We wish you a very happy 2025! 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!
Antitrust: Vertical agreements
The Court of Justice confirms that under Article 101 TFEU it is sufficient to demonstrate the existence of potential restrictive effects on competition
On 5 December 2025, the Court of Justice of the European Union (“the Court”) delivered its judgment in the case AS Tallinna Kaubamaja Grupp and AS KIA Auto against the Latvian competition authority. The case concerned the warranty conditions that had been agreed between KIA Auto, the exclusive importer of KIA cars in Latvia and its authorised dealers and repairers. These warranty conditions obliged or induced KIA car owners to carry out all routine maintenance and all repairs under warranty at the authorised dealers and repairers. Furthermore, only original KIA spare parts could be used during routine maintenance and repairs. If car owners did not follow these conditions, the warranty would become void.
By decision of 7 August 2014, the Latvian competition authority fined KIA Auto as the agreement with the authorised distributors and repairers impeded the access to the market for independent repair services and access to the market by independent producers of spare parts. The competition authority noted that the restrictions were restrictions by effect and held that in such case no actual effects need to be established. KIA Auto challenged this decision, but its objection was dismissed, and the case ultimately reached the highest court in Latvia. The highest court in Latvia applied a stricter standard of proof and annulled the decision of the appellate court.
The case was subsequently referred back to a lower court, which sought clarification from the Court on the application of Article 101(1) TFEU. More specifically, the question was whether in the case of a restriction by effect it was sufficient for a national competition authority to demonstrate the potential anti-competitive effects or whether it must prove concrete and actual restrictions on competition.
Referring to its existing case law, the Court confirmed that it suffices to demonstrate potential anti-competitive effects to establish a violation of Article 101(1) TFEU. This approach is considered to be a relatively low threshold for identifying anti-competitive effects, as it expands the scope for competition authorities to meet their burden of proof when enforcing competition law.
Advocate General Medina submits that the Court of Justice should recognise the 'parallel imposition requirement' in the Vertical Block Exempltion Regulation
On 9 January 2025, Advocate General Medina delivered her opinion in the Beevers Kaas v Albert Heijn case. Beevers Kaas is the exclusive distributor of Beemster cheese in Belgium and Luxembourg. The cheese is manufactured by the Dutch cheese maker Cono. Albert Heijn purchases Beemster cheese directly from Cono in the Netherlands and sells this cheese also in its Belgian shops. Beevers Kaas claims that these sales by Albert Heijn directly or indirectly violate its exclusivity rights under its agreement with Cono. Albert Heijn considered itself not bound by the exclusivity agreement and submitted that Cono and Beevers Kaas are, in essence, imposing an active sales ban. According to Albert Heijn, Cono cannot protect Beevers Kaas from active sales by other buyers into its exclusively allocated territory.
The Antwerp Business Court dismissed Beevers Kaas’s claims, stating that no contractual or legislative provision prohibits third parties such as Albert Heijn from obtaining supplies directly from Cono in the Netherlands and reselling them in Belgium. The Antwerp Business Court emphasised that the exclusive distribution agreement only obliges Cono to refrain from selling to Belgian distributors and does not create an obligation for third parties to comply with the agreement and to refrain from selling Cono’s cheese in Belgium.
On appeal, the discussion turned to the scope of Article 4(b)(i) of Regulation 330/2010 (“Vertical Block Exemption Regulation” or “VBER”) and more specifically to the application of ‘the parallel imposition requirement’. This condition requires the supplier to protect its exclusive distributor against active sales into the exclusive territory by all its other distributors/buyers. The appeal court referred preliminary questions to the EU Court of Justice (“the Court”).
The first question was whether under Article 4(b)(i) VBER the mere finding that other buyers do not engage in active sales in an exclusively allocated territory is sufficient to establish the existence of an agreement concerning the active sales ban in that territory.
The Advocate General first set a step back and argued that the Court should, for the first time, recognise that Article 4(b)(i) VBEUR requires parallel imposition.
