has not made it sufficiently plausible that ambulatory infusion pumps are not interchangeable with elastomeric pumps or stationary infusion pumps, the court rejects the market definition maintained by the ACM decision, and hence, the basis for refusing the merger licence. The ACM will have to conduct further investigation into the relevant product market.

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Overview highlights merger cases European Commission

Adobe/Figma

The European Commission (“Commission”) is currently investigating Adobe‘s acquisition of Figma. Adobe is a software company offering, among other things, product design programme Adobe XD. Figma provides product design programme Figma Design and online whiteboard programme Figjam. As the acquisition does not exceed European merger thresholds, the parties were not subjected to a obligation to notify the transaction to the Commission. However, several national competition authorities submitted a request to the Commission under Article 22 of the Merger Regulation to investigate the acquisition. The ACM has also joined this request. The competition authorities concerned foresee a risk that the acquisition will restrict competition in the market for interactive design and whiteboard programmes.

Viasat/Inmarsat

In January 2023, Viasat notified the acquisition of Inmarsat to the Commission. Both companies are providers of in-flight connectivity (“IFC”)-services to commercial airlines. In its phase I-investigation, the Commission found, inter alia, that Viasat and Inmarsat are close competitors and that few other providers are active on the market. Viasat’s acquisition of Inmarsat could therefore reduce competition between providers of IFC-services. The Commission will therefore conduct an in-depth investigation into the impact of the acquisition on the market for IFC-services in the commercial aviation sector.

Sika/MBCC

On 12 December 2022, Swiss construction chemicals producer Sika notified the Commission of its intention to acquire its German rival MBCC. The Commission’s preliminary investigation found that the transaction would significantly reduce competition on the European markets for chemical and concrete admixtures, leading to higher prices and a decrease in innovation. In particular, the Commission concluded that the merged parties would acquire high market shares in the relevant markets, which are already characterised by a relatively weak level of competition and high barriers to entry. To address the Commission‘s concerns, Sika offered to divest MBCC‘s chemical admixtures business in the EEA, Australia, Canada, New Zealand, Switzerland, the UK and the US, including all global research and development facilities. British chemical giant INEOS will transform the divested business into an independently competing company. Under these conditions, the Commission approved the acquisition.

Deutsche Telekom, Orange SA, Telefónica, Vodafone

Following its phase II-investigation, the Commission has approved the creation of a joint venture by telecom companies Deutsche Telekom, Orange SA, Telefónica and Vodafone. The companies will use the joint venture to create a platform for digital marketing and advertising activities that generates and links a unique digital code to users, allowing them to better adapt their content to specific users. The Commission’s investigation found that there are sufficient alternatives for digital recognition of users and that there is no risk that the four providers will coordinate their behaviour outside the joint venture.

Korean Air/Asiana

The Commission has launched an in-depth investigation into Korean Air’s proposed acquisition of Asiana. Asiana and Korean Air are the two largest airlines in South Korea. The Commission’s preliminary investigation found that the two airlines are close competitors. In the second phase, the Commission will examine to what extent the acquisition may affect competition in the market for both passenger and cargo air travel between the EEA and South Korea.

Orange/VOO and Brutélé

Belgian telecom company Orange has received clearance from the Commission to acquire VOO and Brutélé, two retail providers of fixed and mobile telecommunications services. The acquisition is subject to conditions, as the Commission’s in-depth investigation found that the acquisition would restrict competition in the retail market. In several market segments, the number of telecoms providers would fall from two to three. The acquisition would also increase the likelihood of coordination between other operators. To address these concerns, Orange has committed to giving telecom company Telenet, one of Orange’s competitors, access to its fibre-optic network and to the network infrastructures of VOO and Brutélé for a period of ten years.

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CJEU declares Commission dawn raids in French supermarket sector unlawful due to insufficient evidence

Court of Justice of the European Union, judgment of 9 March 2023

The Court of Justice of the European Union (“CJEU”) has recently overturned a number of Commission decisions ordering dawn raids in the supermarket sector. In February 2017, the Commission carried out dawn raids at French supermarket Intermarché, distributor Casino and their joint purchasing group,  based on suspicions that the undertakings exchanged anti-competitive information, for example relating to their commercial strategies.

The Commission based its suspicions on conversations with several suppliers of Intermarché and Casino. The Commission only recorded these conversations in internal minutes. The CJEU ruled that this is not in line with the Commission’s duty to register, which requires it to record statements and provide a copy of the statement to the interviewee. The fact that the interviews with the suppliers served only as an indication for the opening of the investigation and were not held in the context of the gathering of evidence during the investigation, does not relieve the Commission from its duty to register the interviews. Any interview held to gather information for the investigation is covered by the duty to register, according to the CJEU. However, the Commission is free to decide how it registers the interviews, for example through a voice recording or in writing.

Because the unrecorded interviews were disregarded as evidence in the assessment of the legality of the dawn raids, the CJEU finds that the Commission did not have sufficiently serious evidence to justify these visits.

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CJEU calls General Court to order, but considers hybrid cartel decision (Euribor) lawful

Court of Justice of the European Union, judgment of 12 January 2023

Following the full rejection of its appeal by the General Court of the European Union (“General Court”), HSBC appealed at the CJEU against the fine imposed by the Commission for participating in the Euribor cartel.

The Euribor cartel is characterised by a hybrid procedure, in which four of the banks under investigation settled with the Commission (settlement decisions of 4 December 2013) and three banks followed the ordinary procedure. In the ordinary procedure, the Commission issued its statement of objections on 19 March 2014 and adopted decisions on 7 December 2016. The CJEU recently ruled on the appeal of one of the banks that did not settle, HSBC.

In its judgment of 12 January 2023, the CJEU ruled that the General Court had not properly assessed HSBC’s arguments relating to the presumption of innocence and the impartiality requirement. According to the CJEU, the General Court should have examined the decision in its entirety in order to establish that the Commission did not reach a premature conclusion regarding HSBC’s participation in the cartel. The CJEU, giving final judgment itself, concluded that the Commission chose its words in the settlement decision with sufficient caution. By expressly including reservations to prevent that banks that had not settled were being held liable in any way, and by referring to those banks only to the extent strictly necessary for a proper understanding of the facts, the settlement decision does not infringe the presumption of innocence.

Regarding the impartiality requirement, the CJEU noted that the Commissioner for Competition at that time had indeed made inattentive statements at the end of the settlement procedure and the statement of objections in the normal proceedings in 2014 (Almunia had stated that the case was not the most difficult and that there was a lot of evidence). However, as this was a preliminary finding and no information was disclosed that was not already revealed in the decision, the CJEU concluded that it could not be regarded as the expression of any bias.

Finally, the CJEU held that the General Court had also applied the wrong test when considering the pro-competitive effects of the conduct at issue, as argued by HSBC. The CJEU stressed that pro-competitive effects must be taken into account when assessing – under the first paragraph of Article 101 TFEU – the context in which a restraint of competition takes place, and not only in the context of ‘ancillary restraints’ or the third paragraph of Article 101 TFEU, as the General Court had held. However, the CJEU ruled that the pro-competitive effects brought forward by HSBC did not alter the characterisation of the Euribor cartel as a restriction by object. The decision thus remains fully intact.

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Non-notifiable mergers may constitute abuse of dominance

Court of Justice of the European Union, judgment of 16 March 2023

In the landmark judgment in Towercast, the CJEU ruled that Article 102 TFEU can apply to concentrations that do not meet national and/or European notification thresholds and have not been referred to the Commission under Article 22 of the Merger Regulation.

The judgment followed a complaint by Towercast to the French competition authority. Towercast claimed that Télédiffusion de France (“TDF”) abused its dominant position by acquiring competitor Itas in October 2016. The acquisition was not notifiable because neither the French nor the European merger notification thresholds were exceeded. According to Towercast, the CJEU’s 1973 ruling in Continental Can established that an acquisition could constitute an abuse of a dominant position if the acquirer enjoys a dominant position and the acquisition strengthens this dominant position, thereby restricting competition. The French competition authority rejected the complaint on the grounds that, with the entry into force of the Merger Regulation in 1989, a clear dividing line was drawn between (ex ante) merger control and (ex post) control of anti-competitive behaviour (Articles 101 TFEU and 102 TFEU), rendering Article 102 TFEU inapplicable when it comes to concentrations.

Towercast appealed the rejection of the complaint to the French court. The French court subsequently referred to the CJEU the preliminary question of whether a national competition authority could declare the acquisition to constitute an abuse of a dominant position in circumstances where that acquisition fell below the national and EU merger thresholds and had not been referred to the Commission under Article 22 of the Merger Regulation. The CJEU ruled that this was indeed possible, considering the wording, context, objectives and origin of the EU Merger Regulation.

As a result of this judgment, competitors have (even) more opportunities to arm themselves against so-called ‘killer acquisitions’. In our earlier blog, we discuss the Commission’s new policy on the application of Article 22 of the Merger Regulation and the opportunities for competition authorities to assess killer acquisitions.

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Partial removal of railway by Lithuanian rail operator constitutes abuse of dominant position

Court of Justice of the European Union, judgment of 12 January 2023

In 2008, Lithuanian national railway operator and carrier Lietuvos geležinkeliai AB (“LG”) dismantled nearly twenty kilometres of its railway track. The reason for this was that Polish oil refiner PKN Orlen wanted to engage with a competitor of LG to transport crude oil to and from its refineries. The Commission found that LG abused its legally obtained dominant position by dismantling the track, and fined the company over € 27 million. Upon appeal, the General Court upheld the decision, but reduced the fine to € 20 million.

Before the CJEU, LG argued that the General Court was wrong not to apply the essential facilities doctrine. This doctrine entails that an undertaking must provide access to certain infrastructure under certain conditions if such access is ‘indispensable’. The CJEU rejected this argument. Firstly, the case does not concern the refusal of access but the entire removal of the railway. This prevented not only LG’s competitor from running its services for PKN Orlen, but also LG itself. This constitutes a separate category of abuse distinct from refusal of access. Secondly, the railway track was an infrastructure funded by the Lithuanian state and not financed by the undertaking itself, as required under the essential facilities doctrine. Finally, the CJEU concluded that LG, as national railway operator, had a legal duty to provide access to the railway line. By removing it instead, LG thus abused its dominant position. The judgment of the General Court was upheld.

