• Concept of undertaking in competition law affects international jurisdiction assessment
• Dutch Supreme Court seeks preliminary ruling on applicable law in trucks and airfreight cartel
• Amsterdam Court assumes jurisdiction in ethylene cartel damages case

Cartels & vertical restraints

• ACM supports sustainability agreements in natural stone and textile sectors
• Foreign Subsidies Regulation: injunctions Nuctech against dawn raids Commission again dismissed on appeal
• CBb clarifies prohibitions on function-mixing and favouritism when granting subsidies
• ACM acts against market manipulation in wholesale gas market

• ACM dismisses Epic’s objection to Fortnite fines
• Rotterdam Court confirms ACM’s rejection of disclosure request

First application of ‘stringing beads’ theory of harm by ACM; licence granted for acquisition of Vierhouten & De With by Foresco*

Authority for Consumers & Markets, decision of 21 February 2025

On 21 February 2025, the Dutch Authority for Consumers & Markets (“ACM”) granted a licence to pallet seller Foresco to acquire competitors Vierhouten Palletindustrie (“Vierhouten”) and De With Pallets (“DWP”). The decision follows a lengthy second phase investigation, in which the ACM applied the theory of harm regarding ‘stringing beads’ or serial acquisitions for the first time. This concerns a strategy whereby a company makes a series of small(er) acquisitions – whether notifiable or not – that increase the company’s market share little by little.

In its decision, the ACM sets out the framework it applies when assessing this theory of harm. While the ACM indicates that it generally takes a neutral position towards serial acquisitions, it outlines three scenarios in which this strategy may be detrimental to competition. This is the case when serial acquisitions:

1. create a dominant position;
2. (further) reinforce an existing dominant position; and
3. results in the creation of a future dominant position, where the ACM will (also) look at sufficiently concrete future/proposed acquisitions by the buyer.

The ACM assessed the proposed takeover of DWP-Vierhouten by Foresco on the basis of these scenarios. Ultimately, the ACM concludes that Foresco still faces sufficient competitive pressure from other pallet sellers after the concentration and that pallet customers have sufficient alternatives. Consequently, the ACM does not expect prices to increase as a result of the merger and therefore clears the acquisition.

The ACM’s investigation into serial acquisitions in this case forms part of a broader trend aimed at expanding its powers. For instance, on 7 March 2025, the ACM announced it launched an investigation into Brink’s non-notifiable acquisition of German Ziemann in the cash-in-transit sector because of the limited number of players in this market and Brink’s position thereon. In addition, a legislative proposal to create additional powers for the ACM to (be able to) invoke certain non-notifiable mergers is currently up for consultation.

* bureau Brandeis assisted Vierhouten and DWP in the second phase merger proceedings

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ACM publishes guidance for car dealer mergers

Authority for Consumers & Markets, publication of 21 February 2025

In response to increasing consolidation within the car dealership sector, the ACM has, for the first time, published sector-specific guidance on its merger control approach (so far only available in Dutch). Traditionally, the ACM has assessed car dealership mergers using a broad geographic market definition, often resulting in low market shares for merging parties that typically operate at a local or regional level. However, recent merger decisions indicate a shift in this approach.

Following additional market research, the ACM has concluded that the retail market for new passenger cars sold to private individuals and small businesses should be defined locally. A journey time analysis revealed that 80% of buyers are willing to travel up to 35 minutes to a dealership to purchase a new car. To ensure a more accurate assessment of potential competition concerns arising from car dealership mergers, the ACM now considers ‘catchment areas’ (the postcode regions surrounding a dealership where 80% of sales occur).

To prevent notifying parties from undertaking overly complex postcode analyses for each merger, the ACM has introduced a step-by-step approach, to be included in the notification form. The first step is to determine the national market shares of the car brands involved, which the ACM considers a reasonable approximation of the relevant market areas. If the combined market share of the brands sold by one or both merging dealerships is below 25% and below 40% in each individual car segment (A to N), a general analysis of the parties’ market shares will suffice.

However, if at least one of these thresholds is exceeded, the notifying parties must identify the relevant geographic market areas of all affected dealerships based on customer origin data. If these market areas overlap and more than 5% of relevant turnover is generated within the overlapping postcode regions, a more detailed competitive analysis is required. This will include segmentation based on factors such as price class, brand, and fuel type.

