The "European Antitrust Bimonthly Bulletin" breaks down the major antitrust developments in Europe during the past two months into concise and actionable takeaways.
Belgian Competition Authority (BCA) Investigates Below-Threshold Merger Under Antitrust Rules
On January 22, 2024, the BCA announced that it was investigating the proposed acquisition of certain assets of Ceres, a flour producer, by another flour mill, Dossche Mills, on the basis of Article 101 of the Treaty on the Functioning of the European Union (TFEU). The proposed transaction did not reach the relevant turnover thresholds under Belgian merger control rules, but the BCA is applying the Towercast judgment for the second time in under two years. Towercast explicitly allows for the review of below-threshold mergers under competition rules other than the merger regime, and the BCA has already used abuse of dominance rules to scrutinize a transaction. The BCA stated that a planned merger between the parties had been abandoned in 2019 over competition concerns, and that the BCA had found in 2013 that the parties, together with others, had participated in a cartel.
Companies should know that competition authorities in Europe are increasingly willing to use alternative tools to gain jurisdiction over below-threshold mergers. From the very outset of deal planning and negotiation, companies should prepare for close scrutiny of potentially controversial deals, no matter the size.
Red Bull Lawsuit Seeks to Recover Costs of Inspection
On December 30, 2024, Red Bull initiated an action against the European Commission (EC) before an EU court seeking to recover costs incurred during an antitrust inspection. According to public reporting, Red Bull is arguing that applicable case law obligates the EC to fully reimburse a company for costs incurred when an inspection is transferred from the company's office to the EC's headquarters in Brussels, while the EC has allegedly offered only a limited reimbursement. It is becoming increasingly common for the EC to conduct so-called continued inspections, which involve the transfer of the searched company's digital data on a hard drive for inspection at the EC's premises in Brussels as opposed to reviewing the data while remaining at the searched company's offices.
Companies should ensure that they have appropriate guidance/training for employees on how to conduct themselves in the case of an inspection by a competition authority.
Advocate General Backs Protection Requirements for Exclusive Distributors
On January 9, 2025, in response to a request by a Belgian appeals court, Advocate General Medina provided the European Court of Justice (ECJ), the EU's highest court, with a non-binding legal opinion on exclusive distribution systems. According to Advocate General Medina, a company that exclusively distributes a product in a territory can be protected from active sales into its territory, as long as other buyers "expressly or tacitly" accept a ban on such sales. If the producer of the product does not protect its exclusive distributor in such manner, then its conduct may be anticompetitive and will not be protected by the provisions of the EU's Vertical Block Exemption Regulation. The ECJ will issue its judgment at a later time, on which the Belgian appeals court will base its judgment.
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.
French Competition Agency (FCA) Publishes Opinion on Antitrust Implications of Product Sustainability Ratings, Guidance on Collective Financing of Costs Associated with Agro-Ecological Transition
On January 9, 2025, following a public consultation during the course of 2024, the FCA published an opinion on product sustainability ratings. The FCA stated that product ratings should be based on objective factors, and not be used to avoid competition on the factor being rated. Participating companies should be careful about exchanging information during preparatory work for the rating system and be transparent about the governance of the rating system, including funding, design, and links to third-party entities. On January 21, 2025, an FCA official told an antitrust conference that the FCA had opened "around a dozen" investigations into potential cartels based on sustainability parameters.
On February 5, 2025, the FCA published an informal opinion providing guidance on a system of collective financing for costs associated with the agro-ecological transition. The proposed association would bring together manufacturers and distributors in the agri-food and luxury sectors, collectors, private and public financial partners (e.g., banks, insurers, water agencies, etc.), and other stakeholders (trade unions, agricultural development agencies, and nonprofit organizations).
The association will assess the level of agro-ecological transition of each participant and develop a methodology for determining and financing on a collective basis the additional costs incurred by farmers in the agro-ecological transition of their landholdings. The FCA underlined that participating in such a project could only be limited using objective, transparent, and nondiscriminatory conditions. The FCA expressed reservation about the possibility of the association collecting commercially sensitive information from the participants, including financing needs and model financing options.
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.