She emphasised that the allocation of an exclusive territory inherently grants the distributor the right to be protected from active sales by other buyers in that territory. Accordingly, if a supplier intends to benefit from the exception to hard-core restrictions under the VBER, the supplier must ensure the effective enforcement of the active sales ban by all other buyers. The Advocate General further noted that Article 4(b)(i) VBER explicitly allows suppliers to restrict active sales by other buyers into exclusive territories. Without an obligation on the supplier to restrict such sales, the exclusivity would be ‘nothing but an empty shell’.
The most straightforward way to comply with the parallel imposition requirement would be for the supplier to prohibit explicitly in its agreements with all other buyers active sales into the exclusive territory. However, in the absence of such contractual provisions, the supplier must demonstrate an agreement with other buyers, evidenced by explicit or tacit acceptance of the active sales ban. This can be established through consistent coincidences or indicia, showing the buyers’ willingness to comply with the restriction. The absence of active sales by other buyers in the exclusive territory may be relevant but it may also be insufficient by itself to demonstrate acquiescence. Evidence must show that buyers explicitly or implicitly agreed to comply with the ban.
The second preliminary question concerned the issue of the relevant point in time that acquiescence by the other buyers takes place. In particular, the referring court wished to know whether it is sufficient for the supplier to show that its other buyers accepted the active sales ban only if and when those buyers show an intention actively to sell into the exclusive territory. The Advocate General stated that this is not the case. The Advocate General added that the benefit of the vertical block exemption only applies as from the point in time that parallel imposition and acquiescence by the resellers is established.
Merger control
The European Commission approves the acquisition of Run:AI by NVIDIA
The European Commission ("the Commission") approved the acquisition of Run:AI by NVIDIA on 20 December 2024. NVIDIA designs and supplies Graphics Processing Units (“GPUs"), a type of semiconductor used in datacentres. Run:AI provides GPU orchestration software that enables corporate customers to plan, manage and optimise their artificial intelligence computing infrastructure on premises, in the cloud, or in hybrid environments. The transaction was referred to the Commission by Italy. Although the revenues of Run:AI and NVIDIA fell below the Italian notification thresholds, the Italian Competition Authority exercised its “call-in” power. With this power, a competition authority may investigate a merger below the notification thresholds because of its potential negative effects on competition. Subsequently, Italy referred the transaction to the Commission under Article 22(1) of the EU Merger Regulation.
The activities of NVIDIA and Run:ai do not overlap but GPUs and GPU orchestration software must be compatible. The Commission therefore assessed the potential vertical impact of the concentration. The Commission stated that NVIDIA likely holds a dominant position in the market for discrete GPUs used in datacentres. However, it also established that NVIDIA lacks both the technical ability and the incentive to hinder the compatibility of its GPUs with competing GPU orchestration software. This is due to the availability and widespread use of competing tools that ensure this compatibility. Run:AI currently holds no significant position in the GPU orchestration software market. Following the merger, customers will still have access to sufficient alternatives to Run:AI offering similarly advanced software functionalities, as well as the ability to develop their GPU orchestration software in-house. The Commission thus concluded that the proposed acquisition would not raise competition concerns in any of the markets examined in the EEA or Italy. The transaction was therefore unconditionally approved.
The European Commission approves the acquisition of Catalent by Novo Holdings
On 6 December 2024, the European Commission ("the Commission") approved the acquisition of Catalent by Novo Holdings. Novo Holdings, a Danish pharmaceutical company, specialises in the treatment of chronic diseases such as obesity and diabetes. Novo Nordisk, a subsidiary of Novo Holdings, supplies its 'blockbuster' diabetes and weight loss medications, Ozempic and Wegovy, in the form of pre-filled syringes. Additionally, Orexo, another subsidiary of Novo Holdings, offers the product Zubsolv, which is used for the treatment of opioid dependence in the form of orally disintegrating tablets. Catalent, a US company, supplies pre-filled syringes and orally disintegrating tablets to the pharmaceutical industry, including the subsidiaries of Novo Holdings. Catalent is active in the sector of contract development and manufacturing of medicines, developing and producing medicines for pharmaceutical companies.