For brand-specific maintenance and repair services, no predefined thresholds apply. Notifying parties must always determine the relevant catchment areas before proceeding with further analysis, following the same steps as for the retail market. Meanwhile, in the ACM’s view, the distribution market for car parts generally has a national scope.

This guidance aligns with the ACM’s increasing scrutiny of mergers between locally operating businesses. In this context, reference can be made to the recent second-phase decision on Foresco/Vierhouten and De With Pallets, as well as the potential introduction of a call-in power by the ACM. It is also possible that this new approach will be extended to other sectors.

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ACM approves KPN/Open Tower Company merger subject to conditions

Authority for Consumers and Markets, decision of 6 February 2025

On 6 February 2025, the ACM granted conditional approval for KPN’s acquisition of Open Tower Company (“OTC”), through which KPN will become a shareholder in OTC alongside APG. According to the ACM, these conditions are necessary to ensure that other telecom companies are provided fair access to OTC’s antenna infrastructure, including transmission towers. This means that competing telecom providers must continue to be granted access on the same terms and tariffs, and the quality of service to them must be equal to that offered to KPN. Additionally, OTC is required to maintain a transparent access procedure and respect existing agreements with other telecom operators. A protocol has also been established to prevent KPN from gaining access to competitors’ commercially sensitive information, thereby ensuring it cannot use such information to strengthen its competitive position.

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Overview highlights merger cases

Constantia/Aluflexpack

The European Commission (“Commission”) has conditionally cleared the merger between Constantia and Aluflexpack, both active in packaging solutions for different industries. According to the Commission, the proposed merger would lead to horizontal effects in the markets for the sale of sterilised aluminium cans and lids for wet pet food and certain human food products (such as pâté). The merging parties have offered to divest the entire sterilised wet pet and human food products division within Aluflexpack to MTX Group. The Commission’s findings regarding the purchaser will be subjected to a separate approval process.

Ansys/Synopsys

On 10 January 2025, the Commission conditionally approved the acquisition of Ansys by Synopsys. Its investigation revealed that the transaction would lead to high market shares and leave too few competitors in the relevant markets post-transaction. While the parties’ activities are largely complementary, the Commission found that the transaction would weaken competition in the global markets for the supply of: (i) optics software simulating how light behaves in large macro-scale systems, (ii) photonics software simulating how light behaves in smaller nano-scale optical systems (e.g. digital camera or solar panel); and (iii) register-transfer-level power consumption analysis software. To address the Commission’s concerns, the parties agreed to divest their overlapping businesses: Synopsys’ optics and photonics software and Ansys’ flow analysis software. Under these conditions, the Commission approved the acquisition.

International Paper/DS Smith

The Commission has furthermore conditionally cleared International Paper Company’s proposed acquisition of DS Smith, two vertically integrated paper and packaging companies. Following its investigation, the Commission found that the transaction would have resulted in reduced competition in the markets for the manufacture and supply of corrugated board products in Portugal, Spain and France. To address the Commission’s concerns, the merging parties offered to divest five International Paper Company plants in the affected markets. The Commission subsequently approved the acquisition.

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Concept of undertaking in competition law affects international jurisdiction assessment

Court of Justice of the European Union, judgment of 13 February 2025

On 13 February 2023, the Court of Justice of the European Union (“CJEU”) handed down its judgment on the relationship between substantive competition law – in particular the concept of undertakings – and the jurisdictional assessment by national courts in accordance with private international law. The judgment follows a preliminary reference from the Dutch Supreme Court (Hoge Raad, “HR”) and concerns a dispute between Greek Macedonian Thrace Brewery (“MTB”), on the one hand, and Greek Athenian Brewery (“AB”) and its Dutch (grand)parent company Heineken, on the other. AB abused its dominant position in the Greek beer market and was fined by the Greek competition authority. MTB claims to have suffered losses as a result thereof and brought proceedings before the Dutch courts because AB’s (grand)parent company, Heineken, is based in the Netherlands.

The question before the CJEU was whether Heineken can act as an anchor defendant for the assumption of jurisdiction by the Dutch courts, because it forms an economic unit together with AB and is therefore jointly and severally liable for the damage caused by AB. In particular, the question at issue was to what extent the (rebuttable) presumption of decisive influence of a parent company over its subsidiary may affect the assessment of jurisdiction, and how to deal with a challenge to this (rebuttable) presumption of evidence.