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CJEU clarifies burden of proof of anti-competitive effects of exclusivity clauses and liability of conduct of distributors in Unilever

Court of Justice of the European Union, judgment of 19 January 2023

In a preliminary reference regarding Unilever‘s abuse of its dominant position, the CJEU ruled that the Italian competition authority (“AGCM”) must prove that the exclusivity clauses used by Unilever actually had the ability to exclude competitors. In 2017, the AGCM imposed a € 60 million fine on Unilever for the use of exclusivity clauses (through its distributors) for the purchase of pre-packaged ice creams towards sales outlets such as cafes, sports clubs and swimming pools. While Unilever provided economic evidence to substantiate that there could be no exclusionary effect, the AGCM ruled that this evidence was ‘totally irrelevant’ given the harmful nature of exclusivity clauses as previously established in the court’s case law.

In line with the recent judgment in Qualcomm, the CJEU stresses that, although a competition authority does not have to prove that the conduct had an actual anti-competitive effect (i.e. the abuse does not have to have been ‘successful’), the authority does have to examine whether the conduct could have had such an effect in the underlying market. The specific evidence submitted by Unilever in that context must therefore be taken into account by the AGCM, according to the CJEU.

The CJEU did endorse the AGCM’s decision to fine only Unilever and not the distributors. It considered that the distributors merely act as instruments for the implementation of Unilever’s commercial policy, and hence, that Unilever should be considered the only responsible party, also considering its special responsibility under Article 102 TFEU. This does not require that the distributors concerned were part of the same undertaking or in a hierarchical relationship with Unilever. The fact that the conduct was not carried out independently by the distributors, but was part of a policy unilaterally adopted by Unilever and implemented only through the distributors, is sufficient to only impose a fining decision towards Unilever, the CJEU rules.

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Commission revises guidelines on Article 102 TFEU and abandons ‘more economic approach’

European Commission, communication of 27 March 2023

On 27 March 2023, the Commission amended its 2008 guidelines on enforcement priorities when applying the prohibition on the abuse of a dominant position. In the original guidelines, the Commission applied a ‘more economic approach’ to abuse cases. This approach was largely followed by the CJEU. For example, in the Intel judgment (which focused on the use of the as-efficient competitor test (“AEC-test”) in the context of fidelity rebates), the CJEU confirmed the crucial role of sound economic analysis in abuse cases. The amended guidelines show that the Commission wants to return to a less economic approach.

The three main changes to the guidelines are as follows:

1. As to the concept of anti-competitive foreclosure, the original guidelines referred only to the dominant undertaking’s ability to profitably increase prices as a result of its abusive conduct. In the amended guidelines, the Commission clarifies that it is not appropriate to look at the ability to profitably raise prices. The concept of anti-competitive foreclosure is described as a situation where the dominant undertaking’s conduct has a negative impact on the effective competitive structure.
2. In the original guidelines, the Commission seemed to suggest that, in the case of an exclusionary pricing abuse (such as loyalty discounts, predatory pricing and margin squeeze), it always applies the AEC-test. Using the AEC-test, the Commission analyses whether an equally efficient competitor can match the price charged by the dominant firm without loss. In the amended guidelines, the Commission clarifies that the  use of the AEC-test is optional and not necessary to prove abuse. The Commission also clarifies that in some cases the competition of less efficient competitors can also be taken into account to determine whether price-based exclusionary behaviour by a dominant firm leads to foreclosure.
3. In the original guidelines, refusals to supply, margin squeeze and other ‘constructive refusals to supply’ were assessed using the same criteria. The Commission clarifies that these are independent forms of abuse with their own assessment criteria.

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Judgment in Regiojet provides wide access to evidence in cartel damages proceedings, also pending (suspended) investigation

Court of Justice of the European Union, judgment of 12 January 2023

Following the recent judgment in Paccar, the CJEU held that a national civil court can order access to relevant evidence even pending a Commission investigation. The fact that the investigation previously opened by the national competition authority, as well as the national civil action for damages have been suspended pending the Commission’s investigation, does not alter this conclusion.

In the context of an investigation by the Czech Competition Authority (“UOHS”) into an alleged abuse of dominance by the local national railway company, RegioJet brought an action for damages before the national civil court in 2015. After the Commission launched an investigation into the same behaviour in 2016, the UOHS suspended its investigation that same year. RegioJet then requested the civil court to order the national railway company to provide access to several types of evidence, including some documents that were specifically prepared for the UOHS in the context of the (as yet) suspended investigation. The national court decided to largely grant this request and suspended the proceedings on the merits regarding the damages claim pending the Commission’s investigation. Both parties appealed against the court’s decision to disclose (part of the) evidence, and a preliminary reference followed.

The CJEU clarifies that, as an (ongoing) investigation by a national competition authority and/or the Commission does not preclude parallel national damages proceedings, this does not automatically prevent a national court from granting access to evidence. National courts should assess on a case-by-case basis whether disclosure of evidence may impede the investigation at this stage. In any event, the court must limit access to what is strictly relevant, proportionate and necessary. The CJEU emphasises that this cannot include documents that were specifically prepared in the context of a (national) investigation procedure or provided to the undertaking by the authority. Such grey-listed documents under Article 6 of the Cartel Damages Directive can only be provided after the official conclusion of an investigation. The CJEU finds that the suspension by UOHS of the national investigation pending before the Commission does not conclude the investigation in that sense.

To limit the information asymmetry between the alleged infringer and the claimant, this grey list should nevertheless be interpreted restrictively. Documents that have been provided to the authority in the context of the proceedings, but that also exist and need to be produced independently of these proceedings, do not fall under this exception and may therefore be eligible for access already pending the investigation. To assess whether a document is grey listed, the court may order that evidence to be placed under sequestration and review it, the CJEU ruled.

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Estimation of damages in follow-on cartel damages cases impossible after ‘inaction’ claimant

Court of Justice of the European Union, judgment of 16 February 2023

Article 17(2) of the Cartel Damages Directive allows a national court to estimate the damages resulting from a cartel when it is practically impossible or excessively difficult to accurately determine the damages suffered based on the available evidence. In a recent answer to preliminary questions from the Spanish court – in a case concerning an application for damages as a result of the truck cartel – the CJEU ruled that a national court may not carry out such an abstract estimation of damages where the impossibility of concretely determining the amount of damages is the result of inaction on the part of the claimant.

While the CJEU recognises that uncertainties about the scope of damages are inherent in follow-on cartel damages cases, the mere existence of such uncertainty is insufficient to estimate damages in abstracto. The CJEU clarifies that the information asymmetry between the cartelist and the claimant does not play a role here. In that regard, the Cartel Damages Directive already provides for specific instruments aiming to eliminate this asymmetry, including in particular the possibility of requesting access to evidence under Article 5 of the Cartel Damages Directive. Before proceeding to an abstract assessment of damages, it is up to the national court to consider whether the requesting party has made sufficient use of this key provision.

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Discounts on airport fees for Wizz Air may constitute state aid

General Court of the European Union, judgment of 8 February 2023

In September 2010, Romanian regional airline Carpatair filed a complaint with the Commission regarding alleged state aid granted to Hungarian Wizz Air by AITTV, the operator of Timișoara International Airport. 80% of AITTV is owned by the Romanian state. In particular, the complaint concerned certain discounts on airport fees granted by AITTV, for which only Wizz Air was eligible. After a lengthy investigation, the Commission subsequently decided on 24 February 2020 that it did not constitute state aid. The discounts were not selective as any undertaking could receive them as long as certain conditions were met. In addition, the agreement with Wizz Air on airport charges was very lucrative for AITTV: a private party would also have entered into this agreement, according to the Commission.

The appeal by Carpatair was upheld by the General Court. With regard to the discounts, the General Court held that the Commission could not conclude that they were not selective simply because all airlines could qualify. The General Court confirmed that Wizz Air was the only company that was actually eligible. The Commission should thus have assessed whether there was de facto selectivity by examining the effects of the discount system.

The General Court further concluded that it is the responsibility of the Member State, or in this case AITTV, to provide – prior to entering into the agreement with Wizz Air – an economic justification of its profitability, similar as a private company would do. Although such a justification had been carried out in advance, it was not submitted during the Commission’s investigation and therefore was not used by the Commission in its decision-making. The General Court therefore annuls the Commission’s decision.

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Commission adopts new Temporary Crisis and Transition Framework and amends General Block Exemption Regulation to speed up green transition

European Commission press releases, 1 February and 9 March 2023

On 1 February 2023, the Commission presented the Green Deal Industrial Plan, which follows the European Green Deal published at the end of 2019. The aim of this plan is to accelerate the transition to a climate-neutral industry. The Green Deal Industrial Plan should provide a simplified regulatory framework and facilitate quick access to funding for green initiatives. Earlier this year, the Commission had already requested comments from market players on its draft guidelines for sustainability in the agricultural sector.

The need for the Green Deal Industrial Plan is largely due to the high energy prices caused by the Russian war in Ukraine. In line with this, the Commission adopted a new Temporary Crisis and Transition Framework after consulting the Member States. At the same time, the Commission amended its General Block Exemption Regulation. Both initiatives aim to encourage and facilitate investments for a faster development of renewable energy and to support the ‘decarbonisation’ of the industry. Member States can now more easily support greener initiatives. This way, the Commission hopes to further accelerate the green transition in the EU. The rules in the Temporary Framework Guidance related to the green transition are valid until 31 December 2025. The rules related to the immediate crisis situation surrounding the Russian war in Ukraine apply until 31 December 2023.