The European Commission examined the impact of the acquisition on the markets for the supply of (i) pre-filled syringes and (ii) orally disintegrating tablets. The Commission concluded that after the acquisition, customers of pre-filled syringes will continue to have sufficient access to alternatives to Catalent for contract development and manufacturing. Furthermore, the Commission found that there is sufficient spare capacity in that market. Additionally, customers of orally disintegrating tablets will retain the ability to switch suppliers. The Commission also pointed to the possibility for these customers to switch to alternative forms of medication, such as regular tablets and capsules, ensuring sufficient competitive pressure remains.
Further investigation needed into acquisition of part of Delta's fibre networks by joint venture of KPN and APG (Glaspoort)
The Dutch Competition Authority (ACM) has decided that further investigation (text only available in Dutch) is needed into the acquisition of part of Delta’s fibre network by Glaspoort (a joint venture between KPN and APG). In its decision, the ACM states that it needs to assess whether Glaspoort’s parent companies, KPN and APG, are involved parties in the intended acquisition, as Glaspoort may not qualify as a full-function joint venture. Moreover, Delta is one of the largest competitors to KPN and Glaspoort in the field of fibre networks in the Netherlands. The ACM concludes that there are sufficient grounds to believe that the intended acquisition of part of Delta’s fibre network by Glaspoort could significantly impede effective competition.
The ACM’s initial investigation revealed that competition in telecom networks could decline locally as a result of the intended acquisition. In several parts of the Netherlands, KPN’s copper network only competes with Delta’s fibre network and VodafoneZiggo’s cable network. By acquiring part of Delta’s network, competition in these parts of the Netherlands would be reduced to KPN and VodafoneZiggo.
The ACM also highlights that KPN already holds a very strong position in the national market(s) for wholesale access to fixed telecom networks, which could be further strengthened by this acquisition, despite Delta being a relatively small player at the national level. The ACM suggests that the acquisition of parts of Delta’s fibre network by Glaspoort could be part of KPN’s broader strategy of acquiring smaller competing networks one by one, a practice referred to by the ACM as “stringing beads.”
For similar reasons, the ACM decided earlier this year to launch a second-phase investigation (text only available in Dutch) into the acquisition strategy of the Dutch pallet supplier Foresco. Furthermore, the ACM has advocated for legislation that would allow it to investigate such acquisitions through a statutory “call-in power.” This power would enable the ACM to review acquisitions below the notification thresholds under the regular merger control procedure. The ACM claims that such a power could enable it to pre-empt concentrations “under the radar” from irreversibly changing the structure of particular markets.
State Aid
The European Commission amends the Agricultural de minimis Regulation
On 10 December 2024, the European Commission (“the Commission”) adopted an amendment to the Agricultural de minimis Regulation. Under the former Regulation, aid up to EUR 20,000 over a period of three fiscal years could be exempted from the obligation to notify the European Commission, since this is deemed to have no impact on competition and trade in the Single Market. The amendment raises the de minimis ceiling per company to EUR 50,000 over a period of three years. Furthermore, the Commission establishes a central register for de minimis aid at national or European level to increase transparency and reduce the administrative burden on farmers. The amended Regulation is applicable until 31 December 2032.
Foreign Direct Investment
The Netherlands is preparing to expand the scope of its Foreign Direct Investment Regulation
The Dutch government is preparing to expand (text available in Dutch only) the scope of the Dutch Foreign Direct Investment Act (“FDI Act"). The FDI Act, which entered into force on 1 June 2023, is applicable to three groups of undertakings: i) suppliers of vital infrastructure or vital processes, ii) undertakings operating high-tech campuses and iii) suppliers of sensitive technology. The FDI Act aims to control risks to national security by means of assessing investments in and acquisitions of undertakings.
In order to keep the supply of vital processes and sensitive technology in the Netherlands intact, the government announced a consultation on amendments to the FDI Act. Through these amendments the government wishes to expand the material scope of the FDI Act. The expansion concerns undertakings active in biotechnology, artificial intelligence, advanced materials, nanotechnology, sensor technology, navigation technology and nuclear technology for medical use. With the amendment, the government seeks to prevent the risk of knowledge and technology ‘falling into the wrong hands’ and creating unwelcome strategic dependencies. The proposed amendment is now open for consultation. Parties can respond until 31 January 2025. It is expected that this expansion of the scope of the Dutch FDI Act will enter into force in the second half of 2025.