The CJEU reiterates that the application of the anchor defendant rule (Article 8(1) Brussels I-bis Regulation) requires that the claims be so closely connected that the proper administration of justice requires their joint treatment. The CJEU holds that a parent company can be held jointly and severally liable for competition infringements by a subsidiary if it exercised decisive influence over the conduct of that subsidiary. In that case, the parent and subsidiary entities belong to the same undertaking and, as such, are jointly and severally liable. It is irrelevant in that regard that such joint and several liability was not established by the Commission but rather by a national competition authority.

Regarding the rebuttal of the presumption of decisive influence, the CJEU stresses that when assessing jurisdiction the national court does not assess the admissibility nor the merits of the claims before it. It considers solely the connecting factors to the present forum State. In assessing jurisdiction, the national court may limit itself to ascertaining whether decisive influence by the parent company, in this case Heineken, has not been ruled out a priori. Where the parent company holds almost all of the shares in its subsidiary, it will in principle exert decisive influence. Only where the parent company provides probative evidence, this presumption of decisive influence could be rebutted. In doing so, the CJEU confirms that substantive competition law affects the assessment of jurisdiction under private international law.

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Dutch Supreme Court seeks preliminary ruling on applicable law in trucks and airfreight cartel

Supreme Court, judgments of 21 March 2025

On 21 March 2025, the HR handed down two judgments formulating preliminary questions that it intends to put to the CJEU. The first judgment concerns follow-on damages claims regarding the trucks cartel; the second judgment concerns the air cargo cartel. Both judgments concern the determination of applicable law in complex cross-border cartel cases.

In both judgments, the HR decides to ask the CJEU whether EU law, and particularly the principle of effectiveness, entails that a single and continuous infringement of Article 101 TFEU should be qualified as an unlawful act that gives rise to a single claim for damages per injured party, which may comprise of several losses (transactions). The HR also asks whether this qualification is determined by EU law at all, or whether it should be left to the national law of the Member States.

The case surrounding the trucks judgment concerned a national preliminary reference from the Amsterdam District Court to the HR. According to the HR, the answer to most of these questions is unclear. Therefore, the HR decides to ask additional preliminary questions to the CJEU on the applicable law in relation to the trucks cartel. For instance, the HR wonders to what extent the Rome II Regulation applies to single and continuous infringements that lasted until after its entry into force (2009), but started prior to it. The HR also wants to know how the location of the affected market should be interpreted, for example in the case of different forms of damages such as when there is an intermediary (dealer), and when the trucks were bought in different Member States. Finally, the HR seeks clarification on the conditions that must be met for claimants to make a unilateral choice of law under Article 6(3)(b) Rome II Regulation.

In both judgments, the HR further addressed the relationship between the Rome II Regulation and the (Dutch) Conflict of Laws Act (“WCOD”). The Amsterdam District Court as well as the Amsterdam Court of Appeal previously ruled that (Article 4 of) the WCOD contained a lacune, as it did not provide for a solution for determining applicable law in the case of cross-border unlawful competition, where many different national legal systems would otherwise apply. However, the HR concluded that there was no lacune. After all, the legislator deliberately drafted a specific regulation for unlawful competition and – while taking into account that in case of an internationalisation of trade, application of article 4 WCOD could ‘inevitably’ lead to ‘fragmentation’ of the applicable law – it (consciously) chose not to introduce a solution in the form of a unilateral choice of law.

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Amsterdam court assumes jurisdiction in ethylene cartel damages case

Amsterdam District Court, judgment of 22 January 2025

On 22 January 2025, the Amsterdam District Court assumed jurisdiction over claims against foreign defendants under the anchor defendant rule (Article 7(1) Rv/Article 8(1) Brussels I-bis Regulation). The case concerns claims for damages brought by Shell resulting from the ethylene cartel. The defendants in the case were each fined by the Commission for their participation in this cartel. All defendants are domiciled abroad, with the exception of Celanese Europe B.V., which is domiciled in the Netherlands. It acted as an anchor defendant.

The court found that the claims brought by Shell were so closely connected that, if adjudicated separately, there was a risk of irreconcilable judgments. The court considered whether Celanese Europe B.V. – the anchor defendant – is in the same (factual and legal) position as the foreign defendants. In doing so, the court clarified that it is irrelevant that some of the defendants were only indirectly involved in the cartel as parent companies (as opposed to “actual infringers”). Similarly, it is irrelevant that some defendants were involved in the cartel for a shorter period of time than others. After all, the cartel constituted a single continuing infringement of competition law and it is on that same infringement that all of Shell’s claims against all defendants are based. All defendants, both the anchor defendant and the foreign entities, are therefore in the same situation. The court therefore assumed jurisdiction over all claims against the defendants.