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Free provision of source code by municipality not in violation of Dutch Act on Government and Free Markets

ACM, decision of 21 November 2022 (publication date 3 January 2023)

On 21 November 2022, the ACM issued a decision on objection following its earlier rejection of a complaint by Bloqzone. In the complaint, Bloqzone alleged that the municipalities of Nijmegen, Arnhem and the Drechtsteden violated the Dutch Act on Government and Free Markets (in Dutch: Wet Markt & Overheid, “Wet M&O”) by offering an open source code of their software. This means that a source code is made available online for free and can be viewed and used by anyone. Bloqzone develops a competitive software.

In its decision on objection, the ACM decided not to give priority to Bloqzone’s complaint. According to the ACM, open-source sharing of codes generally has many public benefits, such as increasing innovation power and promoting code quality. Enforcement would thus not be in the public interest. Also, according to the ACM, enforcement would not be opportune due to a currently pending legislative proposal that will exempt the provision of open-source code from the Wet M&O. Finally, the ACM sees no evidence of harmful effects on consumer welfare.

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For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist.

You can reach us via the links below.

Bas Braeken – Jade Versteeg – Lara Elzas – Timo Hieselaar – Demi van den Berg

This is the Competition Flashback Q3 2022 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (see the original version here).

Would you like to receive Competition Flashback from bureau Brandeis by e-mail in the future? You can subscribe to our mailing list here.

Overview Q3 2022

Merger control

• Illumina/GRAIL: European Commission may investigate non-notifiable concentration according to EU court and bans controversial transaction
• Highest administrative court overrules Rotterdam Court and upholds ACM’s approval decision Sanoma/Iddink

Cartels and vertical restraints

• Insurance Ireland commits to providing non-members with access to its database
• ACM allows sustainability agreements between soft-drink suppliers
• Cartel fine for H&S Coldstores upheld after referral back from the highest administrative court
• ACM receives extension of decision-making period and may supplement investigation report in complex cartel investigation
• Court permits one-year post-contractual non-compete clause in franchise agreement in case of protectable know-how

Abuse of a dominant position

• General Court largely upholds multi-billion euro fine Google in Android case, yet uncovers some procedural errors
• Refusal of DPG to continue to supply newspaper content to digital kiosk Blendle does not constitute an abuse of dominance

Follow-on competition damages claims

• Advocate General Drijber and District Court of Rotterdam confirm ‘broad’ jurisdiction of Dutch courts based on the existence of an anchor defendant
• Clarification of possibility for claim vehicles to choose Dutch applicable law and validity of assignments

Consumer law

• Obstruction of ACM investigation leads to significant fine for online shop owner
• Clothing companies offer commitments to ACM regarding sustainability claims

Illumina/GRAIL: European Commission allowed by EU Court to investigate non-notifiable concentration and bans controversial transaction

General Court, judgment of 13 July 2022; European Commission, decision of 6 September 2022 and press release of 19 July 2022

There have been a number of noteworthy developments surrounding Illumina’s  high-profile acquisition of GRAIL. On 13 July 2022, the General Court of the European Union (“General Court”) ruled for the first time on the competence of the European Commission (“Commission”) to investigate a concentration following receipt of referral requests from national competition authorities under Article 22 of the Merger Regulation. The procedure for such a referral was explained in more detail by the Commission in its Article 22 Guidelines last year (see our previous blog). Although this provision functioned primarily as a safety net for Member States without a merger control regime, the General Court concludes that Article 22 has a broader scope and contributes to the purpose of the Merger Regulation. According to the Court, this interpretation does not undermine the principle of legal certainty. In that regard, it does emphasise that the Commission must observe a reasonable time limit. A period of 47 days between the moment that the Commission first learns about the acquisition (through a complaint) and that it sends an invitation to the Member States to submit a referral request, is considered unreasonably long. However, as this did not harm Illumina’s defence, it could not lead to the annulment of the decision. The General Court’s judgment thus appears to leave a fairly large degree of discretion to the Commission.

Hence, the Commission was allowed to launch an investigation into the Illumina/Grail-transaction and, after an in-depth investigation, banned the acquisition on 6 September 2022. GRAIL is an undertaking that develops blood tests for the early detection of cancer. Illumina is the only credible provider of so-called NGS-systems, which form a necessary input for the production of these blood tests. The Commission found that, post-transaction, Illumina would have the ability and incentive to exclude GRAIL’s competitors from the market, thereby significantly hampering innovation. As Illumina had already implemented the acquisition in August 2021, the Commission is currently considering measures to undo the concentration.

In parallel, the Commission launched an investigation into a possible breach by Illumina of the standstill obligation. On 29 October 2021, the Commission imposed interim measures on Illumina to restore/maintain competitive conditions on the market despite the implementation of its acquisition of Grail. On 19 July 2022, the Commission sent Illumina its Statement of Objections. An infringement could result in a significant fine (up to 10% of its annual turnover).

Illumina/GRAIL constitutes a special test case of Article 22 of the Merger Regulation where all kinds of novelties around merger control arise. Not only regarding the application of the referral regime itself, but also on the assessment of a possible breach of the standstill obligation (in the absence of a notification obligation) and the reversal of an already implemented transaction.

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Highest administrative court overrules Rotterdam court and upholds ACM’s approval decision Sanoma/Iddink

Trade and Industry Appeals Tribunal, judgment of 12 July 2022

The judicial review of the Dutch Authority for Consumers and Markets’ (“ACM”) second-phase decision on the acquisition of Iddink – provider of the electronic learning environment (“ELO”) Magister – by schoolbook publisher Malmberg (Sanoma) recently took a new turn. While the District Court of Rotterdam annulled the decision following an appeal by rival textbook publisher Noordhoff, the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven, “CBb”) reversed that judgment and ruled that the decision is not unlawful.

Initially, the District Court of Rotterdam ruled that the ACM had not sufficiently examined whether the merging parties could deprive competing publishers (such as Noordhoff) of access to schools by bundling ELO services and educational programmes. According to the court, the ACM’s decision on this point was not adequately reasoned, as the ACM should not have concluded simply on the basis of a survey among schools that there was no need for bundling.

The CBb agreed with the Rotterdam District Court in that the ACM had not carefully presented the research results among schools, but ruled that this did not constitute a breach of the duty to state reasons which could lead to annulment. The demand of schools is only one of the factors the ACM took into account in its assessment of Iddink and Sanoma’s bundling strategy. As regards other aspects of the merger decision and the remedy proposal, the CBb found no shortcomings. For instance, the ACM has sufficiently substantiated its choice for behavioural remedies instead of structural remedies. Moreover, the CBb considers that the commitments are appropriately designed, despite their reactive nature, and the control mechanisms (external auditor, fast-track arbitration and audit options) are sufficiently effective and enforceable.

Hence, the ACM’s initial merger decision will revive and the amended decision following the court’s first ruling (see our Competition Flashback Q3 2021) is revoked.

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Insurance Ireland commits to providing non-members with access to its database

European Commission, decision of 30 June 2022

On 30 June 2022, the Commission accepted commitments offered by Insurance Ireland, a trade association for the insurance sector in Ireland. The procedure revolved around the access provided by Insurance Ireland to its Insurance Link information exchange system, a database which facilitates the detection of fraud.

In 2019, the Commission launched a formal investigation into the conditions for insurance service providers to gain access to Insurance Link, as designed and imposed by Insurance Ireland. In its Statement of Objections, the Commission considered that Insurance Ireland unfairly made access to the database dependent upon membership of the trade association. It also found that the conditions for being admitted to Insurance Ireland were not sufficiently clear, transparent and objective, and were discriminatory. Moreover, the membership application process was not handled in an adequate manner. The Commission concluded that Insurance Ireland arbitrarily delayed or de facto denied access to Insurance Link to companies that had a legitimate interest in being admitted to it, which put them at a competitive disadvantage.

To address the Commission’s concerns, Insurance Ireland has committed to separate access to Insurance Link from the association’s membership, to revise the access criteria, and to improve the application procedure. In addition, for applicants that have been refused access, it will be possible to appeal to an independent appeal body. Finally, Insurance Ireland will not use Insurance Link’s fee structure to hinder access to the database. The Commission will monitor the implementation of and compliance with these commitments for a duration of ten years.

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ACM allows sustainability agreements between soft-drink suppliers

ACM, press release of 26 July 2022

Using its draft Guidelines on Sustainability Agreements, the ACM announced that it will allow a joint agreement between soft-drink suppliers to abolish the plastic handle on multipacks of soft drinks. This is the fourth time the ACM has openly welcomed a sustainability initiative and reviewed it in light of its draft Guidelines (see two previous initiatives in the energy sector and the cooperation between Shell and TotalEnergies).

The ACM welcomes the initiative by Coca-Cola, Vrumona, Albert Heijn and Jumbo. It believes that the agreement will not negatively affect competition or come to the detriment of consumers, for example through an increase in price or a decrease in quality. The ACM also endorses the suppliers’ view that the handle does not play a role in the competitive process. Instead, the initiative makes a positive (non-mandatory) contribution to a sustainability objective and/or entails an improvement in product quality. The ACM does nevertheless emphasise, with reference to its Guidelines on sustainability claims, that suppliers may only use clear, correct and relevant sustainability claims if they wish to include this initiative in their advertisements.

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Lower court upholds cartel fine for H&S Coldstores after referral back from the CBb

District Court of Rotterdam, ruling of 7 July 2022

After a quashing and referral back from the CBb, the Rotterdam District Court ruled again on the case concerning H&S Coldstores. In 2015, the ACM imposed a fine for the exchange of commercially sensitive information about fish storage in cold stores, in violation of the cartel prohibition. In first instance, the Rotterdam District Court annulled the fining decision as, in its view, there was insufficient evidence showing that the contacts were part of an overall plan and therefore amounted to a single and continuous infringement. On appeal, however, the CBb ruled that these contacts did in fact amount to a common overall plan and endorsed the existence of a single and continuous infringement. The CBb referred the case back to the court of first instance to examine the remaining grounds of appeal.