We wish you a very happy 2025! 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!
Antitrust: Vertical agreements
The Court of Justice confirms that under Article 101 TFEU it is sufficient to demonstrate the existence of potential restrictive effects on competition
On 5 December 2025, the Court of Justice of the European Union (“the Court”) delivered its judgment in the case AS Tallinna Kaubamaja Grupp and AS KIA Auto against the Latvian competition authority. The case concerned the warranty conditions that had been agreed between KIA Auto, the exclusive importer of KIA cars in Latvia and its authorised dealers and repairers. These warranty conditions obliged or induced KIA car owners to carry out all routine maintenance and all repairs under warranty at the authorised dealers and repairers. Furthermore, only original KIA spare parts could be used during routine maintenance and repairs. If car owners did not follow these conditions, the warranty would become void.
By decision of 7 August 2014, the Latvian competition authority fined KIA Auto as the agreement with the authorised distributors and repairers impeded the access to the market for independent repair services and access to the market by independent producers of spare parts. The competition authority noted that the restrictions were restrictions by effect and held that in such case no actual effects need to be established. KIA Auto challenged this decision, but its objection was dismissed, and the case ultimately reached the highest court in Latvia. The highest court in Latvia applied a stricter standard of proof and annulled the decision of the appellate court.
The case was subsequently referred back to a lower court, which sought clarification from the Court on the application of Article 101(1) TFEU. More specifically, the question was whether in the case of a restriction by effect it was sufficient for a national competition authority to demonstrate the potential anti-competitive effects or whether it must prove concrete and actual restrictions on competition.
Referring to its existing case law, the Court confirmed that it suffices to demonstrate potential anti-competitive effects to establish a violation of Article 101(1) TFEU. This approach is considered to be a relatively low threshold for identifying anti-competitive effects, as it expands the scope for competition authorities to meet their burden of proof when enforcing competition law.
Advocate General Medina submits that the Court of Justice should recognise the 'parallel imposition requirement' in the Vertical Block Exempltion Regulation
On 9 January 2025, Advocate General Medina delivered her opinion in the Beevers Kaas v Albert Heijn case. Beevers Kaas is the exclusive distributor of Beemster cheese in Belgium and Luxembourg. The cheese is manufactured by the Dutch cheese maker Cono. Albert Heijn purchases Beemster cheese directly from Cono in the Netherlands and sells this cheese also in its Belgian shops. Beevers Kaas claims that these sales by Albert Heijn directly or indirectly violate its exclusivity rights under its agreement with Cono. Albert Heijn considered itself not bound by the exclusivity agreement and submitted that Cono and Beevers Kaas are, in essence, imposing an active sales ban. According to Albert Heijn, Cono cannot protect Beevers Kaas from active sales by other buyers into its exclusively allocated territory.
The Antwerp Business Court dismissed Beevers Kaas’s claims, stating that no contractual or legislative provision prohibits third parties such as Albert Heijn from obtaining supplies directly from Cono in the Netherlands and reselling them in Belgium. The Antwerp Business Court emphasised that the exclusive distribution agreement only obliges Cono to refrain from selling to Belgian distributors and does not create an obligation for third parties to comply with the agreement and to refrain from selling Cono’s cheese in Belgium.
On appeal, the discussion turned to the scope of Article 4(b)(i) of Regulation 330/2010 (“Vertical Block Exemption Regulation” or “VBER”) and more specifically to the application of ‘the parallel imposition requirement’. This condition requires the supplier to protect its exclusive distributor against active sales into the exclusive territory by all its other distributors/buyers. The appeal court referred preliminary questions to the EU Court of Justice (“the Court”).
The first question was whether under Article 4(b)(i) VBER the mere finding that other buyers do not engage in active sales in an exclusively allocated territory is sufficient to establish the existence of an agreement concerning the active sales ban in that territory.
The Advocate General first set a step back and argued that the Court should, for the first time, recognise that Article 4(b)(i) VBEUR requires parallel imposition.