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Rotterdam Court confirms infringement in egg cartel yet slightly reduces fines

Rotterdam District Court, judgment of 8 January 2025

On 8 January 2025, the Rotterdam District Court issued its ruling in the case concerning the so-called egg cartel. The court upheld the ACM’s decision to fine egg product manufacturers Global, Interovo, and Wulro for coordinating purchase prices, allocation of suppliers, and the exchange of competitive sensitive information (see most recently CF Q1 2024).

The ACM had issued fines in relation to two purchasing cartels: one between Global and Wulro, and another between Interovo and Wulro. On appeal, the manufacturers contested the ACM’s findings, arguing inter alia that the authority had wrongly classified WhatsApp-messages between the companies’ directors as evidence for the cartel agreements. The court ruled that the WhatsApp-messages clearly demonstrated that the companies had exchanged pricing information for both cage and free-range eggs, agreed on pricing for these products, and coordinated the supply of cage eggs from Dutch and Belgian laying hen farmers.

In assessing the relevant market, the court endorsed the ACM’s approach of focusing on the companies’ actual conduct rather than their precise market shares. It held that the ACM had sufficiently demonstrated that the parties held enough market power to distort competition, regardless of the exact size of their market shares. The evidence indicated that the companies had collectively sought to raise profit margins at the expense of poultry farmers, who were in a weaker bargaining position.

The manufacturers also argued that the fines imposed were excessive. The court partly upheld this claim, finding that the duration of the proceedings had exceeded the statutory timeframe. As a result, a €5,000 reduction was applied to the fine of each company. In addition, Wulro received a further 25% reduction, as it had been fined twice for partially overlapping conduct. The court held that a proportionality adjustment was warranted in light of this duplication. The final fines were set at €15,736,500 for Global, €7,655,000 for Interovo, and €995,000 for Wulro.

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Google’s refusal to make competing app interoperable with own platform may constitute abuse

Court of Justice of the European Union, judgment of 25 February 2025

On 25 February 2025, the CJEU delivered its judgment in the preliminary ruling on whether Google’s refusal to make an app from Enel interoperable with Google-developed infrastructure Android Auto qualifies as an abuse of dominance. Android Auto is Google’s system providing a direct linkage to smartphone apps on the dashboard of cars. Third-party app developers can customise their apps to Android Auto using templates provided by Google.

Enel launched its app JuicePass in 2018, which allows drivers to find and reserve charging stations for their electric vehicles. Enel subsequently made several requests to Google to make JuicePass interoperable with Android Auto, as Google did not offer a template suitable for JuicePass. Google refused to do so. The Italian competition authority subsequently fined Google over € 102 million. Google challenged this decision before the Italian court, which referred preliminary questions to the CJEU.

The CJEU concludes that the refusal by a dominant undertaking – which has developed a digital platform – to make that platform interoperable with an app developed by a third party can constitute an abuse of dominance. In essence, the CJEU held that the essential facility doctrine whereby the infrastructure (here Android Auto) must be ‘indispensable’ for the party requesting access (Enel), does not apply where the platform has been developed by the dominant undertaking not only for its own use but also for its use by third parties. In that case, it is sufficient that (access to) the platform can make the app more attractive to consumers. The refusal to ensure interoperability can only be justified if it would compromise the integrity or security of the platform or if it is impossible to ensure interoperability for other technical reasons. If that is not the case, the dominant undertaking must (itself) develop a template to ensure interoperability within a reasonable period of time.

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ACM rightly rejected enforcement request concerning .nl internet domain

Trade and Industry Appeals Tribunal, judgment of 18 February 2025

On 18 February 2025, the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven, “CBb”) ruled that the ACM had correctly rejected Dataprovider’s enforcement request. Dataprovider had lodged a complaint with the ACM after Stichting Internet Domeinbeheer Nederland (“SIDN”), the administrator of the .nl internet domain, refused to provide a list of all domain names. Dataprovider argued that SIDN’s refusal amounted to an abuse of a dominant position. Both the ACM and the Rotterdam District Court previously held that there was no abuse of dominance, and therefore, the ACM was justified in deciding not to pursue further investigation. On appeal, the CBb confirmed the ACM’s decision, upholding the dismissal.

