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Competition Flashback Q3 2025 – EU and Dutch competition law developments

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

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Overview Q3 2025

Merger control and FDI

Damages claims for competition law infringements

Cartels and vertical restraints

Abuse of a dominant position

Digital markets (DMA)

Regulated markets

Consumer protection law

Article 24(2) Mw repealed: acquisition by dominant party can constitute abuse of power

Ministry of Economic Affairs, decision of 15 August 2025

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

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

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Commission investigates possible misrepresentation KKR acquisition NetCo

European Commission, press release of 24 July 2025

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

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

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Merger highlights European Commission

 

ADNOC / Covestro

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

 

Brasserie Nationale/ Boissons Heintz

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

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

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

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

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

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

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

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

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

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CJEU emphasises role national courts in reviewing CAS arbitral awards

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

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

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

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

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

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CBb confirms cartel fines for tobacco manufacturers

Trade and Industry Appeals Tribunal, ruling of 22 July 2025

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

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

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

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

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Comfort letters Commission for sustainability agreement and the automotive industry

European Commission, guidance letters of 8 and 9 July 2025

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

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

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

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Commission fines companies for providing incomplete information

European Commission, press release of 8 September 2025

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

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

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

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

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

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

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

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Rotterdam District Court confirms fine decision LG for vertical price fixing

Rotterdam District Court, ruling of 7 August 2025

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

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

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

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

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

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

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

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

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

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

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

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

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Commission accepts Microsoft’s commitments for Teams

European Commission, publication of 12 September 2025

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

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

  1. Office 365 and Microsoft 365 packages will be offered without Teams at a significantly lower price than packages with Teams, whereby the discounts on Teams packages may not be more favourable than those on packages without Teams.
  2. Customers will be given regular opportunities to switch to packages without Teams, which can also be rolled out globally in data centres.
  3. Competitors and third parties will be granted effective interoperability with Microsoft products, the ability to integrate Office Web Apps (Word, Excel, PowerPoint) into their own software, and to include their products visibly in Microsoft’s core applications.
  4. Customers in the EEA may export their Teams messages for use in competing solutions.
Following the results of the market investigation conducted by the Commission in 2025 into these commitments, Microsoft decided to supplement its commitments by:
  1. Increasing the price difference between Microsoft 365 and Office 365 packages without Teams and packages with Teams (including for business customers) by 50%.
  2. Clearly displaying the corresponding offer without Teams on its websites alongside every offer of a package with Teams.
  3. Publishing information on interoperability and data portability on all relevant developer websites.

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

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

European Commission, publication of 5 September 2025

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

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

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

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

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Commission accepts far-reaching commitments from Corning

European Commission, publication of 18 July 2025

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

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ACM launches investigation into major software supplier for suspected dominance abuse

Authority for Consumers and Markets, publication of 30 September 2025

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

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

European Commission, decision of 4 August 2025

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

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

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

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

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CBb refers questions CJEU on the interpretation PSO Regulation

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

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

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

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

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

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

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

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PostNL will not receive subsidy for UPD

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

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

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

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

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

Authority for Consumers and Markets, publication of 24 April 2025

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

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

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

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

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ACM again rejects enforcement request against Lactalis

Authority for Consumers and Markets, decision of 29 July 2025

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

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

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

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

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Developments and risks in the agro-nutri sector

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

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

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

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

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

Authority for Consumers & Markets, decisions of 16 July 2025

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

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

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

* bureau Brandeis assisted the VTOs in these proceedings.

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ACM launches investigation into computer-controlled consumer prices aviation sector

Authority for Consumers and Markets, publication of 2 July 2025

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

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

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

Trade and Industry Appeals Tribunal, ruling of 16 September 2025

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

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

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

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ACM publishes guidelines for fair price display

Authority for Consumers & Markets, publication of 19 September 2025

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

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

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

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

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

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

Vision

Competition Flashback Q3 2024 – EU and Dutch competition law developments

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

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Overview Q3 2024

Merger control

Regulating digital markets (DMA)

Cartels and vertical restraints

Abuse of a dominant position

Damages claims for competition law infringements

Aviation

State aid and FSR

Consumer law

Overview highlights merger cases

On 3 July 2024, the Commission cleared the proposed acquisition of ITA Airways by Lufthansa and the Italian Ministry of Economy and Finance subject to conditions. In its statement of objections, the Commission expressed its concerns that competition for short-haul flights between Italy and Central Europe (where ITA’s and Lufthansa’s hubs are located) would be reduced (see also CF Q1 2024). In addition, the Commission considered it possible that competition on long-haul flights between Italy, on the one hand, and the United States and Canada, on the other, would be reduced as a result of the transaction. Finally, the acquisition would strengthen ITA’s dominance at Milan airport, the Commission said. To address these concerns, ITA and Lufthansa offered to divest logistical resources for long- and short-haul flights between Italy, Central Europe and North America as well as landing and take-off slots at certain airports. Under these conditions, the Commission approved the acquisition.

In another airline merger, the Commission announced that International Airlines Group (“IAG”) has withdrawn its proposed acquisition to acquire Air Europa. IAG owns several airlines, including Iberia and Vueling, making it the largest airline operator in Spain (see also CF Q1 2024). Air Europa is the third largest airline in Spain. On 24 January 2024, the Commission had announced the opening of a second phase investigation into the proposed acquisition. On 26 April 2024, IAG received a statement of objections. The Commission was concerned that the proposed acquisition would impede competition on domestic routes in Spain, short routes between Spain and countries in Europe and the Middle East, and long routes between Spain and the Americas. IAG subsequently offered remedies, but these were insufficient for the Commission to address the concerns. Thereupon, IAG withdrew its notification of the proposed acquisition.

Bunge’s acquisition of Viterra has been conditionally approved by the Commission. Both parties are vertically integrated agricultural companies active in the sourcing, trading and processing of agricultural products. Specifically, there is significant overlap between the parties’ activities in oilseeds (such as sunflower seeds, soybean or rapeseed). Based on its investigation, the Commission concludes that the proposed transaction would reduce competition in the markets for oilseeds. In particular, the acquisition would result in a concentration of processing facilities in Central Europe, with potential adverse consequences for both farmers and customers. To address the Commission’s competition concerns, both parties offered to divest Viterra’s oilseed business in Hungary and Poland including some logistical assets. Under these conditions, the Commission approved the acquisition.

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

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

Court of Justice of the European Union, judgment of 3 September 2024

On 3 September 2024, the Court of Justice of the European Union (“CJEU”) ruled that the European Commission (“Commission”) is not authorised to encourage or accept referrals of proposed concentrations without a European dimension from national competition authorities where those authorities are not competent to examine those proposed concentrations under their own national laws. This judgment once and for all brings an end to the long saga of Illumina/Grail (see also our Competition Flashbacks (“CF”) of Q3 2022, Q3 2023 and Q4 2023). As a result of this judgment, national competition authorities have withdrawn their pending referral requests to the Commission to investigate certain acquisitions.

On 21 September 2020, Illumina, a US company specialising in genetic analysis solutions, announced its intention to acquire Grail, a US company developing blood tests for the early detection of cancer. As the concentration had no European dimension, in particular because Grail did not generate any revenue yet in the European Union or elsewhere in the world, the transaction was not notified to the Commission nor to any national competition authority within the EU. After receiving a complaint about this concentration, the Commission requested the Member States to submit to it requests to examine this proposed concentration under Article 22 of the Merger Regulation nevertheless. The competition authorities of several Member States, including the ACM, subsequently filed such a request and the Commission launched an investigation and ordered the parties to await the Commission’s approval before implementing the transaction. When Illumina and Grail implemented the proposed merger nonetheless, the Commission imposed a record fine of € 432 million and decided that Illumina should unwind it.