She emphasised that the allocation of an exclusive territory inherently grants the distributor the right to be protected from active sales by other buyers in that territory. Accordingly, if a supplier intends to benefit from the exception to hard-core restrictions under the VBER, the supplier must ensure the effective enforcement of the active sales ban by all other buyers. The Advocate General further noted that Article 4(b)(i) VBER explicitly allows suppliers to restrict active sales by other buyers into exclusive territories. Without an obligation on the supplier to restrict such sales, the exclusivity would be ‘nothing but an empty shell’.
The most straightforward way to comply with the parallel imposition requirement would be for the supplier to prohibit explicitly in its agreements with all other buyers active sales into the exclusive territory. However, in the absence of such contractual provisions, the supplier must demonstrate an agreement with other buyers, evidenced by explicit or tacit acceptance of the active sales ban. This can be established through consistent coincidences or indicia, showing the buyers’ willingness to comply with the restriction. The absence of active sales by other buyers in the exclusive territory may be relevant but it may also be insufficient by itself to demonstrate acquiescence. Evidence must show that buyers explicitly or implicitly agreed to comply with the ban.
The second preliminary question concerned the issue of the relevant point in time that acquiescence by the other buyers takes place. In particular, the referring court wished to know whether it is sufficient for the supplier to show that its other buyers accepted the active sales ban only if and when those buyers show an intention actively to sell into the exclusive territory. The Advocate General stated that this is not the case. The Advocate General added that the benefit of the vertical block exemption only applies as from the point in time that parallel imposition and acquiescence by the resellers is established.
Merger control
The European Commission approves the acquisition of Run:AI by NVIDIA
The European Commission ("the Commission") approved the acquisition of Run:AI by NVIDIA on 20 December 2024. NVIDIA designs and supplies Graphics Processing Units (“GPUs"), a type of semiconductor used in datacentres. Run:AI provides GPU orchestration software that enables corporate customers to plan, manage and optimise their artificial intelligence computing infrastructure on premises, in the cloud, or in hybrid environments. The transaction was referred to the Commission by Italy. Although the revenues of Run:AI and NVIDIA fell below the Italian notification thresholds, the Italian Competition Authority exercised its “call-in” power. With this power, a competition authority may investigate a merger below the notification thresholds because of its potential negative effects on competition. Subsequently, Italy referred the transaction to the Commission under Article 22(1) of the EU Merger Regulation.
The activities of NVIDIA and Run:ai do not overlap but GPUs and GPU orchestration software must be compatible. The Commission therefore assessed the potential vertical impact of the concentration. The Commission stated that NVIDIA likely holds a dominant position in the market for discrete GPUs used in datacentres. However, it also established that NVIDIA lacks both the technical ability and the incentive to hinder the compatibility of its GPUs with competing GPU orchestration software. This is due to the availability and widespread use of competing tools that ensure this compatibility. Run:AI currently holds no significant position in the GPU orchestration software market. Following the merger, customers will still have access to sufficient alternatives to Run:AI offering similarly advanced software functionalities, as well as the ability to develop their GPU orchestration software in-house. The Commission thus concluded that the proposed acquisition would not raise competition concerns in any of the markets examined in the EEA or Italy. The transaction was therefore unconditionally approved.
The European Commission approves the acquisition of Catalent by Novo Holdings
On 6 December 2024, the European Commission ("the Commission") approved the acquisition of Catalent by Novo Holdings. Novo Holdings, a Danish pharmaceutical company, specialises in the treatment of chronic diseases such as obesity and diabetes. Novo Nordisk, a subsidiary of Novo Holdings, supplies its 'blockbuster' diabetes and weight loss medications, Ozempic and Wegovy, in the form of pre-filled syringes. Additionally, Orexo, another subsidiary of Novo Holdings, offers the product Zubsolv, which is used for the treatment of opioid dependence in the form of orally disintegrating tablets. Catalent, a US company, supplies pre-filled syringes and orally disintegrating tablets to the pharmaceutical industry, including the subsidiaries of Novo Holdings. Catalent is active in the sector of contract development and manufacturing of medicines, developing and producing medicines for pharmaceutical companies.
