Newsletter Competition & Regulation in the EU and Benelux: February 2025

 February 17, 2025 | Blog

AKD publishes a monthly newsletter to inform you of the most important recent developments in competition law and adjacent regulation (such as FDI) at EU level and in the Benelux. Last month brought a number of notable developments. This newsletter brings you entirely up-to-date! 

Abuse of dominance

The Belgian Competition Authority starts an investigation into AB InBev’s on-trade sales conditions

AB InBev is a major beer producer with a significant position on the Belgian market. The Belgian Competition Authority (“BCA”) received complaints from multiple actors in the on-trade beer supply chain about AB InBev’s on-trade commercial conditions. The press refers to exclusive supply obligations and loyalty rebates. There are also margin squeeze allegations.

In its initial analysis of these complaints, the BCA found serious indications that AB InBev may be acting i) in breach of Article 102 TFEU (and its Belgian equivalent) by abusing its dominant market position and ii) in breach of Article 101 TFEU (and its Belgian equivalent) by entering into anti-competitive agreements.

The BCA therefore decided to launch a formal investigation.

Horizontal agreements

Belgian potato trade association to amend its price index practice

Belgapom, a trade association defending the interests of Belgian potato processors, publishes on a weekly basis a price index that reflects the most encountered purchase prices on the physical market for certain potato varieties suitable for processing into frozen potato products. Although the Belgian Competition Authority (“BCA”) acknowledges the pro-competitive elements of such an index, it also considers that the weekly and systematic exchanges of information between direct competitors may create the risk of increasing transparency about their procurement strategy and of enabling them to coordinate prices.

Belgapom offered certain commitments to address these concerns. First, it accepted to establish an objective methodology and enabling the anonymisation of the information exchanged. This will be done via a digital platform. Secondly, the commitments address the concern of concerted practices by enhancing the aggregated nature of the pricing information that is exchanged. The BCA has accepted these commitments and has made them binding.

Private enforcement of competition law

The Court of Justice rules on the assignment of compensation rights in the context of collective damage claims

In proceedings between ASG 2 Ausgleichsgesellschaft für die Sägeindustrie Nordrhein-Westfalen GmbH (“ASG 2”) and the Land Nordrhein-Westfalen (“Land”), the Court of Justice of the European Union (“Court”) ruled on the assignment of compensation rights in the context of collective actions against infringements of competition law.

The proceedings between the parties concern a collective damage claim brought by ASG 2. ASG 2 brought the action on the basis of compensation rights assigned to it by 32 sawmills based in Germany, Belgium and Luxembourg. The sawmills claim that the Land and other owners of woodland infringed Article 101 TFEU. According to the sawmills, the Land harmonised prices for unwrought coniferous timber for itself and other owners of woodland. According to ASG 2, this constitutes a breach of Article 101 TFEU.  Through ASG 2 the sawmills seek to obtain compensation for the harm caused by the inflated prices as a consequence of the harmonised prices.

However, the Land claims that according to German law, ASG 2 cannot pursue the recovery of damages resulting from an infringement of competition law. In answer to preliminary questions, the Court first establishes that Directive 2014/104 does not impose an obligation on Member States to create a mechanism for a collective damages claims. Neither does it establish conditions relating to the assignment of rights. Therefore, it is for the Member States to lay down the rules governing the exercise of the right to claim compensation for harm caused by a breach of competition law. The Court reiterates in this context the principle of effectiveness that requires that rules and procedures relating to the exercise of damage claims do not render it practically impossible or excessively difficult to exercise the Union right to full compensation caused by a breach of competition law. It is for the national court to decide whether German law complies with this standard.

Merger control

Commission approves International Paper’s acquisition of DS Smith under certain condition

International Paper and DS Smith are vertically integrated paper and packaging companies. International Paper sought to acquire DS Smith.