Illumina and Grail unsuccessfully appealed to the General Court of the European Union (“General Court”). The CJEU now sets aside the General Court’s judgment and the Commission’s decisions. The CJEU finds that the General Court erred in concluding that a literal, historical, contextual and teleological interpretation of the Merger Regulation allows national competition authorities to ask the Commission to examine a concentration that not only lacks a European dimension but also falls outside their own national jurisdiction. In particular, the CJEU held that the Merger Regulation does not provide for a “corrective mechanism” under which such concentrations – which do not meet either the European or national notification thresholds – can still be investigated. In particular, this would run counter to the principles of foreseeability and legal certainty: undertakings should be able to easily determine in advance when and to which authority they will have to notify a concentration. The turnover thresholds are an important guarantee of that foreseeability and legal certainty. This cannot be circumvented through referral requests under Article 22 of the Merger Regulation, the CJEU held.

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General Court dismisses ByteDance’s appeal against Commission decision to designate TikTok as gatekeeper under DMA

General Court of the European Union, judgment of 17 July 2024

On 17 July 2024, the General Court dismissed ByteDance’s appeal against the Commission’s decision of 5 September 2023 to designate TikTok as a gatekeeper. ByteDance, the parent company of social networking service TikTok, argued in its appeal that, despite TikTok meeting the quantitative thresholds of section 3(2) Digital Markets Act (“DMA”), TikTok did not meet the qualitative thresholds of section 3(1) DMA.

First, ByteDance argued that TikTok does not have a significant impact on the internal market (Article 3(1)(a) DMA) because most of its turnover derives from China. The Court stated that this does not preclude the conclusion that ByteDance’s high annual turnover, combined with the number of TikTok users in the EU, reflects its financial strength and its potential to monetise TikTok users.

Second, ByteDance argued that TikTok does not constitute an important gateway for business users to reach end-users (Article 3(1)(b) DMA) because it has no ecosystem and does not benefit from so-called network effects or lock-in effects. Again, the Court rejects the argument. Despite these circumstances, ByteDance has been able to grow the number of TikTok users exponentially since 2018 and TikTok already reached half the size of Facebook and Instagram by 2022, without such an ecosystem.

Finally, ByteDance argued that it does not hold a firmly entrenched and durable position (section 3(1)(c) DMA), but is a challenger contesting the position of Meta and Alphabet. The Court noted that TikTok was indeed a challenger in 2018, but that it rapidly consolidated its market position, and in recent years has continued to build on that position, well exceeding the quantitative thresholds of section 3(2)(b) DMA. For these reasons, the General Court upholds the Commission’s decision to designate ByteDance as a gatekeeper under the DMA in respect of the social networking service TikTok.

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Apple’s ecosystem under fire: third-party access to contactless payments on iPhone devices

European Commission, press release of 11 July 2024

The Commission made commitments by Apple regarding mobile wallets legally binding on 11 July 2024. Apple offered the commitments after the Commission raised concerns that Apple was not making available to third parties the technology that enables contactless payments through iPhone devices (aka: the “tap-and-go” technology). Based on its investigation, which started in 2020, the Commission provisionally concluded that Apple was abusing its dominant position in the mobile wallet market on iPhone devices. Apple has created a closed ecosystem on its iPhone devices and can reserve markets for different services within that ecosystem for itself, such as the market for mobile wallets, it said.

Apple now pledges to open up this market by allowing third parties to access mobile wallets on iPhone devices. The Commission tested the proposed commitments and invited third-party market participants to submit their responses. In response to the outcome of that inquiry, Apple amended the commitments. Third parties can now not only offer mobile wallets, but will also have access, for example, to functionalities on iPhone devices that facilitate the payment process, such as facial recognition to validate the payment. The modified commitments have been made binding by the Commission.

Moreover, following a Commission investigation into compliance with the DMA, Apple says it is in the process of improving its pricing and terms and conditions for the use of its App Store. Lately it also announced that it had given Epic Games’ new app store access to its iOS and iPadOS system.

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CJEU clarifies framework object restrictions in case of information exchanges

Court of Justice of the European Union, judgment of 29 July 2024

In a preliminary reference in the Portuguese banks case, the CJEU further elaborated on when an information exchange between competitors has the object of restricting competition. In 2019, the Portuguese Competition Authority (“AdC”) fined Banco BPN, BPI, Santander, Barclays, Caixa and several other Portuguese banks for exchanging information on commercial conditions on a large-scale and on a monthly basis. In particular, the banks exchanged information on current and future credit spreads and risk variables, on the basis of which the banks set the indicative interest rate eventually offered to customers. In addition, there was a ‘stand-alone’ information exchange on past sales volumes between the banks.

The CJEU first reiterates its established case law that information exchanges between competitors result in a restriction of competition by object if the information exchange leads to coordination whereby competitors no longer compete in the same way as they would without coordination. In order for a market to operate under normal conditions, each operator must (i) be obliged to determine its market behaviour independently, and furthermore (ii) be uncertain at least as to the timing, extent and details of any future changes in the conduct of its competitors on the market. Removing this uncertainty may cause market participants to tacitly follow the same course of conduct, the CJEU repeats.

The CJEU subsequently finds that both the information on credit spreads and future changes in risk variables qualify as strategic information, so that their exchange has the object of restricting competition. Although it is unlikely that information relating to past sales volumes can reveal the future intentions of the banks by itself, its strategic nature can be inferred when considered in conjunction with the other types of information exchanges. Therefore, it is also irrelevant that the exchanges occurred only very sporadically or concerned only one of the components of the final interest rate. What matters, according to the CJEU, is that the information exchange was able to reduce uncertainty about the (future) behaviour of the other banks. The fact that none of the banks actually changed its rate after receiving the information does not alter this conclusion, as the concrete effects need not to be examined in case of a restriction of competition by object.

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Price parity clauses Booking.com violate EU competition law

Court of Justice of the European Union, judgment of 19 September 2024

On 19 September 2024, the CJEU answered in the negative the preliminary question whether price parity clauses qualify as ancillary restraints and are therefore compatible with European competition law. The District Court of Amsterdam referred these questions in the context of a dispute between Booking.com and 63 German hotels on the validity of price parity clauses used by Booking.com in its agreements with these hotels. These clauses prohibited accommodations from offering rooms on their own sales channel at a price lower than offered on Booking.com (‘narrow parity clauses’), or even on third-party sales channels (‘wide parity clauses’).

Under the ancillary restraints doctrine, a clause – which, taken in isolation, may potentially infringe competition law – may fall outside the scope of Article 101 TFEU, provided that the restrictive clause is objectively necessary for the achievement of the (primary) agreement in which it is included and proportionate to its objective. While stressing that Booking.com’s provision of online hotel reservation services (the primary activity) appears to have had a neutral or even positive effect for consumers, as it increases and facilitates consumer choice, the CJEU held that price parity clauses do not qualify as ancillary restrictions.

According to the CJEU, the clauses were not shown to be objectively necessary for the achievement of Booking.com’s online hotel reservation services and proportionate to the objective pursued thereby. Thus, the CJEU finds that broad price parity clauses may restrict competition between hotel reservation platforms. Moreover, there is a risk that small and new platforms could be forced out of the market as a result of parity clauses. The same applies to narrow parity clauses. While these clauses are prima facie less restrictive of competition and are intended to mitigate the risk of free-riding behaviour, they too are not objectively necessary to ensure the economic viability of hotel reservation platforms. The case is now back at the national court to rule on Booking.com’s parity clauses, taking into account the CJEU’s judgment.