Germany Sends Statement of Objections to Apple over App Tracking Transparency Framework (ATTF)
On February 13, 2025, Germany's Federal Cartel Office (FCO) announced that it had sent formal charges (a Statement of Objections, SO) to Apple regarding its ATTF. Starting in April 2021, Apple has required that app developers distributing apps via Apple's iOS App Store obtain additional consent from users before gaining access to certain data for advertising purposes. However, this requirement does not apply to Apple itself, for instance when combining user data across multiple Apple services for advertising purposes.
The SO noted that the consent dialogues for Apple's own apps and for third-party apps differ substantially in Apple's favor. The SO is based both on a potential infringement of the general abuse prohibition of Article 102 TFEU, and on the special abuse control provisions for designated large digital companies under Section 19a of the German Competition Act. The German Federal Supreme Court is expected to rule on Apple's challenge against its designation pursuant to Section 19a on March 18, 2025.
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.
EU Court Rules on Refusal to Grant Access to a Digital Platform
On February 25, 2025, the ECJ provided a preliminary ruling in response to a request by the Italian Council of State. Italian company Enel launched its JuicePass app in 2018, to help drivers find and book charging stations for their electric vehicles. In 2021, the Italian Competition Authority (ICA) fined Google €102 million (approx. US$107 million) for allegedly abusing its dominance through refusal to facilitate JuicePass's compatibility with Android Auto, and imposed conduct requirements. Google challenged this decision before the Council of State, which referred the question to the ECJ.
The ECJ held that a refusal by a company in a dominant position which has developed a digital platform to ensure that that platform is interoperable with an app developed by a third party can constitute an abuse of a dominant position. This can be the case when the dominant company did not develop the platform solely for the needs of its own business, but with a view to enabling third parties to use it even if that platform is not indispensable for the commercial operation of an app developed by a third party but is such as to make that app more attractive to consumers. Refusing access may have anticompetitive effects even if the third party being refused access shows growth during that period.
The dominant company may justify its refusal by the fact that there is no template for the category of apps concerned and when granting interoperability through such a template would compromise the integrity or security of the platform concerned, or where it would be impossible for other technical reasons to ensure interoperability by developing such a template. Otherwise, the dominant company must develop such a template within a reasonable period, in return for appropriate financial consideration. The Council of State will now base its decision on the ECJ's preliminary ruling.
Companies should be aware that conduct by a dominant firm involving a refusal of access to an input (good, platform, or service), or access on discriminatory terms, is generally subject to a lower standard in the EU and thus involves greater antitrust risk.
EU "Fully Committed" to Digital Markets Act (DMA) Investigations
On January 16, 2025, the EU's Competition Commissioner Teresa Ribera stated that all investigations into large digital platforms under the EU's DMA were proceeding normally. On January 14, 2025, a spokesperson of the EC stated that no investigations based on the DMA or other cases had been stopped, following public reporting claiming that all such investigations against large U.S. tech companies were being stopped to avoid conflict with President Donald Trump. On February 17, 2025, Commissioner Ribera confirmed that the EC would issue decisions in two DMA infringement investigations during the course of March 2025.
Companies should know that enforcing the DMA remains a priority for the EU, despite the current geopolitical context.
Member States Push to Include AI in DMA Regulation
On February 11, 2025, speaking at an AI conference in Paris, France, representatives of Germany and the Netherlands pushed to modify the Digital Markets Act to cover certain AI-specific services or obligations, as noted in public reporting. According to a draft paper prepared by France, Germany, and the Netherlands summarized by public reporting, the scope of the DMA should be expanded to include AI, as the DMA currently only covers AI-powered functionalities that are integrated or embedded into core platform services that the DMA already applies to. The draft paper further asks the EC to start a market investigation into designating certain cloud service providers under the qualitative thresholds of the DMA due to the importance of compute for large AI models.
Our European team has extensive experience with the DMA and a unique insight into the EC’s enforcement practice and can assist with DMA compliance or assessing third-party intervention opportunities.
EU Publishes Competitiveness Compass
On January 29, 2025, the EU published its Competitiveness Compass, which consists of a suite of initiatives and proposals to improve the competitiveness of the EU economy. An important theme is the need to reduce and simplify the regulatory burden borne by companies by simplifying existing regulations and dropping proposals for controversial new rules.
