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!
Private Enforcement
Court of Justice clarifies international jurisdiction in cartel damages by subsidiary
On 13 February 2025, the Court of Justice of the European Union (“Court”) ruled on international jurisdiction in antitrust damages actions. The case stems from a preliminary reference from the Dutch Supreme Court on the interpretation of Article 8(1) of the Brussels I-bis Regulation (Regulation 1215/2012). The central question was whether parent company Heineken and its subsidiary Athenian Brewery, located in different Member States, could be jointly sued before the courts of the parent company’s residence in follow-on proceedings concerning the subsidiary’s infringement of Article 102 TFEU.
The Court confirmed that the court of the parent company's domicile may base its international jurisdiction on the presumption of decisive influence. This presumption applies when the parent company holds directly or indirectly (almost) the entire capital of the subsidiary. Article 8(1) of the Brussels I-bis Regulation does not preclude such a ground of jurisdiction, provided that the relationship between the claims is sufficiently close to avoid conflicting judgments. The Court added that there is no requirement that the joint liability of the parent company and its subsidiary has been established in the final Commission decision.
At the same time, the Court emphasized that defendants have the opportunity to present contrary evidence.
Abuse of a dominant position
European Court of Justice clarifies that a refusal by a dominant platform to ensure app interoperability may constitute an abuse
On 25 February 2025, the Court of Justice (“Court”) delivered its judgment in Case C-233/23. The case concerned a reference for a preliminary ruling made by the Italian Council of State. In 2018, Enel X Italia launched the JuicePass-app, available to users of mobile devices running the Android OS operating system. The app enables users to search for and book charging stations on a map. Enel requested Google to make JuicePass compatible with Android Auto, which allows Android OS users to display the apps on their phone directly on the screen of the infotainment system of a vehicle. Google provides templates for third-party app integration for media and messaging apps and provides its own apps Google Maps and Waze to meet the needs of users of navigation apps. Google refused to make JuicePass interoperable with Android Auto. After a complaint by Enel, the Italian Competition and Market Authority (“AGCM”) imposed a fine on Google of over € 102 million for abusing its dominant position. Google challenged this decision, and the case ended up at the Italian Council of State, which referred questions to the Court of Justice.
The Court of Justice ruled that a dominant company’s refusal to enable interoperability with a third-party app can constitute an abuse of a dominant position, even if the platform is not indispensable for the commercial operation of that app. The indispensability-criterion was set out by the Court of Justice in its judgment on 26 November 1998 in Bronner (C-7/97). However, unlike the Bronner-judgement, where the dominant undertaking refused to grant access to the distribution network it had developed for its own use, Google specifically developed Android Auto to enable third-party undertakings access to its digital infrastructure. Therefore, the Court of Justice concludes that the indispensability-criterion does not apply.
Instead, it must be determined “whether the refusal to grant access has the actual or potential effect of excluding, obstructing or delaying the development on the market of a product or service which is at least potentially in competition with a product or service supplied or capable of being supplied by the undertaking in a dominant position and constitutes conduct which restricts competition on the merits, and is thereby capable of causing harm to consumers.” This test is also not dependent on whether actual anticompetitive effects have materialized. The ability to restrict competition on the merits, despite its lack of effect, is sufficient to constitute an abuse of dominance.
This also means that the dominant undertaking may be obligated to ensure interoperability with its digital infrastructure. The refusal to grant interoperability may be justified by the fact that granting interoperability would compromise the integrity or security of the platform concerned, or where it would be impossible for other technical reasons to ensure that interoperability. The burden of proof for an objective justification is on the dominant undertaking, not on the competition authority.
Merger control
The Belgian Competition Authority grants, under conditions, its approval for the acquisition of Goed pharmacies by Multipharma
On 4 February 2025, the Belgian Competition Authority ("BCA") conditionally approved the acquisition of Popelin by Multipharma. Multipharma is a Belgian cooperative company primarily overseeing the operation of a network of 279 registered pharmacies in Belgium and a wholesale operation. The activities of Popelin include (i) wholesale of pharmaceutical products; (ii) operation of a network of 92 pharmacies in Flanders operating under the Goed brand; and (iii) supporting activities for the pharmaceutical sector.
Given the respective and combined turnover of Multipharma and Popelin, the merger was subject to prior approval by the BCA. The assessment considered the legal framework for wholesale distributors and pharmacies, while recognising that activities remain subject to market forces and competition. The investigation examined potential effects on (i) prices; (ii) quality; and (iii) accessibility of pharmaceutical products and services. In 14 local markets around Mechelen and Willebroek, serious doubts emerged about the transaction's admissibility due to Multipharma's potential increased market power.