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CJEU confirms abuse of Google by favouring its own product comparison service

Court of Justice of the European Union, judgment of 10 September 2024

Seven years after the Commission imposed a record fine on Google for abusing its dominant position by positioning Google Shopping more prominently and attractively on Google’s search results pages than competing services, the fining decision became final on 10 September 2024.

The CJEU confirms the General Court’s judgment of 10 July 2019 in which it held that the Commission was right to find that Google’s behaviour (self-preferencing) in the context of this particular market (Google Search infrastructure and data traffic as an indispensable input for product comparison services) constituted an abuse. The CJEU stressed that all relevant facts must be considered in the analysis, as it cannot be generally assumed that a dominant company’s more favourable treatment of its own products or services is always abusive.

Google’s argument that the Commission should have applied the Bronner criteria is (also) rejected by the CJEU. Indeed, this case does not involve a refusal to supply and does not force a company that has developed its own infrastructure to enter into an agreement with a competitor. The behaviour in this case concerns an independent form of abuse through ‘leveraging’ in a market with high barriers to entry in which competition has already been weakened by the presence of a dominant party, the CJEU said. The fact that Google could potentially eliminate the abuse by granting competing product comparison services access to the special ‘boxes’ (in which Google Shopping is displayed) does not change this. There is no automatic link between the criteria for the legal classification of the abuse and the corrective measures enabling it to be remedied.

The CJEU does not use the terms ‘abnormality of the conduct’ and ‘superdominance’ as the General Court did, but nevertheless finds that such elements are not necessary to reach a finding (these terms were also not part of the disputed fining decision). In order to establish abuse it is sufficient that the unjustified difference in treatment, given the characteristics of the market, meant that Google did not compete on the merits. The Commission proved this conclusively.

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General Court confirms Qualcomm’s predatory pricing strategy of UMTS chipsets for Huawei and ZTE

General Court of the European Union, judgment of 18 September 2024

On 18 September 2024, the General Court largely upheld the € 242 million fine imposed on chip manufacturer Qualcomm. Following a 2009 complaint by Icera – later acquired by Nvidia – the Commission found in 2019 that Qualcomm abused its dominant position in the global UMTS chipset market between 1 July 2009 and 30 June 2011 by maintaining predatory prices for three types of chips to customers Huawei and ZTE. These chips are mainly used to connect phones, tablets and other devices to mobile telecommunications networks. The Commission found that such low prices (below the so-called long-run average incremental costs per unit) were intended to drive the then less powerful competitor Icera out of the market, in violation of Article 102 TFEU.

In the wide-ranging judgment, the General Court discusses all 15 of Qualcomm’s grounds of appeal, which concern, inter alia, the long duration of and flaws in the Commission’s investigation, the definition of the relevant market and Qualcomm’s position thereon, (the interpretation of) the evidence regarding the analysis of Qualcomm’s cost-price structure and the cost benchmark used by the Commission to establish that Qualcomm’s prices were of a predatory nature.

Whereas Qualcomm was successful before the General Court in 2022 with regard to exclusivity payments for its LTE chipsets (see CF Q2 2022), the General Court now finds that Qualcomm has not demonstrated that its defence rights were infringed by the Commission’s failure to record or document (in full) certain interviews with third parties. All grounds of appeal relating to the procedure, Qualcomm’s dominance and abuse are rejected. However, the Court does follow Qualcomm’s argument that the Commission when setting the amount of the fine wrongly departed from its 2006 Fining Guidelines without stating reasons. According to the General Court, the Commission had to justify why, in this case, it used the turnover during the entire infringement period instead of the general practice of using the turnover for the previous calendar year and multiplying it by the number of years of participation in the infringement. For that reason, the General Court reduces the fine to € 238.7 million.

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General Court overturns Google AdSense decision due to inadequate investigation Commission

General Court of the European Union, judgment of 18 September 2024

Google’s appeal against the Commission’s fine decision on AdSense was upheld by the General Court on 18 September 2024. In March 2019, the Commission found that Google and parent company Alphabet (collectively: “Google”) had abused its dominant position in the advertising market and imposed on Google a fine of € 1.5 billion. With this judgment, the General Court annuls the Commission’s fining decision. The case revolves around Google’s online advertising intermediary service – AdSense for Search (“AFS”). Websites with integrated search engines (“Direct Partners”) can use this service to serve ads on results pages related to the end user’s search query. An end-user on a website such as Tripadvisor, for example, after entering a search query, will not only see results generated by the website, but also ads in the form of a search result matching the search query.

In that context, Google entered into agreements with Direct Partners containing exclusivity clauses from 2006 onwards that prevented Direct Partners from buying search advertising services from Google’s competitors. From 2009 on, Google began replacing these exclusivity clauses with ‘placement clauses’ and/or ‘authorisation clauses’. The placement clauses stipulated that the main (highest featured) ad space on a website had to be reserved for the ads delivered by AFS. The authorisation clauses required the Direct Partners to first seek permission from Google if they wanted to change the design and layout of their ads, this applied to ads supplied by Google but also its competitors. By way of these three clauses, Google could control the placement and form of both AFS and competitor ads. The Commission concluded that the imposition of these three clauses together constituted a single and continuous infringement of Article 102 TFEU.

The General Court first held that there is no overall market for all forms of online advertising, as Google argued. The Commission had rightly defined a separate market for search-related ads. As for the three clauses that Google imposed on Direct Partners, the Commission stated that competitors of AFS were excluded from the online advertising market by preventing Direct Partners from doing business with competitors, given in particular the exclusivity clause. According to the Commission, this resulted in a discouragement of innovation and a strengthening of Google’s dominant position. The General Court finds that, in doing so, the Commission erred in taking into account the cumulative period of the agreements (from 2006-2016) without assessing whether there were opportunities for the Direct Partners to renegotiate or terminate the agreements in the meantime, allowing them to choose a competitor of AFS. In addition, the Commission failed to prove that the three clauses actually covered a significant part of the market in 2016. The General Court therefore fully annuls the Commission’s decision.

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Gazprom commitments upheld on appeal

Court of Justice of the European Union, judgment of 26 September 2024

On 26 September 2024, the CJEU dismissed appeals by Orlen, Poland’s largest gas and oil company, against the General Court’s judgment on the Gazprom commitments. Orlen had appealed to the General Court against a Commission decision declaring commitments by Gazprom to be binding. Those commitments were made by Gazprom in 2018 after the Commission carried out an investigation into the functioning of the gas markets in Central and Eastern Europe between 2011 and 2015. Based on that investigation, the Commission came to the preliminary conclusion that Gazprom was abusing its dominant position on national markets for upstream wholesale gas supply in some Central and Eastern European countries in violation of Article 102 TFEU.

According to Orlen, the commitments, which the Commission declared binding by decision on 24 May 2018, are insufficient to address the competition concerns identified by the Commission. The General Court had identified some shortcomings in the commitments but ultimately upheld the decision on the basis of a holistic assessment. The CJEU now confirms that the Commission is allowed a margin of error and that only a manifest error of assessment, casting doubt on the correctness of the analysis carried out, can lead to the annulment of the contested decision. Moreover, contrary to Orlen’s argument, the CJEU held that there was no breach of Orlen’s legitimate expectations by the Commission. The content of a statement of objections is only preliminary and provisional in nature and cannot give rise to any legitimate expectations about future action by the Commission. For these reasons, the CJEU dismisses Orlen’s appeal.

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Concept of undertaking cannot be used for service of summons on subsidiary entities that are not sued

Court of Justice of the European Union, judgment of 11 July 2024

On 11 July 2024, the CJEU answered the question of whether a parent company which is the subject of a claim for damage caused by a competition law infringement is validly served with a summons where the service was effected at the address of its subsidiary, which is domiciled in the Member State in which the action was brought and with which it forms an economic unit. The CJEU answers this question in the negative.