The European Commission examined the impact of the acquisition on the markets for the supply of (i) pre-filled syringes and (ii) orally disintegrating tablets. The Commission concluded that after the acquisition, customers of pre-filled syringes will continue to have sufficient access to alternatives to Catalent for contract development and manufacturing. Furthermore, the Commission found that there is sufficient spare capacity in that market. Additionally, customers of orally disintegrating tablets will retain the ability to switch suppliers. The Commission also pointed to the possibility for these customers to switch to alternative forms of medication, such as regular tablets and capsules, ensuring sufficient competitive pressure remains.
Further investigation needed into acquisition of part of Delta's fibre networks by joint venture of KPN and APG (Glaspoort)
The Dutch Competition Authority (ACM) has decided that further investigation (text only available in Dutch) is needed into the acquisition of part of Delta’s fibre network by Glaspoort (a joint venture between KPN and APG). In its decision, the ACM states that it needs to assess whether Glaspoort’s parent companies, KPN and APG, are involved parties in the intended acquisition, as Glaspoort may not qualify as a full-function joint venture. Moreover, Delta is one of the largest competitors to KPN and Glaspoort in the field of fibre networks in the Netherlands. The ACM concludes that there are sufficient grounds to believe that the intended acquisition of part of Delta’s fibre network by Glaspoort could significantly impede effective competition.
The ACM’s initial investigation revealed that competition in telecom networks could decline locally as a result of the intended acquisition. In several parts of the Netherlands, KPN’s copper network only competes with Delta’s fibre network and VodafoneZiggo’s cable network. By acquiring part of Delta’s network, competition in these parts of the Netherlands would be reduced to KPN and VodafoneZiggo.
The ACM also highlights that KPN already holds a very strong position in the national market(s) for wholesale access to fixed telecom networks, which could be further strengthened by this acquisition, despite Delta being a relatively small player at the national level. The ACM suggests that the acquisition of parts of Delta’s fibre network by Glaspoort could be part of KPN’s broader strategy of acquiring smaller competing networks one by one, a practice referred to by the ACM as “stringing beads.”
For similar reasons, the ACM decided earlier this year to launch a second-phase investigation (text only available in Dutch) into the acquisition strategy of the Dutch pallet supplier Foresco. Furthermore, the ACM has advocated for legislation that would allow it to investigate such acquisitions through a statutory “call-in power.” This power would enable the ACM to review acquisitions below the notification thresholds under the regular merger control procedure. The ACM claims that such a power could enable it to pre-empt concentrations “under the radar” from irreversibly changing the structure of particular markets.
State Aid
The European Commission amends the Agricultural de minimis Regulation
On 10 December 2024, the European Commission (“the Commission”) adopted an amendment to the Agricultural de minimis Regulation. Under the former Regulation, aid up to EUR 20,000 over a period of three fiscal years could be exempted from the obligation to notify the European Commission, since this is deemed to have no impact on competition and trade in the Single Market. The amendment raises the de minimis ceiling per company to EUR 50,000 over a period of three years. Furthermore, the Commission establishes a central register for de minimis aid at national or European level to increase transparency and reduce the administrative burden on farmers. The amended Regulation is applicable until 31 December 2032.
Foreign Direct Investment
The Netherlands is preparing to expand the scope of its Foreign Direct Investment Regulation
The Dutch government is preparing to expand (text available in Dutch only) the scope of the Dutch Foreign Direct Investment Act (“FDI Act"). The FDI Act, which entered into force on 1 June 2023, is applicable to three groups of undertakings: i) suppliers of vital infrastructure or vital processes, ii) undertakings operating high-tech campuses and iii) suppliers of sensitive technology. The FDI Act aims to control risks to national security by means of assessing investments in and acquisitions of undertakings.
In order to keep the supply of vital processes and sensitive technology in the Netherlands intact, the government announced a consultation on amendments to the FDI Act. Through these amendments the government wishes to expand the material scope of the FDI Act. The expansion concerns undertakings active in biotechnology, artificial intelligence, advanced materials, nanotechnology, sensor technology, navigation technology and nuclear technology for medical use. With the amendment, the government seeks to prevent the risk of knowledge and technology ‘falling into the wrong hands’ and creating unwelcome strategic dependencies. The proposed amendment is now open for consultation. Parties can respond until 31 January 2025. It is expected that this expansion of the scope of the Dutch FDI Act will enter into force in the second half of 2025.