Summary of Key Developments — March/April 2025
The "European Antitrust Bimonthly Bulletin" breaks down the major antitrust developments in Europe during the past two months into concise and actionable takeaways. For any questions or suggestions please contact Jindrich Kloub, Deirdre Carroll, or any other attorney in the European Antitrust Team listed at the end of the Bulletin.
UK's Competition and Markets Authority (CMA) Fines Keysight for Failing to Provide Documents
On April 15, 2025, the CMA announced that it had fined Keysight £25,000 (approx. US$33,000) for unreasonably failing to provide documents in response to a request for information (RFI) during a Phase I investigation into its acquisition of Spirent Communications. The CMA had required Keysight to produce all internal documents discussing specific issues over a two-year period. After Keysight produced only 11 documents by the required deadline, the CMA issued a second RFI covering a longer time period. In response, Keysight produced more documents. The CMA considered that 66 of these should have been provided in response to the first RFI, and that Keysight had no reasonable excuse for not doing so.
The fine set by the CMA was close to the maximum fine of £30,000 (approx. US$40,000) available to the CMA under then applicable legislation. The UK's recently implemented Digital Markets, Competition, and Consumers (DMCC) Act allows the CMA to impose fixed fines of up to a maximum of one percent of global turnover for failure to comply with investigative demands, but was not applicable in this case.
Companies should know that the CMA may demand the production of internal documents during merger reviews and is willing and capable to impose fines for failure to do so (including within deadlines provided). Companies should ensure that they provide a comprehensive methodology to the CMA with any proposed production and communicate clearly with the CMA case team on any limitations.
European Commission (EC) Conducts Dawn Raids in Non-Alcoholic Beverages Sector
On March 10, 2025, the EC announced that it had conducted unannounced inspections of several companies active in the non-alcoholic drinks sector. The EC informed that it had also sent a formal request for information (RFI) to a company active in the personal care sector. The EC stated it was investigating allegations of companies illegally segmenting markets to prevent the free movement of goods across the EU.
The EC is prioritizing investigations into conduct involving exclusive territory or customer allocation and/or export restrictions. Companies should review their distribution policies to ensure they are up to date and effective, especially if they involve elements of exclusivity or territorial/customer restrictions.
EU Court Largely Confirms EC Fines for Government Bonds Cartel
On March 26, 2025, the EU's court of first instance, the General Court (GC), largely confirmed a 2021 EC decision fining several banks for entering into agreements on trading and pricing strategies and exchanging commercially sensitive information in the European Government Bonds (EGB) sector. Between January 2007 and November 2011, traders of seven investment banks exchanged commercially sensitive information in order to gain competitive advantages in the primary and secondary markets for EGBs. Among several participants, the EC fined UBS €172.4 million (approx. US$196.0 million), Nomura €129.6 million (approx. US$147.4 million), and UniCredit €69.4 million (approx. US$78.9 million). Two other banks received no fines due to the EC's action against them being time-barred. One bank received a fine of 0, due to the fact that its turnover during the preceding business year, which was used to determine the maximum amount of the fine, was negative. The seventh bank had revealed the alleged cartel and received full immunity from fines.
Six banks challenged the EC decision, arguing, inter alia, that the EC had infringed their right to defense, that it had wrongly attributed their employees' behavior to them, that it had no interest in finding an infringement that it could not fine for timing reasons, and that it had made errors in calculating the fines. The GC rejected most of the arguments. However, the GC found that the EC had used incorrect data to calculate Nomura's fine and that UniCredit's anticompetitive conduct began 17 days later than the EC had stated, slightly lowering their respective fines.
Companies should be aware that sharing competitively sensitive information carries a high risk in the EU and may be pursued as a type of cartel conduct leading to high fines and likely follow-on damage claims.
EC and UK CMA Separately Fine Car Manufacturers, Trade Organizations over Vehicle Recycling Cartel
On April 1, 2025, the EC announced that it had fined 15 car manufacturers and an industry association a total of around €458 million (approx. US$505 million) for participating in a cartel regarding the recycling of end-of-life vehicles (ELVs) from May 2002 to September 2017. The EC found that the parties colluded on two aspects:
- they agreed not to pay car dismantlers for processing ELVs. In particular, they agreed to consider the recycling of ELVs to be a sufficiently profitable business, and therefore not to remunerate car dismantlers for their services (so-called "Zero-Treatment-Cost" strategy). The companies also shared commercially sensitive information on their individual agreements with car dismantlers and coordinated their behavior towards dismantlers; and
- they agreed not to promote how much of an ELV can be recycled, recovered, and reused and how much recycled material is used in new cars. Their goal was to prevent consumers from considering recycling information when choosing a car, which could lower the pressure on companies to go beyond legal requirements.