In response to these concerns, Multipharma offered commitments. For Mechelen, this included divesting four pharmacies and committing not to apply for new licenses in the areas concerned. For Willebroek, Multipharma agreed to permanently close two temporarily closed pharmacies and not to apply for new licences in the areas concerned. The commitments, set for five to ten years depending on their nature, were deemed sufficient by the BCA to approve the acquisition following thorough analysis and market testing.
Cartels
Belgian Competition Authority launches a general inquiry into sectoral price revision and indexation mechanisms
The Belgian Competition Authority (“BCA”) has decided to open a general investigation into sectoral price revision and indexation mechanisms within the Belgian economy. These widespread mechanisms can fuel inflationary trends and raise competition law compliance concerns. The BCA therefore decided, for the first time, to use its general investigation tool to analyse the economic and regulatory dynamics of these mechanisms.
Pursuant to Article IV.47 of the Code of Economic Law, the BCA can conduct investigations where there are indications of market failure. Belgium has persistently faced higher inflationary trends compared to neighbouring countries, which may stem from both international factors and national structural issues, including the systematic use of sectoral price indexation mechanisms. The investigation will map existing price review and indexation mechanisms, assess their potential conflict with Belgian and EU competition law, and examine their impact on product and service pricing, wealth distribution, and consumer welfare. Conversely, good practices could equally be identified and serve as models.
Spanning an expected time frame of 12 to 14 months and covering key economic sectors, the survey will involve requests for information, hearings and expert consultations. Preliminary findings will be subject to public consultation, with final results to be published in early 2026. This effort forms part of the BCA's broader strategy to strengthen preventive action through sector-specific assessments.
European Commission issues Supplementary Statement of Objections to Lufthansa over A++ Transatlantic joint venture
The European Commission (“Commission”) has issued a Supplementary Statement of Objections to Lufthansa concerning the A++ transatlantic joint venture between Lufthansa, United Airlines, and Air Canada. The Commission considers that this joint venture restricts competition on the Frankfurt – New York route.
The Commission is considering interim measures to prevent serious and irreparable harm to competition. Specifically, it aims to require Lufthansa to restore Condor’s access to feed traffic to and from Frankfurt Airport under the terms agreed between the two airlines in June 2024. Feed traffic refers to passengers connecting via a hub for long-haul flights. The Commission is concerned that, without such access, Condor may be unable to maintain a sustainable operation on the Frankfurt – New York route and may be forced to exit the market.
This action follows an investigation launched in August 2024, into Lufthansa, United, and Air Canada over potential anti-competitive effects of the A++ joint venture on transatlantic routes within the European Economic Area (EEA). The Commission’s initial concerns were that interim measures might be necessary to preserve the effectiveness of any future final decision.
State aid
AG Medina delivers Opinion on the relation between state aid law and procurement rules in a case concerning Hungarian nuclear power plan
On 27 February 2025, Advocate General (“AG”) Medina delivered her Opinion in Case C-59/23 P concerning Hungarian state aid for the development and construction of two nuclear reactors. In 2015, Hungary had notified a €12.5 billion financial contribution to the nuclear energy company Paks for the development and construction of two new nuclear reactors. To finance these reactors, Hungary had entered into a financing agreement with Russia, under which the Russian company JSC would develop and supply the reactors. As a result, the contract was not subject to a public procurement procedure.
Nevertheless, the European Commission (“Commission”) approved the aid measure under Article 107(3)(c) TFEU. The Commission considered that awarding the contract for the construction of the nuclear reactors was not an inextricable implementation requirement linked to the aid, meaning it did not need to assess a possible breach of the Directives on public procurement in its decision. Moreover, the Commission ruled that procurement rules had not been violated, given that competition was not possible for technical reasons. After Austria challenged the Commission’s approval decision, the General Court upheld the decision, ruling that there was no sufficiently close link between the aid and the awarding of the contract.