Swedish Volvo AB was sued before a Spanish court by Transsaqui, a Spanish company that purchased two trucks from Volvo during the infringement period of the trucks cartel and that subsequently requested compensation. However, Transsaqui served the summons on Volvo España, Volvo AB’s Spanish subsidiary, because, according to Transsaqui, they belong to the same undertaking.

The CJEU points out that an ‘undertaking’ does not have autonomous legal personality, which means that the legal entities that comprise it must be sued separately. Moreover, even if a subsidiary would form an economic unit with its parent entity, this does not imply that the subsidiary has been expressly authorised or designated by the parent company as a person empowered to receive on its behalf judicial documents intended for it. Nor does such a presumption arise from the concept of undertaking; this would prejudice the defendant’s rights of defence, according to the CJEU. The principles effectiveness of Article 101 TFEU and the right to an effective remedy under Article 47 of the Charter do not alter this conclusion, nor do the costs and time involved in foreign service allow for a different conclusion, according to the CJEU.

Finally, the CJEU notes that – in line with the Sumal judgment – a victim of a competition law infringement could also simply sue Volvo España itself and hold it jointly and severally liable for the damages suffered. This CJEU notes that, this way, time and costs of the service process would be saved.

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Concept of undertaking cannot be used on victim’s side in jurisdiction assessment based on Erfolgsort

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

In another judgment on the concept of undertaking, delivered on 4 July, the CJEU addressed the question of whether the concept can be used to allow a parent company to claim damages in its place of domicile for all its subsidiaries (which are located elsewhere). The case also concerned a damages claim following the trucks cartel, this time against Mercedes. The Hungarian company MOL claimed damages on behalf of all its subsidiaries that had purchased trucks during the cartel period. According to MOL, the Hungarian court had jurisdiction to rule on the claims pursuant to the Erfolgsort, as the place where the damages were suffered was in Hungary, MOL’s place of business.

The CJEU held that Article 7(2) Brussels I-bis cannot be interpreted that way. That jurisdictional ground relates to the place where the direct damages are suffered. However, not MOL itself but rather its subsidiaries bought trucks during the cartel period. The parent company therefore suffered at most indirect (financial) damage, according to the CJEU. The CJEU held that a mirror (or reverse) interpretation of the concept of undertaking – according to which a victim is considered an economic unit and it can act as such, as opposed to the infringing undertaking – cannot be used when assessing jurisdiction under Article 7(2) Brussels I-bis.

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Amsterdam court assumes jurisdiction over US pharmaceutical AbbVie due to existence of economic unity with Dutch anchor defendant

Amsterdam District Court, judgment of 17 July 2024

On 17 July 2024, the Amsterdam District Court assumed jurisdiction over US pharmaceutical AbbVie Inc (“AbbVie US”) because it forms an economic unit together with AbbVie B.V. (“AbbVie NL”). As a result, the claims against them are related within the meaning of Section 7(1) Dutch Code of Civil Procedure, the court said. The case concerned a class action (WAMCA) in which the claim vehicle Stichting Farma Ter Verantwoording (“FTV”) claimed a declaratory judgment that drug manufacturer AbbVie had acted unlawfully and abused its dominant position by overpricing Humira, a drug for rheumatoid arthritis. The ACM also investigated AbbVie’s prices for Humira in 2020, but this investigation was eventually closed after informal commitments were accepted.

FTV filed (identical) claims against AbbVie US, AbbVie NL and German AbbVie GmbH (“AbbVie Germany”). As AbbVie NL is domiciled in the Netherlands (Amsterdam), the court has jurisdiction over the claims against AbbVie NL. As for AbbVie US, the court emphasises that the conduct of a subsidiary (AbbVie NL) can be imputed to its parent company (AbbVie US). With AbbVie US holding 100% of the share capital in AbbVie NL, the court assumes the existence of decisive influence over AbbVie NL. AbbVie has not succeeded in rebutting the presumption of decisive influence. Moreover, it has not been refuted that AbbVie US is responsible for the pricing policy or that there is a specific link between the alleged infringement and AbbVie NL’s activities. As AbbVie US and AbbVie NL consequently form an economic unit, the court held that the claims are closely connected within the meaning of Article 7(1) Dutch Code of Civil Procedure. The similar basis for the claims also makes it foreseeable that AbbVie US will be sued in the Netherlands over a dispute relating to the Dutch market, according to the court.

However, the court did not assume jurisdiction over AbbVie Germany because FTV had not sufficiently argued the specific link between AbbVie Germany’s activities and the subject matter of the alleged infringement in the Netherlands.

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

Supreme Court, judgment of 12 July 2024

In the proceedings of IATA, KLM and several other airlines against the Dutch State and Royal Schiphol Group, the Supreme Court recently ruled that the Minister of Infrastructure and Water Management (“Minister”) could not decide (on an experimental basis) to reduce the amount of flights at Schiphol without following the prescribed (European) procedure.

In 2023, the Minister published a so-called ‘Experimental Regulation’ with the aim of reducing noise pollution around Schiphol Airport. In the Experimental Regulation, the Minister no longer uses the ‘New Standards and Enforcement System’ (NNHS) – which has been in used since 2010 on the basis of the use of those runaways that cause the least amount of noise – but reverts to the old enforcement system with specific ‘enforcement points’ around and near the runways. As a result, under the Experimental Scheme, the maximum number of aircraft movements at Schiphol would be reduced to 460,000 per year instead of 500,000.

On appeal, the airlines argued that the Minister was not entitled to simply limit the number of aircraft movements at Schiphol without following the correct procedure. Instead, in light of legal certainty and proportionality, the European consultation process described in the Noise Regulation – the so-called balanced approach procedure – should be followed first. The preliminary relief judge of the North Holland District Court ruled in their favour in April 2023, but was later knocked back by the Amsterdam Court of Appeal. In short, the Court of Appeal ruled that the Minister’s measures were only a clearly defined and time-limited experiment, for which the European procedure need not be followed.

Upon cassation, the Supreme Court took a more pragmatic approach, just like the court in preliminary relief proceedings, and ruled that the Experimental Regulation does (de facto) prescribe a limitation in the number of aircraft movements, or at least has that effect. As the term ‘operating restriction’ in the Noise Regulation is broadly defined, the Minister should therefore also go through the balanced approach procedure for the (perhaps not even so) temporary measures provided for in the Experimental Regulation. According to the Supreme Court, there cannot be a reasonable doubt in that regard. The Supreme Court therefore set aside the judgment of the Amsterdam Court of Appeal and referred the case back to the Hague Court of Appeal for further consideration and decision.

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Commission approves six Dutch aid measures for innovation, pharma and energy transition of several billion euros

European Commission, publications of July 2024

In July 2024, the Commission approved six State aid measures of the Dutch state. On 29 July, the Commission decided on two Dutch aid measures supporting renewable hydrogen production. The first measure concerns € 998 million in aid – granted through a competitive bidding procedure – to increase electrolysis capacity and support the construction of at least 200MW of electrolysis capacity. The second support measure is a direct grant of € 80 million to Djewels B.V. for the construction and operation of a ‘demonstration project’. The project aims at demonstrating the feasibility of producing renewable hydrogen with an alkaline electrolyser. According to the Commission, this project concerns the latest innovation and is deemed one of a kind. Both measures are considered by the Commission to be necessary, appropriate and proportionate whilst only having a limited effect on competition. These measures contribute to achieving the objectives set out in the EU Hydrogen Strategy and the European Green Deal.

On 26 July, the Commission approved another Dutch aid measure worth € 2 billion. This scheme supports the Pallas project for the production of medical radioisotopes for the diagnosis and treatment of cancer. The project involves the construction of a reactor and a nuclear health centre in Petten. The Pallas project will produce radiopharmaceuticals that can then be administered to patients for amongst others the diagnosis and treatment of cancer. It contributes to ensuring security of supply of essential and life-saving medicines, in line with the Pharmaceutical strategy for Europe.

