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. This month featuring the spot trading cartel, the cigarette cartel and competition law and arbitration and more. This newsletter brings you entirely up-to-date!
On 23 July 2025, the General Court confirmed that Credit Suisse had participated in a cartel. The case concerned an enforcement decision by the European Commission (“the Commission”) which established that the involvement of several banks in a cartel constituted an Article 101 TFEU infringement. Specifically, the practice related to the exchange of commercially sensitive information among traders from five major international banks—namely Credit Suisse, Barclays, HSBC, RBS, and UBS—within the market for foreign exchange spot trading of G10 currencies over the 2011–2012 period. The information was shared via a professional chatroom called ‘Sterling Lads’.
By exchanging this information, the traders involved were able to take transaction decisions with full knowledge of relevant market data. This enabled them to better assess whether it was opportune to buy or sell currencies at the time of execution. As a result, market uncertainty was reduced, and normal competitive dynamics were distorted. Despite an error in the Commission’s assessment of the transparency of the foreign exchange market, the General Court held that the applicants’ arguments challenging the classification of the information exchange as a ‘restriction by object’ were unfounded.
All banks except Credit Suisse reached a settlement with the Commission. Credit Suisse was fined €83.2 million for its participation in the cartel. The General Court rejected all of Credit Suisse’s arguments but reduced the fine to €28.9 million. The reason for the reduction was that the Commission had based its calculation of Credit Suisse’s sales value on incomplete and unreliable data, despite the bank having provided more accurate and comprehensive figures. In doing so, the Commission acted in breach of its own guidelines.
The highest administrative court (‘CBb’) in appeal proceedings against the Dutch competition authority’s (‘ACM’) decisions handed down a judgment in the appeal against the ACM’s decision establishing a cartel and fining four tobacco manufacturers.
In May 2020, the ACM imposed a fine on four tobacco manufacturers for participating in a cartel in which participants exchanged information on future prices in the Netherlands via their distributors (‘the cigarette cartel’). The exchanges took place from July 2008 up until July 2011. During the infringement period the cartelists exchanged information on future prices via their distributors. The ACM found that the cartelists knew that future price information was being shared with fellow cartelists, that they actively encouraged this exchange and that they adjusted their market conduct accordingly. The ACM thus found that the conduct constituted a concerted practice which had the object to restrict competition. Moreover, the ACM also found that the conduct constituted a single and continuous infringement of competition law.
The tobacco manufacturers lodged appeal proceedings against the ACM’s decision. In the first instance, the District Court of Rotterdam dismissed the appeal. In appellate proceedings before the CBb, the manufacturers’ appeal was dismissed once more.
The CBb examined whether the ACM had been right to find that the conduct constituted 1) a concerted practice, which 2) restricted competition by object, and 3) also constituted a single and continuous infringement. Additionally, the tobacco manufacturers argued that their rights of defence were breached, and that the ACM had calculated the fines incorrectly.
Regarding the assessment of whether the conduct in question constituted a concerted practice, the CBb found that the ACM had established that the cartelists’ collaboration was deliberate and that they were aware of this collaboration. Since the information had been exchanged indirectly, via distributors, rather than directly between the manufacturers, the cartelists contended that UK case law on hub and spoke cartels was relevant. Pursuant to this case law, the ACM would have had to establish that the tobacco manufacturers had the state of mind or mental consensus to collaborate rather than compete with one another. The CBb dismissed this argument. Referring to the Eturas case (C-74/14), the CBb held that the ACM had been correct to assess and establish that the tobacco manufacturers collaborated deliberately. The CBb also found that the ACM was correct in applying the Anic presumption, based on which competitors are presumed to use commercially sensitive information they have received to determine their market conduct, if they have not explicitly objected to receiving such information. The CBb thus confirmed that the Anic presumption also applies to indirect exchanges of information.
In relation to the question whether the ACM was correct in finding that the indirect exchange of information constituted a restriction of competition by object, the CBb also ruled in the affirmative. The CBb found that the focus should be on the nature of the information exchanged rather than the way the exchange is conducted. The fact that in this case the information exchanged concerned future prices is decisive.