The Commission established that the transaction would have reduced competition in the markets for the manufacture and supply of (i) corrugated sheets in the North and West of Portugal, (ii) heavy-duty corrugated sheets in North-East Spain; and (iii) corrugated cases in North-West France. The transaction would have resulted in high combined shares and concentration levels in several local markets the parties are active on. There would be enough pressure on the merged entities by alternative competitors.

The parties proposed certain divestments of International Paper’s plants in Europe, namely in France, Portugal and Spain. The Commission found that the commitments fully address the competition concerns. The Commission will now have to approve suitable purchasers

The Belgian Competition Authority starts an investigation into a concentration in the flour sector under Article 101 TFEU

The Belgian Competition Authority (“BCA”) has started an investigation into the proposed takeover of Ceres’ artisanal bakery business by Dossche Mills. Dossche Mills and Ceres are the two most important producers and suppliers of flour to artisanal bakeries in Belgium. The BCA has indications that the takeover may lead to a significant impediment to competition. The proposed acquisition is not notifiable to the BCA under Belgian merger control rules.

The BCA has no ‘call-in powers’ to investigate mergers below the notification threshold.  However, in a novel approach, the BCA decided to assess the proposed acquisition under Article 101 TFEU and the Belgian equivalent of this provision.

The proposed takeover is not without history and this clearly played a role in the BCA’s position. In 2019, Dossche Mills wished to take over Ceres as a whole. Upon notification, the BCA expressed serious doubts and the merger was abandoned. The BCA also refers to its 2013 flour cartel decision which involved Dossche Mills, Ceres and other competitors (some of which have since been acquired by Dossche Mills).

State aid

Court of Justice rules that the Commission is not required to substantiate its State aid decisions for each Treaty provision

This case concerned an Italian compensation fund for the damage suffered by the aviation sector caused by the COVID-19 pandemic. The European Commission (“Commission”) declared this aid measure compatible with the internal market on the basis of Article 107(2)(b) TFEU. Ryanair brought an action for annulment of this decision. Ryanair stated, among other reasons, that the decision had to be annulled since the Commission had failed to substantiate its view that other provisions than Articles 107 and 108 TFEU, such as Article 56 TFEU, were not relevant in this case. The General Court followed this argument and annulled the Commission decision.

On appeal, however, the Court of Justice of the European Union (“Court”) ruled differently. While indeed a procedure under Article 108 TFEU cannot result in a decision contrary to provisions of the TFEU, given the extremely large number of provisions and principles of EU law, the Court decided that the Commission cannot be held to provide specific reasoning for each of these provisions. Therefore, the Court annulled the General Court’s decision.

Court of Justice rules that unlawful State aid can be recovered from a different undertaking than the original beneficiary if there is economic continuity  

In this preliminary reference procedure, the Court of Justice of the European Union (“Court”) answered questions with regard to the repayment of unlawful State aid from an undertaking other than the original beneficiary of the aid.

Italian authorities had granted subsidies to Buonotourist, a private company that provided local public transport services based on regional and municipal concessions. The aid was notified to the European Commission (“Commission”), which declared it incompatible with the internal market. Therefore, the aid had to be recovered from Buonotourist. Buonotourist brought an action before the General Court of the European Union for annulment of the Commission’s decision, but this action was dismissed.

In the meantime, Buonotourist went through a restructuring exercise, in the context of which part of its business had been transferred to Scai. Eventually Buonotourist was declared insolvent. After failing to recover the aid from Buonotourist, the Italian Authorities ordered Scai to repay the aid. This decision was based on the economic continuity between Buonotourist and Scai. With this judgment the Court confirms that EU law does not preclude national legislation under which national authorities may order recovery of unlawful State aid from an undertaking other than the original beneficiary, in case of economic continuity between the two undertakings. Moreover, according to the Court, in order to ensure the effectiveness of the recovery decision, national authorities and courts are required to identify an undertaking other than the original beneficiary, where the advantage linked to the aid in question has actually been transferred to that undertaking, after the recovery decision.