In addition, the Commission approved a Dutch aid measure worth € 750 million on 25 July. This aid measure focuses on the decarbonisation of industrial processes in line with the Temporary crisis and transition framework for State aid. Through direct subsidies, the aid measure aims to encourage companies in the Netherlands to reduce greenhouse gas emissions from industrial production processes by at least 40% compared to the current situation. The Commission also approved a Dutch aid measure of € 700 million aimed at small and medium-sized farmers who voluntarily close their livestock farm sites in order to reduce nitrogen emissions.

Finally, the Commission approved more than € 10 billion in Dutch and French aid to Air France-KLM after its initial decisions were overturned by the General Court on 20 December 2023 and 7 February 2024. In these judgments, the General Court ruled that the Commission had wrongly considered Air France and KLM as the sole beneficiaries of the French and Dutch measures respectively, without looking at the whole group. The Commission has now reassessed the French and Dutch measures with the Air France-KLM group as beneficiary, concluding that the measures still comply with the Temporary Framework for the COVID-crisis.

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Nuctech may not hide behind Chinese servers in Commission dawnraid

President of the General Court, order of 12 August 2024

Recently, the President of the General Court (“President”) dismissed the application by Nuctech Netherlands and Nuctech Warsaw (hereinafter collectively “Nuctech”) for suspension of the Commission decision pursuant to which raids were carried out at Nuctech’s premises. Between 23 and 26 April 2024, the Commission carried out unannounced company visits at Nuctech, a company active in the production and sale of scanning equipment for (air)ports. The Commission suspected that Nuctech may have obtained anti-competitive subsidies in violation of the FSR (see also our earlier CF Q2 2024) and therefore carried out raids requesting, among other things, access to mailboxes of some employees.

Nuctech argued, inter alia, that it could not comply with these requests because the employees in question were Chinese nationals and their emails were not stored on local (European) servers, but on the Chinese servers of parent company Nuctech Hong Kong, and that the Commission was violating international and European public law by requesting it nonetheless. The President ruled that the Commission is free to investigate and request information from companies operating in the EU, such as Nuctech; indeed, otherwise the Commission could never hold non-European companies liable for conduct that disrupts the internal market. Furthermore, according to the President, Nuctech had substantiated in an “extremely laconic” manner why releasing the e-mails would violate Chinese law. Therefore, that plea also failed.

Regarding the urgency of the request, the President ruled that Nuctech had only alleged financial losses. Financial consequences do not qualify as serious and irreparable harm, so the required urgency was not considered proven. The President continued that, moreover, the freedom for an EU company to store information wherever it so wishes, cannot preclude an investigation into a possible violation of EU law. Nuctech’s requests were therefore rejected.

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CJEU upholds Commission decision and orders Ireland to recover € 13 billion from Apple

Court of Justice of the European Union, judgment of 10 September 2024

In its judgment of 10 September 2024, the CJEU ruled that Ireland must recover around € 13 billion in illegal State aid from Apple. In 2016, the Commission decided that two companies belonging to the Apple group had enjoyed tax benefits from 1991 to 2014 that constituted illegal State aid. This aid concerned tax benefits enjoyed by Apple through two tax rulings issued by Ireland in 1991 and 2007 in favour of two companies of the Apple group: Apple Sales International (“ASI”) and Apple Operations Europe (“AOE”). These entities were incorporated in Ireland but were not tax resident in Ireland. With the tax rulings, profits from the use of intellectual property licences by ASI and AOE were attributed to the parent company in the United States, although ASI and AOE were actually the only ones able to conduct the commercial activities concerning those licences. This unfairly excluded those profits from Irish taxes, which the Commission concluded to be State aid.

In 2020, the General Court annulled the Commission’s decision, ruling that the Commission had not sufficiently demonstrated the existence of a selective advantage that followed from the tax rulings. The CJEU in turn set aside the General Court’s judgment and upheld the Commission’s decision. The CJEU held – contrary to the General Court – that the Commission had sufficiently proved that the profits from ASI’s and AOE’s intellectual property licences were to be allocated to these Irish branches for tax purposes, given their activities regarding those licences. The CJEU thus confirmed the Commission decision and ordered Ireland to recover the unlawfully granted aid from Apple, which is estimated to be around € 13 billion.

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Tied up cash? ACM investigates Dutch savings market

Authority for Consumers & Markets, publication of 16 July 2024

On 16 July 2024, the ACM published an investigation into competition in the Dutch savings market. The investigation was prompted by a public debate that arose in 2023, following which the Dutch Minister of Finance asked the ACM to investigate the relationship between (the lack of) competition in the Dutch savings market and lagging savings rates. The perception was that customers were receiving little to no benefits while banks were making historically high profits. In particular, saving interest rates of the largest banks remained quite low compared to ECB policy rates.

The ACM concludes that there is a high degree of concentration in the savings market: indeed, the combined market share of the four largest banks (ABN AMRO, ING, Rabobank and Volksbank) – in a market where 23 individual banks operate – has remained the same at 90-95% since 2014. The ACM therefore qualifies the market as an oligopolistic market, characterised by the presence of a few large providers on the supply side, with possibly a group of smaller providers who have no influence on the policies of these providers.

According to the ACM, the fact that the market is oligopolistic explains the discrepancy between the lagging savings rates of the major banks compared to the higher savings rates offered by the other banks in response to ECB policy rates, which rose 10 times during the period 2022-2024. According to the ACM, the major banks keep their savings rates the same by only reacting to each other, without explicitly agreeing to do so. Internal documents, which the ACM requested as part of this investigation, show that the major banks mainly focus on the other major banks in their decision-making. The ACM’s conclusion is therefore that the oligopoly of the dominant banks has led to anti-competitive outcomes, namely that consumers have not been able to benefit from competition on savings rates.

Finally, the ACM examined why major banks experience little competitive pressure from other banks. It found, for instance, that consumers experience switching barriers that prevent them from switching to more favourable offers. Switching barriers include, for example, the cost and time associated with opening a new savings account, or not being able to carry over their IBAN number to a new account. Moreover, many consumers inform the ACM that they are satisfied with their current bank’s offer. However, according to the ACM, the majority of consumers are not adequately informed about alternative offers. The ACM therefore makes recommendations to remove these switching barriers with the aim of improving competition in the savings market.

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Volkswagen guilty of unfair and deceptive business practices in diesel scandal

Rotterdam District Court, judgment of 9 July 2024

Volkswagen is guilty of unfair and misleading business practices for manipulating mandatory emissions tests, the Rotterdam District Court confirmed on 9 July 2024 in the appeal against the €450,000 fine that the ACM imposed on Volkswagen in 2017. The case concerns the so-called diesel scandal; between 2009 and 2015, Volkswagen installed software in diesel cars that could recognise when the car was in a test situation and then caused it to emit less nitrogen than it normally did. At the request of Consumers Association, the ACM launched an investigation into the diesel scandal in 2017 and imposed the (then maximum) fine on Volkswagen. This was incidentally also the first case in which the ACM found that false sustainability claims were misleading.

Volkswagen appealed against that fine. Volkswagen argued, among other things, that the fine violated the ne bis in idem principle because it had also been fined in Germany for the diesel scandal. Since the German case, in which Volkswagen also invoked the ne bis in idem principle, was now before the CJEU, the court decided to await that judgment first. After, taking into account the CJEU judgment, the court ruled that, although the actual conduct of Volkswagen for which the ACM imposed the fine was described in the German fine, that conduct did not underlie the German fine. Thus, the German fine decision was not based on the same factual conduct as the Dutch fine decision. Thus, the ne bis in idem principle had not been violated.