The investigation found that the industry association was the facilitator of the cartel, having organized numerous meetings and contacts between car manufacturers involved in the cartel. The 15 car manufacturers agreed to the fine as part of a settlement agreement. A 16th car manufacturer received full immunity from fines due to having revealed the cartel to the competition authorities.
On April 1, the UK's CMA announced a settlement of its investigation into the same conduct involving fines totaling over £77 million (approx. US$99 million) for 10 car manufacturers and two industry associations.
Companies should know that many competition authorities in Europe view sustainability agreements positively. At the same time, these authorities are concerned about potential anticompetitive elements of sustainability agreements. We can help design effective sustainability agreements and interface with competition authorities to preempt challenges.
CMA Fines TV Production Companies in Labor Cartel Investigation, Closes Second Labor Cartel Investigation in TV Production Sector
On March 21, 2025, the CMA announced a settlement decision fining sports broadcast and production companies in the UK for sharing sensitive information about fees for freelance workers such as camera operators and sound technicians. The CMA found 15 instances between 2014 and 2021 where a pair of companies shared information on how much they would pay freelancers assisting with the production and broadcasting of sports content such as major football games and rugby tournaments. One company received immunity from fines for alerting the CMA, while four others agreed to pay fines totaling £4,240,356 (approx. US$5.6 million).
On the same day, the CMA announced that it had closed a separate investigation relating to non-sports TV production and broadcasting on administrative priority grounds. The CMA stated that it had suspected several TV production companies of having shared competitively sensitive information about the rates of pay and/or terms and conditions agreed with, or to be offered to, individuals and companies active in the production, creation, and/or broadcasting of television content in the UK, excluding sports content. The exchanges mainly happened via an email forum between representatives of the production companies.
Companies should be aware that exchanging competitively sensitive information poses a risk under UK and EU competition law and that antitrust regulators in Europe are increasingly targeting employee no-poach agreements. Companies should review their compliance policies to ensure they are up to date and effective and appropriately focus on risks arising out of improper information sharing, including among HR professionals.
German Supreme Court Confirms Designation of Apple Under Special Abuse Control Rules
On March 18, 2025, the German Supreme Court confirmed (in German) the 2023 decision of Germany's Federal Cartel Office (FCO) designating Apple as having "paramount significance for competition across markets" under Section 19a of the German Competition Act. Under the special abuse control provisions contained in Section 19a, the FCO may first issue a declaratory decision designating a company that is active on multi-sided markets as being of paramount significance for competition across markets. In a second step, the FCO may impose detailed behavioral obligations on the designated company.
On February 13, 2025, the FCO announced that it had sent formal charges (a Statement of Objections, SO) to Apple regarding its app tracking transparency (ATT) framework. The SO is based both on a potential infringement of the general abuse prohibition of Article 102 of the Treaty on the Functioning of the European Union (TFEU), and on the special abuse control provisions for designated large digital companies under Section 19a.
Companies should consider whether they are facing any barriers because of conduct by dominant or incumbent firms in Europe. We can assist in identifying possible opportunities and formulating the appropriate strategy for obtaining relief. Equally, we can assist with defending against such claims.
France Fines Apple over Allegedly Discriminatory App Tracking Transparency (ATT) Framework
On March 31, 2025, the French Competition Authority (FCA) announced that it had fined Apple €150 million (approx. US$170 million) for allegedly abusing its dominant position in the market for the distribution of mobile applications on iOS and iPadOS devices between April 2021 and July 2023 by implementing discriminatory practices linked to its ATT framework. The ATT framework introduced a requirement for app developers to request users' consent before collecting their data and tracking their activity for advertising purposes. While third parties needed to collect opt-in consent to collect user data for targeted advertising purposes, Apple was able to collect user data to deliver targeted ads using a more permissive opt-out mechanism.
Companies should consider that competition authorities in the European Union are focusing on potentially discriminatory practices by dominant firms. We can assist in reviewing existing business practices to minimize risk. Equally, we can assist in identifying possible opportunities for companies facing discrimination by their business partners and formulating the appropriate strategy for obtaining relief.