AKD publishes a monthly newsletter to inform you of the most important recent developments in competition law and adjacent regulation (such as FDI) at EU level and in the Benelux. Last month brought a number of notable developments. This newsletter brings you entirely up-to-date! 

Abuse of dominance

The Belgian Competition Authority starts an investigation into AB InBev’s on-trade sales conditions

AB InBev is a major beer producer with a significant position on the Belgian market. The Belgian Competition Authority (“BCA”) received complaints from multiple actors in the on-trade beer supply chain about AB InBev’s on-trade commercial conditions. The press refers to exclusive supply obligations and loyalty rebates. There are also margin squeeze allegations.

In its initial analysis of these complaints, the BCA found serious indications that AB InBev may be acting i) in breach of Article 102 TFEU (and its Belgian equivalent) by abusing its dominant market position and ii) in breach of Article 101 TFEU (and its Belgian equivalent) by entering into anti-competitive agreements.

The BCA therefore decided to launch a formal investigation.

Horizontal agreements

Belgian potato trade association to amend its price index practice

Belgapom, a trade association defending the interests of Belgian potato processors, publishes on a weekly basis a price index that reflects the most encountered purchase prices on the physical market for certain potato varieties suitable for processing into frozen potato products. Although the Belgian Competition Authority (“BCA”) acknowledges the pro-competitive elements of such an index, it also considers that the weekly and systematic exchanges of information between direct competitors may create the risk of increasing transparency about their procurement strategy and of enabling them to coordinate prices.

Belgapom offered certain commitments to address these concerns. First, it accepted to establish an objective methodology and enabling the anonymisation of the information exchanged. This will be done via a digital platform. Secondly, the commitments address the concern of concerted practices by enhancing the aggregated nature of the pricing information that is exchanged. The BCA has accepted these commitments and has made them binding.

Private enforcement of competition law

The Court of Justice rules on the assignment of compensation rights in the context of collective damage claims

In proceedings between ASG 2 Ausgleichsgesellschaft für die Sägeindustrie Nordrhein-Westfalen GmbH (“ASG 2”) and the Land Nordrhein-Westfalen (“Land”), the Court of Justice of the European Union (“Court”) ruled on the assignment of compensation rights in the context of collective actions against infringements of competition law.

The proceedings between the parties concern a collective damage claim brought by ASG 2. ASG 2 brought the action on the basis of compensation rights assigned to it by 32 sawmills based in Germany, Belgium and Luxembourg. The sawmills claim that the Land and other owners of woodland infringed Article 101 TFEU. According to the sawmills, the Land harmonised prices for unwrought coniferous timber for itself and other owners of woodland. According to ASG 2, this constitutes a breach of Article 101 TFEU.  Through ASG 2 the sawmills seek to obtain compensation for the harm caused by the inflated prices as a consequence of the harmonised prices.

However, the Land claims that according to German law, ASG 2 cannot pursue the recovery of damages resulting from an infringement of competition law. In answer to preliminary questions, the Court first establishes that Directive 2014/104 does not impose an obligation on Member States to create a mechanism for a collective damages claims. Neither does it establish conditions relating to the assignment of rights. Therefore, it is for the Member States to lay down the rules governing the exercise of the right to claim compensation for harm caused by a breach of competition law. The Court reiterates in this context the principle of effectiveness that requires that rules and procedures relating to the exercise of damage claims do not render it practically impossible or excessively difficult to exercise the Union right to full compensation caused by a breach of competition law. It is for the national court to decide whether German law complies with this standard.

Merger control

Commission approves International Paper’s acquisition of DS Smith under certain condition

International Paper and DS Smith are vertically integrated paper and packaging companies. International Paper sought to acquire DS Smith.