In this (second) judgment, the court addressed, amongst other things, the legality of the dawn raids performed in the preliminary investigation. The court ruled that by using the words “the operation of cold-storage warehouses” in conjunction with the underlying documents, the ACM had sufficiently clearly defined its investigation purpose. The ACM had also correctly determined the amount of the fine, as the parties frequently coordinated their offers, which effectively eliminated price competition. The appeal was completely dismissed, resulting in the revival of the fine of €694,000.

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ACM receives extension of decision-making period and may supplement investigation report in complex cartel investigation

District Court of Rotterdam, judgments of 25 August 2022

In three (nearly identical) judgments, the Rotterdam District Court elaborated on the ACM’s decision-making period for (cartel) fining decisions and the possibility of supplementing its investigation report. Fifteen parties lodged an appeal against the ACM for the failure to adopt a timely decision after delivering a report in which it established a violation of the cartel prohibition. Under the General Administrative Law Act, the ACM must decide whether to impose an administrative fine within thirteen weeks after the delivery of the investigation report. Since the ACM has offered a data room procedure, several parties have initiated civil (interim relief) proceedings (and subsequent expedited appeals), and the parties have submitted further opinions, the ACM is of the opinion that an additional report is necessary before it can decide whether to impose a fine or not.

The court notes that the statutory decision period of thirteen weeks is (merely) an indicative period and that exceeding it does not deprive the ACM of its power to impose a fine. Given the complexity and size of the case, the court sees reason to honour the ACM’s defence and grants it until 31 December 2022 to hand down its decision. The court explicitly emphasises that this does not (yet) answer the question whether the ACM is actually authorised to issue a supplementary report and/or whether there is a violation of the principle of legal certainty. This might come up in subsequent proceedings, according to the court, in case a fine will be imposed.

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Court permits one-year post-contractual non-compete clause in franchise agreement in case of protectable know-how

District Court of Amsterdam, judgment of 27 July 2022

In a judgment of 27 July 2022, the District Court of Amsterdam ruled that a non-compete clause agreed between Multicopy and one of its franchisees did not infringe the competition rules. The non-compete clause prohibited the franchisee from operating a shop competing with Multicopy at the same location within one year after termination of the agreement.

The dispute mainly concerned the question whether Multicopy had provided relevant and protectable know-how to a franchisee justifying a post-contractual non-compete clause (Pronuptia judgment). According to the court, to answer this question a link should be made with the Dutch Franchise Act, which came into force on 1 January 2021. That Act defines protectable know-how as “the whole of […] practical information […] which is confidential, substantial and identified”. The court found that the documents and training provided by Multicopy were, although general in scope, when taken together, sufficiently specific to graphic service businesses that they constitute know-how that warrants protection. The fact that an independent operator in the sector can obtain the information by other means does not affect the confidential nature of the information provided by Multicopy.

The court concludes that the non-compete clause, taking into account both its limited duration and geographical scope, does not infringe competition law and is not unreasonably onerous.

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General Court largely upholds multi-billion-euro fine Google in Android case, yet uncovers some procedural errors

General Court of the European Union, judgment of 14 September 2022

On 14 September, the General Court delivered its judgment in the Google Android case. In 2018, the Commission imposed on Google its highest fine ever (over €4.3 billion) for maintaining multiple contractual restrictions on original equipment manufacturers (“OEMs”) and mobile network operators. OEMs had to pre-install Google Search and Google Chrome apps in order to obtain a licence for the Google Play Store, and were not allowed to sell devices with Android versions that were not approved by Google if they wanted to pre-install Google apps on any of their devices. Google also offered OEMs and operators a financial incentive to only pre-install Google Search (exclusivity payments). According to the Commission, these restrictions involved one overall strategy to cement Google’s dominant position on the market for general search services during the rise of mobile internet.

The General Court largely upheld the Commission’s decision. It confirms the Commission’s finding that Google enjoys a dominant position in the markets for (i) general search services (Google Search), (ii) Android app stores (Play Store) and (iii) licensable operating systems (Android). The General Court rejects Google’s repeated argument that it is subjected to competitive pressure from Apple. However, the Court does conclude that there is insufficient evidence that the exclusivity payments in themselves constituted an abuse. The Commission did not sufficiently demonstrate that the payments covered a significant part of the market for general search services, and that a hypothetically equally efficient competitor of Google would not be able to offset these payments. Given the shortcomings in the ‘as efficient competitor test’, and the fact that the Commission rejected Google’s request to have an additional hearing after receiving the additional letter of facts on this matter, the General Court reduced the fine to €4.125 billion.

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Refusal of DPG to continue to supply newspaper content to digital kiosk Blendle does not constitute an abuse of dominance

Amsterdam Court of Appeal, judgment of 2 August 2022

On 2 August 2022, the Amsterdam Court of Appeal delivered its judgment in the case of Blendle v DPG Media.* In these expedited appeal proceedings, Blendle argued that DPG abused its dominant position by refusing to continue to supply newspaper articles (from e.g. AD, Trouw, de Volkskrant and het Parool) to Blendle’s digital kiosk. Since DPG’s newspapers constitute an essential input to market the Blendle platform, this leads to an abusive refusal to supply, according to Blendle. Blendle further argued that DPG was engaged in a strategy of self-preferencing as the refusal aimed to squeeze Blendle out the digital kiosk market in favour of DPG’s own initiatives, including Topics and tijdschrift.nl.

In first instance, the preliminary relief judge rejected Blendle’s request, mainly because it found insufficient evidence of a separate relevant market for digital kiosks. The Court of Appeal took a different approach and considered that it could not be established that DPG was actually developing its Topics platform into a digital news kiosk. In any event, this requires a more extensive factual investigation which cannot be conducted in the underlying interim relief proceedings. As regards the refusal to supply, the Court of Appeal underlined that DPG is in itself willing to make its newspapers available, but only on the basis of a micropayment model (on a pay-per-article basis). Thus, even if it were to be assumed that Blendle is an innovative service for which there is consumer demand, and that access to DPG’s content is indispensable for the realisation thereof, there is an objective justification and no absolute refusal, according to the court.

As it did not establish an abuse, the Court of Appeal did not need to elaborate on the existence of a dominant position and the definition of the relevant market. Hence, the court did not need to address Blendle’s argument that DPG holds a market share of 63% on the Dutch daily newspaper market and enjoys a dominant position. The Court of Appeal thus upheld the judgment of the Amsterdam District Court.

*Bas Braeken and Demi van den Berg have assisted Blendle in these proceedings

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Advocate General Drijber and District Court of Rotterdam confirm ‘broad’ jurisdiction of Dutch courts based on the existence of an anchor defendant

Advocate General to the Dutch Supreme Court, opinion of 7 August 2022; District Court of Rotterdam, judgment of 17 August 2022

In his opinion of 7 August 2022, Advocate-General (“AG”) Drijber confirmed the judgment of the Amsterdam Court of Appeal in the case MTB/Heineken and AB. The case concerns a Greek brewery, Macedonian Thrace Brewery (“MTB”), which claimed damages from its competitor Athenian Brewery (“AB”), as well as AB’s Dutch parent company Heineken, for the abuse of dominance by AB in the Greek beer market. A central question in this case was whether the Dutch court has jurisdiction to hear the claims against the Greece-based AB due to the existence of a close link between the claims against AB and against the anchor defendant, Heineken. The court answered this question in the affirmative.

AG Drijber reaches the same conclusion: the Dutch court has jurisdiction to hear the claims against AB because the claims brought against AB and Heineken are closely linked. According to AG Drijber, it is important in this respect that, one way or the other, the Dutch court has to rule on the merits regarding AB’s actions, because Heineken – as a parent company – may be held liable for the alleged damage only if it is established that AB is liable. AG Drijber further concludes that a claimant only abuses procedural law where it creates jurisdiction artificially, for instance by bringing a claim that has no merit but solely aims to keep a defendant away from its own court.

In a damages claim relating to the bitumen cartel, the District Court of Rotterdam applied the same reasoning. The Dutch State claimed to have suffered damages as a result of the bitumen cartel and therefore sued Shell, Kuwait Petroleum and Total. These cartelists subsequently summoned, among others, the German oil and gas company Wintershall in indemnity. The District Court of Rotterdam confirmed the judgment of the Amsterdam Court of Appeal in MTB/Heineken and AB and ruled that there can only be grounds for refusing jurisdiction if it becomes sufficiently plausible that the claims were only brought to deprive the defendant of the jurisdiction of its national court, which was not the case here.

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Clarification of possibility for claim vehicles to choose Dutch applicable law and validity of assignments

District Court of Amsterdam, ruling of 27 July 2022

On 27 July 2022, the District Court of Amsterdam ruled on the applicable law in cases where claims have been bundled into a claim vehicle, such as a foundation, as well as on the possibility of transferring victims’ claims to a claim vehicle by assignment. The case concerned the admissibility of claim vehicles claiming damages resulting from the truck cartel.

In assessing the question of which law applies to the claims (on the basis of conflict of laws), the court held that the bundling of claims would result in the applicability of a multitude of legal systems. This would render the goal of the rules on conflict of laws futile. Moreover, the Dutch Conflict of Laws Act (Wet conflictenrecht onrechtmatige daad) does not provide a uniform solution for a situation where a competition infringement affects several Member States.

Therefore, in line with the judgment of the Court of Appeal of Amsterdam in the Aircargo case, the District Court of Amsterdam ruled that, taking into account the principle of effectiveness, the applicable law to the bundled claims should be determined in a manner corresponding to the choice of law (lex fori) provided for in the Rome II Regulation. Pursuant to that regulation, claimants can make a choice of law. In this case, Dutch law was chosen to be applicable. The applicability of Dutch law was also foreseeable for the truck manufacturers since the Dutch market was also affected by the truck cartel. In light of the principle of effectiveness, the court held that Dutch law applied to all bundled claims.

In addition, the court held that the assignments of the claims to the claim vehicles were valid. The claimants’ burden of proof as to the validity of the assignments entails that the defendants, in this case the truck manufacturers, must be able to establish that the assignor and assignee actually assigned their claim(s) on the basis of the documentation submitted. This burden of proof is satisfied when the assignment agreement and the deed of assignment are provided for each individual underlying party, from which it is clear that they were signed/issued by the (representative) assignor. Defendants can rebut this with specific evidence which demonstrates that there was no legally valid assignment.