Google Commits to Changes for Google Automotive Services and Google Maps Platform, Ending German Investigation
On April 4, 2025, Germany's FCO announced that it had ended an investigation against Google in connection with Google Automotive Services and Google Maps Platform. Google Automotive Services consists of Google Maps, Google Play, and Google Assistant and is an offering which enables the combined use of such services in the infotainment system of vehicles. Google committed to license the services contained in Google Automotive Services also as separate stand-alone versions and to remove certain restrictive contractual provisions. In addition, Google committed to remove certain contractual provisions restricting the combined use of Google's map services and third-party map services. This would for instance allow for map content provided by Google to also be displayed on third-party maps.
The FCO's investigation was based on the special abuse control provisions for designated large digital companies under Section 19a of the German Competition Act. Google was designated under this law in 2022.
Competition agencies in the EU remain focused on the digital sector and in a number of countries they have been given additional powers under new digital sector regulations such as the DMA, the German Section 19a, or the UK's DMCC. We can assist in identifying and minimizing potential areas of risk. Equally, we can assist in identifying possible opportunities and formulating the appropriate strategy for obtaining relief.
EC Specifies Interoperability Standards for Connected Devices and Interoperability Requests for Apple
On March 19, 2025, the EC announced decisions in the two specification proceedings it had launched regarding Apple under the DMA. Under the DMA, Apple is obligated to create free and effective interoperability between its DMA-designated operating systems iOS and iPadOS and third-party developers and businesses on its own, while the EC may act to further specify certain related obligations and standards.
The first proceeding concerned nine iOS connectivity features and functionalities that are most relevant for connected devices, including smartwatches, headphones, and virtual reality headsets. The second proceeding concerned the process that Apple uses to address interoperability requests from third-party developers for iOS and iPadOS.
In the first decision regarding iOS connectivity features, the EC specified that if Apple develops a new functionality within its ecosystem, it must simultaneously make it accessible to other device manufacturers. This requirement aims to ensure that competing companies can integrate the same innovations into their own products without delay. In the second decision, the EC required Apple to establish a formal process through which Apple's competitors can request the necessary technical information, licenses, and permissions to ensure their products are fully interoperable with Apple's ecosystem.
The proceedings do not limit the EC from adopting a decision that Apple is noncompliant with the DMA, including the possibility of fines or periodic penalty payments.
Our European team has extensive experience with the DMA and a unique insight into the EC's enforcement practice. We can assist with DMA compliance or assessing third-party intervention opportunities.
Apple, Meta Fined over DMA Breaches, Facebook Marketplace No Longer Designated Under the DMA
On April 23, 2025, the EC announced that it had found that Apple had breached its anti-steering obligation under the DMA, and that Meta had breached the obligation of giving consumers the choice of a service that uses less of their personal data. For these infractions, the EC fined Apple €500 million (approx. US$568 million) and Meta €200 million (approx. US$227 million).
Under the DMA, app developers distributing their apps via Apple's App Store should be able to steer their customers to alternative offers outside the App Store and allow them to make purchases. According to the EC, Apple implemented several technical and commercial restrictions which were not objectively necessary and proportionate. The EC ordered Apple to remove these restrictions and not adopt conduct with the equivalent object or effect.
Under the DMA, designated gatekeepers must seek user consent for combining personal data between services, and non-consenting users must have access to a less personalized but equivalent alternative. In 2023, Meta gave EU users the choice between consenting to personal data combination for personalized advertising or paying a monthly subscription for an ad-free service. The EC alleged this to be an infringement of the DMA, as it did not allow users to choose less personalized alternative service. Meta introduced a new option that allegedly uses less personal data to display advertisements in November 2024, which the EC is currently assessing.
Apple and Meta have 60 days to comply with the EC's decision, otherwise risking periodic penalty payments. Apple reportedly stated that it would challenge the decision, which Meta criticized as well.
In addition, the EC found that Meta's online intermediation service Facebook Marketplace should no longer be designated under the DMA. Following an application by Meta, the EC found that Facebook Marketplace no longer had the requisite numbers of business users in 2024 to give rise to a presumption that Marketplace is an important gateway for business users to reach end users and justify a designation of this service under the DMA.