In its assessment, the CBb applied the Bronner-criteria, which are used to determine whether a refusal to supply amounts to abuse. The CBb concluded that Dataprovider and its competitors could still provide domain monitoring services without access to the .nl zone file, meaning the refusal did not restrict competition. As a result, the CBb rejected the appeal, thereby definitively upholding the ACM’s rejection of the enforcement request.

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Leadiant’s fine for abuse of dominance upheld on appeal and enforcement request against health insurers insufficiently substantiated by ACM

Rotterdam District Court, judgments of 13 February 2025

The Rotterdam District Court has largely dismissed drug manufacturer Leadiant’s appeal against the fine imposed on it for abusing its dominant position. The ACM’s original fine of €17,044,000, issued in June 2023, was reduced slightly to €17,029,000 due to the exceeding of the reasonable time period (see also CF Q3 2023). In its judgment, the court ruled that the ACM had properly established that Leadiant had abused its dominant position.

The abuse concerned Leadiant’s pricing of a CDCA-drug that (the legal predecessor of) Leadiant had bought from another manufacturer in 2008. The active ingredient in that CDCA drug was originally used as a drug for gallstones, but had been used for several decades in the treatment of a rare metabolic disease, CTX. Leadiant subsequently applied for orphan drug status and license to treat CTX patients with the CDCA drug. After the purchase, Leadiant gradually increased the price of the drug from €46 to €13,090 per pack.

According to the court, the ACM correctly concluded that these prices were excessive and unfair, meaning they were not in reasonable proportion to the economic value of the products supplied. The court described the price increase as exorbitant and a textbook example of abuse of dominance. It also emphasised that a drug manufacturer has a special duty of care toward patients who rely on its medication. However, the court stated that Leadiant exploited the vulnerability of these patients, who could not do without the medicine, for its own financial gain.

That same day, the court ruled on a complaint filed by Leadiant with the ACM, in which the company alleged that twelve Dutch health insurers had colluded to boycott Leadiant’s drugs for an extended period and replace them with their own (magistral) pharmacy preparations. According to Leadiant, this contributed to its inability to reduce the high prices for which it was fined by the ACM, as the insurers had boycotted negotiations for reimbursement of those prices. The ACM dismissed the enforcement request after an initial investigation, citing its prioritisation policy. The ACM stated that, although some health insurers supported the pharmaceutical preparation, each insurer acted independently. Therefore, there was no evidence of a collective boycott.

The court ruled that the ACM did not provide sufficient justification for refraining from further investigation based on its prioritisation policy. While the ACM argued that an additional investigation would require a significant commitment of resources, the court noted that extensive investigations had already been carried out in the related abuse case, which would render this investigation more efficient. Furthermore, the ACM failed to convincingly explain why there would be no harm to consumer welfare, as the potential anti-competitive behaviour by health insurers had not been sufficiently investigated in the first place. The court also found the ACM’s reasoning regarding the public interest criterion to be flawed. By investigating a related case but not this one, the ACM created the appearance of arbitrary application of its prioritisation policy. As a result, the court annulled the decision and instructed the ACM to make a new decision, taking these considerations into account. However, this ruling does not mean that the ACM is obligated to conduct further investigations at this stage.

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ACM publishes commitment decision Ticketmaster*

Authority for Consumers & Markets, decision of 20 December 2024 (publication on 20 January 2025)

With the recently published commitment decision, the ACM officially closed its investigation into Ticketmaster’s possible abuse of dominance. In May 2023, the ACM initiated an investigation into Ticketmaster’s practices concerning the reservation and/or restriction of resale options for ‘mobile’ tickets. Mobile tickets, as defined by the ACM, are tickets featuring a dynamic, moving logo over a QR code, linked to a Ticketmaster account requiring Ticketmaster’s involvement. Previously, consumers could either resell their mobile tickets through Ticketmaster’s resale platform or use the free ‘transfer functionality’ within Ticketmaster, initially intended solely for transferring tickets to friends and family, not for resale. Third-party resale platforms, such as TicketSwap, Viagogo, Tixel and Eventim could not facilitate the resale of mobile tickets. Ticketmaster also maintained a policy that the selling consumer could not offer the ticket on Ticketmaster’s resale platform below the original ticket price.