The Rotterdam District Court then assessed whether Volkswagen’s business practices were actually misleading and unfair. The court upheld all three grounds on which the ACM fined Volkswagen. First, Volkswagen unlawfully claimed that its products had received approval from a public body (in violation of Article 6:193g(d) of the Dutch Civil Code), whereas it had obtained the approval only by manipulating the mandatory emissions tests. Secondly, by using, installing and concealing the manipulative software, Volkswagen violated the requirements of professional diligence (in violation of Article 6:193b(2) of the Dutch Civil Code). Finally, the green claims about the diesel vehicles were based on the manipulated emissions tests and were therefore misleading (in violation of Article 6:193c(1)(b) of the Dutch Civil Code).

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CJEU shines light on conditions for price indication of products

Court of Justice of the European Union, judgment of 26 September 2024

Responding to preliminary questions, the CJEU answered on 26 September 2024 that a price reduction, or discount price, must actually be lower than the lowest price at which the relevant product was offered in the previous 30 days and that it is not enough for the seller to merely mention that previous lowest price. The preliminary questions were raised in the context of a dispute between a German regional consumer protection association and Aldi Süd over two price reductions for bananas and pineapples in a weekly advertising brochure. A discount price was listed for both products, along with another (crossed-out) price indication in smaller figures. Under both offers, the previous lowest price at which the products were sold in the previous 30 days was also listed. However, the so-called “discount price” in these cases was not lower than the lowest price used in the previous 30 days.

In particular, the case revolves around the interpretation of Article 6a of Directive 98/6, which states that when announcing price reductions, traders must indicate the lowest price applied during the previous 30 days. The referring German court questioned whether this article also implies that the new price must actually be lower than that lowest price, or whether it is sufficient to clearly display the price indications. The CJEU held that although the directive does not explicitly require the new price to be lower than the lowest price from the last 30 days, this does follow from the objectives of the directive. These objectives include improving consumer information and ensuring a high level of consumer protection. The CJEU stressed that the term “price reduction” in its colloquial meaning refers to an actual reduction of a previous price. By requiring that the new price must be lower than the lowest price of the previous 30 days, consumers are prevented from being misled. This safeguards the aims of the directive, the CJEU said.

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Judge suspends charges for travel agents to curb price jumps*

Rotterdam District Court, judgment of 24 September 2024

The preliminary relief judge of the Rotterdam District Court recently suspended three orders subject to penalty payments (and publication decisions) imposed by the ACM on three travel agents. The ACM’s decision concerned ‘price jumps’ that may occur when searching for a package holiday online. The ACM reproached the travel agents that the starting price on the search page is not always bookable, but can change (higher or lower) after a price check. The ACM qualified this as a misleading omission.

The court agreed with the ACM that the ads on the search page constituted an invitation to purchase and the price was essential information, but casted its doubts as to whether the applicants actually engaged in an unfair commercial practice. This is because the ACM’s interpretation differs from that of the European Commission in the Unfair Commercial Practices Guidelines, and from the opinion of the Advertising Code Committee (Reclame Code Commissie) and the Board of Appeal which recognise that the travel industry is subject to sudden price changes. The travel agents explained that the starting price shown was correct and current, but may be outdated at the time of booking due to price fluctuations by suppliers of the travel elements. Other than the ACM stated in the orders, the travel agents have substantiated with reports that consumers are not (negatively) affected by the practice of price checks and that competition is not distorted. Accordingly, the court ruled that it is doubtful whether this practice causes consumers to make a commercial decision they otherwise would not have made, and thus whether there is a violation at all. Moreover, the court questions whether enforcement in this situation is proportionate and expedient. For this reason, the orders and publication decisions are suspended.

* bureau Brandeis assisted the applicants in these proceedings

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

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

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Competition Flashback Q3 2021

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

If you would like to receive the next Competition Flashback by e-mail you can subscribe to our mailing list here.

Overview Q3 2021

  • Altice’s appeal against gunjumping fine dismissed by General Court
  • Commission launches two investigations into Google and Apple after preliminary report Internet of Things
  • ACM makes (long-awaited) turn and fines vertical price fixing agreements
  • Genuine or non-genuine agency? New interlocutory judgment in Prijsvrij/Corendon is not yet conclusive
  • ACM gives second green light for merger of Sanoma and Iddink
  • Prestressing steel cartel and elevators cartel: far-reaching duty to allege cartel damage and causality
  • Truck cartel damages: broad interpretation jurisdiction of national courts based on Erfolgsort
  • Automobile manufacturers fined € 975 million by European Commission for illegal technological discussions
  • Aircargo damage: flexible approach to the question of applicable law
  • Fine of € 19.5 million imposed on pharmaceutical company for charging excessive prices
  • ACM allowed to extend scope of investigation with accidentally obtained evidence

 

Altice’s appeal against gunjumping fine dismissed by General Court

General Court, judgement of 22 September 2021

In 2018, French telecom company Altice was fined twice € 62.25 million (a total of € 124.5 million) by the European Commission for its premature acquisition of PT Portugal. According to the Commission, Altice already had – and actually exercised – decisive influence over the day-to-day operations of PT Portugal before it obtained the necessary approval from the Commission. For example, it had the power to influence the (structure of the) senior management as well as the pricing policy of PT Portugal. You can read more about the case and the Commission decision in our blog on gunjumping.

Altice appealed the fine decision to no avail. On 22 September 2021, the General Court ruled in favour of the Commission. It held that the Commission had sufficiently established that Altice had effective control over PT Portugal and, moreover, that it actually exercised its control. The fine for the breach of the notification requirement, however, was reduced by 10% by the General Court, because Altice had notified the concentration to the Commission.

Commission launches two investigations into Google and Apple after preliminary report Internet of Things

European Commission, press releases of 22 and 20 September 2021

The European Commission has already launched two investigations relating to the Internet of Things investigations since the publication of its preliminary sector-wide report on June 9, 2021. The investigations concern Google and Apple. You can read more about the preliminary inquiry sector-wide report of the Commission in our blog on the Internet of Things.

The investigation into Google relates to the use of Google Assistant, the tech giant’s voice assistant. Google allegedly (ab)uses its Android operating system to exclude competing voice assistants. The Commission suspects that manufacturers of smart TVs and cars, for example, are being forced to (pre-)install Google Assistant as a standard service. This will give Google easy access to the user data of consumers of those products, which it can then use for its other services. The Commission is furthermore curious to know whether Google requires manufacturers to exclusively use Google Assistant, whether multiple voice assistants from different providers can be used simultaneously, and whether manufacturers receive a portion of the advertising revenue generated on the device from Google.

With respect to Apple, the Commission’s investigation focuses on how Apple’s iPhones and iPads interact with wearable devices (“wearables”). These include smartwatches, fitness bands and wireless headphones. The Commission is concerned that there may have been technical and/or contractual restrictions placed by Apple regarding the interoperability of iPhones/iPads with such wearables. This would entail that it is more difficult for wearables of other manufacturers to compete with Apple’s wearables, such as Apple Watch or AirPods. The Commission has now asked manufacturers of wearables whether Apple raises obstacles with regard to accessing features on iPhones and iPads, such as reading and replying to messages via the wearable or location services thereof. Both investigations are still ongoing.

ACM makes (long-awaited) turn and fines vertical price fixing agreements

ACM, decision of 14 September 2021

On 14 September 2021, the Netherlands Authority for Consumers and Markets (“ACM“) imposed a fine of over € 39 million on Samsung for influencing the online selling prices of its television sets. In its decision, the ACM finds that Samsung infringed the cartel prohibition by exercising undue pressure on seven of its retailers in the period between 2013 and 2018.