In its decision, the ACM mostly based its finding that the infringement constituted a single and continuous infringement on the same facts and circumstances on which it based its finding that the conduct constituted a concerted practice and explicitly referred to that part of the decision. The tobacco manufacturers argued that in doing so the ACM had failed to demonstrate to the requisite legal standard that the infringement constituted a single and continuous infringement. The CBb, however, ruled that the ACM has adduced sufficient proof that the infringement constituted a single and continuous infringement. According to the CBb, the ACM’s reference to other parts of its decision regarding the establishment of concerted practices to support its ‘single and continuous infringement' findings does not negate that substantiation.
The CBb also rejected the tobacco manufacturers’ arguments that their rights of defence had been breached. The ACM provided access to the case file to the tobacco manufacturers’ lawyers by way of access to a data room on location in The Hague, where the ACM is seated. Since the ACM’s decision was taken during the COVID-19 pandemic, certain lawyers located in Belgium could not easily travel to the Netherlands to access the data room. Moreover, the tobacco manufacturers argued that the ACM should have followed a so-called confidentiality ring procedure for access to the case file. This would have afforded a select number of the tobacco manufacturers’ employees virtual access to the case file. In its judgment, the CBb found that the tobacco manufacturers’ rights of defence had not been breached as the ACM had been justified in opting for a data room procedure rather than a confidentiality ring since the tobacco manufacturers still have a prominent position on the market and compete with one another. Furthermore, the CBb reasoned that the lawyers located in Belgium could have appointed lawyers based in the Netherlands to overcome the difficulties of travelling to The Hague. The CBb also noted that the lawyers, including those located in the Netherlands, barely made use of the access provided. With regard to the fine, the CBb held that the ACM was correct in applying the ACM’s 2009 policy to the entire infringement, even though the infringement period commenced in 2008.
As a result of the CBb’s judgment, the ACM’s decision has become final.
Merger control
General Court upholds Commission’s decision to investigate proposed acquisition of Boissons Heintz by Brasserie Nationale; Commission approves acquisition subject to conditions
On 2 July 2025, the General Court of the European Union (“General Court”) dismissed Brasserie Nationale’s action seeking the annulment of a decision of the European Commission (“Commission”) to examine the proposed acquisition of Boissons Heintz by a subsidiary of Brasserie Nationale, following a referral from Luxembourg. Brasserie Nationale and Boissons Heintz are both active in the market for the wholesale distribution of beverages in Luxembourg.
The proposed acquisition did not need to be notified to the Commission because it remained below the turnover thresholds laid down in Article 1 of Regulation 139/2004. However, on 7 February 2024, the Luxembourg competition authority (“ACL”) requested the Commission, pursuant to Article 22 of Regulation 139/2004, to examine the proposed acquisition. Brasserie Nationale challenged the Commission’s decision to accept the referral request. In particular, Brasserie Nationale argued that the time-limit for the ACL to make such a request had expired. Under Article 22 of Regulation 139/2004, such a request must be submitted to the Commission no later than 15 working days after the date on which the concentration was made known to the Member State concerned.
The General Court does not agree. The Court clarifies in particular that “made known” within the meaning of Article 22 of Regulation 139/2004 must consist of an active transmission of relevant and sufficient information to the competent authority of the Member State concerned. That transmission must enable those authorities to assess whether the concentration in question, without having a European dimension, affects trade between Member States and threatens to significantly affect competition within the territory of the Member State making the request. Although Brasserie Nationale had previously been in contact with the ACL regarding a possible acquisition of Boissons Heintz, it only provided the information referred to above on 17 January 2024. Therefore, the referral request of 7 February 2024 was submitted within the applicable time limit.
Following the judgment of the General Court, the Commission approved the proposed acquisition subject to conditions. Part of Boissons Heintz’s activities will be sold to fully remove the competition concerns identified by the Commission. The Commission will approve a suitable purchaser for the divested activities in a separate procedure.
European Commission commences Phase II investigation into proposed acquisition of Downtown by UMG
On 22 July 2025, the European Commission (‘Commission’) announced the opening of a Phase II investigation into UMG’s proposed acquisition of Downtown. Both Downtown and UMG are active in the music industry. UMG – also known as Universal Music Group – is a record label active worldwide, and offers recording, distribution and publishing, merchandising and audiovisual content services. Downtown is also active worldwide, with a focus on the provision of so-called A&L services (artist and label services) to independent record companies and artists through its FUGA music distribution platform. Downtown also operates a platform for processing, accounting, payment and management of rights and royalties, which is called Curve.