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Obstruction of ACM investigation leads to significant fine for online shop owner

ACM, decision of 4 July 2022

On 4 July 2022, the ACM imposed a fine for obstructing the ACM’s investigation on the owner of an online store that sells accessories for mobile phones. During its investigation into a possible violation of Dutch consumer protection law, it asked the owner for information on multiple occasions.

Undertakings and individuals are generally obliged to cooperate with an ACM investigation. Although the ACM often merely threatens with a sanction for non-cooperation, it rarely actually imposes a fine. The owner in question did, however, not respond to any of the requests for information. As such, the ACM was unable to determine whether its suspicions were correct. According to the ACM, this seriously hindered the supervision of compliance with consumer protection rules and undermined its authority as a regulator. The ACM therefore decided to impose a fine of €10,000.

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Clothing companies offer commitments to ACM regarding sustainability claims

ACM, decisions of 19 August 2022 and 29 August 2022

In spring 2021, the ACM launched a large number of investigations into potentially misleading sustainability claims, including in the clothing sector. It assessed the claims of ten major companies and, on the basis of those findings, launched a follow-up investigation into six of those. The investigation carried out by the ACM revealed that Decathlon and H&M offered their products using general terms such as ‘Ecodesign’ and ‘Conscious’ without immediately specifying clearly the sustainability benefits in the claim.

Although the ACM did not establish an infringement, Decathlon and H&M have committed to adjust or no longer use the sustainability claims on their clothes and/or websites, as well as to inform consumers more clearly in order to minimise the risk of misleading practices. Furthermore, the two companies will donate €400,000 and €500,000, respectively, to sustainable causes to compensate for their use of unclear and insufficiently substantiated claims.

The commitment decisions regarding Decathlon and H&M are the first in which the ACM explicitly assesses sustainability claims on the basis of the Guidelines on sustainability claims, which contain rules of thumb and practical examples that can help businesses when phrasing sustainability claims. The ACM is currently also investigating the use of sustainability claims in other sectors. In January, for instance, the ACM launched a follow-up investigation into misleading sustainability claims made by two energy suppliers.

Read more about recent developments in consumer law (and sustainability) in our recent blog.

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For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist.

You can reach us via the links below.

Bas Braeken – Jade Versteeg – Lara Elzas – Timo Hieselaar – Demi van den Berg

This is the Competition Flashback Q2 2022 by bureau Brandeis, featuring a selection of the key EU and Dutch competition law developments of the past quarter (for the original, click here)

Would you like to receive the Competition Flashback news letter of bureau Brandeis by email in the future? You can sign up through our registration form.

Overview Q2 2022

• New Block Exemption and Guidelines on Vertical Agreements;
• A warning for M&A advisers: ACM and European Commission impose high fines for gun-jumping;
• ECJ clarifies temporal scope Cartel Damage Directive: no retroactive effect of limitation period and no presumption of damage;
• Mandatory notification of investments in vital providers and sensitive technology in sight;
• Enforcement of consumer protection: highest administrative court clarifies framework for unfair commercial practices;
• A special responsibility for Buma/Stemra: refraining from taking action can also lead to abuse of dominance;
• ECJ prohibits use of state monopoly privileges for competition in liberalised markets in ENEL and upholds Sumal for abuse cases;
• ACM gives green light for (sustainable) cooperation between competitors Shell and TotalEnergies in CO2 storage in empty gas fields in the North Sea;
• ACM tries alternative regulation of fibre optic networks KPN and through commitments in competition investigation;
• Legal vacuum: highest administrative court quashes minister’s final permit for acquisition of Sandd by PostNL;
• Qualcomm and optical disk drives: Commission decisions annulled for procedural flaws and lack of actual foreclosure effects;
• Compensation from ACM after annulled cartel fine decision in civil court only possible to a very limited extent;
• Free podcast app of public broadcaster NPO Listen does not restrict competition.

New Block Exemption and Guidelines on Vertical Agreements

On 1 June 2022, the new Block Exemption on Vertical Agreements entered into force. The Vertical Block Exemption and revised Guidelines introduce new rules regarding, inter alia, online platforms, dual distribution, dual pricing and parity obligations.

Find our previous newsflash on vertical agreements here (Dutch only, English version available on request).

A warning for M&A advisers: ACM and European Commission impose high fines for gun-jumping

ACM, decisions of 11 May 2022 and 17 March 2022; General Court of the EU, judgment of 18 May 2022

The past quarter, the Dutch Authority for Consumers and Markets (“ACM”) imposed two fines on companies for gun-jumping. On 17 March 2022, the ACM fined the Dutch trade association for pharmacies (Verenigde Nederlandse Apotheken (“VNA”)), for failing to timely report the acquisition of four pharmacies. Before the acquisition, VNA indicated to the ACM that certain activities of one of the pharmacies would be sold within a year. As a result, the concentration did not meet the relevant turnover thresholds. One year later, the divestment had still not taken place and VNA decided to notify the concentration at last. The ACM subsequently imposed a fine of € 350.000 for failing to notify a concentration in time. According to the ACM, the turnover of activities to be sold may only be deducted from the turnover of the target company if it is unconditionally and legally determined that these activities will be sold on within one year.

On 11 May 2022, the ACM also imposed a fine of over € 1.8 million on Modulaire for failing to report the acquisition of BUKO HV Holding B.V. The acquisition took place on 31 October 2019, but was only reported to the ACM on 7 May 2021. The reason for the late notification was that Modulaire had not taken into account its group turnover when calculating the relevant turnover. As a result, it (incorrectly) believed that it did not meet the turnover thresholds.

The European Commission (“Commission”) has also been cracking down on gun-jumping and violations of the standstill obligation in recent years. In May 2022, the General Court of the EU (“GC”) confirmed the Commission’s € 28 million fine imposed on Canon for the early implementation of the concentration with Toshiba. The GC followed  the Commission and held that interim transactions which were necessary for the ultimate acquisition of control were to be considered as a single concentration together with the ultimate acquisition of control. The Court underlined that, if transactions are taking place which, in whole or in part, in fact or in law, contribute to the change in control, a notification is required prior to implementing those measures.

The assessment of the notification requirement and the timing of the filing of a notification listens very closely. Read our earlier blog about gun-jumping and the­ standstill obligation here.

ECJ clarifies temporal scope Cartel Damage Directive: no retroactive effect of limitation period and no presumption of damage

European Court of Justice, judgment of 22 June 2022 (Volvo and DAF Trucks)

In its judgment in Volvo and DAF Trucks, the European Court of Justice (“ECJ”) further clarified the temporal scope of the Cartel Damages Directive. In that case, Spanish company RM sought compensation from Volvo and DAF for damages suffered as a result of the trucks cartel. That cartel took place from 1997 to 2011; the damage proceedings were initiated on 1 April 2018. The Spanish judge referred questions to the ECJ asking which provisions of the Cartel Damages Directive apply to this dispute.

The ECJ reiterates that it follows from Article 22(1) of the Cartel Damages Directive that substantive provisions of that directive do not apply retroactively. Such provisions do therefore not apply to actions for damages in respect of cartels which took place before the implementation of the Cartel Damages Directive (at the latest: 27 December 2016).

The limitation period (Article 10 of the Cartel Damages Directive), as well as Article 17(2) of the Cartel Damages Directive, which contains the presumption that cartels cause damage, are substantive provisions according to the ECJ. This means that these provisions may not be applied to the present claim from RM for damages arising from the trucks cartel. RM can therefore not rely on the presumption of harm laid down in the Cartel Damages Directive.

Pursuant to Article 22(2) of the Cartel Damages Directive, the procedural provisions only apply to disputes initiated after the entry into force of the Cartel Damages Directive, i.e. after 26 December 2014. The ECJ held that Article 17(1) of the Cartel Damages Directive is such a procedural provision. Article 17(1) allows national courts to estimate the damage resulting from a cartel where a precise, concrete estimate is practically impossible or excessively difficult. This provision therefore does apply to RM’s damages claim, as it was brought after the entry into force of the Cartel Damages Directive (i.e. 2018).

Mandatory notification of investments in vital providers and sensitive technology in sight

House of Representatives, legislative proposal of 30 June 2021

The Security Review Investment Mergers and Acquisitions Act (“SRIMA”, Wet Veiligheidstoets investeringen, fusies en overnames) was adopted by a large majority in the House of Representatives on 19 April 2022,  and adopted in the Senate on 17 May 2022. The SRIMA follows the European Foreign Direct Investment (“FDI”) screening regulation adopted in 2019 (read our earlier blog on this topic here). The SRIMA aims to protect national security by introducing a mandatory notification and investment test for the acquisition of vital providers and providers of sensitive technology. Under certain conditions, takeovers of vital companies that are active in areas such as heat transport, air transport, ports, banking and recoverable energy or gas storage must be reported to the Investment Assessment Bureau (Bureau Toetsing Investeringen (“BTI”)). The acquisition of (increasing influence in) companies active in the field of sensitive technology, such as dual-use products (products that are suitable for both civilian and military use), is also subject to notification.

The BTI then performs a risk analysis based on national security and determines whether the acquisition activity should be subject to a review decision. In the review decision, the Minister may attach requirements or conditions to the acquisition activity to limit the risks identified.

The SRIMA is expected to enter into force in mid-2022. It is nevertheless already relevant today since it can have retroactive effect. This means that for high-risk recruitment activities carried out after 8 September 2020, yet before the SRIMA entered into force, the Minister may within eight months after the entry into force decide that the recruitment activity should still be reported.

Enforcement of consumer protection: highest administrative court clarifies framework for unfair commercial practices

Trade and Industry Appeals Tribunal, judgment of 19 April 2022 (Duinzigt)

On 19 March 2022, the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven (“CBb”)) ruled that the ACM wrongfully imposed an order subject to penalty on rental agent Duinzigt for maintaining an unfair commercial practice. Following an investigation into the rental agency sector, the ACM concluded that Duinzigt had violated the prohibition of double remuneration laid down in Section 4:417(4) of the Dutch Civil Code (“CC”). Duinzigt not only charged costs to landlords, but also to consumer tenants. Consumer tenants had to pay both a registration fee of € 40 per year and an administration fee of € 75.