However, AG Medina takes an opposite stand and argues for the annulment of the General Court’s judgment and the Commission’s approval decision. The General Court had found that the purpose of the contract was the delivery of the nuclear reactors but according to the AG, the Commission’s decision showed that the purpose was the design, construction, and commissioning of the reactors. In the latter case, the AG considers that the awarding of the contract for the construction of the reactors is inextricably linked to the objective of the aid measure, and a breach of procurement rules should prevent approval of the aid. Furthermore, the AG does not accept the Commission’s argument that its reference to the withdrawn infringement procedure sufficiently justified why procurement rules had not been violated. In the approval decision, the Commission merely referred to a preliminary conclusion from the infringement procedure without setting out the underlying factual and legal reasoning. As a result, according to the AG, the Commission’s decision fails to provide a sufficient reasoning.
Court of Justice annuls General Court's Judgement in Case concerning state aid to Wizz Air
On 13 February 2025, the Court of Justice (“Court”) delivered its judgment in Joined Cases C-244/23 P to C-246/23 P. The cases concern three appeals lodged by the European Commission (“Commission”), Wizz Air, and the operator of the Romanian airport of Timișoara, AITTV, against the General Court's judgment in Carpatair/Commission (T-522/20). Carpatair, one of Wizz Air’s (alleged) competitors, sought the annulment of the Commission's decision that the agreements signed between AITTV and Wizz Air, granting Wizz Air discounts and rebates on airport charges, did not constitute state aid. The Commission found that these agreements were expected to be incrementally profitable for AITTV and found that a prudent private operator in a market economy would have entered into such agreements (also known as the Market Economy Operator Test). The General Court ruled that the Commission had erred in law by failing to examine whether the discount on airport charges granted a selective advantage to Wizz Air. Secondly, the General Court held that the Commission had failed to state grounds in law for the assessment that the agreements had not conferred an economic advantage on Wizz Air which it would not have obtained under normal market conditions.
The Court annuls the General Court's judgement. The Court finds that the General Court did not substantiate its conclusion that Carpatair had demonstrated that it was individually concerned by the Commission’s decision, which is required for Carpatair’s action for annulment of the Commission’s decision to be admissible. Carpatair was required to demonstrate that the Commission’s decision produces direct effects on its legal situation by explaining why that decision is liable to place it in an unfavourable competitive position. The General Court also failed to substantiate why Carpatair had a particular status which distinguished it individually. The alleged competitive relationship between Wizz Air and Carpatair is inadequate, since AITTV raised arguments challenging the existence of such competition, and the General Court failed to address those arguments. The Court refers the case back to the General Court.
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!
Private Enforcement
Court of Justice clarifies international jurisdiction in cartel damages by subsidiary
On 13 February 2025, the Court of Justice of the European Union (“Court”) ruled on international jurisdiction in antitrust damages actions. The case stems from a preliminary reference from the Dutch Supreme Court on the interpretation of Article 8(1) of the Brussels I-bis Regulation (Regulation 1215/2012). The central question was whether parent company Heineken and its subsidiary Athenian Brewery, located in different Member States, could be jointly sued before the courts of the parent company’s residence in follow-on proceedings concerning the subsidiary’s infringement of Article 102 TFEU.
The Court confirmed that the court of the parent company's domicile may base its international jurisdiction on the presumption of decisive influence. This presumption applies when the parent company holds directly or indirectly (almost) the entire capital of the subsidiary. Article 8(1) of the Brussels I-bis Regulation does not preclude such a ground of jurisdiction, provided that the relationship between the claims is sufficiently close to avoid conflicting judgments. The Court added that there is no requirement that the joint liability of the parent company and its subsidiary has been established in the final Commission decision.
At the same time, the Court emphasized that defendants have the opportunity to present contrary evidence.
Abuse of a dominant position
European Court of Justice clarifies that a refusal by a dominant platform to ensure app interoperability may constitute an abuse
On 25 February 2025, the Court of Justice (“Court”) delivered its judgment in Case C-233/23. The case concerned a reference for a preliminary ruling made by the Italian Council of State. In 2018, Enel X Italia launched the JuicePass-app, available to users of mobile devices running the Android OS operating system. The app enables users to search for and book charging stations on a map. Enel requested Google to make JuicePass compatible with Android Auto, which allows Android OS users to display the apps on their phone directly on the screen of the infotainment system of a vehicle. Google provides templates for third-party app integration for media and messaging apps and provides its own apps Google Maps and Waze to meet the needs of users of navigation apps. Google refused to make JuicePass interoperable with Android Auto. After a complaint by Enel, the Italian Competition and Market Authority (“AGCM”) imposed a fine on Google of over € 102 million for abusing its dominant position. Google challenged this decision, and the case ended up at the Italian Council of State, which referred questions to the Court of Justice.