The ACM found that these practices led to a lack of competition in the resale market, which could result in higher service costs and/or poorer conditions and services. Additionally, the inability to sell tickets below the original price might prevent consumers from reselling mobile tickets at all, particularly if tickets have not yet sold out in the primary sale.

Following the initiation of the investigation, Ticketmaster made several changes to its resale policies. From 25 July 2023, the ‘transfer functionality’ was made available for resale on third-party platforms at no cost. Ticketmaster also provided instructions on its website for consumers wishing to use this option. Moreover, Ticketmaster began informing consumers purchasing tickets via third-party resale platforms about essential details, such as seating information and event changes (e.g., cancellations or rescheduling). Finally, Ticketmaster allowed sellers to list tickets on its resale platform below the original ticket price.

These changes were incorporated into Ticketmaster’s commitments. To avoid self-promotion, Ticketmaster also agreed not to deactivate the transfer functionality at the request of any customers within its own group (Live Nation) and to clearly communicate any such deactivations to third-party resale platforms. Additionally, Ticketmaster will inform these platforms about its new policy and any technical changes in a timely manner.

Given the dynamic nature of the ticketing market, the ACM deemed a two-year commitment period (until 20 December 2026) appropriate. The ACM concluded that its competition concerns were sufficiently addressed by these commitments, dismissing further concerns raised by TicketSwap and the Dutch Consumers’ Association (Consumentenbond) about continued dependence on Ticketmaster and the complexity and user unfriendliness of the transfer functionality.

* bureau Brandeis is assisting TicketSwap in the appeal proceedings

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ACM rejects enforcement request L-Mobi against KPN

Authority for Consumers & Markets, decision of 20 January 2025

The ACM has recently rejected telecom provider L-Mobi’s request for enforcement action against KPN. L-Mobi alleged that KPN abused its dominant position in the wholesale telecommunications services market through margin squeezing and price discrimination, effectively excluding mobile virtual network operators (“MVNOs”) like L-Mobi from the market. For a number of years, L-Mobi offered prepaid services in the so-called ‘ethnic’ segment using KPN’s network. However, following multiple renegotiations of wholesale tariffs and an interlocutory injunction filed by KPN due to payment delays, their cooperation ended permanently in May 2024.

The ACM postponed the consideration of L-Mobi’s enforcement request until after the publication of its licensing decision on KPN/Youfone, in which the ACM examined the competitive dynamics and potential risks in both the wholesale and retail telecommunications markets. Based on these findings, the ACM concluded that a margin squeeze or abusive price discrimination was unlikely.

L-Mobi argued that KPN’s wholesale tariffs for L-Mobi were higher than the retail tariffs offered by other MVNOs such as Youfone, Lebara, and KPN’s own subsidiary brand Simyo. However, the ACM questioned L-Mobi’s calculations and the validity of comparing these tariffs at all, as the retail tariffs cited by L-Mobi related to postpaid rather than prepaid offerings. Additionally, L-Mobi, with a customer base of approximately 15,000, is significantly smaller than competitors like Youfone, Lebara, and Lyca, which may qualify for volume-based discounts so that a difference in treatment is likely to be justified.

Given its prioritisation policy as well as the fact that the ACM found no confirmatory – but rather disproving – indications of the existence of abuse in its preliminary investigation, the ACM dismissed L-Mobi’s complaint. It also rejected L-Mobi’s additional claims concerning potential cartel agreements between the three major network operators (KPN, Odido, and VodafoneZiggo), as well as alleged violations of the Dutch Telecommunications Act and the EU Roaming Regulation, due to insufficient substantiation.

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ACM supports sustainability agreements in natural stone and textile sectors

Authority for Consumers & Markets, press releases of 13 February 2025 and 26 March 2025

In February and March 2025, the ACM published two informal assessments confirming that sustainability agreements between competitors in the natural stone and textile sectors do not violate competition law.

On 13 February 2025, the ACM approved the sustainability agreements under the TruStone Initiative covenant, in which competing natural stone companies commit to reducing environmental and social harm throughout their production and supply chains, including outside the Netherlands. A similar assessment followed on 26 March 2025 for the Textile Alliance, a collaboration of companies, trade unions, and industry associations in the clothing and textile sector. This alliance aims to improve compliance with human rights, environmental goals, and animal welfare standards in global supply chains. A similar assessment followed on 26 March 2025 from the Textile Alliance, a collaboration of companies, trade unions, and industry associations in the clothing and textile sector. This alliance aims to improve compliance with human rights, environmental goals, and animal welfare standards in global supply chains.