The ACM was of the opinion that the agent acted contrary to the requirements of professional diligence. It impaired the consumer’s ability to make an informed decision, thereby causing the consumer to take a transactional decision that he would not have taken otherwise. The regulator therefore imposed an order for incremental penalty payments on Duinzigt. Our earlier blog provides a more detailed overview of the enforcement practice of the ACM in consumer law.

Although requiring consumer tenants to pay both registration and administration fees violates the prohibition of double remuneration, the CBb concluded, contrary to the District Court, that this did not amount to an unfair commercial practice. The decisive factor here was that Duinzigt had been transparent about the costs it charged to consumer tenants, hence allowing them to make an informed decision. The costs were included in the general terms and conditions – which were signed by the consumer tenant – and discussed during the intake interview. As there was no unfair commercial behaviour, the ACM was not authorised to impose an order for incremental penalty payments either.

A special responsibility for Buma/Stemra: refraining from taking action can also lead to abuse of dominance

Amsterdam Court of Appeal, judgment of 24 May 2022 (Buma Stemra/ABMD)

On 24 May 2022, the Amsterdam Court of Appeal (“CoA”) ruled that the joint collecting society for composers and music publishers (Buma/Stemra) abused its dominant position. According to the CoA, Buma and Stemra have a joint dominant position on the market for copyright licensing in order to make music available for commercial playback (for example in shops). On this market, music streaming services and ABMD members act as suppliers. They pay a fee to Buma/Stemra for the licence to distribute music to commercial customers. Music streaming services, such as Spotify, do not have a licence and are therefore not required to pay any fee. In practice, however, their services are often used to play music on a commercial basis.

The CoA ruled that Buma/Stemra applied dissimilar conditions to equivalent transactions, which falls within the scope of Article 102(c) of the Treaty on the Functioning of the European Union (“TFEU”). In addition, the streaming services themselves did not act against the commercial use of their streaming services. The ABMD members already informed Buma/Stemra of the competitive disadvantage they suffered due to the unfair policy in 2010, yet Buma/Stemra did not follow up on this. The CoA held that, by continuing to apply this system despite the complaints of the ABMD members, Buma/Stemra took for granted that its attitude would distort competition between the ABMD members and the music streaming services. Buma/Stemra was and is the only party able to end this distortion. By failing to do so, it abused its dominant position, according to the CoA.

ECJ prohibits use of state monopoly privileges for competition in liberalised markets in ENEL and upholds Sumal for abuse cases

European Court of Justice, judgment of 12 May 2022 (ENEL)

On 12 May 2022, the ECJ delivered a judgment on the preliminary questions referred by the  Italian Supreme Administrative Court concerning an exclusionary abuse by the Italian energy company ENEL. The judgment is particularly relevant in light of the interpretation of the concept of ‘competition on the merits’ by former state monopolists.

In 2018, ENEL was fined € 93 million by the Italian Competition Authority for abuse of its dominant position. ENEL was active in the protected energy market through its subsidiary SEN and therefore held (contact) data of customers. ENEL made commercial offers to these customers in order to persuade them to switch to its subsidiary EE, which operates on the liberalised market. The Italian competition authority considered that ENEL’s conduct was aimed at excluding competitors from the liberalised market. The Italian Supreme Administrative Court then referred a number of questions to the ECJ for a preliminary ruling.

The ECJ reiterates the importance of the concept of ‘competition on the merits’ for dominant undertakings. In that regard, it must be examined, also in cases like this that do not relate to price-setting, whether an equally efficient competitor can apply the same behaviour. The ECJ ruled that such was not the case. It emphasises that a dominant undertaking, upon liberalisation of the market, must refrain from using data to which it had access by virtue of its legal monopoly in order to strengthen or leverage its market position on a neighbouring market.

Furthermore, the ECJ confirms the concept of an undertaking in the context of abuse cases as defined in Sumal: it is the economic unit as such that is liable for an infringement of competition law. The entities comprising that (single) economic unit, such as subsidiaries, are also jointly and severally liable for the infringement, provided that there are economic, organisational and legal links between the infringing and the entity or entities addressed. Read our earlier blog on the concept of undertaking and liability here.

ACM gives green light for (sustainable) cooperation between competitors Shell and TotalEnergies in CO2 storage in empty gas fields in the North Sea

ACM, informal guidance of 27 June 2022

In an informal guidance dated 27 June 2022, the ACM notes that Shell and TotalEnergies are permitted to cooperate in the storage of CO2 in empty gas fields in the North Sea. The initiative is part of the project ‘Aramis’ in which the government, Gasunie and Energie Beheer Nederland are also involved. By transporting CO2 through pipes and storing it in old gas fields, the greenhouse gas will not end up in the atmosphere. According to the ACM, the initiative thus contributes to legitimate climate objectives.

The ACM examined whether the cooperation is necessary to get the initiative off the ground and realise the climate benefits. To launch the project, Shell and TotalEnergies must jointly offer the CO2 storage and jointly set the price for it with a view to commissioning the first 20% of the pipeline’s capacity. No agreements will be made for the remaining 80%. In its assessment, the ACM applied its (currently second draft of the) Guidelines on sustainability agreements. The ACM concludes that the advantages for consumers and society outweigh the disadvantages of the restriction of competition. The ACM thereby applies a broader test than the Commission, which only looks at the benefits for direct consumers. Given the innovative nature of the project, it is likely that the Commission has also have given the go.

This is only the third time that the ACM applies its draft Guidelines on sustainability agreements. Earlier, the ACM applied the guidelines to test a price agreement for CO2 to stimulate sustainable investments and a collaboration for the purchase of electricity from a windmill park.

ACM tries alternative regulation of fibre optic networks of KPN and Glaspoort through commitments in competition investigation

ACM, decision of 15 April 2022; District Court of Rotterdam, judgment of 31 March 2022

On 15 April, the ACM published a draft decision including the commitments offered by KPN and Glaspoort for access to their fibre optic networks. Since the annulment of the Market Analysis Decision on Wholesale Fixed Access by the CBb in 2020, KPN and Glaspoort have voluntarily provided access to their fibre optic networks. In 2020, the ACM launched an investigation to assess whether (re)regulation of access is necessary under the Telecommunications Act (“TA”) and/or intervention is required under the Dutch Competition Act (“DCA”).

Given the current levels of KPN’s wholesale tariffs, the ACM foresees, inter alia, that operators with access to KPN and Glaspoort will offer lower speeds and/or higher prices at a retail level. With the commitments to reduce the wholesale prices for access to fibre networks (ODF-access (FttH)), the ACM believes that these risks will be mitigated. Several third parties, such as T-Mobile, still consider that the tariffs are too high. In addition, the commitments only relate to the conditions that KPN and Glaspoort set centrally (high) in their networks, and do not specifically regulate the tariffs for wholesale broadband access. It is not yet clear whether the ACM will refrain from taking a new market analysis decision on the basis of chapter 6a TA, and/or whether or not these commitments will indeed be declared binding (in full).

Earlier this year, T-Mobile already appealed against the merger approval decision of the ACM concerning joint venture Glaspoort. T-Mobile primarily argued that the creation of Glaspoort did not amount to a concentration, since KPN and APG do not exercise joint control over Glaspoort, but KPN exercises sole control instead. This would mean that the regulatory framework applicable to the KPN group would automatically apply to Glaspoort as well. In light of relativity, the Rotterdam District Court considered that the strategic interest of T-Mobile not to be protected by the merger control regime, cannot be taken into account in this case. In fact, it is in the interest of competitors that their position on the market is protected and that the ACM substantially assesses the effects of the concentration. In addition, the ACM rightly saw no indications for a serious impediment of competition by the creation of Glaspoort. The District Court held that T-Mobile’s argument regarding the (accelerated) phasing out of copper networks and the risk of strategic overbuild of fibre optic networks is an uncertain circumstance, and not a (direct) consequence of the concentration as such.

Legal vacuum: highest administrative court quashes minister’s final permit for acquisition of Sandd by PostNL

Trade and Industry Appeals Tribunal, judgment of 2 June 2022 (PostNL/Sandd)

On 2 June 2022, the highest administrative court has annulled the ministerial approval for the realisation of the concentration between PostNL and Sandd.

In the PostNL/Sandd merger decision, the ACM refused the application for a licence in the second phase, after having determined that PostNL’s acquisition of Sandd would strengthen PostNL’s dominant position and lead to a 30-40% price increase for business senders of postal mail. The market investigation of the ACM also showed that, although the volume of postal mail will decrease, a substantial amount will remain in the long run. Without the acquisition, the ACM expects Sandd to remain active and PostNL to continue to profitably provide universal postal services (“UPS”).

PostNL subsequently submitted an application for a licence to the Minister under Article 47 paragraphs 1 and 2 DCA and also lodged an appeal against the second phase decision of the ACM. The handling of that appeal has been suspended until an irrevocable decision has been taken on the licence from the Minister (‘priority rule’ pursuant to Article 47, paragraph 3 DCA).

In its decision, the Minister identified four important reasons of general interest that outweigh the expected impediments of competition as identified by the ACM. Three of these four reasons are based on assumptions and propositions about (the future of) the postal market, which are contrary to the ACM’s investigation. For example, the Minister expects that the ongoing decline in volume will lead to the disappearance of the postal market and that the UPS can no longer be carried out on a commercial basis.

In the appeal before the Rotterdam District Court against the Minister’s decision, the court ruled that the minister had insufficiently substantiated his assumptions and institutions that differed from those of the ACM. The court therefore annulled the decision. On appeal, the CBb took a different approach and discussed the systematics of the DCA. It considered that it is clear from the legislative history that, when taking a decision on an application pursuant to Article 47 DCA, the Minister is not only bound by the (significant) impediment(s) of competition identified by the ACM, but also by the entire factual and competition law assessment of the ACM on which this is based (since these form an inseparable whole). According to the CBb, it also follows from the ‘priority rule’ that the Minister may not form his own opinion on the facts, assumptions, analyses and conclusions.