An example of this is the first Simplification Omnibus package published on February 26, 2025, proposing simplifications in the fields of sustainable finance reporting, sustainability due diligence, and taxonomy. More such packages are expected. The EC dropped certain legislative proposals that it believed were too controversial. Notably, this includes the proposed regulation on standard essential patents. Furthermore, as part of an EU Start-up and Scale-up Strategy, the EC will propose creating a 28th legal regime that would exist in parallel with the legal regimes of the 27 EU Member States and include any relevant aspects of corporate, insolvency, labor, and tax law. Companies that wish to scale in the EU market could avail themselves of this new regime which is expected to reduce regulatory burden and help overcome the regulatory barriers that continue to exist for companies doing business cross border in the EU. On February 12, 2025, the EC published its Work Programme for 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 Merger Guidelines planned for 2026 will lead to substantial changes, such as the introduction of an “innovation” defense for mergers.
UK Initiates First Investigations Under New Digital Regime
On January 1, 2025, the Digital Markets, Competition, and Consumers (DMCC) Act began to apply in the UK. Under the DMCC, large tech platforms may be designated as having Strategic Market Status (SMS) and have tailored conduct requirements imposed on them.
On January 14, 2025, the UK's Competition and Markets Authority (CMA) announced that it would investigate whether Google has SMS in search and search advertising services. On January 23, 2025, the CMA announced that it would investigate whether Apple and Google have SMS in relation to their mobile ecosystems, including operating systems, app stores, and browsers. The CMA stated it expected to open a third SMS investigation toward the middle of the year.
Companies should know that the UK now has a digital regime under which it may impose individually tailored conduct requirements on large tech platforms. We can assist with DMCC compliance or assessing third-party intervention opportunities.
UK Ousts CMA Chair, Establishes Growth and Investment Council
On January 13, 2025, the UK's CMA established a Growth and Investment Council to help identify opportunities for competition to unlock growth and investment. As a first measure, the Growth and Investment Council will provide feedback on the CMA's draft Annual Plan for 2025. Its members will be representatives from UK business, tech, and finance associations.
On January 21, 2025, the UK government announced that Marcus Bokkerink, Chair of the CMA, had been removed from his post, and that Douglas Gurr, the former Country Manager of Amazon UK and President of Amazon China, had been installed as interim Chair. The UK government had recently asked the CMA to contribute more toward growth and investment in the UK, and reportedly expressed displeasure at the CMA's contributions toward this goal. Separately, it was publicly reported that the CMA would reduce its headcount by 10 percent due to a "historic budget issue."
On February 28, 2025, speaking at a conference in London, the CMA's Chief Executive, Sarah Cardell, noted that the CMA may intervene in fewer global deals going forward, remarking that the agency does not need to "have a seat at the table for every deal."
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.
UK Cloud Services Market Investigation Publishes Provisional Results
On January 28, 2025, an independent inquiry group of the CMA published the provisional results of its cloud services market investigation. The provisional findings state that competition between cloud services providers is not working as well as it could. According to the CMA, Amazon and Microsoft each have a cloud services market share of up to 40 percent in the UK, with technical and commercial barriers making switching between providers difficult, and alternative suppliers facing significant barriers to entry and expansion.
The inquiry group provisionally recommended that the CMA consider designating the two largest cloud services providers as having Strategic Market Status under the DMCC in relation to their cloud services activities. Interested parties could submit comments on the provisional findings until February 18, 2025. The CMA will make a final decision by the statutory deadline of August 4, 2025.
Much depends on whether the CMA chooses to designate the largest cloud services providers under the DMCC. 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.
French Public Consultation on Merger Control Framework for Below-Threshold Mergers
On January 14, 2025, the French Competition Authority (FCA) announced a public consultation on new measures to address below-threshold mergers under the French merger control framework. The FCA proposes two alternatives: First, creating a targeted call-in power for the FCA based on quantitative and qualitative criteria, or second, introducing a mandatory notification rule for certain companies holding a degree of market power (e.g., a dominant position or having been designated as a gatekeeper by the EC or the FCA). Finally, the FCA is considering reviewing certain below-threshold mergers under the rules for anticompetitive agreements and abuses of a dominant position.
On January 29, 2025, it was publicly reported that the Belgian Competition Authority (BCA) was considering the introduction of a call-in power for below-threshold mergers. While the BCA has a track record of investigating below-threshold mergers under the rules for anticompetitive agreements and abuses of a dominant position, the Belgian legislature would have to pass formal legislation to introduce a more general call-in power for below-threshold mergers.
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.