At the end of its Phase I investigation, the Commission expressed serious concerns about the proposed acquisition. More specifically, the Commission feared that the proposed acquisition may enable UMG to access data of rivals which it could use to fortify its already strong position on the market for music distribution in the EEA. The Phase II investigation will seek to establish whether the Commission’s initial findings can be confirmed.
It is worth noting that the Commission had started its initial investigation after receiving a referral request from the Austrian and Dutch competition authorities. The proposed acquisition did not meet the Commission’s thresholds, and therefore did not have to be notified to the European Commission. The proposed acquisition, however, did meet turnover thresholds in Austria and the Netherlands. The competition authorities of these countries subsequently decided to refer the proposed acquisition to the Commission. The Commission acquiesced to the request.
The Commission has until 26 November 2025 to reach a decision on the proposed acquisition.
Competition law and arbitration
EU Court of Justice rules that CAS arbitral awards must be subject to effect judicial review by courts within the EU to ensure consistency with EU public policy, including competition law
The Belgian Court of Cassation has referred preliminary questions to the Court of Justice of the EU (“Court”) regarding the compatibility of the FIFA Statutes with European law. The FIFA Statutes require affiliated football associations to include in their own statutes a provision that disputes may not be brought before the ordinary courts of the respective countries, but only before the Court of Arbitration for Sport (“CAS”), which is based in Switzerland. Appeals against CAS rulings may only be lodged with the Swiss Federal Supreme Court (“Tribunal fédéral”). The Tribunal fédéral cannot refer preliminary questions to the Court, and once the Tribunal fédéral issues a final ruling, the CAS decision becomes res judicata.
On 1 August 2025, the Court ruled that CAS arbitral awards must also be subject to review for compliance with the public policy principles of the European Union, including competition law. According to the Court, this is particularly important when the CAS rules on a dispute related to sport practised as an economic activity within the territory of the European Union. The compatibility of such an award with the principles of public policy of the European Union, including competition law, must be capable of being reviewed by a judicial body that is competent to refer a preliminary question to the Court.
In practice, this means it must be possible to challenge a CAS award by having it reviewed by a national court of an EU Member State for compliance with the public policy principles of the European Union, including competition law. National provisions granting res judicata effect to such arbitral awards (without the possibility of said review by a national court of an EU Member State) are not compatible with EU law.
State aid and exclusive rights
Court of Justice rules on monopolisation of waste management in Slovenia
In a judgment of 10 July 2025, the Court of Justice of the EU (“Court”) ruled on a request for a preliminary ruling from the Slovenian Constitutional Court. The request concerns a change in Slovenian law that moves away from a market-oriented approach to a regime in which a single organisation has the prerogative for waste management in a particular sector. The referring court asked whether such a change can be deemed to be in compliance with a broad range of EU law provisions such as Article 106 TFEU, free movement law, the right to conduct a business, the right to property, the Services Directive, the Waste framework Directive and the principles of legal certainty and legitimate expectations.
The Court finds that the Slovenian measure does form a restriction of EU law. However, referring to its gambling case law, the Court deems that restriction to be justified for reasons of overriding public interest, as the measure seeks to protect the environment and public health. It finds that member states enjoy a wide margin of discretion in the protection of these public interests.
In its assessment of the principles of legal certainty and legitimate expectations, the Court rules that the referring court should assess whether operators under the old scheme have been given an adequate transition period and/or compensation. Another aspect that the Court considered was whether the services provided under the Slovenian scheme could be considered a service of general economic interest (“SGEI”). That may be the case if the services can only be provided under the same conditions and at the same quality if provided by a single organisation. The Court therefore finds that the Slovenian scheme may indeed qualify as an SGEI.
European Commission launches public consultation for the evaluation of the General Block Exemption Regulation
The European Commission (‘Commission’) has launched a public consultation for the purposes of an evaluation and review of the General Block Exemption Regulation (‘GBER’). The GBER delineates the conditions under which certain categories of state aid are exempted from the obligation to notify new aid to the Commission. The public consultation comes after the Commission’s relatively recent review of the GBER, back in 2023. With this new public consultation, the Commission has started the process of reviewing the GBER once more. This time, the review is aimed at further simplifying the GBER. Furthermore, the Commission also wishes to bring the GBER in line with the EU Competitiveness Compass and the Clean Industrial Deal, which latter policy was presented in February 2025.
Those interested can provide input until 6 October 2025.
Contact
Do you have any questions about one of the topics discussed, or would you like to know what these developments mean for your organisation? Please don’t hesitate to contact our team.