The Commission established that the transaction would have reduced competition in the markets for the manufacture and supply of (i) corrugated sheets in the North and West of Portugal, (ii) heavy-duty corrugated sheets in North-East Spain; and (iii) corrugated cases in North-West France. The transaction would have resulted in high combined shares and concentration levels in several local markets the parties are active on. There would be enough pressure on the merged entities by alternative competitors.

The parties proposed certain divestments of International Paper’s plants in Europe, namely in France, Portugal and Spain. The Commission found that the commitments fully address the competition concerns. The Commission will now have to approve suitable purchasers

The Belgian Competition Authority starts an investigation into a concentration in the flour sector under Article 101 TFEU

The Belgian Competition Authority (“BCA”) has started an investigation into the proposed takeover of Ceres’ artisanal bakery business by Dossche Mills. Dossche Mills and Ceres are the two most important producers and suppliers of flour to artisanal bakeries in Belgium. The BCA has indications that the takeover may lead to a significant impediment to competition. The proposed acquisition is not notifiable to the BCA under Belgian merger control rules.

The BCA has no ‘call-in powers’ to investigate mergers below the notification threshold.  However, in a novel approach, the BCA decided to assess the proposed acquisition under Article 101 TFEU and the Belgian equivalent of this provision.

The proposed takeover is not without history and this clearly played a role in the BCA’s position. In 2019, Dossche Mills wished to take over Ceres as a whole. Upon notification, the BCA expressed serious doubts and the merger was abandoned. The BCA also refers to its 2013 flour cartel decision which involved Dossche Mills, Ceres and other competitors (some of which have since been acquired by Dossche Mills).

State aid

Court of Justice rules that the Commission is not required to substantiate its State aid decisions for each Treaty provision

This case concerned an Italian compensation fund for the damage suffered by the aviation sector caused by the COVID-19 pandemic. The European Commission (“Commission”) declared this aid measure compatible with the internal market on the basis of Article 107(2)(b) TFEU. Ryanair brought an action for annulment of this decision. Ryanair stated, among other reasons, that the decision had to be annulled since the Commission had failed to substantiate its view that other provisions than Articles 107 and 108 TFEU, such as Article 56 TFEU, were not relevant in this case. The General Court followed this argument and annulled the Commission decision.

On appeal, however, the Court of Justice of the European Union (“Court”) ruled differently. While indeed a procedure under Article 108 TFEU cannot result in a decision contrary to provisions of the TFEU, given the extremely large number of provisions and principles of EU law, the Court decided that the Commission cannot be held to provide specific reasoning for each of these provisions. Therefore, the Court annulled the General Court’s decision.

Court of Justice rules that unlawful State aid can be recovered from a different undertaking than the original beneficiary if there is economic continuity  

In this preliminary reference procedure, the Court of Justice of the European Union (“Court”) answered questions with regard to the repayment of unlawful State aid from an undertaking other than the original beneficiary of the aid.

Italian authorities had granted subsidies to Buonotourist, a private company that provided local public transport services based on regional and municipal concessions. The aid was notified to the European Commission (“Commission”), which declared it incompatible with the internal market. Therefore, the aid had to be recovered from Buonotourist. Buonotourist brought an action before the General Court of the European Union for annulment of the Commission’s decision, but this action was dismissed.

In the meantime, Buonotourist went through a restructuring exercise, in the context of which part of its business had been transferred to Scai. Eventually Buonotourist was declared insolvent. After failing to recover the aid from Buonotourist, the Italian Authorities ordered Scai to repay the aid. This decision was based on the economic continuity between Buonotourist and Scai. With this judgment the Court confirms that EU law does not preclude national legislation under which national authorities may order recovery of unlawful State aid from an undertaking other than the original beneficiary, in case of economic continuity between the two undertakings. Moreover, according to the Court, in order to ensure the effectiveness of the recovery decision, national authorities and courts are required to identify an undertaking other than the original beneficiary, where the advantage linked to the aid in question has actually been transferred to that undertaking, after the recovery decision.

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