The ACM assessed the agreements on the basis of its Policy Rule on ACM’s oversight of sustainability agreements (“Policy Rule sustainability agreements”), which clarifies how businesses can collaborate on sustainability without breaching the competition rules. Sustainable initiatives are also gaining attention at European level; the new Horizontal Block Exemption Regulations and the accompanying Horizontal Guidelines, which came into effect on 1 July 2023, confirm that certain sustainability agreements, such as due diligence obligations, fall outside the scope of the cartel prohibition under Article 101 TFEU.

In both cases, the ACM concluded that the agreements do not appreciably restrict competition in the Dutch market, partly as companies remain individually responsible for making their supply chains more sustainable. The ACM’s assessments demonstrate that while the sustainability initiatives involve cooperation between competitors, they do not negatively impact competition, provided they adhere to the guidelines set out in the Policy Rule sustainability agreements.

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Foreign Subsidies Regulation: injunctions Nuctech against dawn raids Commission again dismissed on appeal

President of the CJEU, order of 21 March 2025

On 21 March 2025, the President of the CJEU (the “President”) dismissed the application of Nuctech Netherlands (now Instech Netherlands) and Nuctech Warsaw (hereinafter collectively “Nuctech”) for suspension of the Commission’s decision pursuant to which raids were carried out at Nuctech’s premises. This confirms the judgment of the President of the General Court. The case concerns the first legal proceedings on the Foreign Subsidies Regulation (“FSR”) and the Commission’s powers under this relatively new piece of legislation.

Nuctech is active in the development, manufacture and supply of security inspection equipment. Nuctech’s parent companies are based in China. Between 23 and 26 April 2024, the Commission conducted unannounced inspections at Nuctech’s premises because it suspected that Nuctech may have obtained anticompetitive foreign subsidies in violation of the FSR (see also CF Q2 2024). The Commission’s request for access to the contents of the mailboxes of several employees was refused by Nuctech, as these were stored on servers in China and could not be accessed by Nuctech without (potentially) violating Chinese law. Nuctech requested that the Commission’s decision and all its subsequent actions be annulled.

The President now concludes that the president of the General Court was right to dismiss the interim orders. Nuctech did not put forward sufficient evidence to show that it would suffer serious and irreparable damage. Moreover, the damage in question is financial, which is generally reparable. In addition, as Nuctechs wrongly argues, there is no stigma attached to administrative fines, as may be the case with criminal sanctions. The President therefore rejects Nuctech’s requests.

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CBb clarifies prohibitions on function-mixing and favouritism when granting subsidies

Trade and Industry Appeals Tribunal, judgment of 4 March 2025

The highest administrative court has given further interpretation to the Dutch Act on Government and Free Markets (in Dutch: Wet Markt en Overheid), in particular to Article 25j(1) and 25l of the Competition Act (“Mw”).

The ruling followed proceedings brought by MKB Multifonds against a decision of the ACM in which it found that the Minister of Economic Affairs (“EZ”), by providing subsidies to Oost NL and Dutch Venture Initiative I and II (“DVI funds”), did not confer a selective advantage. Article 25j Mw provides that an administrative body may not favour a public company over other companies with which it competes. The Rotterdam District Court already ruled in first instance that (contrary to what the ACM argued) the subsidy was indeed selective but, in this case, did not confer an advantage on Oost NL/DVI Funds as the conditions were market conform (in line with the Commission’s state aid decision). The CBb confirmed that the assessment framework for European state aid and the prohibition on favouritism in Article 25j Mw are similar, and therefore upheld the court’s ruling.

However, the CBb reached a different conclusion with respect to Article 25l Mw, which requires administrative bodies to ensure that the same individuals are not involved in exercising public law powers and in carrying out economic activities (separation of functions). In this case, a government official had co-decided on the granting of subsidies to Oost NL/DVI funds and at the same time contributed to pre-marketing activities by getting pension funds interested in participating in one of the DVI funds. According to the CBb, this qualifies as ‘double involvement’ as there is sufficient connection between the two. In this respect, it is irrelevant whether the pre-marketing had the desired result, as the purpose of the prohibition on function-mixing is to prevent (the appearance of) conflicts of interest. To that extent, MTB Multifonds’ appeal succeeds. However, since the ACM had already concluded in the contested decision that the pre-marketing activities resulted in a selective advantage for Oost NL/DVI funds, the ruling has no further consequences. Notably, this is the first time the CBb ruled on the application of the ban prohibition on function-mixing.