Finally, the EC closed an investigation under the DMA into Apple's user choice obligations regarding uninstalling applications, changing default settings on iOS, and choosing default web browsers. However, in a separate DMA infringement investigation, the EC preliminarily found that Apple imposes overly strict conditions on app developers who want to offer alternative app stores on iOS or allow apps to be downloaded directly to the iPhone from the internet, such as a new fee (Apple's Core Technology Fee).
Companies should know that enforcing the DMA remains a priority for the EU, despite the current geopolitical context. EC officials have stated that they are aiming for a "culture of compliance" with the DMA, instead of imposing significant fines from the beginning. It is noteworthy that with Facebook Marketplace the EC has for the first time removed the designation from a service of a gatekeeper.
AI Merger Update
On March 5, 2025, the UK's CMA published its decision on the partnership between Microsoft and OpenAI, deciding not to conduct an in-depth merger investigation due to the lack of a relevant merger situation. The CMA found that while Microsoft had acquired material influence over OpenAI in 2019, it had not increased its control over OpenAI to de facto control. Instead, the CMA recognized that the terms of the partnership were dynamic over time. Lacking a "bright line" to distinguish between material influence and de facto control, the CMA considered three potential sources of control over OpenAI: i) Microsoft's investments and involvement in the corporate governance of OpenAI; ii) Microsoft's supply of compute; and iii) Microsoft's IP and commercialization rights.
The CMA acknowledged that the partnership between Microsoft and OpenAI included large investments by Microsoft and resulting formal governance rights, which were however generally limited to typical financial investor protections. And while Microsoft used to be the exclusive supplier of compute infrastructure to OpenAI, this was renegotiated in January 2025 to give Microsoft a right of first refusal, with Microsoft granting other waivers in the past.
On April 2, 2025, the head of the Portuguese Competition Authority (PCA) stated in an interview that the PCA is looking to investigate AI partnerships such as Microsoft/OpenAI and Amazon/Anthropic. He stated that the PCA had closely followed investigations by the EC and the CMA and was unmoved by the fact that for instance the CMA had closed all of its investigations to date, as the PCA was unafraid of diverging from other agencies. The PCA has been active on competition and generative AI, issuing several papers on this topic.
Companies should know that competition authorities are extremely interested in investments in and partnerships with companies developing AI models. Companies should carefully consider how they communicate about partnerships and their impacts on competition. From a merger control perspective, European and UK agencies will carefully assess whether there is a change of control or material influence at play, with the CMA and Germany's FCO able to take jurisdiction over minority stakes in certain circumstances.
French Authorities Pledge Cooperation in AI Sector
On March 20, 2025, the French Competition Authority (FCA) announced that it had recently held a joint seminar with the French Data Protection Authority (CNIL) to discuss how competition law and data protection intersect in the field of AI. The authorities discussed the FCA's 2024 competitive analysis of the generative AI sector, the CNIL's 2025 recommendations on the development of responsible AI, how to ensure that AI model training is lawful with regard to privacy law, and economic challenges of AI business models and the AI value chain. The seminar underlines the objective of the FCA and CNIL to cooperate closely on AI issues, as expressed in their 2023 joint declaration and the FCA's 2024 opinion on the CNIL's draft recommendations for mobile apps.
Companies should know that EU competition agencies including the FCA are closely watching developments in the Generative AI space, especially relating to data issues. We have experience interacting with the FCA and CNIL can assist with identifying opportunities for obtaining relief as well as protecting against third-party claims.
EU to Update Merger Guidelines for Horizontal and Non-Horizontal Deals
On March 4, 2025, speaking at a public conference, EC Commissioner Teresa Ribera announced that the EC would not only revise its Horizontal Merger Guidelines, but also its Non-Horizontal Merger Guidelines. The EC notably departed from its 2008 Non-Horizontal Mergers Guidelines which require showing that competitors would be foreclosed post-deal when it prohibited Booking's acquisition of online flight reservation portal Etraveli in 2023. Instead, the EC proposed the theory that it would be enough for an allegedly dominant company to strengthen its position within its "ecosystem."
On March 20, 2025, a senior EC official told a conference that the EC would start the review process with a broad call for evidence in the coming months, and be followed by a consultation on the draft guidelines themselves sometime in 2026. On April 30, 2025, speaking at a public conference, EC Commissioner Ribera confirmed that the review process for both guidelines would start in the first half of May 2025. On May 8, 2025, the EC published two parallel consultations, the first a general consultation with high-level questions, and the second an in-depth consultation with technical questions on seven themes. Interested parties may submit responses until September 3, 2025.