Since the Minister should have taken the ACM’s second-phase decision as a starting point, the three reasons given by the Minister that contradict the ACM’s assessment cannot constitute compelling reasons in the public interest as referred to in Article 47(1) and (2) DCA. The remaining (fourth) reason, namely the protection of employees, does not carry sufficient weight compared to the expected (significant) impediments to competition. For this reason, the CBb annulled the decision of the Minister (and its replacement decision which was based on the same reasons) and decided to settle the matter itself by rejecting the request for a licence.

This leads to the unusual situation that the long-standing concentration between PostNL and Sandd has not received a licence from either the ACM or the Minister. However, the PostNL/Sandd saga has not ended yet: it is now up to the District Court in Rotterdam to rule on PostNL’s appeal against the ACM’s second-phase decision.

Qualcomm and optical disc drives: Commission’s fining decisions annulled due to procedural errors and lack of actual foreclosure effects

General Court of the EU, judgment of 15 June 2022 (Qualcomm); European Court of Justice, judgment of 16 June 2022 (Optical disk drives)

On 15 June 2022, the GC annulled the fine of almost € 1 billion that the Commission imposed on chipset developer Qualcomm. In 2018, the Commission established that Qualcomm abused its dominant position by making incentive payments to Apple on the condition that it purchased LTE chipsets exclusively from Qualcomm (exclusivity payments).

The GC found that the Commission wrongfully concluded that the payments in question had restricted competition. Although the payments might have reduced Apple’s incentives to switch to competing suppliers, the Commission explicitly acknowledged in the decision that for iPhones – the vast majority of its sales – Apple had no technical alternative to the LTE chipsets. The undisputed fact that there was no technical alternative on the relevant market is a relevant factual circumstance which must be taken into account when analysing the capability of the payments concerned to have foreclosure effects. The fact that Apple’s internal documents did somehow refer to a reduced incentive for a specific, limited group of iPad models is insufficient to support the foreclosure effects for (both) iPhones and iPads. The Commission therefore did not take all relevant circumstances into account when assessing Qualcomms behaviour.

In addition, the GC reveals a number of procedural irregularities. It emphasises that the Commission must record the precise content of all interviews conducted for the purposes of collecting information relating to the subject matter of an investigation. In the underlying case, the Commission wrongly omitted to record the meetings and conference calls held with third parties. Moreover, the GC notes that the contested decision limits itself to finding abuse on only one relevant market, whereas the Statement of Objections (“SO”) covered several relevant markets. Although this does not in itself imply a procedural error, the amendment of the SO (potentially) affected the relevance of the economic analysis and data submitted by Qualcomm. The Commission should therefore have given Qualcomm the opportunity to be heard and to adjust its analysis if necessary. With these two procedural errors, the Commission has violated Qualcomm’s rights of defence. The Court annulled the decision in its entirety.

Recently, the ECJ also underlined the importance of the content of the SO in its judgment regarding the optical disc drives cartel. On 16 June, the ECJ ruled on the importance of a proper preparation in the administrative procedure. In the cartel decision – addressed to Sony, Quanta and the two joint ventures of Toshiba and Samsung – the Commission found that there was a single continuous infringement as well as a number of separate infringements. However, the SO shared with the cartelists only concerned the single continuous infringements and did not mention the existence of separate infringements. It therefore amounted to an addition to the objections the Commission previously shared with the cartelists. Unlike the GC, the ECJ concluded that the cartelists’ rights of defence had been violated as these separate infringements had not been sufficiently investigated and qualified by the Commission in the SO.

Compensation from ACM after annulled cartel fine decision in civil court only possible to a very limited extent

District Court of The Hague, judgment of 20 April 2022 (Midac/ACM)

The annulment of the cartel fine that the ACM had imposed on Midac for its participation in the traction batteries cartel by the Rotterdam District Court (20 June 2019), was recently given a civil law dimension. Midac claimed compensation before the civil court for the costs of legal assistance as well as internal costs in the preparatory, objection and appeal procedures. It also claimed compensation for non-material damage resulting from the failure to remove Midac’s name (on time) in the ACM’s public press releases about the traction batteries cartel.

With regard to the costs incurred by Midac in the preparatory procedure, the District Court of The Hague held that the investigation by the ACM was not unlawful. After all, there were sufficient grounds for the ACM to investigate the possible involvement of Midac in the cartel. The fact that the unlawful conduct of the State has been irrevocable established by the judgment of the Rotterdam District Court (the ACM refrained from appealing that judgment) does not alter this conclusion. With regard to the costs of administrative objection and appeal procedures, the District Court ruled that only the administrative courts are authorised to rule on this (on the basis of the Legal Costs (Administrative Law) Decree). To this extent, Midac’s claim is inadmissible, according to the District Court.

Finally, the Court considered that, although the publication of the decision to impose a fine is not unlawful as such, the ACM should have amended the content of the publication of its own accord within a short period of time after the annulment by the Rotterdam District Court. As this took place much later – and only at the request of Midac – the Court ordered the State to pay compensation for immaterial damage of € 2.500.

Free podcast app of public broadcaster NPO Luister does not restrict competition

ACM, Market Impact Analysis of 8 February 2022 (NPO Luister)

On 8 February the ACM issued its advice to the Minister of Education, Culture and Science about the new podcast app, NPO Luister, of the Dutch Public Broadcaster (Nederlandse Publieke Omroep (“NPO”)) in which all podcasts of NPO will be offered through one channel. The ACM expects that the effect of the new channel on the Dutch market will be marginal. First of all, the market for podcasts is developing rapidly. Moreover, NPO Luister will only offer existing content in a bundled manner and the content will also remain available for other (commercial) supply channels. The market situation with NPO Luister will therefore hardly differ from a situation without the new supply channel.

The ACM nevertheless advises the Minister to keep an eye on whether NPO will start to offer the content exclusively in the future, and to ensure effective competition in the market for distribution of audio on demand content.

For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist.

You can reach us via the links below.

Bas Braeken (Partner) | Jade Versteeg (Attorney-at-law) | Lara Elzas (Attorney-at-law) | Timo Hieselaar (Attorney-at-law) | Demi van den Berg (Attorney-at-law) | Diederik Simons (Paralegal)

This is the Competition Flashback Q1 2022 by bureau Brandeis, featuring a selection of the key competition law developments of the past quarter.

Would you like to receive the Competition Flashback news letter of bureau Brandeis by email in the future? That is possible! You will find the registration form here.

Overview Q1 2022

• Enforcement of consumer rights by ACM: principle of legal certainty as a safety net
• Court of Appeal nullifies non-compete clause in cooperation agreement between radiologists due to breach of cartel prohibition
• ACM’s focus areas: digital economy, energy transition & sustainability, housing market
• Further investigation into merger RTL/Talpa by ACM
• The Data Act: European legislative proposal for far-reaching data sharing
• EU General Court annuls billion euro fine for Intel for alleged abuse of dominance
• Court of Justice clarifies the application of ne bis in idem principle in competition law
• Roadshows by the Ministry of Economic Affairs for public company DVI violate the Dutch Act on Government and Free Markets
• Acquisition of Kustomer by Meta approved by European Commission and Bka
• Supermarket chains Coop and Plus may merge under condition of selling several supermarkets
• No compensation for UPS after the European Commission wrongly vetoed the UPS/TNT merger
• European Commission must also pay default interest after (partial) nullity of a fine

Enforcement of consumer rights by ACM: the principle of legal certainty as a safety net

Rotterdam District Court, judgment of 20 January 2022 | ACM, press release of 20 January 2022

Consumer rights in the energy sector have been on the radar of the Authority for Consumers and Markets (“ACM”) for some time now. An interesting development in this context is the judgment of the District Court of Rotterdam of 20 January 2022, concerning a fine imposed by the ACM for the application of unreasonably high cancellation fees to freelancers. According to the ACM, this group should have been regarded as consumers and not as (small) business customers. The court ruled, with due observance of the lex certa principle, that the legislation offers no starting points for the distinction made by the ACM in its guidelines between consumers and (small) business customers. The fine of EUR 1,25 million imposed by the ACM was therefore annulled. The ACM has announced that it will appeal the ruling.

This judgment provides insight into the relationship between policy rules of the ACM and higher legislation. Although the ACM frequently uses guidelines, directives and other soft law in its supervision, the principle of foreseeability requires that ACM’s policy must always be regarded in the light of the intention of the legislator, according to the court.

In this context, reference can also be made to the in-depth investigation into misleading sustainability claims made by two energy suppliers, as published by the ACM on 25 January 2022. Following the publication of the Guidelines on Sustainability Claims, the ACM started a broad investigation in the energy sector in May 2021. The investigation showed that energy suppliers do not sufficiently explain what is the basis of their claims about green energy and sustainability, and fail, for instance, to indicate what percentage of the gas actually consists of green gas or whether it is CO2-compensated gas. The (increasing) supervision of the ACM in the energy sector is thus (again) based on its own policy rules. In the event of judicial review, it might be relevant to assess whether and to what extent the ACM’s guidelines are in accordance with the law.

Court of Appeal nullifies non-compete clause in cooperation agreement between radiologists due to breach of cartel prohibition

Court of Appeal ‘s-Hertogenbosch, judgment of 8 February 2022

On 8 February 2022, the Court of Appeal of ‘s-Hertogenbosch (the “CoA”) handed down a judgment annulling a non-compete clause on the basis of Article 6 of the Dutch Competition Act (“DCA”). The appellant before the CoA is a radiologist working at a hospital operated by Zuyderland. Since 1 January 2015, the appellant transferred his radiology practice to MSB: a cooperation of medical specialists affiliated to Zuyderland. MSB concluded a members’ agreement (the “Agreement”) with the professional company of the appellant, which contains a non-compete clause prohibiting the appellant to perform work (in)directly for healthcare providers competing with MSB without MSB’s permission. In addition, the non-compete clause was to apply for another two years after expiry of the agreement, within a radius of 30 kilometres.