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ACM acts against market manipulation in wholesale gas market

Authority for Consumers & Markets, press release dated 6 February 2025

As the energy market regulator, the ACM monitors compliance with the recently revised European REMIT Regulation. ACM’s supervision relates inter alia to the prevention of insider trading and market manipulation on Dutch wholesale markets, including that for gas (TTF). A year ago, the ACM already warned market participants about prohibited market manipulation (‘spoofing’). Now, for the first time, the ACM has reprimanded a major international market player for influencing the daily fixed reference price (TTF Day Ahead). The prohibited trading behaviour consisted of buying excessively large volumes or offering orders with very high asking prices (‘marking the close’) just before the market closed. The trader has now agreed (informally) to stop such behaviour.

The ACM continues to closely monitor energy markets and regularly reports on its REMIT supervision. For example, it publishes biannual updates outlining key indicators in its supervisory activities.

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ACM dismisses Epic’s objection to Fortnite fines

Authority for Consumers & Markets, decision of 27 November 2024 (publication on 20 January 2025)

On 27 November 2024 the ACM rejected the objection of Epic Games International S.à.r.l. (“Epic”) against the fines and binding directions imposed for consumer law violations related to its online game Fortnite. This objection relates to the ACM’s decision of 18 December 2023 (see also previous CF Q2 2024).

The ACM found that Epic had engaged in three unfair commercial practices, particularly targeting children by exploiting their psychological vulnerabilities, such as impulsivity. For example, the in-game webshop featured misleading countdown timers suggesting scarcity (in breach of Section 6:193g(g) of the Dutch Civil Code (“DCC”)), alongside pressure-inducing texts such as “Get it now” and “Buy now” (Section 6:193i(e) DCC). According to the ACM, these practices violated the requirement of professional diligence under Article 6:193b DCC.

Epic disputed these findings, arguing that the scientific literature referenced by the ACM did not support the conclusion that scarcity cues encourage impulse purchases by children, nor that scarcity influences their purchasing motivation. Epic also maintained that Fortnite players primarily value cosmetic features. Nonetheless, the ACM stood by its findings, citing the same academic sources in support of its position. Regarding the misleading timers, Epic contended that there was no intent to deceive. The ACM countered that intent is not a necessary element of the infringement. On the issue of pressuring language, the ACM acknowledged that advertising directed at children is not inherently unlawful, but concluded that the form of aggressive advertising used here was indeed prohibited. Finally, Epic claimed that a breach of professional diligence could only arise in data-driven practices. The ACM rejected this argument, stating that so-called “dark patterns” fall within the scope of the rules, even in the absence of data collection. As a result, the ACM upheld the fine of €1,125,000 and the binding instruction. Epic has lodged an appeal against the decision.

In its decision on objection, the ACM also addressed a broader issue increasingly observed in online games — namely, the use of in-game currencies purchased with real money. It noted that consumers may not always realise they are spending actual money, as the true purchase price can become obscured. In cooperation with other European consumer regulators, the ACM has developed principles governing the use of in-game currencies. Going forward, the real-money equivalent must be clearly and prominently displayed for all in-game purchases.

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Rotterdam Court confirms ACM’s rejection of disclosure request*

Rotterdam District Court, judgment of 23 January 2025

On 23 January 2025, the Rotterdam District Court delivered its judgment in a case concerning the rejection of a disclosure request by the ACM. The claimant had sought disclosure of documents related to the ACM’s investigation into price transparency in the travel industry. The claimant argued that the ACM had failed to adequately justify its refusal to disclose the requested documents and had breached principles of good governance, inter alia by citing the wrong legal basis for many of the documents.

The court disagreed with the claimant’s position that the ACM should assess, on a document-by-document basis, which parts of a document could or could not be disclosed. According to Section 12w of the Establishment Act for the ACM (in Dutch: Instellingswet Autoriteit Consument en Markt), partial disclosure can only occur if it does not undermine the purpose of compliance monitoring. The ACM indicated that disclosure could conflict with this purpose, as it might reduce the willingness of both the ACM and market participants to exchange information. The court upheld the ACM’s position, ruling that disclosure could harm the effectiveness of the ACM’s supervision. The claimant has filed an appeal with the CBb.

* bureau Brandeis is assisting the appellant in these proceedings

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