Samsung monitored the online retail prices of its television sets through so-called spider software and analysed their price movements. If it was alerted (through complaints of competing retailers) on a retail price lower than its desired market price, it contacted the retailer and urged it to increase its prices. Although Samsung only maintains ‘price recommendations’ and the agreements between Samsung and retailers stipulate that they are free to determine their own retail prices, the ACM concluded that these ‘recommendations’ in practice lead to illegal price-fixing.

The ACM held that Samsung’s monitoring, internal coordination and external communication are aimed at controlling and minimising price deviations. By frequently and individually contacting retailers about retail prices and informing them of the price intentions of their competitors, the ACM speaks of a systematic practice of price coordination between Samsung and its retailers. As retailers are consequently discouraged from lowering their prices and consumers are confronted with a higher price, the ACM held that Samsung’s behaviour had the object of restricting competition.

It is the first time in twenty years that the ACM has showed interest in vertical price agreements. In doing so, it appears to abandon its effects-based approach to vertical restraints and to align with the strict approach of the European Commission and other national competition authorities. In 2018, the Commission imposed four fines of in total € 111 million on Asus, Denon & Marantz and Philips for monitoring and pushing retailers’ prices. German authorities also maintain a strict approach. The Bundeskartellamt has for example been very active in fining resale price maintenance practices in recent years, and in 2018 the German Bundesgerichtshof confirmed that Asics may not prohibit its retailers from participating in price comparison websites.

For more insights into competition law in vertical relationships read our blog.

Genuine or non-genuine agents agency? New interlocutory judgment in Prijsvrij/Corendon is not yet conclusive

Amsterdam Court of Appeal, (interlocutory) judgment of 31 August 2021

A long-running dispute is ongoing between Prijsvrij and Corendon regarding the termination of an agency agreement by Corendon. In a recently published interlocutory judgment (in Dutch) of 3 December 2019, the Amsterdam Court of Appeal formulated a number of evidentiary assignments. Subsequently, on 31 August 2021, the Court of Appeal issued a new interlocutory judgment (also in Dutch) in the context of those evidentiary assignments.

The case between Prijsvrij and Corendon is of essential importance for sectors where resellers are frequently used, such as the travel sector. The main question is under which circumstances these agents can be qualified as ‘genuine’ agents within the meaning of competition law. This requires that the agent bears no or minimal commercial risks, so that the principal and its agent form a single economic unit. Only in that case is the cartel prohibition, including the prohibition on resale price maintenance, not applicable. In the case of genuine agency the principal may compel its agents to apply certain prices.

In the past, Prijsvrij was active as a reseller of Corendon’s package holidays until Corendon terminated its agreement with Prijsvrij in 2013. The Court of Appeal considered it (provisionally) proven that the reason for the termination could be found in the discounts offered by Prijsvrij to consumers. Such termination can be an instrument to achieve resale price maintenance and is therefore prohibited, unless Prijsvrij was a genuine agent of Corendon. In the interlocutory judgment the Court of Appeal gave Corendon the evidentiary assignment to prove that Prijsvrij qualified as an genuine agent.

In the context of these principal points of contention, Prijsvrij and Corendon have submitted documentary evidence and Corendon has called a number of witnesses. In doing so, a discussion has arisen as to whether the Court may include all of this evidence in its assessment of the evidence.

In its recent interlocutory judgment of 31 August 2021, the Amsterdam Court of Appeal decided to include all evidence submitted earlier and to reopen the examination of witnesses. Thereafter, the Court of Appeal will rule and is expected to provide clarity on the application of the doctrine of genuine agency.

*Bas Braeken and Jade Versteeg represent Prijsvrij in these proceedings.

ACM gives second green light for merger of Sanoma and Iddink

ACM, decision of 26 August 2021

Sanoma may take over Iddink according to a recent second decision of the ACM on the matter. Sanoma is a publisher of both traditional and digital educational materials through its subsidiary Malmberg. Iddink is a distributer of educational materials and owns Magister – a student information system (“SIS”) and electronic learning environment (“ELO”).

The licence application for the concentration of Sanoma and Iddink was submitted to the ACM in January 2019. After the ACM had conditionally approved this merger mid-2019, rival publisher Noordhoff filed an appeal against this decision with the Rotterdam District Court. In its ruling (in Dutch) of 4 March 2021 the District Court annulled the contested decision of the ACM due to a failure to sufficiently state reasons. The Court held that the ACM should have conducted more research into the possible need of schools for ‘bundling’ the digital teaching materials and the electronic learning environment. If there were such a need, the concentration between Sanoma and Iddink could lead to market foreclosure.

In its recent decision, dated 26 August 2021, the ACM again approved the concentration under the same conditions as before. The ACM provided additional reasoning as to why it is not plausible that the concentration would lead to market foreclosure through anticompetitive bundling. The ACM argued that there are different procurement procedures for teaching materials and the ELO/SIS, with different timeframes.

Consequently, schools do not have the need to purchase teaching materials and an ELO/SIS at the same time. In addition, the ACM maintains that prices are of little importance for a school’s selection of educational materials. Schools are primarily focused on quality, which limits the possibility for Sanoma/Iddink to apply a bundling strategy. The ACM also considers it implausible that there is an incentive for Sanoma/Iddink to bundle products.

In a press release (in Dutch) of 27 August 2021, the ACM announced that it will appeal the ruling of the Rotterdam District Court since it believes that its original decision did not contain a lack of reasoning.

Prestressing steel cartel and elevators cartel: far-reaching duty to allege cartel damage and causality

‘s-Hertogenbosch Court of appeal, judgement of 27 July 2021 | Rotterdam District Court, judgement of 23 June 2021

Recently, two judgments were published that are relevant for the duty of an injured party (‘plaintiff’) to allege damages and causality in cartel damage cases. In cartel damages proceedings the plaintiff must allege and prove that his or her damages were caused by the cartel in order to be awarded compensation. An important aspect in that regard concerns the data that is necessary to further substantiate such claims.

On 27 July 2021, the Court of Appeal of ‘s-Hertogenbosch ruled (in Dutch) that Deutsche Bahn, who is the plaintiff in this case, must bring forward sufficient factual evidence to make it plausible that it suffered damage as a result of the prestressing steel cartel. Such factual evidence concerns information that specifies which cartel products were purchased, when, from whom and at what price. The submission of a few examples is considered insufficient by the Court of Appeal.

When providing concrete evidence a plaintiff must prove the identity of the cartel participants and provide insight into its transactions with them (on the basis of contracts, invoices, packing slips, administrative data, annual documents, etc.). Although the substantiation of a claim should normally take place in the early stages of proceedings, the Court of Appeal gave Deutsche Bahn the opportunity to provide the required evidence at a later stage.

In a judgment (in Dutch) of 23 June 2021 (published on 12 July 2021) the Rotterdam District Court provided other relevant guidance regarding the duty to furnish facts in relation to damages and causality. In the elevators cartel damage case, the District Court assessed whether Stichting De Glazen Lift (a claim foundation representing housing associations) had fulfilled its obligation in that regard.

The District Court ruled that in the event of concrete indications that an agreement was concluded between a housing association and one (or more) cartel participant(s) during the infringement period it is plausible that damages were suffered and caused by the cartel.

The District Court then examined for each housing association whether the foundation submitted sufficient documents to make the damage plausible. For each individual (underlying) claimant, it must be shown that the party claiming damages contracted with or paid a cartel participant during the infringement period.

Lastly, the District Court ruled that, in view of rental price regulation, it is unlikely that the housing associations could have passed on their damages to their tenants by raising rent. Therefore, it is plausible that the installation of a elevators and escalators is at the expense of the housing associations. The District Court concluded that all the housing associations sufficiently alleged damages and causality and referred the proceedings for the determination of damages.