The judgment shows that the radiologist had repeatedly breached the non-compete clause during the term of the agreement. MSB therefore decided to terminate the agreement on 11 April 2018. On appeal, the radiologist argued that the non-compete clause in the agreement was null and void pursuant to Article 6 DCA. Therefore, it could not serve as a ground for termination.

The CoA ruled, first of all, that the non-compete clause is a restriction by object within the meaning of Article 6 DCA. The CoA added that, even if the non-compete clause does not qualify as a restriction by object, it is still a prohibited restriction. It referred to case law of the Court of Justice of the European Union (“CJEU”), from which it follows that a non-compete clause for members of a cooperation is generally subject to the cartel prohibition. According to this case law, a non-compete clause may not go beyond what is necessary to ensure the proper functioning of the cooperation. The CoA considered that the non-compete clause at issue did not meet this criterion of necessity, as the proper working of MSB can also be achieved by means of a less far-reaching exclusivity obligation. The CoA therefore upheld the appeal and ruled that the non-compete clause is null and void on the basis of Article 6 DCA. As the other grounds for termination did not justify immediate termination either, the CoA held that MSB did not have a (legitimate) ground for termination.

ACM’s focus areas: digital economy, energy transition & sustainability, housing market

ACM, focus areas 2022-2023, publication of 24 January 2022

The ACM has put three ACM-wide topics on the agenda for the next two years:

• Digital economy: this subject was already on the 2020-2021 agenda and remains topical according to the ACM. The ACM announces, inter alia, that it will take action against online service providers for the use of unfair terms and conditions, decide on access to fixed networks for telecom providers without their own network, and publish guidelines on competition rules for IT-providers in the healthcare sector.
• Energy transition and sustainability: the topic of energy transition was also on the 2020-2021 agenda, but has been expanded to include sustainability. The ACM has announced that it will for example continue to enforce misleading sustainability claims in the energy sector.
• Housing market: The housing market is a new topic on the ACM’s agenda. The ACM will intensify the supervision on rental agencies and realtors and conduct a market study into market power on the municipal-land market.

The coming years, these three topics will receive extra attention from the ACM. This means that we can expect more investigations regarding these topics, and that the ACM will assess tips and complaints in these fields with particular interest.

Further investigation into merger RTL/Talpa by ACM

ACM, decision of 28 January 2022

On 28 January, the ACM decided that a licence is required for the acquisition of Talpa Network by RTL Group. In its Phase I-decision, the ACM specifically foresees the possible creation or strengthening of a dominant position on the markets for (i) the sale of television advertising space, (ii) the production and procurement of audio-visual content, and (iii) the wholesale supply of television channels to distributors such as KPN and VodafoneZiggo.

Due to their strong positions on the market for the provision of television advertising space, RTL and Talpa might increase their prices for advertisers. The ACM even mentions the possibility to leverage their positions on the television advertising market to the radio advertising market (on which Talpa is active with its radio station Q-Music). With regard to the market for wholesale supply of television channels, the ACM also expects that the parties (with a combined market share of 70-80%) could raise prices for distributors and worsen the conditions of, for instance, on-demand services (such as recording television programmes/interactive television). Moreover, the bundling of the parties’ TV activities could place external content producers in a worse bargaining position, and have the result that RTL and Talpa will no longer, or under worse conditions, externally supply the programmes they produce themselves to other broadcasters. According to the ACM, this may come at the expense of the diversity of the television offer. The extensive investigation in the licensing phase will therefore focus on these three – according to the ACM, strongly interrelated – markets.

At first sight, the ACM does not foresee any competition issues in the markets for the procurement of journalistic services, the procurement of facility services and for the provision of retail television services. The ACM for example considers an increase of video on demand services such as Netflix and Disney+, which (may) exert competitive pressure on the retail television services of the parties (RTL XL, Videoland and Kijk), and potentially even on linear television services (live television).

The Data Act: European legislative proposal for far-reaching data sharing

European Commission, legislative proposal of 23 February 2022

On 23 February 2022, the European Commission (“Commission”) presented a new legislative proposal that aims to create a harmonised framework for data sharing by public authorities and companies (such as providers of data-generating products including connected devices and data-sharing services such as cloud/edge computing). The aim of the regulation is to create a level playing field between data holders and re-users of data, and to enable data portability in the event that a user switches to another provider. This way, the Commission seeks to promote data-driven innovation, in line with the Commission’s data strategy to form a single market for data.

The Data Act is a so-called ‘horizontal’ regulation which outlines a general EU-wide framework. The Commission is also considering to adopt more detailed (vertical) regulation in certain specific sectors, such as healthcare and transport.

The legislative proposal was publicly consulted last year and will be discussed by the European legislative bodies in the coming period. Given its far-reaching consequences, the Data Act is expected to lead to much political discussion. Criticism has already been voiced by, for example, Big Tech companies that also qualify as gatekeepers under the Digital Markets Act. Under the current proposal, gatekeepers are excluded from receiving data when a customer switches to one of their products.

EU General Court annuls billion euro fine for Intel for alleged abuse of dominance

General Court of the EU, judgment of 26 January 2022

On 26 January 2022, the General Court of the European Union (the “General Court”) partially annulled the Commission’s decision in which it held that chip manufacturer Intel had abused its dominant position. As a consequence, the fine of EUR 1,06 billion imposed on Intel was also annulled. The judgment marks a departure from the per se approach whereby certain conduct is considered inherently anti-competitive. If a dominant company provides (economic) evidence in the administrative procedure that its conduct is not capable of restricting competition, the Commission has to investigate the anti-competitive effects of the conduct.

Background

In 2009, the European Commission fined Intel for abusing its dominant position in the microprocessor market from 2002 to 2007. The Commission found that Intel holds a dominant position in the x86 processor market, with a market share of around 70%. Intel abused this position by (i) offering rebates to four computer manufacturers (Dell, HP, Lenovo and NEC) on the condition that they purchase all or almost all x86 CPUs from Intel, and (ii) making payments to manufacturers that would delay, cancel or restrict the launch or commercialisation of laptops with CPUs of Intel’s rival AMD.

According to the Commission, these so-called loyalty rebates restrict competition by their very nature, so that it is not necessary to analyse the anti-competitive effects. In other words, loyalty rebates are thus considered prohibited per se. The Commission still applied the ‘as-efficient competitor‘ test (“AEC test”) to show that the loyalty rebates made it impossible for equally efficient competitors to compete profitably. Intel appealed against this decision in 2014. Following a rejection of the appeal by the General Court, Intel appealed to the CJEU in 2017. The CJEU subsequently set aside the General Court’s judgment, as the General Court had not examined the Commission’s analysis of the AEC test and Intel’s arguments in relation to that test. The case was referred back to the General Court.

The judgment of the General Court

In the recent judgment, the General Court found that the Commission’s economic analysis was flawed and did not sufficiently demonstrate that Intel’s conduct was capable of producing actual and/or potential anti-competitive effects. Loyalty rebates may be presumed, by their very nature, to potentially have restrictive effects on competition, yet the General Court underlines that this is a rebuttable presumption. According to the General Court, loyalty rebates are therefore not per se illegal. Since Intel brought forward supporting evidence showing that its conduct was not capable of restricting competition and producing foreclosure effects, the Commission should have examined the specific effects of the loyalty rebates. The General Court found that the Commission did not sufficiently demonstrate that the loyalty rebates were capable of having foreclosure effects throughout the relevant period.

As a result, the Commission must repay the fine of EUR 1,06 billion plus an interest of 3,5% (see below). The Commission has announced that it will appeal this judgment.

Court of Justice clarifies the application of ne bis in idem principle in competition law

Court of Justice of the EU, judgments of 22 March 2022 (Nordzucker and Others v. bpost)

On 22 March 2022, the CJEU delivered two interesting judgments concerning the application of the ne bis in idem principle in competition law. In Nordzucker and Others, the CJEU clarified the applicability of the principle where multiple national competition authorities (“NCAs”) investigate a cross-border cartel infringement. After the German Bundeskartellamt (“Bka”) issued cartel fines to German sugar producers for market sharing with effects in both Germany and Austria (partly on the basis of Article 101 TFEU), the Austrian court rejected a subsequent request from the Austrian competition authority to establish a cartel infringement regarding the same undertakings and on the basis of the same facts.

The CJEU ruled that the national court must examine whether the previous decision of the NCA had the purpose of establishing a cartel on the basis of effects on both the German and the Austrian market. If such is the case, the duplication of proceedings cannot be justified under Article 52(1) of the EU Charter of Fundamental Rights. In order to justify duplication, the subsequent decision must in fact pursue a complementary objective relating to different aspects of the same unlawful conduct. As both the German and the Austrian authorities could (and should) apply Article 101 TFEU, they both pursue the same objective of general interest. The fact that one of the cartel members in the German proceedings participated in a leniency programme does not, according to the CJEU, affect the applicability of the principle.

In case of duplication of infringement decisions based on different types of legislation, pursuing legitimate and distinct objectives, a breach of the ne bis in idem principle could potentially be justified. In bpost, the CJEU ruled that a previous fining decision by the Belgian postal regulator for maintaining a discriminatory tariff system did not, in principle, preclude a subsequent infringement decision by the Belgian Competition Authority (“BMa”) on the basis of Article 102 TFEU, despite the fact that it concerned the same conduct. The CJEU considered that the postal sectoral rules are intended to ensure the liberalisation of the postal sector, whilst the proceedings conducted by the BMa are intended to ensure free competition in the internal market. If there are clear, precise and foreseeable rules, the two procedures have been conducted in a sufficiently coordinated manner are and closely linked in time, and if the overall penalties imposed correspond to the seriousness of the offences committed, a duplication of proceedings would be justified.

Roadshows by the Ministry of Economic Affairs for public company DVI violate the Dutch Act on Government and Free Markets