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