The Court of Justice ruled that a dominant company’s refusal to enable interoperability with a third-party app can constitute an abuse of a dominant position, even if the platform is not indispensable for the commercial operation of that app. The indispensability-criterion was set out by the Court of Justice in its judgment on 26 November 1998 in Bronner (C-7/97). However, unlike the Bronner-judgement, where the dominant undertaking refused to grant access to the distribution network it had developed for its own use, Google specifically developed Android Auto to enable third-party undertakings access to its digital infrastructure. Therefore, the Court of Justice concludes that the indispensability-criterion does not apply.
Instead, it must be determined “whether the refusal to grant access has the actual or potential effect of excluding, obstructing or delaying the development on the market of a product or service which is at least potentially in competition with a product or service supplied or capable of being supplied by the undertaking in a dominant position and constitutes conduct which restricts competition on the merits, and is thereby capable of causing harm to consumers.” This test is also not dependent on whether actual anticompetitive effects have materialized. The ability to restrict competition on the merits, despite its lack of effect, is sufficient to constitute an abuse of dominance.
This also means that the dominant undertaking may be obligated to ensure interoperability with its digital infrastructure. The refusal to grant interoperability may be justified by the fact that granting interoperability would compromise the integrity or security of the platform concerned, or where it would be impossible for other technical reasons to ensure that interoperability. The burden of proof for an objective justification is on the dominant undertaking, not on the competition authority.
Merger control
The Belgian Competition Authority grants, under conditions, its approval for the acquisition of Goed pharmacies by Multipharma
On 4 February 2025, the Belgian Competition Authority ("BCA") conditionally approved the acquisition of Popelin by Multipharma. Multipharma is a Belgian cooperative company primarily overseeing the operation of a network of 279 registered pharmacies in Belgium and a wholesale operation. The activities of Popelin include (i) wholesale of pharmaceutical products; (ii) operation of a network of 92 pharmacies in Flanders operating under the Goed brand; and (iii) supporting activities for the pharmaceutical sector.
Given the respective and combined turnover of Multipharma and Popelin, the merger was subject to prior approval by the BCA. The assessment considered the legal framework for wholesale distributors and pharmacies, while recognising that activities remain subject to market forces and competition. The investigation examined potential effects on (i) prices; (ii) quality; and (iii) accessibility of pharmaceutical products and services. In 14 local markets around Mechelen and Willebroek, serious doubts emerged about the transaction's admissibility due to Multipharma's potential increased market power.
In response to these concerns, Multipharma offered commitments. For Mechelen, this included divesting four pharmacies and committing not to apply for new licenses in the areas concerned. For Willebroek, Multipharma agreed to permanently close two temporarily closed pharmacies and not to apply for new licences in the areas concerned. The commitments, set for five to ten years depending on their nature, were deemed sufficient by the BCA to approve the acquisition following thorough analysis and market testing.
Cartels
Belgian Competition Authority launches a general inquiry into sectoral price revision and indexation mechanisms
The Belgian Competition Authority (“BCA”) has decided to open a general investigation into sectoral price revision and indexation mechanisms within the Belgian economy. These widespread mechanisms can fuel inflationary trends and raise competition law compliance concerns. The BCA therefore decided, for the first time, to use its general investigation tool to analyse the economic and regulatory dynamics of these mechanisms.
Pursuant to Article IV.47 of the Code of Economic Law, the BCA can conduct investigations where there are indications of market failure. Belgium has persistently faced higher inflationary trends compared to neighbouring countries, which may stem from both international factors and national structural issues, including the systematic use of sectoral price indexation mechanisms. The investigation will map existing price review and indexation mechanisms, assess their potential conflict with Belgian and EU competition law, and examine their impact on product and service pricing, wealth distribution, and consumer welfare. Conversely, good practices could equally be identified and serve as models.
Spanning an expected time frame of 12 to 14 months and covering key economic sectors, the survey will involve requests for information, hearings and expert consultations. Preliminary findings will be subject to public consultation, with final results to be published in early 2026. This effort forms part of the BCA's broader strategy to strengthen preventive action through sector-specific assessments.
European Commission issues Supplementary Statement of Objections to Lufthansa over A++ Transatlantic joint venture
The European Commission (“Commission”) has issued a Supplementary Statement of Objections to Lufthansa concerning the A++ transatlantic joint venture between Lufthansa, United Airlines, and Air Canada. The Commission considers that this joint venture restricts competition on the Frankfurt – New York route.