Companies should know that the EU is looking to simplify regulations across the board in an effort to become more competitive. It remains to be seen whether the review of the Horizontal and Non-Horizontal Merger Guidelines planned for 2026 will lead to substantial changes, such as the introduction of an "innovation" defense for mergers or a framework for assessing promises of investment.
EC Initiates Consultations on Draft Guidelines for Foreign Subsidies Regulation (FSR)
On March 5, 2025, the EC announced a call for evidence on draft guidelines addressing important concepts under the FSR, including i) the determination of a distortion caused by a foreign subsidy, ii) the application of a balancing test between positive and distortive effects of a foreign subsidy, and iii) the assessment of a distortion in a public procurement procedure. The call for evidence was open until April 2, 2025, and the EC intends to undertake targeted consultations with selected stakeholders in parallel. There is a statutory deadline of January 13, 2026, for publication of the FSR guidelines.
The FSR gives the EC new powers to police subsidies from non-EU countries, complementing the EC's powers to control state aid from EU member states. This includes i) M&A transactions involving companies active in the EU that meet certain turnover and foreign financial contribution (FFC) thresholds; and ii) bids for large tenders in the EU by companies that have received FFC above a specified threshold.
Clients should be aware that the FSR adds yet another potential regulatory filing to the approval checklist for M&A transactions, alongside regimes such as antitrust and foreign investment. It also creates a new regulatory hurdle for companies bidding for large public contracts in the EU.
EC Commissioner Ribera Names Killer Acquisitions as Key Concern; European National Competition Authorities (NCAs) Push for Greater Powers to Review Below-Threshold Mergers
On April 4, 2025, during a keynote address at the ABA Spring Meeting in Washington, D.C., EC Commissioner Teresa Ribera stated that preventing unlawful killer acquisitions and working with NCAs to call in below-threshold transactions were the most compelling merger control issues that the EC currently faces.
NCAs across Europe are increasingly advocating for new powers to review mergers that fall below traditional notification thresholds. Speaking at the ABA Antitrust Spring Meeting, officials from France, Italy, Greece, and Ireland highlighted growing momentum behind domestic "call-in" mechanisms to address enforcement gaps. In March 2025, the Netherlands consulted on a draft bill that would introduce a below-threshold merger call-in power to the Dutch Competition Authority. France, which previously relied on the EU's Article 22 referral system until it was struck down by the EU highest court, the European Court of Justice (ECJ), in the Illumina/Grail case, is now in advanced consultation to introduce such powers. Italy has already used its new framework to review nine transactions, while Greece and Ireland are closely evaluating the approach, with the Irish authority stressing the need for careful, case-by-case application.
Companies should know that competition authorities in Europe are increasingly willing to use alternative tools to gain jurisdiction over below-threshold mergers. Companies contemplating M&A impacting the EU and UK should consider front-loading substantive assessments in any filing analysis and factor in the impact of EU and UK reviews on deal terms, timetables, and risk allocation—even if they generate little or no revenue in Europe—given the increasing risk of being "called in" for review.
UK Government Pledges Regulator Improvements, CMA Announces Merger Remedies Review, Mergers Charter
On March 12, 2025, the CMA launched a review of its approach to merger remedies and published a new Mergers Charter. The CMA is principally seeking feedback on three areas: i) how the CMA approaches remedies, including when behavioral remedies may be appropriate, ii) how remedies can preserve pro-competitive effects of a merger, and iii) how the process of assessing remedies can be as quick and efficient as possible. The call for evidence will remain open until May 12, 2025. The Mergers Charter sets out principles and overarching expectations for how the CMA will engage with businesses and their advisors during merger investigations.
On March 17, 2025, the UK government announced it would start a consultation in the coming months on legislative reform proposals to improve the pace, predictability, and proportionality of the UK's competition regime. This consultation is supposed to include proposals to provide more certainty on where mergers will be subject to investigation in the UK by addressing uncertainty with the existing Share of Supply and material influence tests.
Companies should know that the CMA has promised to improve the pace of merger reviews including the prenotification phase and to show greater openness to behavioral remedies in merger investigations. It remains to be seen whether the UK government will substantially limit the ability of the CMA to review mergers through statutory changes to the existing Share of Supply and material influence tests.
