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

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Overview Q4 2025

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

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

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

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

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

District Court of Rotterdam, judgment of 14 October 2025

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

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

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

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

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

Authority for Consumers & Markets, decision of 21 November 2025

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

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

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

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CBb confirms ACM ban on PostNL’s acquisition of Sandd

Trade and Industry Appeals Tribunal, judgment of 2 December 2025

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

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

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

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Commission publishes fifth annual FDI-report

European Commission, publication of 14 October 2025

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

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

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

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

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

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BTI publishes new Q&A on Wet Vifo

Investment Screening Bureau, publication of 15 October 2025

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

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

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Merger highlights European Commission

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

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

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

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

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

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

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

District Court of Amsterdam, interim judgment of 5 November 2025

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

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

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

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

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

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

European Commission, press release of 14 October 2025

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Commission fines manufacturers of starter batteries for agreements on lead surcharges

European Commission, press release of 15 December 2025

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

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

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

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ACM endorses sustainability agreements in metal sector

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Commission opens investigation into Google’s AI services

European Commission, press release of 9 December 2025

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

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

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

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

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

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CJEU clarifies margin squeeze framework after Bulgarian fine on Lukoil

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

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

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

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

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ACM assesses feasibility and enforceability of draft Postal Act 2009

Authority for Consumers &  Markets, publication of 17 November 2025

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

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

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

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

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CBb overturns PostNL fine for late mail delivery in 2019

Trade and Industry Appeals Tribunal, judgment of 16 December 2025

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

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

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

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

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

District Court of Rotterdam, judgments of 11 November 2025

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

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

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

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

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

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

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

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

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

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ACM intervenes at Farm Frites following complaints from potato growers

Authority for Consumers &  Markets, publication of 8 December 2025

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

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

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

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

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

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

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

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

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

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

District Court of Arnhem, judgment of 3 December 2025

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

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

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

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

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