Truck cartel damages: broad interpretation jurisdiction of national courts based on Erfolgsort

CJEU, judgment of 15 July 2021

On 15 July 2021, the Court of Justice of the European Union (“CJEU”) ruled in RH v Volvo on how national courts should interpret article 7(2) of the Brussels I-bis Regulation, after preliminary questions were asked by a Spanish national court. The CJEU ruled on an interpretation for jurisdiction based on the place where the damage occurs, also referred to as ‘Erfolgsort’. The CJEU held that article 7(2) does not only relate to international jurisdiction (which Member State has jurisdiction), but also to territorial jurisdiction (which court within a Member State has jurisdiction).

Firstly, the CJEU holds that, in the case of damage resulting from a cartel that concerned the whole of the European Economic Area (“EEA”), the place where the damage occurred is considered to be within that entire market. This includes Spain, so the Spanish national courts have international jurisdiction.

Subsequently, the CJEU addresses the question on territorial jurisdiction. It observes that it is clear from the wording of article 7(2) that this provision directly and immediately aims to regulate both international and territorial jurisdiction. Nevertheless, Member States are free to designate a specific court to deal with certain specific types of disputes. In the absence of such national centralisation of competence/jurisdiction, territorial jurisdiction must comply with the principles of proximity, foreseeability and the proper administration of justice.

According to the CJEU, the court of the place where the goods of the cartel participants were purchased – possibly indirectly – has primary territorial jurisdiction. If the plaintiff has purchased goods in several jurisdictions, the seat of the plaintiff should determine the territorial jurisdiction. This reasoning is in line with the aforementioned principles, inter alia because cartel participants are deemed to be aware of the fact that the customers are located in the (entire) market affected by the anti-competitive conduct.

Automobile manufacturers to be fined € 975 million by Commission for illegal technological discussions

European Commission, decision of 8 July 2021

In a recent decision the European Commission has determined that Daimler, BMW and the Volkswagen group (Volkswagen, Audi and Porsche) violated competition law by jointly agreeing on technological development in the field of emissions cleaning. Daimler avoided a fine of € 727 million because it reported the conduct to the Commission.

The infringement is notable because this is the first time that a cartel decision has targeted agreements and contacts that took place as part of technological discussions related to innovation, rather than classic price or customer allocation agreements. For this reason, the fines were reduced by 20%.

Although the investigation started as a full-fledged cartel investigation, it was concluded with a voluntary settlement procedure. In addition, Daimler applied for leniency. BMW submitted a comprehensive statement after which the Commission dropped some of its allegations against the German car manufacturer.

Air cargo damages: flexible approach to the question of applicable law

Amsterdam Court of Appeal, (interlocutory) judgement of 6 July 2021

In its judgment (in Dutch) of 6 July 2021, the Amsterdam Court of Appeal ruled on the question of applicable law in the Air cargo damages proceedings. Many plaintiffs suffered damages as a result of paying excessive fees for the shipments of air cargo. Their claims are bundled in foundations Equilib and SCC.

As a preliminary matter, the Court of Appeal rules that it can rely on the facts determined by the European Commission in the cartel decision, even though that decision is still under appeal before the European Courts.

The Court of Appeal then ruled on the question of whether article 4 of the Dutch Tort Conflict of Law Act (“WCOD”) offers the relevant legal framework to answer the question of applicable law. The Court of Appeal finds that, in principle, for each separate claim of each individual plaintiff the damage resulting from a specific flight, the applicable law is that of the State in which the airport of departure is located.

The Court of Appeal subsequently observed that this outcome leads to a strong fragmentation of applicable laws. Strict application of article 4 WCOD would lead to dozens of different applicable legal systems. To avoid this fragmentation, the Court of Appeal first rules that the separate claims of each plaintiff should be considered as one single claim, in analogy with the concept of a single continuous infringement as applied by the Commission in its cartel decisions. Second, the Court of Appeal considers that not only the airport of departure is relevant for determining the applicable law, but also the airport of arrival. Article 4 WCOD does not limit its scope to the place in which competition is directly affected by the anticompetitive behaviour, but also the place that is indirectly affected (e.g. in case of umbrella damages).

The international nature of airline services results in the distortion of competition in multiple places, as is also confirmed by the Commission in its decision. As a result, the Court of Appeal considers that the claim of a plaintiff is governed by several national jurisdictions. The WCOD does not provide for a solution in such instances, however. To fill this legislative gap, the Court of Appeal relies on broadly shared EU principles, such as legal certainty and effectiveness. It notes that the EU legislator has addressed this issue in article 6(3) sub b of Regulation (EC) No 864/2007 (‘Rome II’), in which claimants may choose the applicable law, albeit under strict conditions.

Given that Equilib and SCC requested that Dutch law is applicable, the Court of Appeal concludes that the follow-on damages claims of the foundations are governed by Dutch law. This applies to all claims relating to flights falling within the scope of the cartel decision (flights departing and/or arriving in the EEA and Switzerland).

Fine of € 19.5 million imposed on pharmaceutical company for charging excessive prices

ACM, decision of 1 July 2021

In a decision of 1 July 2021 the ACM imposed a fine of € 19.5 million on the Italian pharmaceutical company Leadiant, manufacturer of chenodeoxycholic acid (“CDCA”). The ACM ruled that Leadiant had abused its dominant position by charging an excessive price for the medicine. It is the first decision imposing a fine that concerns medicine prices after the ACM announced that it will conduct more investigations into medicines in 2018.

Leadiant acquired the right to produce CDCA from another pharmaceutical company and has been selling it on the Dutch market since 2008. In 2008, the price for a package of CDCA in the Netherlands was € 46. After that, Leadiant increased the price of CDCA, which it sold under changing brand names, several times until it finally reached a maximum of € 14,000 per package in June 2017.

The ACM ruled that Leadiant abused its dominance in the period from June 2017 to December 2019. According to the ACM Leadiant had a special responsibility in the context of its dominant position to abstain from charging excessive prices. The ACM accuses Leadiant of failing to fulfil its responsibilities in this respect and that the (excessively high) prices charged were out of proportion to its costs.

ACM allowed to extend scope of investigation with accidentally obtained evidence

District Court of The Hague, judgement of 3 June 2021 (published on 12 July 2021)

On 3 June 2021, the District Court of The Hague rendered an anonymised judgment in instituted by a number of undertakings whose premises had been raided by the ACM. The investigation of the ACM initially focused on possible prohibited purchasing price agreements. However, during the Dawn Raid the ACM also found indications of possible agreements on the selling price. Based on this information the ACM expanded the scope of its investigation. You can read more about Dawn Raids in this blog.

An important question was whether the ACM had not merely cursorily examined this information and whether the ACM was allowed to use the information for the purpose of extending the scope of its investigation. The Court ruled that the ACM, on the basis of the Deutsche Bahn judgment of the CJEU, is allowed to take a cursory look at evidence (in the present case: chat messages and e-mail conversations) in order to assess whether something falls within or outside the scope of the investigation. The ACM does not have to limit itself to viewing the most recent message while keeping the scope of the investigation in mind. In view of the interwovenness between the new evidence and the original scope of the investigation, the Court did not find it remarkable that the ACM stumbled upon the evidence by chance.

In addition, the Court was asked whether the ACM is allowed to select relevant chats by entering the names of persons in the chat program when inspecting mobile phones. The Court ruled that the search on names of persons is proportionate and thus permitted.

 

For all your questions regarding (EU) competition law, bureau Brandeis would be happy to assist you. You can reach us via the links below.

Bas Braeken, Jade Versteeg, Lara Elzas, Timo Hieselaar, Demi van den Berg and Berend Verweij

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