The Commission is considering interim measures to prevent serious and irreparable harm to competition. Specifically, it aims to require Lufthansa to restore Condor’s access to feed traffic to and from Frankfurt Airport under the terms agreed between the two airlines in June 2024. Feed traffic refers to passengers connecting via a hub for long-haul flights. The Commission is concerned that, without such access, Condor may be unable to maintain a sustainable operation on the Frankfurt – New York route and may be forced to exit the market.
This action follows an investigation launched in August 2024, into Lufthansa, United, and Air Canada over potential anti-competitive effects of the A++ joint venture on transatlantic routes within the European Economic Area (EEA). The Commission’s initial concerns were that interim measures might be necessary to preserve the effectiveness of any future final decision.
State aid
AG Medina delivers Opinion on the relation between state aid law and procurement rules in a case concerning Hungarian nuclear power plan
On 27 February 2025, Advocate General (“AG”) Medina delivered her Opinion in Case C-59/23 P concerning Hungarian state aid for the development and construction of two nuclear reactors. In 2015, Hungary had notified a €12.5 billion financial contribution to the nuclear energy company Paks for the development and construction of two new nuclear reactors. To finance these reactors, Hungary had entered into a financing agreement with Russia, under which the Russian company JSC would develop and supply the reactors. As a result, the contract was not subject to a public procurement procedure.
Nevertheless, the European Commission (“Commission”) approved the aid measure under Article 107(3)(c) TFEU. The Commission considered that awarding the contract for the construction of the nuclear reactors was not an inextricable implementation requirement linked to the aid, meaning it did not need to assess a possible breach of the Directives on public procurement in its decision. Moreover, the Commission ruled that procurement rules had not been violated, given that competition was not possible for technical reasons. After Austria challenged the Commission’s approval decision, the General Court upheld the decision, ruling that there was no sufficiently close link between the aid and the awarding of the contract.
However, AG Medina takes an opposite stand and argues for the annulment of the General Court’s judgment and the Commission’s approval decision. The General Court had found that the purpose of the contract was the delivery of the nuclear reactors but according to the AG, the Commission’s decision showed that the purpose was the design, construction, and commissioning of the reactors. In the latter case, the AG considers that the awarding of the contract for the construction of the reactors is inextricably linked to the objective of the aid measure, and a breach of procurement rules should prevent approval of the aid. Furthermore, the AG does not accept the Commission’s argument that its reference to the withdrawn infringement procedure sufficiently justified why procurement rules had not been violated. In the approval decision, the Commission merely referred to a preliminary conclusion from the infringement procedure without setting out the underlying factual and legal reasoning. As a result, according to the AG, the Commission’s decision fails to provide a sufficient reasoning.
Court of Justice annuls General Court's Judgement in Case concerning state aid to Wizz Air
On 13 February 2025, the Court of Justice (“Court”) delivered its judgment in Joined Cases C-244/23 P to C-246/23 P. The cases concern three appeals lodged by the European Commission (“Commission”), Wizz Air, and the operator of the Romanian airport of Timișoara, AITTV, against the General Court's judgment in Carpatair/Commission (T-522/20). Carpatair, one of Wizz Air’s (alleged) competitors, sought the annulment of the Commission's decision that the agreements signed between AITTV and Wizz Air, granting Wizz Air discounts and rebates on airport charges, did not constitute state aid. The Commission found that these agreements were expected to be incrementally profitable for AITTV and found that a prudent private operator in a market economy would have entered into such agreements (also known as the Market Economy Operator Test). The General Court ruled that the Commission had erred in law by failing to examine whether the discount on airport charges granted a selective advantage to Wizz Air. Secondly, the General Court held that the Commission had failed to state grounds in law for the assessment that the agreements had not conferred an economic advantage on Wizz Air which it would not have obtained under normal market conditions.
The Court annuls the General Court's judgement. The Court finds that the General Court did not substantiate its conclusion that Carpatair had demonstrated that it was individually concerned by the Commission’s decision, which is required for Carpatair’s action for annulment of the Commission’s decision to be admissible. Carpatair was required to demonstrate that the Commission’s decision produces direct effects on its legal situation by explaining why that decision is liable to place it in an unfavourable competitive position. The General Court also failed to substantiate why Carpatair had a particular status which distinguished it individually. The alleged competitive relationship between Wizz Air and Carpatair is inadequate, since AITTV raised arguments challenging the existence of such competition, and the General Court failed to address those arguments. The Court refers the case back to the General Court.